[Title 7 CFR ]
[Code of Federal Regulations (annual edition) - January 1, 2025 Edition]
[From the U.S. Government Publishing Office]
[[Page i]]
Title 7
Agriculture
________________________
Parts 210 to 299
Revised as of January 1, 2025
Containing a codification of documents of general
applicability and future effect
As of January 1, 2025
Published by the Office of the Federal Register
National Archives and Records Administration as a
Special Edition of the Federal Register
[[Page ii]]
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[[Page iii]]
Table of Contents
Page
Explanation................................................. v
Title 7:
SUBTITLE B--Regulations of the Department of Agriculture
(Continued)
Chapter II--Food and Nutrition Service, Department
of Agriculture 5
Finding Aids:
Table of CFR Titles and Chapters........................ 1183
Alphabetical List of Agencies Appearing in the CFR...... 1203
List of CFR Sections Affected........................... 1213
[[Page iv]]
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Cite this Code: CFR
To cite the regulations in
this volume, use title,
part, and section number.
Thus, 7 CFR 210.1 refers
to title 7, part 210,
section 1.
----------------------------
[[Page v]]
EXPLANATION
The Code of Federal Regulations is a codification of the general and
permanent rules published in the Federal Register by the Executive
departments and agencies of the Federal Government. The Code is divided
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parts covering specific regulatory areas.
Each volume of the Code is revised at least once each calendar year
and issued on a quarterly basis approximately as follows:
Title 1 through Title 16.................................as of January 1
Title 17 through Title 27..................................as of April 1
Title 28 through Title 41...................................as of July 1
Title 42 through Title 50................................as of October 1
The appropriate revision date is printed on the cover of each
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Federal agencies to display an OMB control number with their information
collection request.
[[Page vi]]
Many agencies have begun publishing numerous OMB control numbers as
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[[Page vii]]
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Oliver A. Potts,
Director,
Office of the Federal Register
January 1, 2025
[[Page ix]]
THIS TITLE
Title 7--Agriculture is composed of fifteen volumes. The parts in
these volumes are arranged in the following order: Parts 1-26, 27-52,
53-209, 210-299, 300-399, 400-699, 700-899, 900-999, 1000-1199, 1200-
1599, 1600-1759, 1760-1939, 1940-1949, 1950-1999, and part 2000 to end.
The contents of these volumes represent all current regulations codified
under this title of the CFR as of January 1, 2025.
The Food and Nutrition Service current regulations in the volume
containing parts 210-299, include the Child Nutrition Programs and the
Food Stamp Program. The regulations of the Federal Crop Insurance
Corporation are found in the volume containing parts 400-699.
All marketing agreements and orders for fruits, vegetables and nuts
appear in the one volume containing parts 900-999. All marketing
agreements and orders for milk appear in the volume containing parts
1000-1199.
For this volume, Christine Colaninno was Chief Editor. The Code of
Federal Regulations publication program is under the direction of John
Hyrum Martinez, assisted by Stephen J. Frattini.
[[Page 1]]
TITLE 7--AGRICULTURE
(This book contains parts 210 to 299)
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SUBTITLE B--Regulations of the Department of Agriculture (Continued)
Part
chapter ii--Food and Nutrition Service, Department of
Agriculture............................................... 210
[[Page 3]]
Subtitle B--Regulations of the Department of Agriculture (Continued)
[[Page 5]]
CHAPTER II--FOOD AND NUTRITION SERVICE, DEPARTMENT OF AGRICULTURE
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Editorial Note: Nomenclature changes to chapter II appear at 60 FR
19490, Apr. 19, 1995, and 63 FR 9727, Feb. 26, 1998.
SUBCHAPTER A--CHILD NUTRITION PROGRAMS
Part Page
210 National School Lunch Program............... 7
215 Special Milk Program for Children........... 80
220 School Breakfast Program.................... 100
225 Summer Food Service Program................. 129
226 Child and Adult Care Food Program........... 189
227 Nutrition Education and Training Program.... 297
235 State administrative expense funds.......... 307
240 Cash in lieu of donated foods............... 320
245 Determining eligibility for free and reduced
price meals and free milk in schools.... 326
246 Special Supplemental Nutrition Program for
Women, Infants and Children............. 369
247 Commodity Supplemental Food Program......... 487
248 WIC Farmers' Market Nutrition Program (FMNP) 512
249 Senior Farmers' Market Nutrition Program
(SFMNP)................................. 534
SUBCHAPTER B--GENERAL REGULATIONS AND POLICIES--FOOD DISTRIBUTION
250 Donation of foods for use in the United
States, its territories and possessions
and areas under its jurisdiction........ 562
251 The Emergency Food Assistance Program....... 606
252 National Commodity Processing Program....... 619
253 Administration of the Food Distribution
Program for households on Indian
reservations............................ 628
[[Page 6]]
254 Administration of the Food Distribution
Program for Indian households in
Oklahoma................................ 659
SUBCHAPTER C--SUPPLEMENTAL NUTRITION ASSISTANCE AND FOOD DISTRIBUTION
PROGRAM
271 General information and definitions......... 662
272 Requirements for participating State
agencies................................ 681
273 Certification of eligible households........ 751
274 Issuance and use of program benefits........ 959
275 Performance reporting system................ 989
276 State agency liabilities and Federal
sanctions............................... 1028
277 Payments of certain administrative costs of
State agencies.......................... 1036
278 Participation of retail food stores,
wholesale food concerns and insured
financial institutions.................. 1069
279 Administrative and judicial review--food
retailers and food wholesalers.......... 1095
280 Emergency food assistance for victims of
disasters............................... 1099
281 Administration of SNAP on Indian
reservations............................ 1099
282 Demonstration, research, and evaluation
projects................................ 1105
283 Appeals of quality control (``QC'') claims.. 1106
284 Miscellaneous............................... 1125
285 Provision of a nutrition assistance grant
for the Commonwealth of Puerto Rico..... 1127
292 Summer Electronic Benefits Transfer Program. 1130
SUBCHAPTER D--GENERAL REGULATIONS
295 Availability of information and records to
the public.............................. 1178
296-299
[Reserved]
[[Page 7]]
SUBCHAPTER A_CHILD NUTRITION PROGRAMS
PART 210_NATIONAL SCHOOL LUNCH PROGRAM--Table of Contents
Subpart A_General
Sec.
210.1 General purpose and scope.
210.2 Definitions.
210.3 Administration.
Subpart B_Reimbursement Process for States and School Food Authorities
210.4 Cash and donated food assistance to States.
210.5 Payment process to States.
210.6 Use of Federal funds.
210.7 Reimbursement for school food authorities.
210.8 Claims for reimbursement.
Subpart C_Requirements for School Food Authority Participation
210.9 Agreement with State agency.
210.10 Meal requirements for lunches and requirements for afterschool
snacks.
210.11 Competitive food service and standards.
210.12 Student, parent, and community involvement.
210.13 Facilities management.
210.14 Resource management.
210.15 Reporting and recordkeeping.
210.16 Food service management companies.
Subpart D_Requirements for State Agency Participation
210.17 Matching Federal funds.
210.18 Administrative reviews.
210.19 Additional responsibilities.
210.20 Reporting and recordkeeping.
Subpart E_State Agency and School Food Authority Responsibilities
210.21 Procurement.
210.22 Audits.
210.23 Other responsibilities.
Subpart F_Additional Provisions
210.24 Withholding payments.
210.25 Suspension, termination and grant closeout procedures.
210.26 Penalties and fines.
210.27 Educational prohibitions.
210.28 Pilot project exemptions.
210.29 Management evaluations.
210.30 School nutrition program professional standards.
210.31 Local school wellness policy.
210.32 Program information.
210.33 OMB control numbers.
210.34 Seamless Summer Option non-congregate meal service.
Appendix A to Part 210--Alternate Foods for Meals
Appendix B to Part 210 [Reserved]
Appendix C to Part 210--Child Nutrition Labeling Program
Authority: 42 U.S.C. 1751-1760, 1779.
Source: 53 FR 29147, Aug. 2, 1988, unless otherwise noted.
Subpart A_General
Sec. 210.1 General purpose and scope.
(a) Purpose of the program. Section 2 of the National School Lunch
Act (42 U.S.C. 1751), states: ``It is declared to be the policy of
Congress, as a measure of national security, to safeguard the health and
well-being of the Nation's children and to encourage the domestic
consumption of nutritious agricultural commodities and other food, by
assisting the States, through grants-in-aid and other means, in
providing an adequate supply of food and other facilities for the
establishment, maintenance, operation, and expansion of nonprofit school
lunch programs.'' Pursuant to this act, the Department provides States
with general and special cash assistance and donations of foods acquired
by the Department to be used to assist schools in serving nutritious
lunches to children each school day. In furtherance of Program
objectives, participating schools shall serve lunches that are
nutritionally adequate, as set forth in these regulations, and shall to
the extent practicable, ensure that participating children gain a full
understanding of the relationship between proper eating and good health.
(b) Scope of the regulations. This part sets forth the requirements
for participation in the National School Lunch and Commodity School
Programs. It specifies Program responsibilities of State and local
officials in the areas of program administration, preparation and
service of nutritious lunches, the sale of competitive foods, payment of
funds, use of program funds, program
[[Page 8]]
monitoring, and reporting and recordkeeping requirements.
[53 FR 29147, Aug. 2, 1988, as amended at 78 FR 39090, June 28, 2013]
Sec. 210.2 Definitions.
For the purposes of this part:
2 CFR part 200, means the Uniform Administrative Requirements, Cost
Principles, and Audit Requirements for Federal Awards published by OMB.
The part reference covers applicable: Acronyms and Definitions (subpart
A), General Provisions (subpart B), Post Federal Award Requirements
(subpart D), Cost Principles (subpart E), and Audit Requirements
(subpart F). (NOTE: Pre-Federal Award Requirements and Contents of
Federal Awards (subpart C) does not apply to the National School Lunch
Program).
Act means the National School Lunch Act, as amended.
Afterschool care program means a program providing organized child
care services to enrolled school-age children afterschool hours for the
purpose of care and supervision of children. Those programs must be
distinct from any extracurricular programs organized primarily for
scholastic, cultural or athletic purposes.
Applicable credits shall have the meaning established in 2 CFR part
200 and USDA implementing regulations 2 CFR parts 400 and 415.
Attendance factor means a percentage developed no less than once
each school year which accounts for the difference between enrollment
and attendance. The attendance factor may be developed by the school
food authority, subject to State agency approval, or may be developed by
the State agency. In the absence of a local or State attendance factor,
the school food authority will use an attendance factor developed FNS.
When taking the attendance factor into consideration, school food
authorities will assume that all children eligible for free and reduced
price lunches attend school at the same rate as the general school
population.
Average Daily Participation means the average number of children, by
eligibility category, participating in the Program each operating day.
These numbers are obtained by dividing:
(1) The total number of free lunches claimed during a reporting
period by the number of operating days in the same period;
(2) The total number of reduced price lunches claimed during a
reporting period by the number of operating days in the same period; and
(3) The total number of paid lunches claimed during a reporting
period by the number of operating days in the same period.
Child means:
(1) A student of high school grade or under as determined by the
State educational agency, who is enrolled in an educational unit of high
school grade or under as described in paragraphs (1) and (2) of the
definition of ``School'' in this section, including students with a
disability who participate in a school program established for persons
with disabilities;
(2) A person under 21 chronological years of age who is enrolled in
an institution or center as described in paragraph (3) of the definition
of ``School'' in this section; or
(3) For afterschool care programs, persons aged 18 and under at the
start of the school year, and persons of any age with a disability who
participate in a school program established for persons with
disabilities.
Child with a disability means any child who has a physical or mental
impairment that substantially limits one or more major life activities
of such individual, has a record of such an impairment, or has been
regarded as having such an impairment.
Commodity School Program means the Program under which participating
schools operate a nonprofit lunch program in accordance with this part
and receive donated food assistance in lieu of general cash assistance.
Schools participating in the Commodity School Program will also receive
special cash and donated food assistance in accordance with Sec.
210.4(c).
Contractor means a commercial enterprise, public or nonprofit
private organization or individual that enters into a contract with a
school food authority.
Cost reimbursable contract means a contract that provides for
payment of incurred costs to the extent prescribed
[[Page 9]]
in the contract, with or without a fixed fee.
Days means calendar days unless otherwise specified.
Department means the United States Department of Agriculture.
Distributing agency means a State agency which enters into an
agreement with the Department for the distribution to schools of donated
foods pursuant to part 250 of this chapter.
Donated foods means food commodities donated by the Department for
use in nonprofit lunch programs.
Fiscal year means a period of 12 calendar months beginning October 1
of any year and ending with September 30 of the following year.
Fixed fee means an agreed upon amount that is fixed at the inception
of the contract. In a cost reimbursable contract, the fixed fee includes
the contractor's direct and indirect administrative costs and profit
allocable to the contract.
Fixed-price contract means a contract that charges a fixed cost per
meal, or a fixed cost for a certain time period. Fixed-price contracts
may include an economic price adjustment tied to a standard index.
FNS means the Food and Nutrition Service, United States Department
of Agriculture.
FNSRO means the appropriate Regional Office of the Food and
Nutrition Service of the Department.
Food item means a specific food offered within a food component.
Food service management company means a commercial enterprise or a
nonprofit organization which is or may be contracted with by the school
food authority to manage any aspect of the school food service.
Free lunch means a lunch served under the Program to a child from a
household eligible for such benefits under part 245 of this chapter and
for which neither the child nor any member of the household pays or is
required to work.
Local educational agency means a public board of education or other
public or private nonprofit authority legally constituted within a State
for either administrative control or direction of, or to perform a
service function for, public or private nonprofit elementary schools or
secondary schools in a city, county, township, school district, or other
political subdivision of a State, or for a combination of school
districts or counties that is recognized in a State as an administrative
agency for its public or private nonprofit elementary schools or
secondary schools. The term also includes any other public or private
nonprofit institution or agency having administrative control and
direction of a public or private nonprofit elementary school or
secondary school, including residential child care institutions, Bureau
of Indian Affairs schools, and educational service agencies and
consortia of those agencies, as well as the State educational agency in
a State or territory in which the State educational agency is the sole
educational agency for all public or private nonprofit schools.
Lunch means a meal service that meets the meal requirements in Sec.
210.10 for lunches.
Meal component means one of the food groups which comprise
reimbursable meals. The meal components are: fruits, vegetables, grains,
meats/meat alternates, and fluid milk.
National School Lunch Program means the Program under which
participating schools operate a nonprofit lunch program in accordance
with this part. General and special cash assistance and donated food
assistance are made available to schools in accordance with this part.
Net cash resources means all monies, as determined in accordance
with the State agency's established accounting system, that are
available to or have accrued to a school food authority's nonprofit
school food service at any given time, less cash payable. Such monies
may include, but are not limited to, cash on hand, cash receivable,
earnings on investments, cash on deposit and the value of stocks, bonds
or other negotiable securities.
Nonprofit means, when applied to schools or institutions eligible
for the Program, exempt from income tax under section 501(c)(3) of the
Internal Revenue Code of 1986.
Nonprofit school food service means all food service operations
conducted by the school food authority principally for the benefit of
schoolchildren, all of
[[Page 10]]
the revenue from which is used solely for the operation or improvement
of such food services.
Nonprofit school food service account means the restricted account
in which all of the revenue from all food service operations conducted
by the school food authority principally for the benefit of school
children is retained and used only for the operation or improvement of
the nonprofit school food service. This account will include, as
appropriate, non-Federal funds used to support paid lunches as provided
in Sec. 210.14(e), and proceeds from nonprogram foods as provided in
Sec. 210.14(f).
OIG means the Office of the Inspector General of the Department.
Paid lunch means a lunch served to children who are either not
certified for or elect not to receive the free or reduced price benefits
offered under part 245 of this chapter. The Department subsidizes each
paid lunch with both general cash assistance and donated foods. The
prices for paid lunches in a school food authority must be determined in
accordance with Sec. 210.14(e).
Point of Service means that point in the food service operation
where a determination can accurately be made that a reimbursable free,
reduced price, or paid lunch has been served to an eligible child.
Program means the National School Lunch Program and the Commodity
School Program.
Reduced price lunch means a lunch served under the Program:
(1) To a child from a household eligible for such benefits under
part 245 of this chapter;
(2) For which the price is less than the school food authority
designated full price of the lunch and which does not exceed the maximum
allowable reduced price specified under part 245 of this chapter; and
(3) For which neither the child nor any member of the household is
required to work.
Reimbursement means Federal cash assistance including advances paid
or payable to participating schools for lunches meeting the requirements
of Sec. 210.10 and served to eligible children.
Revenue, when applied to nonprofit school food service, means all
monies received by or accruing to the nonprofit school food service in
accordance with the State agency's established accounting system
including, but not limited to, children's payments, earnings on
investments, other local revenues, State revenues, and Federal cash
reimbursements.
School means:
(1) An educational unit of high school grade or under, recognized as
part of the educational system in the State and operating under public
or nonprofit private ownership in a single building or complex of
buildings;
(2) Any public or nonprofit private classes of preprimary grade when
they are conducted in the aforementioned schools; or
(3) Any public or nonprofit private residential child care
institution, or distinct part of such institution, which operates
principally for the care of children, and, if private, is licensed to
provide residential child care services under the appropriate licensing
code by the State or a subordinate level of government, except for
residential summer camps which participate in the Summer Food Service
Program for Children, Job Corps centers funded by the Department of
Labor, and private foster homes.
School food authority means the governing body which is responsible
for the administration of one or more schools; and has the legal
authority to operate the Program therein or be otherwise approved by FNS
to operate the Program.
School nutrition program directors are those individuals directly
responsible for the management of the day-to-day operations of school
food service for all participating schools under the jurisdiction of the
school food authority.
School nutrition program managers are those individuals directly
responsible for the management of the day-to-day operations of school
food service for a participating school(s).
School nutrition program staff are those individuals, without
managerial responsibilities, involved in day-to-day operations of school
food service for a participating school(s).
School week means the period of time used to determine compliance
with the meal requirements in Sec. 210.10. The period will be a normal
school week of
[[Page 11]]
five consecutive days; however, to accommodate shortened weeks resulting
from holidays and other scheduling needs, the period must be a minimum
of three consecutive days and a maximum of seven consecutive days. Weeks
in which school lunches are offered less than three times must be
combined with either the previous or the coming week.
School year means a period of 12 calendar months beginning July 1 of
any year and ending June 30 of the following year.
Seamless Summer Option means the meal service alternative authorized
by Section 13(a)(8) of the Richard B. Russell National School Lunch Act,
42 U.S.C. 1761(a)(8), under which public or nonprofit school food
authorities participating in the National School Lunch Program or School
Breakfast Program offer meals at no cost to children during the
traditional summer vacation periods and, for year-round schools,
vacation periods longer than 10 school days.
Secretary means the Secretary of Agriculture.
State means any of the 50 States, District of Columbia, the
Commonwealth of Puerto Rico, the Virgin Islands, Guam, and, as
applicable, American Samoa and the Commonwealth of the Northern
Marianas.
State agency means:
(1) The State educational agency;
(2) Any other agency of the State which has been designated by the
Governor or other appropriate executive or legislative authority of the
State and approved by the Department to administer the Program in
schools, as specified in Sec. 210.3(b) of this chapter; or
(3) The FNSRO, where the FNSRO administers the Program as specified
in Sec. 210.3(c) of this chapter.
State educational agency means, as the State legislature may
determine,
(1) The chief State school officer (such as the State Superintendent
of Public Instruction, Commissioner of Education, or similar officer),
or
(2) A board of education controlling the State department of
education.
State licensed healthcare professional means an individual who is
authorized to write medical prescriptions under State law. This may
include, but is not limited to, a licensed physician, nurse
practitioner, or physician's assistant, depending on State law.
Tofu means a soybean-derived food, made by a process in which
soybeans are soaked, ground, mixed with water, heated, filtered,
coagulated, and formed into cakes. Basic ingredients are whole soybeans,
one or more food-grade coagulants (typically a salt or an acid), and
water. Tofu products must conform to FNS guidance to count toward the
meats/meat alternates component.
USDA implementing regulations include the following: 2 CFR part 400,
Uniform Administrative Requirements, Cost Principles, and Audit
Requirements for Federal Awards; 2 CFR part 415, General Program
Administrative Regulations; 2 CFR part 416, General Program
Administrative Regulations for Grants and Cooperative Agreements to
State and Local Governments; and 2 CFR part 418, New Restrictions on
Lobbying.
Whole grain-rich is the term designated by FNS to indicate that the
grain content of a product is between 50 and 100 percent whole grain
with any remaining grains being enriched.
Whole grains means grains that consist of the intact, ground,
cracked, or flaked grain seed whose principal anatomical components--the
starchy endosperm, germ and bran--are present in the same relative
proportions as they exist in the intact grain seed.
Yogurt means commercially prepared coagulated milk products obtained
by the fermentation of specific bacteria, that meet milk fat or milk
solid requirements and to which flavoring foods or ingredients may be
added. These products are covered by the Food and Drug Administration's
Definition and Standard of Identity for yogurt, 21 CFR 131.200, and low-
fat yogurt and non-fat yogurt covered as a standardized food under 21
CFR 130.10.
[53 FR 29147, Aug. 2, 1988]
Editorial Note: For Federal Register citations affecting Sec.
210.2, see the List of CFR Sections Affected, which appears in the
Finding Aids section of the printed volume and at www.govinfo.gov.
[[Page 12]]
Sec. 210.3 Administration.
(a) FNS. FNS will act on behalf of the Department in the
administration of the Program.
(b) States. Within the States, the responsibility for the
administration of the Program in schools, as defined in Sec. 210.2,
shall be in the State educational agency. If the State educational
agency is unable to administer the Program in public or private
nonprofit residential child care institutions or nonprofit private
schools, then Program administration for such schools may be assumed by
FNSRO as provided in paragraph (c) of this section, or such other agency
of the State as has been designated by the Governor or other appropriate
executive or legislative authority of the State and approved by the
Department to administer such schools. Each State agency desiring to
administer the Program shall enter into a written agreement with the
Department for the administration of the Program in accordance with the
applicable requirements of this part; parts 235 and 245 of this chapter;
parts 15, 15a, and 15b of this title, and 2 CFR part 200; USDA
implementing regulations 2 CFR part 400 and part 415; and FNS
instructions.
(c) FNSRO. The FNSRO will administer the Program in nonprofit
private schools or public or nonprofit private residential child care
institutions if the State agency is prohibited by law from disbursing
Federal funds paid to such schools. In addition, the FNSRO will continue
to administer the Program in those States in which nonprofit private
schools or public or nonprofit private residential child care
institutions have been under continuous FNS administration since October
1, 1980, unless the administration of the Program in such schools is
assumed by the State. The FNSRO will, in each State in which it
administers the Program, assume all responsibilities of a State agency
as set forth in this part and part 245 of this chapter as appropriate.
References in this part to ``State agency'' include FNSRO, as
applicable, when it is the agency administering the Program.
(d) School food authorities. The school food authority shall be
responsible for the administration of the Program in schools. State
agencies shall ensure that school food authorities administer the
Program in accordance with the applicable requirements of this part;
part 245 of this chapter; parts 15, 15a, and 15b, and 3016 or 3019, as
applicable, of this title and 2 CFR part 200; USDA implementing
regulations 2 CFR part 400 and part 415 and FNS instructions.
(e) Authority to waive statute and regulations. (1) As authorized
under section 12(l) of the Richard B. Russell National School Lunch Act,
FNS may waive provisions of such Act or the Child Nutrition Act of 1966,
as amended, and the provisions of this part with respect to a State
agency or eligible service provider. The provisions of this part
required by other statutes may not be waived under this authority. FNS
may only approve requests for a waiver that are submitted by a State
agency and comply with the requirements at section 12(l)(1) and the
limitations at section 12(l)(4), including that FNS may not grant a
waiver that increases Federal costs.
(2)(i) A State agency may submit a request for a waiver under
paragraph (e)(1) of this section in accordance with section 12(l)(2) and
the provisions of this part.
(ii) A State agency may submit a request to waive specific statutory
or regulatory requirements on behalf of eligible service providers that
operate in the State. Any waiver where the State concurs must be
submitted to the appropriate FNSRO.
(3)(i) An eligible service provider may submit a request for a
waiver under paragraph (e)(1) of this section in accordance with section
12(l) and the provisions of this part. Any waiver request submitted by
an eligible service provider must be submitted to the State agency for
review. A State agency must act promptly on such a waiver request and
must deny or concur with a request submitted by an eligible service
provider.
(ii) If a State agency concurs with a request from an eligible
service provider, the State agency must promptly forward to the
appropriate FNSRO the request and a rationale, consistent with section
12(l)(2), supporting the request. By forwarding the request to the
FNSRO, the State agency affirms:
[[Page 13]]
(A) The request meets all requirements for waiver submissions; and,
(B) The State agency will conduct all monitoring requirements
related to regular Program operations and the implementation of the
waiver.
(iii) If the State agency denies the request, the State agency must
notify the requesting eligible service provider and state the reason for
denying the request in writing within 30 calendar days of the State
agency's receipt of the request. The State agency response is final and
may not be appealed to FNS.
[53 FR 29147, Aug. 2, 1988, as amended at 71 FR 39515, July 13, 2006; 81
FR 66489, Sept. 28, 2016; 87 FR 57354, Sept. 19, 2022; 89 FR 32063, Apr.
25, 2024]
Subpart B_Reimbursement Process for States and School Food Authorities
Sec. 210.4 Cash and donated food assistance to States.
(a) General. To the extent funds are available, FNS will make cash
assistance available in accordance with the provisions of this section
to each State agency for lunches and afterschool snacks served to
children under the National School Lunch and Commodity School Programs.
To the extent donated foods are available, FNS will provide donated food
assistance to distributing agencies for each lunch served in accordance
with the provisions of this part and part 250 of this chapter.
(b) Assistance for the National School Lunch Program. The Secretary
will make cash and/or donated food assistance available to each State
agency and distributing agency, as appropriate, administering the
National School Lunch Program, as follows:
(1) Cash assistance will be made available to each State agency
administering the National School Lunch Program as follows:
(i) General: Cash assistance payments are composed of a general cash
assistance payment and a performance-based cash assistance payment,
authorized under section 4 of the Act, and a special cash assistance
payment, authorized under section 11 of the Act. General cash assistance
is provided to each State agency for all lunches served to children in
accordance with the provisions of the National School Lunch Program.
Performance-based cash assistance is provided to each State agency for
lunches served in accordance with Sec. 210.7(d). Special cash
assistance is provided to each State agency for lunches served under the
National School Lunch Program to children determined eligible for free
or reduced price lunches in accordance with part 245 of this chapter.
(ii) Cash assistance for lunches. The total general cash assistance
paid to each State for any fiscal year shall not exceed the lesser of
amounts reported to FNS as reimbursed to school food authorities in
accordance with Sec. 210.5(d)(3) or the total calculated by multiplying
the number of lunches reported in accordance with Sec. 210.5(d)(1) for
each month of service during the fiscal year, by the applicable national
average payment rate prescribed by FNS. The total performance-based cash
assistance paid to each State for any fiscal year shall not exceed the
lesser of amounts reported to FNS as reimbursed to school food
authorities in accordance with Sec. 210.5(d)(3) or the total calculated
by multiplying the number of lunches reported in accordance with Sec.
210.5(d)(1) for each month of service during the fiscal year, by 6 cents
for school year 2012-2013, adjusted annually thereafter as specified in
paragraph (b)(1)(iii) of this section. The total special assistance paid
to each State for any fiscal year shall not exceed the lesser of amounts
reported to FNS as reimbursed to school food authorities in accordance
with Sec. 210.5(d)(3) or the total calculated by multiplying the number
of free and reduced price lunches reported in accordance with Sec.
210.5(d)(1) for each month of service during the fiscal year by the
applicable national average payment rate prescribed by FNS.
(iii) Annual adjustments. In accordance with section 11 of the Act,
FNS will prescribe annual adjustments to the per meal national average
payment rate (general cash assistance), the performance-based cash
assistance rate (performance-based cash assistance),
[[Page 14]]
and the special assistance national average payment rates (special cash
assistance) which are effective on July 1 of each year. These
adjustments, which reflect changes in the food away from home series of
the Consumer Price Index for all Urban Consumers, are annually announced
by Notice in July of each year in the Federal Register.
(iv) Maximum per meal rates. FNS will also establish maximum per
meal rates of reimbursement within which a State may vary reimbursement
rates to school food authorities. These maximum rates of reimbursement
are established at the same time and announced in the same Notice as the
national average payment rates.
(2) Donated food assistance. For each school year, FNS will provide
distributing agencies with donated foods for lunches served under the
National School Lunch Program as provided under part 250 of this
chapter. The per lunch value of donated food assistance is adjusted by
the Secretary annually to reflect changes as required under section 6 of
the Act. These adjustments, which reflect changes in the Price Index for
Foods Used in Schools and Institutions, are effective on July 1 of each
year and are announced by Notice in the Federal Register in July of each
year.
(3) Cash assistance for afterschool snacks. For those eligible
schools (as defined in Sec. 210.10(o)(1)) operating afterschool care
programs and electing to serve afterschool snacks to enrolled children,
funds will be made available to each State agency, each school year in
an amount no less than the sum of the products obtained by multiplying:
(i) The number of afterschool snacks served in the afterschool care
program within the State to children from families that do not satisfy
the income standards for free and reduced price school meals by 2.75
cents;
(ii) The number of afterschool snacks served in the afterschool care
program within the State to children from families that satisfy the
income standard for free school meals by 30 cents; and
(iii) The number of afterschool snacks served in the afterschool
care program within the State to children from families that satisfy the
income standard for reduced price school meals by 15 cents.
(4) Annual adjustments for cash assistance for afterschool snacks.
The rates in paragraph (b)(3) of this section are the base rates
established in August 1981 for the Child and Adult Care Food Program
(CACFP). FNS will prescribe annual adjustments to these rates in the
same Notice as the National Average Payment Rates for lunches. These
adjustments will ensure that the reimbursement rates for afterschool
snacks served under this part are the same as those implemented for
afterschool snacks in the CACFP.
(c) Assistance for the Commodity School Program. FNS will make
special cash assistance available to each State agency for lunches
served in commodity schools in the same manner as special cash
assistance is provided in the National School Lunch Program. Payment of
such amounts to State agencies is subject to the reporting requirements
contained in Sec. 210.5(d). FNS will provide donated food assistance in
accordance with part 250 of this chapter. Of the total value of donated
food assistance to which it is entitled, the school food authority may
elect to receive cash payments of up to 5 cents per lunch served in its
commodity school(s) for donated foods processing and handling expenses.
Such expenses include any expenses incurred by or on behalf of a
commodity school for processing or other aspects of the preparation,
delivery, and storage of donated foods. The school food authority may
have all or part of these cash payments retained by the State agency for
use on its behalf for processing and handling expenses by the State
agency or it may authorize the State agency to transfer to the
distributing agency all or any part of these payments for use on its
behalf for these expenses. Payment of such amounts to State agencies is
subject to the reporting requirements contained in Sec. 210.5(d). The
total value of donated food assistance is calculated on a school year
basis by adding:
(1) The applicable national average payment rate (general cash
assistance) prescribed by the Secretary for the period of July 1 through
June 30 multiplied by the total number of lunches
[[Page 15]]
served during the school year under the Commodity School Program; and
(2) The national per lunch average value of donated foods prescribed
by the Secretary for the period of July 1 through June 30 multiplied by
the total number of lunches served during the school year under the
Commodity School Program.
[53 FR 29147, Aug. 2, 1988, as amended at 58 FR 42487, Aug. 10, 1993; 60
FR 31207, June 13, 1995; 65 FR 26912, May 9, 2000; 77 FR 25034, Apr. 27,
2012; 89 FR 32063, Apr. 25, 2024]
Sec. 210.5 Payment process to States.
(a) Grant award. FNS will specify the terms and conditions of the
State agency's grant in a grant award document and will generally make
payments available by means of a Letter of Credit issued in favor of the
State agency. The State agency shall obtain funds for reimbursement to
participating school food authorities through procedures established by
FNS in accordance with 2 CFR part 200, subpart D and USDA implementing
regulations 2 CFR part 400 and part 415. State agencies shall limit
requests for funds to such times and amounts as will permit prompt
payment of claims or authorized advances. The State agency shall
disburse funds received from such requests without delay for the purpose
for which drawn. FNS may, at its option, reimburse a State agency by
Treasury Check. FNS will pay by Treasury Check with funds available in
settlement of a valid claim if payment for that claim cannot be made
within the grant closeout period specified in paragraph (d) of this
section.
(b) Cash-in-lieu of donated foods. All Federal funds to be paid to
any State in place of donated foods will be made available as provided
in part 240 of this chapter.
(c) Recovery of funds. FNS will recover any Federal funds made
available to the State agency under this part which are in excess of
obligations reported at the end of each fiscal year in accordance with
the reconciliation procedures specified in paragraph (d) of this
section. Such recoveries shall be reflected by a related adjustment in
the State agency's Letter of Credit.
(d) Substantiation and reconciliation process. Each State agency
shall maintain Program records as necessary to support the reimbursement
payments made to school food authorities under Sec. Sec. 210.7 and
210.8 and the reports submitted to FNS under this paragraph. The State
agency shall ensure such records are retained for a period of 3 years or
as otherwise specified in Sec. 210.23(c).
(1) Monthly report. Each State agency shall submit a final Report of
School Program Operations (FNS-10) to FNS for each month. The final
reports shall be limited to claims submitted in accordance with Sec.
210.8 of this part. For the month of October, the final report shall
include the total number of children approved for free lunches, the
total number of children approved for reduced price lunches, and the
total number of children enrolled in participating public schools,
private schools, and residential child care institutions, respectively,
as of the last day of operation in October. The final reports shall be
postmarked and/or submitted no later than 90 days following the last day
of the month covered by the report. States shall not receive Program
funds for any month for which the final report is not submitted within
this time limit unless FNS grants an exception. Upward adjustments to a
State's report shall not be made after 90 days from the month covered by
the report unless authorized by FNS. Downward adjustments to a State's
report shall always be made regardless of when it is determined that
such adjustments are necessary. FNS authorization is not required for
downward adjustments. Any adjustments to a State's report shall be
reported to FNS in accordance with procedures established by FNS.
(2) Quarterly report. Each State agency administering the National
School Lunch Program must submit to FNS a quarterly Financial Status
Report (FNS-777) on the use of Program funds. Such reports must be
postmarked and/or submitted no later than 30 days after the end of each
fiscal year quarter.
(3) End of year reports. (i) Each State agency must submit an annual
report detailing the disbursement of performance-based cash assistance
described in Sec. 210.4(b)(1). The report must be submitted no later
than 30 days after the
[[Page 16]]
end of each fiscal year. The report must include the total number of
school food authorities in the State and the names of certified school
food authorities. If all school food authorities in the State have been
certified, the State agency is no longer required to submit the report.
(ii) Each State agency must submit a final Financial Status Report
(FNS-777) for each fiscal year. This final fiscal year grant closeout
report must be postmarked or submitted to FNS within 120 days after the
end of each fiscal year or part thereof that the State agency
administered the Program. Obligations must be reported only for the
fiscal year in which they occur. FNS will not be responsible for
reimbursing Program obligations reported later than 120 days after the
close of the fiscal year in which they were incurred. Grant closeout
procedures are to be carried out in accordance with 2 CFR part 200,
subpart D and USDA implementing regulations 2 CFR part 400 and part 415.
[53 FR 29147, Aug. 2, 1988, as amended at 54 FR 12580, Mar. 28, 1989; 56
FR 32939, July 17, 1991; 71 FR 39516, July 13, 2006; 77 FR 25034, Apr.
27, 2012; 79 FR 330, Jan. 3, 2014; 81 FR 50185, July 29, 2016; 81 FR
66488, Sept. 28, 2016; 88 FR 57844, Aug. 23, 2023]
Sec. 210.6 Use of Federal funds.
General. State agencies shall use Federal funds made available under
the Program to reimburse or make advance payments to school food
authorities in connection with lunches and meal supplements served in
accordance with the provisions of this part; except that, with the
approval of FNS, any State agency may reserve an amount up to one
percent of the funds earned in any fiscal year under this part for use
in carrying out special developmental projects. Advance payments to
school food authorities may be made at such times and in such amounts as
are necessary to meet the current fiscal obligations. All Federal funds
paid to any State in place of donated foods shall be used as provided in
part 240 of this chapter.
[53 FR 29147, Aug. 2, 1988, as amended at 58 FR 42487, Aug. 10, 1993]
Sec. 210.7 Reimbursement for school food authorities.
(a) General. Reimbursement payments to finance nonprofit school food
service operations will be made only to school food authorities
operating under a written agreement with the State agency. Subject to
the provisions of Sec. 210.8(c), such payments may be made for lunches
and afterschool snacks served in accordance with provisions of this part
and part 245 of this chapter in the calendar month preceding the
calendar month in which the agreement is executed. These reimbursement
payments include general cash assistance for all lunches served to
children under the National School Lunch Program and special cash
assistance payments for free or reduced-price lunches served to children
determined eligible for such benefits under the National School Lunch
and Commodity School Programs. Reimbursement payments will also be made
for afterschool snacks served to eligible children in afterschool care
programs in accordance with the rates established in Sec. 210.4(b)(3).
Approval will be in accordance with part 245.
(b) Assignment of rates. At the beginning of each school year, State
agencies shall establish the per meal rates of reimbursement for school
food authorities participating in the Program. These rates of
reimbursement may be assigned at levels based on financial need; except
that, the rates are not to exceed the maximum rates of reimbursement
established by the Secretary under Sec. 210.4(b) and are to permit
reimbursement for the total number of lunches in the State from funds
available under Sec. 210.4. Within each school food authority, the
State agency shall assign the same rate of reimbursement from general
cash assistance funds for all lunches served to children under the
Program. Assigned rates of reimbursement may be changed at any time by
the State agency, provided that notice of any change is given to the
school food authority. The total general and special cash assistance
reimbursement paid to any school food authority for lunches served to
children during the school year are not to exceed the sum of the
products obtained by multiplying the total reported number of
[[Page 17]]
lunches, by type, served to eligible children during the school year by
the applicable maximum per lunch reimbursements prescribed for the
school year for each type of lunch.
(c) Reimbursement limitations. To be entitled to reimbursement under
this part, each school food authority must ensure that Claims for
Reimbursement are limited to the number of free, reduced price, and paid
lunches and afterschool snacks that are served to children eligible for
free, reduced price, and paid lunches and afterschool snacks,
respectively, for each day of operation.
(1) Lunch count system. To ensure that the Claim for Reimbursement
accurately reflects the number of lunches and afterschool snacks served
to eligible children, the school food authority must, at a minimum:
(i) Correctly approve each child's eligibility for free and reduced
price lunches and afterschool snacks based on the requirements
prescribed under part 245 of this chapter;
(ii) Maintain a system to issue benefits and to update the
eligibility of children approved for free or reduced price lunches and
afterschool snacks. The system must:
(A) Accurately reflect eligibility status as well as changes in
eligibility made after the initial approval process due to verification
findings, transfers, reported changes in income or household size, etc.;
and
(B) Make the appropriate changes in eligibility after the initial
approval process on a timely basis so that the mechanism the school food
authority uses to identify currently eligible children provides a
current and accurate representation of eligible children. Changes in
eligibility which result in increased benefit levels must be made as
soon as possible but no later than 3 operating days of the date the
school food authority makes the final decision on a child's eligibility
status. Changes in eligibility which result in decreased benefit levels
must be made as soon as possible but no later than 10 operating days of
the date the school food authority makes the final decision on the
child's eligibility status;
(iii) Base Claims for Reimbursement on lunch counts, taken daily at
the point of service, which correctly identify the number of free,
reduced price and paid lunches served to eligible children;
(iv) Correctly record, consolidate and report those lunch and
afterschool snack counts on the Claim for Reimbursement; and
(v) Ensure that Claims for Reimbursement do not request payment for
any excess lunches produced, as prohibited in Sec. 210.10(a)(2), or
non-Program lunches (i.e., a la carte or adult lunches) or for more than
one afterschool snack per child per day.
(2) Point of service alternatives. (i) State agencies may authorize
alternatives to the point of service lunch counts provided that such
alternatives result in accurate, reliable counts of the number of free,
reduced price and paid lunches served, respectively, for each serving
day. State agencies are encouraged to issue guidance which clearly
identifies acceptable point of service alternatives and instructions for
proper implementation. School food authorities may select one of the
State agency approved alternatives without prior approval.
(ii) In addition, on a case-by-case basis, State agencies may
authorize school food authorities to use other alternatives to the point
of service lunch count; provided that such alternatives result in an
accurate and reliable lunch count system. Any request to use an
alternative lunch counting method which has not been previously
authorized under paragraph (2)(i) is to be submitted in writing to the
State agency for approval. Such request shall provide detail sufficient
for the State agency to assess whether the proposed alternative would
provide an accurate and reliable count of the number of lunches, by
type, served each day to eligible children. The details of each approved
alternative shall be maintained on file at the State agency for review
by FNS.
(d) Performance-based cash assistance. The State agency must provide
performance-based cash assistance as authorized under Sec. 210.4(b)(1)
for lunches served in school food authorities certified by the State
agency to be in compliance with meal pattern and nutrition requirements
set forth in
[[Page 18]]
Sec. 210.10 and, if the school food authority participates in the
School Breakfast Program (part 220 of this chapter), Sec. 220.8 of this
chapter, as applicable. State agencies must establish procedures to
certify school food authorities for performance-based cash assistance in
accordance with guidance established by FNS. Such procedures must ensure
State agencies:
(1) Make certification procedures readily available to school food
authorities and provide guidance necessary to facilitate the
certification process.
(2) Require school food authorities to submit documentation to
demonstrate compliance with meal pattern requirements set forth in Sec.
210.10 and Sec. 220.8 of this chapter, as applicable. Such
documentation must reflect meal service at or about the time of
certification.
(3) State agencies must review certification documentation submitted
by the school food authority to ensure compliance with meal pattern
requirements set forth in Sec. 210.10, or Sec. 220.8 of this chapter,
as applicable. For certification purposes, State agencies should
consider any school food authority compliant:
(i) If when evaluating daily and weekly range requirements for
grains and meat/meat alternates, the certification documentation shows
compliance with the daily and weekly minimums for these two components,
regardless of whether the school food authority has exceeded the
maximums for the same components.
(ii) If when evaluating the service of frozen fruit, the school food
authority serves products that contain added sugar.
(4) Certification procedures must ensure that no performance-based
cash assistance is provided to school food authorities for meals served
prior to October 1, 2012.
(5) Within 60 calendar days of a certification submission or as
otherwise authorized by FNS, review submitted materials and notify
school food authorities of the certification determination, the date
that performance-based cash assistance is effective, and consequences
for non-compliance,
(6) Disburse performance-based cash assistance for all lunches
served beginning with the start of certification provided that
documentation reflects meal service in the calendar month the
certification materials are submitted or, in the month preceding the
calendar month of submission.
(e) Reimbursements for afterschool snacks. The State agency will
reimburse the school food authority for afterschool snacks served in
eligible schools (as defined in Sec. 210.10(o)(1)) operating
afterschool care programs under the National School Lunch Program (NSLP)
in accordance with the rates established in Sec. 210.4(b).
[53 FR 29147, Aug. 2, 1988, as amended at 54 FR 12581, Mar. 28, 1989; 56
FR 32939, July 17, 1991; 58 FR 42487, Aug. 10, 1993; 60 FR 31207, June
13, 1995; 65 FR 26912, May 9, 2000; 77 FR 25034, Apr. 27, 2012; 79 FR
330, Jan. 3, 2014; 81 FR 50185, July 29, 2016; 88 FR 57844, Aug. 23,
2023; 89 FR 32063, Apr. 25, 2024]
Sec. 210.8 Claims for reimbursement.
(a) Internal controls. The school food authority shall establish
internal controls which ensure the accuracy of meal counts prior to the
submission of the monthly Claim for Reimbursement. At a minimum, these
internal controls shall include: an on-site review of the meal counting
and claiming system employed by each school within the jurisdiction of
the school food authority; comparisons of daily free, reduced price and
paid meal counts against data which will assist in the identification of
meal counts in excess of the number of free, reduced price and paid
meals served each day to children eligible for such meals; and a system
for following up on those meal counts which suggest the likelihood of
meal counting problems.
(1) On-site reviews. Every school year, each school food authority
with more than one school shall perform no less than one on-site review
of the counting and claiming system and the readily observable general
areas of review cited under Sec. 210.18(h), as prescribed by FNS for
each school under its jurisdiction. The on-site review shall take place
prior to February 1 of each school year. Further, if the review
discloses problems with a school's meal counting or claiming procedures
or general review areas, the school food authority
[[Page 19]]
shall: ensure that the school implements corrective action; and, within
45 days of the review, conducts a follow-up on-site review to determine
that the corrective action resolved the problems. Each on-site review
shall ensure that the school's claim is based on the counting system
authorized by the State agency under Sec. 210.7(c) of this part and
that the counting system, as implemented, yields the actual number of
reimbursable free, reduced price and paid meals, respectively, served
for each day of operation.
(2) School food authority claims review process. Prior to the
submission of a monthly Claim for Reimbursement, each school food
authority shall review the lunch count data for each school under its
jurisdiction to ensure the accuracy of the monthly Claim for
Reimbursement. The objective of this review is to ensure that monthly
claims include only the number of free, reduced price and paid lunches
served on any day of operation to children currently eligible for such
lunches.
(i) Any school food authority that was found by its most recent
administrative review conducted in accordance with Sec. 210.18, to have
no meal counting and claiming violations may:
(A) Develop internal control procedures that ensure accurate meal
counts. The school food authority shall submit any internal controls
developed in accordance with this paragraph to the State agency for
approval and, in the absence of specific disapproval from the State
agency, shall implement such internal controls. The State agency shall
establish procedures to promptly notify school food authorities of any
modifications needed to their proposed internal controls or of denial of
unacceptable submissions. If the State agency disapproves the proposed
internal controls of any school food authority, it reserves the right to
require the school food authority to comply with the provisions of
paragraph (a)(3) of this section; or
(B) Comply with the requirements of paragraph (a)(3) of this
section.
(ii) Any school food authority that was identified in the most
recent administrative review conducted in accordance with Sec. 210.18,
or in any other oversight activity, as having meal counting and claiming
violations shall comply with the requirements in paragraph (a)(3) of
this section.
(3) Edit checks. (i) The following procedure shall be followed for
school food authorities identified in paragraph (a)(2)(ii) of this
section, by other school food authorities at State agency option, or, at
their own option, by school food authorities identified in paragraph
(a)(2)(i) of this section: the school food authority shall compare each
school's daily counts of free, reduced price and paid lunches against
the product of the number of children in that school currently eligible
for free, reduced price and paid lunches, respectively, times an
attendance factor.
(ii) School food authorities that are identified in administrative
reviews conducted in accordance with Sec. 210.18 as not having meal
counting and claiming violations and that are correctly complying with
the procedures in paragraph (a)(3)(i) of this section have the option of
developing internal controls in accordance with paragraph (a)(2)(i) of
this section.
(4) Follow-up activity. The school food authority shall promptly
follow-up through phone contact, on-site visits or other means when the
internal controls used by schools in accordance with paragraph (a)(2)(i)
of this section or the claims review process used by schools in
accordance with paragraphs (a)(2)(ii) and (a)(3) of this section suggest
the likelihood of lunch count problems. When problems or errors are
identified, the lunch counts shall be corrected prior to submission of
the monthly Claim for Reimbursement. Improvements to the lunch count
system shall also be made to ensure that the lunch counting system
consistently results in lunch counts of the actual number of
reimbursable free, reduced price and paid lunches served for each day of
operation.
(5) Recordkeeping. School food authorities shall maintain on file,
each month's Claim for Reimbursement and all data used in the claims
review process, by school. Records shall be retained as specified in
Sec. 210.23(c) of this part. School food authorities shall make this
information available to the Department and the State agency upon
request.
[[Page 20]]
(b) Monthly claims. To be entitled to reimbursement under this part,
each school food authority shall submit to the State agency, a monthly
Claim for Reimbursement, as described in paragraph (c) of this section.
(1) Submission timeframes. A final Claim for Reimbursement shall be
postmarked or submitted to the State agency not later than 60 days
following the last day of the full month covered by the claim. State
agencies may establish shorter deadlines at their discretion. Claims not
postmarked and/or submitted within 60 days shall not be paid with
Program funds unless otherwise authorized by FNS.
(2) State agency claims review process. The State agency shall
review each school food authority's Claim for Reimbursement, on a
monthly basis, in an effort to ensure that monthly claims are limited to
the number of free and reduced price lunches served, by type, to
eligible children.
(i) The State agency shall, at a minimum, compare the number of free
and reduced price lunches claimed to the number of children approved for
free and reduced price lunches enrolled in the school food authority for
the month of October times the days of operation times the attendance
factor employed by the school food authority in accordance with
paragraph (a)(3) of this section or the internal controls used by
schools in accordance with paragraph (a)(2)(i) of this section. At its
discretion, the State agency may conduct this comparison against data
which reflects the number of children approved for free and reduced
price lunches for a more current month(s) as collected pursuant to
paragraph (c)(2) of this section.
(ii) In lieu of conducting the claims review specified in paragraph
(b)(2)(i) of this section, the State agency may conduct alternative
analyses for those Claims for Reimbursement submitted by residential
child care institutions. Such alternatives analyses shall meet the
objective of ensuring that the monthly Claims for Reimbursement are
limited to the numbers of free and reduced price lunches served, by
type, to eligible children.
(3) Follow-up activity. The State agency shall promptly follow-up
through phone contact, on-site visits, or other means when the claims
review process suggests the likelihood of lunch count problems.
(4) Corrective action. The State agency shall promptly take
corrective action with respect to any Claim for Reimbursement which
includes more than the number of lunches served, by type, to eligible
children. In taking corrective action, State agencies may make
adjustments on claims filed within the 60-day deadline if such
adjustments are completed within 90 days of the last day of the claim
month and are reflected in the final Report of School Program Operations
(FNS-10) for the claim month required under Sec. 210.5(d) of this part.
Upward adjustments in Program funds claimed which are not reflected in
the final FNS-10 for the claim month shall not be made unless authorized
by FNS. Except that, upward adjustments for the current and prior fiscal
years resulting from any review or audit may be made, at the discretion
of the State agency. Downward adjustments in amounts claimed shall
always be made, without FNS authorization, regardless of when it is
determined that such adjustments are necessary.
(c) Content of claim. The Claim for Reimbursement must include data
in sufficient detail to justify the reimbursement claimed and to enable
the State agency to provide the Report of School Program Operations
required under Sec. 210.5(d). Such data must include, at a minimum, the
number of free, reduced price, and paid lunches and afterschool snacks
served to eligible children. The claim must be signed by a school food
authority official.
(1) Consolidated claim. The State agency may authorize a school food
authority to submit a consolidated Claim for Reimbursement for all
schools under its jurisdiction, provided that, the data on each school's
operations required in this section are maintained on file at the local
office of the school food authority and the claim separates consolidated
data for commodity schools from data for other schools. Unless otherwise
approved by FNS, the Claim for Reimbursement for any month must include
only lunches and afterschool snacks served in that
[[Page 21]]
month except if the first or last month of Program operations for any
school year contains 10 operating days or less, such month may be
combined with the Claim for Reimbursement for the appropriate adjacent
month. However, Claims for Reimbursement may not combine operations
occurring in two fiscal years. If a single State agency administers any
combination of the Child Nutrition Programs, a school food authority
will be able to use a common claim form with respect to claims for
reimbursement for meals served under those programs.
(2) October data. For the month of October, the State agency must
also obtain, either through the Claim for Reimbursement or other means,
the total number of children approved for free lunches and afterschool
snacks, the total number of children approved for reduced price lunches
and afterschool snacks, and the total number of children enrolled in the
school food authority as of the last day of operation in October. The
school food authority must submit this data to the State agency no later
than December 31 of each year. State agencies may establish shorter
deadlines at their discretion. In addition, the State agency may require
school food authorities to provide this data for a more current month if
for use in the State agency claims review process.
(d) Advance funds. The State agency may advance funds available for
the Program to a school food authority in an amount equal to the amount
of reimbursement estimated to be needed for one month's operation.
Following the receipt of claims, the State agency will make adjustments,
as necessary, to ensure that the total amount of payments received by
the school food authority for the fiscal year does not exceed an amount
equal to the number of lunches and afterschool snacks by reimbursement
type served to children times the respective payment rates assigned by
the State in accordance with Sec. 210.7(b). The State agency must
recover advances of funds to any school food authority failing to comply
with the 60-day claim submission requirements in paragraph (b) of this
section.
[53 FR 29147, Aug. 2, 1988, as amended at 54 FR 12581, Mar. 28, 1989; 56
FR 32940, July 17, 1991; 58 FR 42487, Aug. 10, 1993; 60 FR 31207, June
13, 1995; 64 FR 50740, Sept. 20, 1999; 81 FR 50185, July 29, 2016; 89 FR
32064, Apr. 25, 2024]
Subpart C_Requirements for School Food Authority Participation
Sec. 210.9 Agreement with State agency.
(a) Application. An official of a school food authority shall make
written application to the State agency for any school in which it
desires to operate the Program. Applications shall provide the State
agency with sufficient information to determine eligibility. The school
food authority shall also submit for approval a Free and Reduced Price
Policy Statement in accordance with part 245 of this chapter.
(b) Agreement. Each school food authority approved to participate in
the program shall enter into a written agreement with the State agency
that may be amended as necessary. Nothing in the preceding sentence
shall be construed to limit the ability of the State agency to suspend
or terminate the agreement in accordance with Sec. 210.25. If a single
State agency administers any combination of the Child Nutrition
Programs, that State agency shall provide each school food authority
with a single agreement with respect to the operation of those programs.
The agreement shall contain a statement to the effect that the ``School
Food Authority and participating schools under its jurisdiction, shall
comply with all provisions of 7 CFR parts 210 and 245.'' This agreement
shall provide that each school food authority shall, with respect to
participating schools under its jurisdiction:
(1) Maintain a nonprofit school food service and observe the
requirements for and limitations on the use of nonprofit school food
service revenues set forth in Sec. 210.14 and the limitations on any
competitive school food service as set forth in Sec. 210.11;
(2) Limit its net cash resources to an amount that does not exceed 3
months average expenditures for its nonprofit school food service or
such other
[[Page 22]]
amount as may be approved in accordance with Sec. 210.19(a);
(3) Maintain a financial management system as prescribed under Sec.
210.14(c);
(4) Comply with the requirements of the Department's regulations
regarding financial management (2 CFR part 200, subpart D and USDA
implementing regulations 2 CFR part 400 and part 415);
(5) Serve lunches, during the lunch period, which meet the minimum
requirements prescribed in Sec. 210.10;
(6) Price the lunch as a unit;
(7) Serve lunches free or at a reduced price to all children who are
determined by the local educational agency to be eligible for such meals
under 7 CFR part 245;
(8) Claim reimbursement at the assigned rates only for reimbursable
free, reduced price and paid lunches served to eligible children in
accordance with 7 CFR part 210. Agree that the school food authority
official signing the claim shall be responsible for reviewing and
analyzing meal counts to ensure accuracy as specified in Sec. 210.8
governing claims for reimbursement. Acknowledge that failure to submit
accurate claims will result in the recovery of an overclaim and may
result in the withholding of payments, suspension or termination of the
program as specified in Sec. 210.25. Acknowledge that if failure to
submit accurate claims reflects embezzlement, willful misapplication of
funds, theft, or fraudulent activity, the penalties specified in Sec.
210.26 shall apply;
(9) Count the number of free, reduced price and paid reimbursable
meals served to eligible children at the point of service, or through
another counting system if approved by the State agency;
(10) Submit Claims for Reimbursement in accordance with Sec. 210.8;
(11) Comply with the requirements of the Department's regulations
regarding nondiscrimination (7 CFR parts 15, 15a, 15b);
(12) Make no discrimination against any child because of his or her
eligibility for free or reduced price meals in accordance with the
approved Free and Reduced Price Policy Statement;
(13) Enter into an agreement to receive donated foods as required by
7 CFR part 250;
(14) Maintain, in the storage, preparation and service of food,
proper sanitation and health standards in conformance with all
applicable State and local laws and regulations, and comply with the
food safety requirements of Sec. 210.13;
(15) Accept and use, in as large quantities as may be efficiently
utilized in its nonprofit school food service, such foods as may be
offered as a donation by the Department;
(16) Maintain necessary facilities for storing, preparing and
serving food;
(17) Upon request, make all accounts and records pertaining to its
school food service available to the State agency and to FNS, for audit
or review, at a reasonable time and place. Such records shall be
retained for a period of 3 years after the date of the final Claim for
Reimbursement for the fiscal year to which they pertain, except that if
audit findings have not been resolved, the records shall be retained
beyond the 3 year period as long as required for resolution of the
issues raised by the audit;
(18) Maintain files of currently approved and denied free and
reduced price certification documentation.
(19) Maintain direct certification documentation obtained directly
from the appropriate State or local agency, or other appropriate
individual, as specified by FNS, indicating that:
(i) A child in the Family, as defined in Sec. 245.2 of this
chapter, is receiving benefits from SNAP, FDPIR or TANF, as defined in
Sec. 245.2 of this chapter; if one child is receiving such benefits,
all children in that family are considered to be directly certified;
(ii) The child is a homeless child as defined in Sec. 245.2 of this
chapter;
(iii) The child is a runaway child as defined in Sec. 245.2 of this
chapter;
(iv) The child is a migrant child as defined in Sec. 245.2 of this
chapter;
(v) The child is a Head Start child as defined in Sec. 245.2 of
this chapter; or
(vi) The child is a foster child as defined in Sec. 245.2 of this
chapter.
(20) Retain eligibility documentation submitted by families for a
period of 3 years after the end of the fiscal year to
[[Page 23]]
which they pertain or as otherwise specified under paragraph (b)(17) of
this section.
(21) No later than December 31 of each year, provide the State
agency with a list of all schools under its jurisdiction in which 50
percent or more of enrolled children have been determined eligible for
free or reduced price meals as of the last operating day the preceding
October. The State agency may designate a month other than October for
the collection of this information, in which case the list must be
provided to the State agency within 60 calendar days following the end
of the month designated by the State agency. In addition, each school
food authority must provide, when available for the schools under its
jurisdiction, and upon the request of a sponsoring organization of day
care homes of the Child and Adult Care Food Program, information on the
boundaries of the attendance areas for the schools identified as having
50 percent or more of enrolled children certified eligible for free or
reduced price meals.
(c) Afterschool care requirements. Those school food authorities
with eligible schools (as defined in Sec. 210.10(o)(1)) that elect to
serve afterschool snacks during afterschool care programs, must agree
to:
(1) Serve afterschool snacks which meet the minimum requirements
prescribed in Sec. 210.10;
(2) Price the afterschool snack as a unit;
(3) Serve afterschool snacks free or at a reduced price to all
children who are determined by the school food authority to be eligible
for free or reduced price school meals under part 245 of this chapter;
(4) If charging for meals, the charge for a reduced price
afterschool snack must not exceed 15 cents;
(5) Claim reimbursement at the assigned rates only for afterschool
snacks served in accordance with the agreement;
(6) Claim reimbursement for no more than one afterschool snack per
child per day;
(7) Review each afterschool care program two times a year; the first
review must be made during the first four weeks that the school is in
operation each school year, except that an afterschool care program
operating year round must be reviewed during the first four weeks of its
initial year of operation, once more during its first year of operation,
and twice each school year thereafter; and
(8) Comply with all requirements of this part, except that, claims
for reimbursement need not be based on ``point of service'' afterschool
snack counts (as required by Sec. 210.9(b)(9)).
[53 FR 29147, Aug. 2, 1988]
Editorial Note: For Federal Register citations affecting Sec.
210.9, see the List of CFR Sections Affected, which appears in the
Finding Aids section of the printed volume and at www.govinfo.gov.
Sec. 210.10 Meal requirements for lunches and requirements
for afterschool snacks.
(a) General requirements--(1) General nutrition requirements.
Schools must offer nutritious, well-balanced, and age-appropriate meals
to all the children they serve to improve their diets and safeguard
their health.
(i) Requirements for lunch. School lunches offered to children age 5
or older must meet, at a minimum, the meal requirements in paragraph (b)
of this section. Schools must follow a food-based menu planning approach
and produce enough food to offer each child the quantities specified in
the meal pattern established in paragraph (c) of this section for each
age/grade group served in the school. In addition, school lunches must
meet the dietary specifications in paragraph (f) of this section.
Schools offering lunches to children ages 1 through 4 and infants must
meet the meal pattern requirements in paragraphs (p) and (q) of this
section, as applicable. Schools must make plain potable water available
and accessible without restriction to children at no charge in the
place(s) where lunches are served during the meal service.
(ii) Requirements for afterschool snacks. Schools offering
afterschool snacks in afterschool care programs must meet the meal
pattern requirements in paragraph (o) of this section. Schools must plan
and produce enough food to offer each child the minimum quantities
[[Page 24]]
under the meal pattern in paragraph (o) of this section.
(2) Unit pricing. Schools must price each meal as a unit. Schools
need to consider participation trends in an effort to provide one
reimbursable lunch and, if applicable, one reimbursable afterschool
snack for each child every school day. If there are leftover meals,
schools may offer them to the students but cannot get Federal
reimbursement for them. Schools must identify, near or at the beginning
of the serving line(s), the food items that constitute the unit-priced
reimbursable school meal(s). The price of a reimbursable lunch does not
change if the student does not take a food item or requests smaller
portions.
(3) Production and menu records. Schools or school food authorities,
as applicable, must keep production and menu records for the meals they
produce. These records must show how the meals offered contribute to the
required meal components and food quantities for each age/grade group
every day. Schools or school food authorities must maintain records of
the latest nutritional analysis of the school menus conducted by the
State agency. Information on maintaining production and menu records may
be found in FNS guidance.
(b) Meal requirements for school lunches. School lunches for
children ages 5 and older must reflect food and nutrition requirements
specified by the Secretary. Compliance with these requirements is
measured as follows:
(1) On a daily basis:
(i) Meals offered to each age/grade group must include the meal
components and food quantities specified in the meal pattern in
paragraph (c) of this section; and
(ii) The meal selected by each student must have the number of meal
components required for a reimbursable meal and include at least one
fruit or vegetable.
(2) Over a 5-day school week:
(i) Average calorie content of meals offered to each age/grade group
must be within the minimum and maximum calorie levels specified in
paragraph (f) of this section;
(ii) Average saturated fat content of the meals offered to each age/
grade group must be less than 10 percent of total calories;
(iii) By July 1, 2027, average added sugars content of the meals
offered to each age/grade group must be less than 10 percent of total
calories; and
(iv) Average sodium content of the meals offered to each age/grade
group must not exceed the maximum level specified in paragraph (f) of
this section.
(c) Meal pattern for school lunches. Schools must offer the meal
components and quantities required in the lunch meal pattern established
in the following table:
Table 1 to Paragraph (c) Introductory Text--National School Lunch Program Meal Pattern
----------------------------------------------------------------------------------------------------------------
Amount of food \1\ per week (minimum per day)
Meal components -----------------------------------------------
Grades K-5 Grades 6-8 Grades 9-12
----------------------------------------------------------------------------------------------------------------
Fruits (cups) \2\............................................... 2\1/2\ (\1/2\) 2\1/2\ (\1/2\) 5 (1)
Vegetables (cups) \2\........................................... 3\3/4\ (\3/4\) 3\3/4\ (\3/4\) 5 (1)
Dark Green Subgroup \3\..................................... \1/2\ \1/2\ \1/2\
Red/Orange Subgroup \3\..................................... \3/4\ \3/4\ 1\1/4\
Beans, Peas, and Lentils Subgroup \3\....................... \1/2\ \1/2\ \1/2\
Starchy Subgroup \3\........................................ \1/2\ \1/2\ \1/2\
Other Vegetables Subgroup \3\ \4\........................... \1/2\ \1/2\ \3/4\
Additional Vegetables from Any Subgroup to Reach Total...... 1 1 1\1/2\
Grains (oz. eq.) \5\............................................ 8-9 (1) 8-10 (1) 10-12 (2)
Meats/Meat Alternates (oz. eq.) \6\............................. 8-10 (1) 9-10 (1) 10-12 (2)
Fluid Milk (cups) \7\........................................... 5 (1) 5 (1) 5 (1)
----------------------------------------------------------------------------------------------------------------
Dietary Specifications: Daily Amount Based on the Average for a 5-Day Week \8\
----------------------------------------------------------------------------------------------------------------
Minimum-Maximum Calories (kcal)................................. 550-650 600-700 750-850
Saturated Fat (% of total calories)............................. <10 <10 <10
Added Sugars (% of total calories).............................. <10 <10 <10
Sodium Limit: In place through June 30, 2027.................... <=1,110 mg <=1,225 mg <=1,280 mg
[[Page 25]]
Sodium Limit: Must be implemented by July 1, 2027............... <=935 mg <=1,035 mg <=1,080 mg
----------------------------------------------------------------------------------------------------------------
\1\ Food items included in each group and subgroup and amount equivalents.
\2\ Minimum creditable serving is \1/8\ cup. One quarter-cup of dried fruit counts as \1/2\ cup of fruit; 1 cup
of leafy greens counts as \1/2\ cup of vegetables. No more than half of the fruit or vegetable offerings may
be in the form of juice. All juice must be 100 percent full-strength.
\3\ Larger amounts of these vegetables may be served.
\4\ This subgroup consists of ``Other vegetables'' as defined in paragraph (c)(2)(ii)(E) of this section. For
the purposes of the NSLP, the ``Other vegetables'' requirement may be met with any additional amounts from the
dark green, red/orange, and bean, peas, and lentils vegetable subgroups as defined in paragraph (c)(2)(ii) of
this section.
\5\ Minimum creditable serving is 0.25 oz. eq. At least 80 percent of grains offered weekly (by ounce
equivalents) must be whole grain-rich as defined in Sec. 210.2 and the remaining grains items offered must
be enriched.
\6\ Minimum creditable serving is 0.25 oz. eq.
\7\ Minimum creditable serving is 8 fluid ounces. All fluid milk must be fat-free (skim) or low-fat (1 percent
fat or less) and must meet the requirements in paragraph (d) of this section.
\8\ By July 1, 2027, schools must meet the dietary specification for added sugars. Schools must meet the sodium
limits by the dates specified in this chart. Discretionary sources of calories may be added to the meal
pattern if within the dietary specifications.
(1) Age/grade groups. Schools must plan menus for students using the
following age/grade groups: Grades K-5 (ages 5-10), grades 6-8 (ages 11-
13), and grades 9-12 (ages 14-18). If an unusual grade configuration in
a school prevents the use of these established age/grade groups,
students in grades K-5 and grades 6-8 may be offered the same food
quantities at lunch provided that the calorie and sodium standards for
each age/grade group are met. No customization of the established age/
grade groups is allowed.
(2) Meal components. Schools must offer students in each age/grade
group the meal components specified in this paragraph (c).
(i) Fruits component. Schools must offer fruits daily as part of the
lunch menu. Fruits that are fresh, frozen, or dried, or canned in light
syrup, water or fruit juice may be offered to meet the requirements of
this paragraph (c)(2)(i). All fruits are credited based on their volume
as served, except that \1/4\ cup of dried fruit counts as \1/2\ cup of
fruit. Only pasteurized, full-strength fruit juice may be offered, and
may be credited to meet no more than one-half of the fruits component.
(ii) Vegetables component. Schools must offer vegetables daily as
part of the lunch menu. Fresh, frozen, or canned vegetables and dry
beans, peas, and lentils may be offered to meet this requirement. All
vegetables are credited based on their volume as served, except that 1
cup of leafy greens counts as \1/2\ cup of vegetables and tomato paste
and puree are credited based on calculated volume of the whole food
equivalency. Pasteurized, full-strength vegetable juice may be offered
to meet no more than one-half of the vegetables component. Vegetable
offerings at lunch over the course of the week must include the
following vegetable subgroups, as defined in this section in the
quantities specified in the meal pattern in paragraph (c) of this
section:
(A) Dark green vegetables subgroup. This subgroup includes
vegetables such as bok choy, broccoli, collard greens, dark green leafy
lettuce, kale, mesclun, mustard greens, romaine lettuce, spinach, turnip
greens, and watercress;
(B) Red/orange vegetables subgroup. This subgroup includes
vegetables such as acorn squash, butternut squash, carrots, pumpkin,
tomatoes, tomato juice, and sweet potatoes;
(C) Beans, peas, and lentils vegetable subgroup. This subgroup
includes vegetables such as black beans, black-eyed peas (mature, dry),
garbanzo beans (chickpeas), kidney beans, lentils, navy beans pinto
beans, soybeans, split peas, and white beans. Cooked dry beans, peas,
and lentils may be counted as either a vegetable or as a meat alternate
but not as both in the same dish. When offered toward the protein
sources component, beans, peas, and lentils may count toward the weekly
beans, peas, and lentils vegetable subgroup requirement, but may not
count toward
[[Page 26]]
the daily or weekly vegetable component requirement;
(D) Starchy vegetables subgroup. This subgroup includes vegetables
such as black-eyed peas (not dry), corn, cassava, green bananas, green
peas, green lima beans, plantains, taro, water chestnuts, and white
potatoes; and
(E) Other vegetables subgroup. This subgroup includes all other
fresh, frozen, and canned vegetables, cooked or raw, such as artichokes,
asparagus, avocados, bean sprouts, beets, Brussels sprouts, cabbage,
cauliflower, celery, cucumbers, eggplant, green beans, green peppers,
iceberg lettuce, mushrooms, okra, onions, parsnips, turnips, wax beans,
and zucchini.
(iii) Grains component. Schools must offer grains daily as part of
the lunch menu.
(A) Whole grain-rich requirement. Whole grain-rich is the term
designated by FNS to indicate that the grain content of a product is
between 50 and 100 percent whole grain with any remaining grains being
enriched. At least 80 percent of grains offered at lunch weekly must,
based on ounce equivalents, meet the whole grain-rich criteria as
defined in Sec. 210.2, and the remaining grain items offered must be
enriched.
(B) Breakfast cereals. By July 1, 2025, breakfast cereals must
contain no more than 6 grams of added sugars per dry ounce.
(C) Desserts. Schools may count up to two ounce equivalents of
grain-based desserts per week toward meeting the grains requirement at
lunch. Information on crediting grain-based desserts may be found in FNS
guidance.
(D) Daily and weekly servings. The grains component is based on
minimum daily servings plus total servings over a 5-day school week.
Schools serving lunch 6 or 7 days per week must increase the weekly
grains quantity by approximately 20 percent (\1/5\) for each additional
day. When schools operate less than 5 days per week, they may decrease
the weekly quantity by approximately 20 percent (\1/5\) for each day
less than 5.
(iv) Meats/meat alternates component. Schools must offer meats/meat
alternates daily as part of the lunch meal pattern. The quantity of the
meat/meat alternate must be the edible portion as served. This component
must be served in a main dish or in a main dish and only one other food
item. Schools without daily choices in this component should not serve
any one meat/meat alternate or form of meat/meat alternate (for example,
ground, diced, pieces) more than three times in the same week. If a
portion size of this component does not meet the daily requirement for a
particular age/grade group, schools may supplement it with another meat/
meat alternate to meet the full requirement. Schools may adjust the
daily quantities of this component provided that a minimum of one ounce
is offered daily to students in grades K-8 and a minimum of two ounces
is offered daily to students in grades 9-12, and the total weekly
requirement is met over a 5-day period. Information on crediting meats/
meat alternates may be found in FNS guidance.
(A) Enriched macaroni. Enriched macaroni with fortified protein as
defined in appendix A to this part may be used to meet part of the
meats/meat alternates requirement when used as specified in appendix A
to this part. An enriched macaroni product with fortified protein as
defined in appendix A to this part may be used to meet part of the
meats/meat alternates component or the grains component but may not meet
both food components in the same lunch.
(B) Nuts and seeds. Nuts and seeds and their butters are allowed as
a meat alternate. Acorns, chestnuts, and coconuts do not credit as meat
alternates because of their low protein and iron content. Nut and seed
meals or flours may credit only if they meet the requirements for
Alternate Protein Products established in appendix A to this part.
(C) Yogurt. Yogurt may be offered to meet all or part of the meats/
meat alternates component. Yogurt may be plain or flavored, unsweetened
or sweetened. By July 1, 2025, yogurt must contain no more than 12 grams
of added sugars per 6 ounces (2 grams of added sugars per ounce).
Noncommercial and/or non-standardized yogurt products, such as frozen
yogurt, drinkable yogurt products, homemade yogurt, yogurt flavored
products, yogurt
[[Page 27]]
bars, yogurt covered fruits and/or nuts or similar products are not
creditable. Four ounces (weight) or \1/2\ cup (volume) of yogurt is one
ounce equivalent of meats/meat alternates.
(D) Tofu and soy products. Commercial tofu and soy products may be
offered to meet all or part of the meats/meat alternates component.
Noncommercial and/or non-standardized tofu and soy products are not
creditable.
(E) Beans, peas, and lentils. Cooked dry beans, peas, and lentils
may be offered to meet all or part of the meats/meat alternates
component. Beans, peas, and lentils are identified in this section and
include foods such as black beans, garbanzo beans, lentils, kidney
beans, mature lima beans, navy beans, pinto beans, and split peas.
Cooked dry beans, peas, and lentils may be counted as either a vegetable
or as a meat alternate but not as both in the same dish. When offered as
a meat alternate, beans, peas, and lentils may count toward the weekly
beans, peas, and lentils vegetable subgroup requirement, but may not
count toward the daily or weekly vegetable component requirements.
(F) Other meat alternates. Other meat alternates, such as cheese and
eggs, may be used to meet all or part of the meats/meat alternates
component.
(v) Fluid milk component. Fluid milk must be offered daily in
accordance with paragraph (d) of this section.
(3) Grain substitutions. (i) Schools in American Samoa, Guam,
Hawaii, Puerto Rico, and the U.S. Virgin Islands may serve any
vegetable, including vegetables such as breadfruit, prairie turnips,
plantains, sweet potatoes, and yams, to meet the grains component.
(ii) School food authorities and schools that are tribally operated,
operated by the Bureau of Indian Education, and that serve primarily
American Indian or Alaska Native children, may serve any vegetable,
including vegetables such as breadfruit, prairie turnips, plantains,
sweet potatoes, and yams, to meet the grains component.
(4) Adjustments to school menus. Schools must adjust future menu
cycles to reflect production and how often food items are offered.
Schools may need to change the foods offerings given students'
selections and may need to modify recipes and other specifications to
make sure that meal requirements are met.
(5) Standardized recipes. All schools must develop and follow
standardized recipes. A standardized recipe is a recipe that was tested
to provide an established yield and quantity using the same ingredients
for both measurement and preparation methods. Standardized recipes
developed by USDA/FNS are in the Child Nutrition Database. If a school
has its own recipes, they may seek assistance from the State agency or
school food authority to standardize the recipes. Schools must add any
local recipes to their local databases. Additional information may be
found in FNS guidance.
(6) Processed foods. The Child Nutrition Database includes a number
of processed foods. Schools may use purchased processed foods that are
not in the Child Nutrition Database. Schools or the State agency must
add any locally purchased processed foods to their local database. The
State agencies must obtain the levels of calories, saturated fat, added
sugars, and sodium in the processed foods. Additional information may be
found in FNS guidance.
(7) Traditional Indigenous foods. Traditional Indigenous foods may
credit toward the required meal components. Information on food
crediting may be found in FNS guidance. Schools are encouraged to serve
traditional Indigenous foods as part of their lunch and afterschool
snack service. Per the Agriculture Improvement Act of 2014, as amended
(25 U.S.C. 1685(b)(5)) traditional foods means food that has
traditionally been prepared and consumed by an American Indian tribe,
including wild game meat; fish; seafood; marine mammals; plants; and
berries.
(d) Fluid milk requirements--(1) Types of fluid milk. (i) Schools
must offer students a variety (at least two different options) of fluid
milk at lunch daily. All milk must be fat-free (skim) or low-fat (1
percent fat or less). Milk with higher fat content is not creditable.
Low-fat or fat-free lactose-free and reduced-lactose fluid milk may also
be offered.
[[Page 28]]
(ii) All fluid milk served in the Program must be pasteurized fluid
milk which meets State and local standards for such milk. All fluid milk
must have vitamins A and D at levels specified by the Food and Drug
Administration and must be consistent with State and local standards for
such milk.
(iii) Milk varieties may be unflavored or flavored, provided that
unflavored milk is offered at each meal service. By July 1, 2025,
flavored milk must contain no more than 10 grams of added sugars per 8
fluid ounces, or for flavored milk sold as competitive food for middle
and high schools, 15 grams of added sugars per 12 fluid ounces.
(2) Fluid milk substitutes for non-disability reasons. School food
authorities may offer fluid milk substitutes to students with dietary
needs that are not disabilities. For disability-related meal
modifications, see paragraph (m) of this section.
(i) Prior to providing a fluid milk substitute for a non-disability
reason, a school food authority must obtain a written request from the
student's parent or guardian, a State licensed healthcare professional,
or a registered dietitian that identifies the reason for the substitute.
A school food authority choosing to offer fluid milk substitutes for a
non-disability reason is not required to offer the specific fluid milk
substitutes requested but may offer the fluid milk substitutes of its
choice, provided the fluid milk substitutes offered meet the
requirements of paragraph (d)(2)(ii) of this section. A school food
authority must inform the State agency if any schools choose to offer
fluid milk substitutes for non-disability reasons.
(ii) If a school food authority chooses to offer one or more fluid
milk substitutes for non-disability reasons, the fluid milk substitutes
must provide, at a minimum, the nutrients listed in the following table.
Fluid milk substitutes must be fortified in accordance with
fortification guidelines issued by the Food and Drug Administration.
Table 2 to Paragraph (d)(2)(ii)--Nutrient Requirements for Fluid Milk
Substitutes
------------------------------------------------------------------------
Nutrient Per cup (8 fl. oz.)
------------------------------------------------------------------------
Calcium........................... 276 mg.
Protein........................... 8 g.
Vitamin A......................... 150 mcg. retinol activity
equivalents (RAE).
Vitamin D......................... 2.5 mcg.
Magnesium......................... 24 mg.
Phosphorus........................ 222 mg.
Potassium......................... 349 mg.
Riboflavin........................ 0.44 mg.
Vitamin B-12...................... 1.1 mcg.
------------------------------------------------------------------------
(iii) Expenses incurred when providing fluid milk substitutes that
exceed program reimbursements must be paid by the school food authority;
costs may be paid from the nonprofit school food service account.
(iv) The fluid milk substitute approval must remain in effect until
the student's parent or guardian, the State licensed healthcare
professional, or the registered dietitian revokes the request in
writing, or until the school food authority changes its fluid milk
substitute policy.
(3) Inadequate fluid milk supply. If a school food authority cannot
get a supply of fluid milk, it can still participate in the Program
under the following conditions:
(i) If emergency conditions temporarily prevent a school food
authority that normally has a supply of fluid milk from obtaining
delivery of such milk, the State agency may allow the school food
authority to serve meals during the emergency period with an alternate
form of fluid milk or without fluid milk.
(ii) If a school food authority is unable to obtain a supply of any
type of fluid milk on a continuing basis, the State agency may approve
the service of meals without fluid milk if the school food authority
uses an equivalent amount of canned milk or dry
[[Page 29]]
milk in the preparation of the meals. In Alaska, American Samoa, Guam,
Hawaii, Puerto Rico, and the U.S. Virgin Islands, if a sufficient supply
of fluid milk cannot be obtained, ``fluid milk'' includes reconstituted
or recombined fluid milk, or as otherwise allowed by FNS through a
written exception.
(4) Restrictions on the sale of fluid milk. A school food authority
participating in the Program, or a person approved by a school food
authority participating in the Program, must not directly or indirectly
restrict the sale or marketing of fluid milk (as identified in paragraph
(d)(1) of this section) at any time or in any place on school premises
or at any school-sponsored event.
(e) Offer versus serve for grades K through 12. School lunches must
offer daily the five meal components specified in the meal pattern in
paragraph (c) of this section. Under offer versus serve, students must
be allowed to decline two components at lunch, except that the students
must select at least 1/2 cup of either the fruit or vegetable component.
Senior high schools (as defined by the State educational agency) must
participate in offer versus serve. Schools below the senior high level
may participate in offer versus serve at the discretion of the school
food authority.
(f) Dietary specifications--(1) Calories. School lunches offered to
each age/grade group must meet, on average over the school week, the
minimum and maximum calorie levels specified in the following table:
Table 3 to Paragraph (f)(1)--National School Lunch Program Calorie Ranges
----------------------------------------------------------------------------------------------------------------
Grades K-5 Grades 6-8 Grades 9-12
----------------------------------------------------------------------------------------------------------------
Average Daily Minimum-Maximum Calories (kcal) \1\............ 550-650 600-700 750-850
----------------------------------------------------------------------------------------------------------------
\1\ The average daily calories must fall within the minimum and maximum levels. Discretionary sources of
calories may be added to the meal pattern if within the dietary specifications.
(2) Saturated fat. School lunches offered to all age/grade groups
must, on average over the school week, provide less than 10 percent of
total calories from saturated fat.
(3) Added sugars. By July 1, 2027, school lunches offered to all
age/grade groups must, on average over the school week, provide less
than 10 percent of total calories from added sugars.
(4) Sodium. School lunches offered to each age/grade group must
meet, on average over the school week, the sodium limits specified in
the following table within the established deadlines:
Table 4 to Paragraph (f)(4)--National School Lunch Program Sodium Limits
------------------------------------------------------------------------
Sodium limit:
Sodium limit: in must be
Age/grade group place through implemented by
June 30, 2027 July 1, 2027
(mg) (mg)
------------------------------------------------------------------------
Grades K-5........................ <=1,110 <=935
Grades 6-8........................ <=1,225 <=1,035
Grades 9-12....................... <=1,280 <=1,080
------------------------------------------------------------------------
(g) Compliance assistance. The State agency and school food
authority must provide technical assistance and training to assist
schools in planning lunches that meet the meal pattern in paragraph (c)
of this section; the dietary specifications established in paragraph (f)
of this section; and the meal pattern requirements in paragraphs (o)
through (q) of this section, as applicable. Compliance assistance may be
offered during trainings, onsite visits, and/or administrative reviews.
(h) Monitoring dietary specifications. When required by the
Administrative Review process set forth in Sec. 210.18, the State
agency must conduct a weighted nutrient analysis to evaluate the average
levels of calories, saturated fat, added sugars, and sodium of the
lunches offered to students in grades K-12 during one week of the review
period. The nutrient analysis must be conducted in accordance with the
procedures established in paragraph (i)(3) of this section. If the
results of the nutrient analysis indicate that school lunches do not
meet the specifications for calories, saturated fat, added sugars, and
sodium specified in paragraph (f) of this section, the State agency or
[[Page 30]]
school food authority must provide technical assistance and require the
reviewed school to take corrective action to meet the requirements.
(i) Nutrient analyses of school meals--(1) Conducting the nutrient
analysis. Any nutrient analysis, whether conducted by the State agency
under Sec. 210.18 or by the school food authority, must be performed in
accordance with the procedures established in paragraph (i)(3) of this
section. The purpose of the nutrient analysis is to determine the
average levels of calories, saturated fat, added sugars, and sodium in
the meals offered to each age grade group over a school week. The
weighted nutrient analysis must be performed as required by FNS
guidance.
(2) Software elements--(i) The Child Nutrition Database. The
nutrient analysis is based on the USDA Child Nutrition Database. This
database is part of the software used to do a nutrient analysis.
Software companies or others developing systems for schools may contact
FNS for more information about the database.
(ii) Software evaluation. FNS or an FNS designee evaluates any
nutrient analysis software before it may be used in schools. FNS or its
designee determines if the software, as submitted, meets the minimum
requirements. The approval of software does not mean that FNS or USDA
endorses it. The software must be able to perform a weighted average
analysis after the basic data is entered. The combined analysis of the
lunch and breakfast programs is not allowed.
(3) Nutrient analysis procedures--(i) Weighted averages. The
nutrient analysis must include all foods offered as part of the
reimbursable meals during one week within the review period. Foods items
are included based on the portion sizes and serving amounts. They are
also weighted based on their proportionate contribution to the meals
offered. This means that food items offered more frequently are weighted
more heavily than those not offered as frequently. The weighted nutrient
analysis must be performed as required by FNS guidance.
(ii) Analyzed nutrients. The analysis determines the average levels
of calories, saturated fat, added sugars, and sodium in the meals
offered over a school week. It includes all food items offered by the
reviewed school over a one-week period.
(4) Comparing the results of the nutrient analysis. Once the
procedures in paragraph (i)(3) of this section are completed, State
agencies must compare the results of the analysis to the calorie,
saturated fat, added sugars, and sodium levels established in Sec.
210.10 or Sec. 220.8 of this chapter, as appropriate, for each age/
grade group to evaluate the school's compliance with the dietary
specifications.
(j) Responsibility for monitoring meal requirements. Compliance with
the meal requirements in paragraph (b) of this section, including the
dietary specifications, and paragraphs (o) through (q) of this section,
as applicable, will be monitored by the State agency through
administrative reviews authorized in Sec. 210.18.
(k) Menu choices at lunch--(1) Availability of choices. Schools may
offer children a selection of nutritious foods within a reimbursable
lunch to encourage the consumption of a variety of foods. Children who
are eligible for free or reduced price lunches must be allowed to take
any reimbursable lunch or any choices offered as part of a reimbursable
lunch. Schools may establish different unit prices for each reimbursable
lunch offered provided that the benefits made available to children
eligible for free or reduced price lunches are not affected.
(2) Opportunity to select. Schools that choose to offer a variety of
reimbursable lunches, or provide multiple serving lines, must make all
required meal components available to all students, on every lunch line,
in at least the minimum required amounts.
(l) Requirements for lunch periods--(1) Timing. Schools must offer
lunches meeting the requirements of this section during the period the
school has designated as the lunch period. Schools must offer lunches
between 10 a.m. and 2 p.m. Schools may request an exemption from these
times from the State agency. With State agency approval, schools may
serve lunches to children under age 5 over two service periods. Schools
may divide quantities and food
[[Page 31]]
items offered each time any way they wish.
(2) Adequate lunch periods. FNS encourages schools to provide
sufficient lunch periods that are long enough to give all students
adequate time to be served and to eat their lunches.
(m) Modifications and variations in reimbursable meals and
afterschool snacks--(1) Modifications for disability reasons. School
food authorities must make meal modifications, including substitutions
in lunches and afterschool snacks, for children with a disability and
whose disability restricts their diet. The modification requested must
be related to the disability or limitations caused by the disability and
must be offered at no additional cost to the child or household.
(i) In order to receive Federal reimbursement when a modified meal
does not meet the meal pattern requirements specified in this section,
the school food authority must obtain from the household a written
medical statement signed by a State licensed healthcare professional. By
July 1, 2025, school food authorities must also accept a medical
statement signed by a registered dietitian. The medical statement must
provide sufficient information about the child's dietary restrictions,
such as foods to be omitted and recommended alternatives, if
appropriate. Modified meals that meet the meal pattern requirements in
this section are reimbursable with or without a medical statement.
(ii) School food authorities must ensure that parents, guardians,
and children have notice of the procedure for requesting meal
modifications for disabilities and the process for procedural safeguards
related to meal modifications for disabilities. See Sec. Sec. 15b.6(b)
and 15b.25 of this title.
(iii) Expenses incurred when making meal modifications that exceed
program reimbursement rates must be paid by the school food authority;
costs may be paid from the nonprofit food service account.
(2) Variations for non-disability reasons. School food authorities
should consider children's dietary preferences when planning and
preparing meals and afterschool snacks. Any variations must be
consistent with the meal pattern requirements specified under this
section. Expenses incurred from meal pattern variations that exceed
program reimbursement rates must be paid by the school food authority;
costs may be paid from the nonprofit food service account.
(3) Exceptions for natural disasters. If there is a natural disaster
or other catastrophe, FNS may temporarily allow school food authorities
to serve meals for reimbursement that do not meet the requirements in
this section.
(n) Nutrition disclosure. To the extent that school food authorities
identify foods in a menu, or on the serving line or through other
communications with program participants, school food authorities must
identify products or dishes containing more than 30 parts fully hydrated
alternate protein products (as specified in appendix A of this part) to
less than 70 parts beef, pork, poultry or seafood on an uncooked basis,
in a manner which does not characterize the product or dish solely as
beef, pork, poultry or seafood. Additionally, FNS encourages schools to
inform the students, parents, and the public about efforts they are
making to meet the meal requirements for school lunches.
(o) Afterschool snacks. Eligible schools operating afterschool care
programs may be reimbursed for one afterschool snack served to a child
(as defined in Sec. 210.2) per day.
(1) Eligible schools means schools that:
(i) Operate the National School Lunch Program; and
(ii) Sponsor afterschool care programs as defined in Sec. 210.2.
(2) Afterschool snack requirements for K-12 children--(i)
Afterschool snacks served to K through 12 children. Schools serving
afterschool snacks to K-12 children must serve the meal components and
quantities required in the snack meal pattern established for the Child
and Adult Care Food Program, under Sec. 226.20 of this chapter. In
addition, schools serving afterschool snacks to K-12 children must
comply with the requirements set forth in paragraphs (a), (c)(3) and
(4), (d)(2) through (4), (g), and (m) of this section, as applicable,
and Sec. 226.20(d) of this chapter.
(ii) Afterschool snack meal pattern table for K through 12 children.
Through June
[[Page 32]]
30, 2025, afterschool snacks must either follow the requirements
outlined in the following table or must contain two different components
from the following four: fluid milk, meats/meat alternates, vegetable or
fruit, and/or grains. By July 1, 2025, the minimum amounts of meal
components to be served at afterschool snack are as follows:
Table 5 to Paragraph (o)(2)(ii)--Afterschool Snack Meal Pattern for K-12
Children
[Ages 6-18]
[Select two of the five components for a reimbursable snack]
------------------------------------------------------------------------
Meal components \1\ Minimum quantities \2\
------------------------------------------------------------------------
Fluid milk \3\............................ 8 fluid ounces.
Meats/meat alternates \4\................. 1 ounce equivalent.
Vegetables \5\............................ \3/4\ cup.
Fruits \5\................................ \3/4\ cup.
Grains \6\................................ 1 ounce equivalent.
------------------------------------------------------------------------
\1\ Must serve two of the five components for a reimbursable afterschool
snack. Only one of the two components may be a beverage.
\2\ May need to serve larger portions to children ages 13 through 18 to
meet their nutritional needs.
\3\ Must be fat-free (skim) or low-fat (1 percent fat or less). Milk may
be unflavored or flavored.
\4\ Alternate protein products must meet the requirements in appendix A
to part 226 of this chapter. Yogurt must contain no more than 12 grams
of added sugars per 6 ounces (2 grams of added sugars per ounce).
Information on crediting meats/meat alternates may be found in FNS
guidance.
\5\ Juice must be pasteurized, full-strength juice. No more than half of
the weekly fruit or vegetable offerings may be in the form of juice.
\6\ At least 80 percent of grains offered weekly (by ounce equivalents)
must be whole grain-rich, as defined in Sec. 210.2, and the
remaining grains items offered must be enriched. Grain-based desserts
may not be used to meet the grains requirement. Breakfast cereal must
have no more than 6 grams of added sugars per dry ounce. Information
on crediting grain items may be found in FNS guidance.
(3) Afterschool snack requirements for preschoolers--(i) Afterschool
snacks served to preschoolers. Schools serving afterschool snacks to
preschoolers must serve the food components and quantities required in
the snack meal pattern established for the Child and Adult Care Food
Program, under Sec. 226.20 of this chapter. In addition, schools
serving afterschool snacks to preschoolers must comply with the
requirements set forth in paragraphs (a), (c)(3) and (4), (d)(2) through
(4), (g), and (m) of this section, as applicable, and Sec. 226.20(d) of
this chapter.
(ii) Preschooler afterschool snack meal pattern table. The minimum
amounts of food components to be served at afterschool snack are as
follows:
Table 5 to Paragraph (o)(3)(ii)--Afterschool Snack Meal Pattern for
Preschoolers
[Select two of the five components for a reimbursable snack]
------------------------------------------------------------------------
Minimum quantities
Meal components \1\ ---------------------------------------
Ages 1-2 Ages 3-5
------------------------------------------------------------------------
Fluid milk \2\.................. 4 fluid ounces.... 4 fluid ounces.
Meats/meat alternates \3\....... \1/2\ ounce \1/2\ ounce
equivalent. equivalent.
Vegetables \4\.................. \1/2\ cup......... \1/2\ cup.
Fruits \4\...................... \1/2\ cup......... \1/2\ cup.
Grains \5\...................... \1/2\ ounce \1/2\ ounce
equivalent. equivalent.
------------------------------------------------------------------------
\1\ Must serve two of the five components for a reimbursable afterschool
snack. Only one of the two components may be a beverage.
\2\ Must be unflavored whole milk for children age one. Must be
unflavored low-fat (1 percent) or unflavored fat-free (skim) milk for
children two through five years old.
\3\ Alternate protein products must meet the requirements in appendix A
to part 226 of this chapter. Through September 30, 2025, yogurt must
contain no more than 23 grams of total sugars per 6 ounces. By October
1, 2025, yogurt must contain no more than 12 grams of added sugars per
6 ounces (2 grams of added sugars per ounce). Information on crediting
meats/meat alternates may be found in FNS guidance.
\4\ Pasteurized full-strength juice may only be offered to meet the
vegetable or fruit requirement at one meal, including snack, per day.
\5\ At least one serving per day, across all eating occasions, must be
whole grain-rich. Grain-based desserts do not count toward meeting the
grains requirement. Through September 30, 2025, breakfast cereals must
contain no more than 6 grams of total sugars per dry ounce. By October
1, 2025, breakfast cereals must contain no more than 6 grams of added
sugars per dry ounce.
(4) Afterschool snack requirements for infants--(i) Afterschool
snacks served to infants. Schools serving afterschool snacks to infants
ages birth through 11 months must serve the meal components and
quantities required in the snack meal pattern established for the Child
and Adult Care Food Program, under Sec. 226.20 of this chapter. In
addition, schools serving afterschool snacks to infants must comply with
the requirements set forth in paragraphs (a), (c)(3) and (4), (g), and
(m) of this section, as applicable, and Sec. 226.20(d) of this chapter.
(ii) Infant afterschool snack meal pattern table. The minimum
amounts of meal components to be served at snack are as follows:
Table 6 to Paragraph (o)(4)(ii)--Infant Afterschool Snack Meal Pattern
------------------------------------------------------------------------
Birth through 5 months 6 through 11 months
------------------------------------------------------------------------
4-6 fluid ounces of breast milk \1\ or 2-4 fluid ounces breast milk
formula \2\. \1\ or formula; \2\ and
0-\1/2\ ounce equivalent bread;
3 4 or
[[Page 33]]
0-\1/4\ ounce equivalent
crackers; 3 4 or
0-\1/2\ ounce equivalent infant
cereal; 2 4 or
0-\1/4\ ounce equivalent ready-
to-eat breakfast cereal; 3 4 5
6and
0-2 tablespoons vegetable or
fruit, or a combination of
both.6 7
------------------------------------------------------------------------
\1\ Breast milk or formula, or portions of both, must be served;
however, it is recommended that breast milk be served from birth
through 11 months. For some breastfed infants who regularly consume
less than the minimum amount of breast milk per feeding, a serving of
less than the minimum amount of breast milk may be offered, with
additional breast milk offered at a later time if the infant will
consume more.
\2\ Infant formula and dry infant cereal must be iron-fortified.
\3\ A serving of grains must be whole grain-rich, enriched meal,
enriched flour, bran, or germ.
\4\ Information on crediting grain items may be found in FNS guidance.
\5\ Through September 30, 2025, breakfast cereals must contain no more
than 6 grams of total sugars per dry ounce. By October 1, 2025,
breakfast cereals must contain no more than 6 grams of added sugars
per dry ounce.
\6\ A serving of this component is required when the infant is
developmentally ready to accept it.
\7\ Fruit and vegetable juices must not be served.
(5) Monitoring afterschool snacks. Compliance with the requirements
of this paragraph (o)(5) is monitored by the State agency as part of the
Administrative Review conducted under Sec. 210.18. If snacks offered do
not meet the requirements of this paragraph, the State agency or school
food authority must provide technical assistance and require corrective
action and when applicable, must take fiscal action, as authorized in
Sec. Sec. 210.18(l) and 210.19(c).
(p) Lunch requirements for preschoolers--(1) Lunches served to
preschoolers. Schools serving lunches to preschoolers under the National
School Lunch Program must serve the meal components and quantities
required in the lunch meal pattern established for the Child and Adult
Care Food Program, under Sec. 226.20(a), (c)(2), and (d) of this
chapter. In addition, schools serving lunches to this age group must
comply with the requirements set forth in paragraphs (a), (c)(3) and
(4), (d)(2) through (4), (g), and (k) through (m) of this section.
(2) Preschooler lunch meal pattern table. The minimum amounts of
meal components to be served at lunch are as follows:
Table 7 to Paragraph (p)(2)--Preschool Lunch Meal Pattern
[Select the appropriate components for a reimbursable meal]
------------------------------------------------------------------------
Minimum quantities
Meal components and food items ---------------------------------------
\1\ Ages 1-2 Ages 3-5
------------------------------------------------------------------------
Fluid milk...................... 4 fluid ounces \2\ 6 fluid ounces
\3\.
Meats/meat alternates \4\....... 1 ounce equivalent 1\1/2\ ounce
equivalents.
Vegetables \5\.................. \1/8\ cup......... \1/4\ cup.
Fruits \5\...................... \1/8\ cup......... \1/4\ cup.
Grains \6\...................... \1/2\ ounce \1/2\ ounce
equivalent. equivalent.
------------------------------------------------------------------------
\1\ Must serve all five components for a reimbursable meal.
\2\ Must serve unflavored whole milk to children age 1.
\3\ Must serve unflavored milk to children 2 through 5 years old. The
milk must be fat-free, skim, low-fat, or 1 percent or less.
\4\ Alternate protein products must meet the requirements in appendix A
to part 226 of this chapter. Through September 30, 2025, yogurt must
contain no more than 23 grams of total sugars per 6 ounces. By October
1, 2025, yogurt must contain no more than 12 grams of added sugars per
6 ounces (2 grams of added sugars per ounce). Information on crediting
meats/meat alternates may be found in FNS guidance.
\5\ Juice must be pasteurized. Full-strength juice may only be offered
to meet the vegetable or fruit requirement at one meal or snack, per
day. Vegetables may be offered to meet the entire fruits requirement.
When two vegetables are served at lunch or supper, two different kinds
of vegetables must be served.
\6\ Must serve at least one whole grain-rich serving, across all eating
occasions, per day. Grain-based desserts may not be offered to meet
the grains requirement. Through September 30, 2025, breakfast cereals
must contain no more than 6 grams of total sugars per dry ounce. By
October 1, 2025, breakfast cereal must have no more than 6 grams of
added sugars per dry ounce. Information on crediting grain items may
be found in FNS guidance.
(q) Lunch requirements for infants--(1) Lunches served to infants.
Schools serving lunches to infants ages birth through 11 months under
the National School Lunch Program must serve the meal components and
quantities required in the lunch meal pattern established for the Child
and Adult Care Food Program, under Sec. 226.20(a), (b), and (d) of this
chapter. In addition, schools serving lunches to infants must comply
with the requirements set forth in paragraphs (a), (c)(3) and (4), (g),
(l), and (m) of this section.
[[Page 34]]
(2) Infant lunch meal pattern table. The minimum amounts of meal
components to be served at lunch are as follows:
Table 8 to Paragraph (q)(2)--Infant Lunch Meal Pattern
------------------------------------------------------------------------
Birth through 5 months 6 through 11 months
------------------------------------------------------------------------
4-6 fluid ounces breast milk \1\ or 6-8 fluid ounces breast milk
formula \2\. \1\ or formula; \2\ and
0-\1/2\ ounce equivalent infant
cereal; 2 3 or
0-4 tablespoons meat, fish,
poultry, whole egg, cooked dry
beans, peas, or lentils; or
0-2 ounces of cheese; or
0-4 ounces (volume) of cottage
cheese; or
0-4 ounces or \1/2\ cup of
yogurt; \4\ or a combination
of the above; \5\ and
0-2 tablespoons vegetable or
fruit, or a combination of
both.5 6
------------------------------------------------------------------------
\1\ Breast milk or formula, or portions of both, must be served;
however, it is recommended that breast milk be served from birth
through 11 months. For some breastfed infants who regularly consume
less than the minimum amount of breast milk per feeding, a serving of
less than the minimum amount of breast milk may be offered, with
additional breast milk offered at a later time if the infant will
consume more.
\2\ Infant formula and dry infant cereal must be iron-fortified.
\3\ Information on crediting grain items may be found in FNS guidance.
\4\ Through September 30, 2025, yogurt must contain no more than 23
grams of total sugars per 6 ounces. By October 1, 2025, yogurt must
contain no more than 12 grams of added sugars per 6 ounces (2 grams of
added sugars per ounce).
\5\ A serving of this component is required when the infant is
developmentally ready to accept it.
\6\ Fruit and vegetable juices must not be served.
(r) Severability. If any provision of this section is held to be
invalid or unenforceable by its terms, or as applied to any person or
circumstances, it shall be severable from this section and not affect
the remainder thereof. In the event of such holding of invalidity or
unenforceability of a provision, the meal pattern requirement covered by
that provision reverts to the version that immediately preceded the
invalidated provision.
[77 FR 4143, Jan. 26, 2012, as amended at 78 FR 13448, Feb. 28, 2013; 78
FR 39090, June 28, 2013; 81 FR 24372, Apr. 25, 2016; 81 FR 50185, July
29, 2016; 81 FR 75671, Nov. 1, 2016; 82 FR 56713, Nov. 30, 2017; 83 FR
63789, Dec. 12, 2018; 84 FR 50289, Sept. 25, 2019; 85 FR 7853, Feb. 12,
2020; 85 FR 74847, Nov. 24, 2020; 86 FR 57544, Oct. 18, 2021; 87 FR
4126, Jan. 27, 2022; 87 FR 7005, Feb. 7, 2022; 87 FR 47331, Aug. 3,
2022; 87 FR 52329, Aug. 25, 2022; 89 FR 32065, Apr. 25, 2024]
Sec. 210.11 Competitive food service and standards.
(a) Definitions. For the purpose of this section:
(1) Combination foods means products that contain two or more
components representing two or more of the recommended food groups:
fruit, vegetable, dairy, protein or grains.
(2) Competitive food means all food and beverages other than meals
reimbursed under programs authorized by the Richard B. Russell National
School Lunch Act and the Child Nutrition Act of 1966 available for sale
to students on the School campus during the School day.
(3) Entr[eacute]e item means an item that is intended as the main
dish in a reimbursable meal and is either:
(i) A combination food of a meat/meat alternate and a grain;
(ii) A combination food of a vegetable or fruit and a meat/meat
alternate;
(iii) A meat/meat alternate alone with the exception of yogurt, low-
fat or reduced fat cheese, nuts, seeds and nut or seed butters, and meat
snacks (such as dried beef jerky); or
(iv) A grain only entr[eacute]e that is served as the main dish in a
school breakfast.
(4) School campus means, for the purpose of competitive food
standards implementation, all areas of the property under the
jurisdiction of the school that are accessible to students during the
school day.
(5) School day means, for the purpose of competitive food standards
implementation, the period from the midnight before, to 30 minutes after
the end of the official school day.
(6) Paired exempt foods mean food items that have been designated as
exempt from one or more of the nutrient requirements individually which
are packaged together without any additional ingredients. Such ``paired
exempt foods'' retain their individually designated exemption for total
fat, saturated fat, and/or sugar when packaged together and sold but are
required to meet the designated calorie and sodium standards specified
in Sec. Sec. 210.11(i) and (j) at all times.
(7) Bean dip means, for the purpose of competitive food standards, a
spread made from ground pulses (beans, peas, and/or lentils), along with
one or more of the following optional ingredients:
(i) Ground nut/seed butter (such as tahini [ground sesame] or peanut
butter).
[[Page 35]]
(ii) Vegetable oil (such as olive oil, canola oil, soybean oil).
(iii) Seasoning (such as salt, citric acid).
(iv) Vegetables and juice for flavor (such as olives, roasted
pepper, garlic, lemon juice).
(v) For manufactured bean dip, contains ingredients necessary as
preservatives and/or to maintain freshness.
(b) General requirements for competitive food. (1) State and local
educational agency policies. State agencies and/or local educational
agencies must establish such policies and procedures as are necessary to
ensure compliance with this section. State agencies and/or local
educational agencies may impose additional restrictions on competitive
foods, provided that they are not inconsistent with the requirements of
this part.
(2) Recordkeeping. The local educational agency is responsible for
the maintenance of records that document compliance with the nutrition
standards for all competitive food available for sale to students in
areas under its jurisdiction that are outside of the control of the
school food authority responsible for the service of reimbursable school
meals. In addition, the local educational agency is responsible for
ensuring that organizations designated as responsible for food service
at the various venues in the schools maintain records in order to ensure
and document compliance with the nutrition requirements for the foods
and beverages sold to students at these venues during the school day as
required by this section. The school food authority is responsible for
maintaining records documenting compliance with these for foods sold
under the auspices of the nonprofit school food service. At a minimum,
records must include receipts, nutrition labels and/or product
specifications for the competitive food available for sale to students.
(3) Applicability. The nutrition standards for the sale of
competitive food outlined in this section apply to competitive food for
all programs authorized by the Richard B. Russell National School Lunch
Act and the Child Nutrition Act of 1966 operating on the school campus
during the school day.
(4) Fundraiser restrictions. Competitive food and beverage items
sold during the school day must meet the nutrition standards for
competitive food as required in this section. A special exemption is
allowed for the sale of food and/or beverages that do not meet the
competitive food standards as required in this section for the purpose
of conducting an infrequent school-sponsored fundraiser. Such specially
exempted fundraisers must not take place more than the frequency
specified by the State agency during such periods that schools are in
session. No specially exempted fundraiser foods or beverages may be sold
in competition with school meals in the food service area during the
meal service.
(c) General nutrition standards for competitive food. (1) General
requirement. At a minimum, all competitive food sold to students on the
school campus during the school day must meet the nutrition standards
specified in this section. These standards apply to items as packaged
and served to students.
(2) General nutrition standards. To be allowable, a competitive food
item must:
(i) Meet all of the competitive food nutrient standards as outlined
in this section; and
(ii) Be a grain product that contains 50 percent or more whole
grains by weight or have as the first ingredient a whole grain; or
(iii) Have as the first ingredient one of the non-grain major food
groups: fruits, vegetables, dairy or protein foods (meat, beans,
poultry, seafood, eggs, nuts, seeds, etc.); or
(iv) Be a combination food that contains \1/4\ cup of fruit and/or
vegetable; or
(v) If water is the first ingredient, the second ingredient must be
one of the food items in paragraphs (c)(2)(ii), (iii) or (iv) of this
section.
(3) Exemptions. (i) Entr[eacute]e items offered as part of the lunch
or breakfast program. Any entr[eacute]e item offered as part of the
lunch program or the breakfast program under 7 CFR Part 220 is exempt
from all competitive food standards if it is offered as a competitive
food on the day of, or the school day after, it is offered in the lunch
or breakfast program. Exempt entr[eacute]e items offered as a
[[Page 36]]
competitive food must be offered in the same or smaller portion sizes as
in the lunch or breakfast program. Side dishes offered as part of the
lunch or breakfast program and served [agrave] la carte must meet the
nutrition standards in this section.
(ii) Sugar-free chewing gum. Sugar-free chewing gum is exempt from
all of the competitive food standards in this section and may be sold to
students on the school campus during the school day, at the discretion
of the local educational agency.
(d) Fruits and vegetables. (1) Fresh, frozen and canned fruits with
no added ingredients except water or packed in 100 percent fruit juice
or light syrup or extra light syrup are exempt from the nutrient
standards included in this section.
(2) Fresh and frozen vegetables with no added ingredients except
water and canned vegetables that are low sodium or no salt added that
contain no added fat are exempt from the nutrient standards included in
this section.
(e) Grain products. Grain products acceptable as a competitive food
must include 50 percent or more whole grains by weight or have whole
grain as the first ingredient. Grain products must meet all of the other
nutrient standards included in this section.
(f) Total fat and saturated fat. (1) General requirements. (i) The
total fat content of a competitive food must be not more than 35 percent
of total calories from fat per item as packaged or served, except as
specified in paragraphs (f)(2) and (3) of this section.
(ii) The saturated fat content of a competitive food must be less
than 10 percent of total calories per item as packaged or served, except
as specified in paragraph (f)(3) of this section.
(2) Exemptions to the total fat requirement. (i) Seafood with no
added fat is exempt from the total fat requirement, but subject to the
saturated fat, sugar, calorie, and sodium standards.
(ii) Bean dip (as defined in paragraph (a)(7) of this section), is
exempt from the total fat standard, but subject to the saturated fat,
sugar, calorie, and sodium standards. This exemption does not apply to
combination products that contain bean dip with other ingredients such
as crackers, pretzels, pita, manufactured, snack-type vegetable and/or
fruit sticks.
(3) Exemptions to the total fat and saturated fat requirements. (i)
Reduced fat cheese and part skim mozzarella cheese are exempt from the
total fat and saturated fat standards, but subject to the sugar,
calorie, and sodium standards. This exemption does not apply to
combination foods.
(ii) Nuts and seeds and nut/seed butters are exempt from the total
fat and saturated fat standards, but subject to the sugar, calorie, and
sodium standards. This exemption does not apply to combination products
that contain nuts, seeds, or nut/seed butters with other ingredients,
such as peanut butter and crackers, trail mix, or chocolate covered
peanuts.
(iii) Products that consist of only dried fruit with nuts and/or
seeds with no added nutritive sweeteners or fat are exempt from the
total fat, saturated fat, and sugar standards, but subject to the
calorie and sodium standards.
(iv) Whole eggs with no added fat are exempt from the total fat and
saturated fat standards, but subject to the calorie and sodium
standards.
(g) Total sugars. (1) General requirement. The total sugar content
of a competitive food must be not more than 35 percent of weight per
item as packaged or served, except as specified in paragraph (h)(2) of
this section.
(2) Exemptions to the total sugar requirement. (i) Dried whole
fruits or vegetables; dried whole fruit or vegetable pieces; and
dehydrated fruits or vegetables with no added nutritive sweeteners are
exempt from the sugar standard, but subject to the total fat, saturated
fat, calorie, and sodium standards. There is also an exemption from the
sugar standard for dried fruits with nutritive sweeteners that are
required for processing and/or palatability purposes.
(ii) Products that consist of only dried fruit with nuts and/or
seeds with no added nutritive sweeteners or fat are exempt from the
total fat, saturated fat, and sugar standards, but subject to the
calorie and sodium standards.
[[Page 37]]
(h) Calorie and sodium content for snack items and side dishes sold
as competitive foods. Snack items and side dishes sold as competitive
foods must have not more than 200 calories and 200 mg of sodium per item
as packaged or served, including the calories and sodium contained in
any added accompaniments such as butter, cream cheese, salad dressing,
etc., and must meet all of the other nutrient standards in this section.
These snack items and side dishes must have not more than 200 calories
and 200 mg of sodium per item as packaged or served.
(i) Calorie and sodium content for entr[eacute]e items sold as
competitive foods. Entr[eacute]e items sold as competitive foods, other
than those exempt from the competitive food nutrition standards in
paragraph (c)(3)(i) of this section, must have not more than 350
calories and 480 mg of sodium per item as packaged or served, including
the calories and sodium contained in any added accompaniments such as
butter, cream cheese, salad dressing, etc., and must meet all of the
other nutrient standards in this section.
(j) Caffeine. Foods and beverages available to elementary and middle
school-aged students must be caffeine-free, with the exception of trace
amounts of naturally occurring caffeine substances. Foods and beverages
available to high school-aged students may contain caffeine.
(k) Accompaniments. The use of accompaniments is limited when
competitive food is sold to students in school. The accompaniments to a
competitive food item must be included in the nutrient profile as a part
of the food item served in determining if an item meets all of the
nutrition standards for competitive food as required in this section.
The contribution of the accompaniments may be based on the average
amount of the accompaniment used per item at the site.
(l) Beverages--(1) Elementary schools. Allowable beverages for
elementary school-aged students are limited to:
(i) Plain water or plain carbonated water (no size limit);
(ii) Milk and fluid milk substitutes that meet the requirements
outlined in Sec. 210.10(d)(1) and (2) (no more than 8 fluid ounces);
and
(iii) One hundred (100) percent fruit/vegetable juice, and 100
percent fruit/vegetable juice diluted with water, with or without
carbonation and with no added sweeteners (no more than 8 fluid ounces).
(2) Middle schools. Allowable beverages for middle school-aged
students are limited to:
(i) Plain water or plain carbonated water (no size limit);
(ii) Milk and fluid milk substitutes that meet the requirements
outlined in Sec. 210.10(d)(1) and (2) (no more than 12 fluid ounces);
and
(iii) One hundred (100) percent fruit/vegetable juice, and 100
percent fruit/vegetable juice diluted with water, with or without
carbonation and with no added sweeteners (no more than 12 fluid ounces).
(3) High schools. Allowable beverages for high school-aged students
are limited to:
(i) Plain water or plain carbonated water (no size limit);
(ii) Milk and fluid milk substitutes that meet the requirements
outlined in Sec. 210.10(d)(1) and (2) (no more than 12 fluid ounces);
(iii) One hundred (100) percent fruit/vegetable juice, and 100
percent fruit/vegetable juice diluted with water, with or without
carbonation and with no added sweeteners (no more than 12 fluid ounces);
(iv) Calorie-free, flavored water, with or without carbonation (no
more than 20 fluid ounces);
(v) Other beverages that are labeled to contain less than 5 calories
per 8 fluid ounces, or less than or equal to 10 calories per 20 fluid
ounces (no more than 20 fluid ounces); and
(vi) Other beverages that are labeled to contain no more than 40
calories per 8 fluid ounces or 60 calories per 12 fluid ounces (no more
than 12 fluid ounces).
[78 FR 39091, June 28, 2013, as amended at 81 FR 50151, July 29, 2016;
82 FR 56714, Nov. 30, 2017; 83 FR 63790, Dec. 12, 2018; 85 FR 74848,
Nov. 24, 2020; 87 FR 7006, Feb. 7, 2022; 89 FR 32072, Apr. 25, 2024]
Sec. 210.12 Student, parent, and community involvement.
(a) General. School food authorities shall promote activities to
involve students and parents in the Program.
[[Page 38]]
Such activities may include menu planning, enhancement of the eating
environment, Program promotion, and related student-community support
activities. School food authorities are encouraged to use the school
food service program to teach students about good nutrition practices
and to involve the school faculty and the general community in
activities to enhance the Program.
(b) Food service management companies. School food authorities
contracting with a food service management company shall comply with the
provisions of Sec. 210.16(a) regarding the establishment of an advisory
board of parents, teachers and students.
(c) Residential child care institutions. Residential child care
institutions shall comply with the provisions of this section, to the
extent possible.
(d) Outreach activities. (1) To the maximum extent practicable,
school food authorities must inform families about the availability
breakfasts for students. Information about the School Breakfast Program
must be distributed just prior to or at the beginning of the school
year. In addition, schools are encouraged to send reminders regarding
the availability of the School Breakfast Program multiple times
throughout the school year.
(2) School food authorities must cooperate with Summer Food Service
Program sponsors to distribute materials to inform families of the
availability and location of free Summer Food Service Program meals for
students when school is not in session.
(e) Local school wellness policies. Local educational agencies must
comply with the provisions of Sec. 210.31(d) regarding student, parent,
and community involvement in the development, implementation, and
periodic review and update of the local school wellness policy.
[53 FR 29147, Aug. 2, 1988, as amended at 78 FR 13448, Feb. 28, 2013; 81
FR 50168, July 29, 2016; 89 FR 32073, Apr. 25, 2024]
Sec. 210.13 Facilities management.
(a) Health standards. The school food authority shall ensure that
food storage, preparation and service is in accordance with the
sanitation and health standards established under State and local law
and regulations.
(b) Food safety inspections. Schools shall obtain a minimum of two
food safety inspections during each school year conducted by a State or
local governmental agency responsible for food safety inspections. They
shall post in a publicly visible location a report of the most recent
inspection conducted, and provide a copy of the inspection report to a
member of the public upon request. Sites participating in more than one
child nutrition program shall only be required to obtain two food safety
inspections per school year if the nutrition programs offered use the
same facilities for the production and service of meals.
(c) Food safety program. The school food authority must develop a
written food safety program that covers any facility or part of a
facility where food is stored, prepared, or served. The food safety
program must meet the requirements in paragraph (c)(1) or paragraph
(c)(2) of this section, and the requirements in Sec. 210.15(b)(5).
(1) A school food authority with a food safety program based on
traditional hazard analysis and critical control point (HACCP)
principles must:
(i) Perform a hazard analysis;
(ii) Decide on critical control points;
(iii) Determine the critical limits;
(iv) Establish procedures to monitor critical control points;
(v) Establish corrective actions;
(vi) Establish verification procedures; and
(vii) Establish a recordkeeping system.
(2) A school food authority with a food safety program based on the
process approach to HACCP must ensure that its program includes:
(i) Standard operating procedures to provide a food safety
foundation;
(ii) Menu items grouped according to process categories;
(iii) Critical control points and critical limits;
(iv) Monitoring procedures;
(v) Corrective action procedures;
(vi) Recordkeeping procedures; and
(vii) Periodic program review and revision.
(d) Storage. The school food authority shall ensure that the
necessary facilities for storage, preparation and service of food are
maintained. Facilities
[[Page 39]]
for the handling, storage, and distribution of purchased and donated
foods shall be such as to properly safeguard against theft, spoilage and
other loss.
[54 FR 29147, Aug. 2, 1988, as amended at 64 FR 50740, Sept. 20, 1999;
70 FR 34630, June 15, 2005; 74 FR 66216, Dec. 15, 2009; 78 FR 13448,
Feb. 28, 2013]
Sec. 210.14 Resource management.
(a) Nonprofit school food service. School food authorities shall
maintain a nonprofit school food service. Revenues received by the
nonprofit school food service are to be used only for the operation or
improvement of such food service, except that, such revenues shall not
be used to purchase land or buildings, unless otherwise approved by FNS,
or to construct buildings. Expenditures of nonprofit school food service
revenues shall be in accordance with the financial management system
established by the State agency under Sec. 210.19(a) of this part.
School food authorities may use facilities, equipment, and personnel
supported with nonprofit school food revenues to support a nonprofit
nutrition program for the elderly, including a program funded under the
Older Americans Act of 1965 (42 U.S.C. 3001 et seq.).
(b) Net cash resources. The school food authority shall limit its
net cash resources to an amount that does not exceed 3 months average
expenditures for its nonprofit school food service or such other amount
as may be approved by the State agency in accordance with Sec.
210.19(a).
(c) Financial assurances. The school food authority shall meet the
requirements of the State agency for compliance with Sec. 210.19(a)
including any separation of records of nonprofit school food service
from records of any other food service which may be operated by the
school food authority as provided in paragraph (a) of this section.
(d) Use of donated foods. The school food authority shall enter into
an agreement with the distributing agency to receive donated foods as
required by part 250 of this chapter. In addition, the school food
authority shall accept and use, in as large quantities as may be
efficiently utilized in its nonprofit school food service, such foods as
may be offered as a donation by the Department. The school food
authority's policies, procedures, and records must account for the
receipt, full value, proper storage and use of donated foods.
(e) Pricing paid lunches. For each school year, school food
authorities must establish prices for paid lunches in accordance with
this paragraph (e).
(1) Calculation procedures. Each school food authority shall:
(i) Determine the average price of paid lunches. The average shall
be determined based on the total number of paid lunches claimed for the
month of October in the previous school year, at each different price
charged by the school food authority.
(ii) Calculate the difference between the per meal Federal
reimbursement for paid and free lunches received by the school food
authority in the previous school year (i.e., the reimbursement
difference);
(iii) Compare the average price of a paid lunch under paragraph
(e)(1)(i) of this section to the difference between reimbursement rates
under paragraph (e)(1)(ii) of this section.
(2) Average paid lunch price is equal to/greater than the
reimbursement difference. When the average paid lunch price from the
prior school year is equal to or greater than the difference in
reimbursement rates as determined in paragraph (e)(1)(iii) of this
section, the school food authority shall establish an average paid lunch
price for the current school year that is not less than the difference
identified in (e)(1)(iii) of this section; except that, the school food
authority may use the procedure in paragraph (e)(4)(ii) of this section
when establishing prices of paid lunches.
(3) Average lunch price is lower than the reimbursement difference.
When the average price from the prior school year is lower than the
difference in reimbursement rates as determined in paragraph (e)(1)(iii)
of this section, the school food authority shall establish an average
price for the current school year that is not less than the average
price charged in the previous school year as adjusted by a percentage
equal to the sum obtained by adding:
(i) 2 percent; and
(ii) The percentage change in the Consumers Price Index for All
Urban
[[Page 40]]
Consumers used to increase the Federal reimbursement rate under section
11 of the Act for the most recent school year for which data are
available. The percentage to be used is found in the annual notice
published in the Federal Register announcing the national average
payment rates, from the prior year.
(4) Price Adjustments. (i) Maximum required price increase. The
maximum annual average price increase required under this paragraph
shall not exceed ten cents.
(ii) Rounding of paid lunch prices. Any school food authority may
round the adjusted price of the paid lunches down to the nearest five
cents.
(iii) Optional price increases. A school food authority may increase
the average price by more than ten cents.
(5) Reduction in average price for paid lunches. (i) Any school food
authority may reduce the average price of paid lunches as established
under this paragraph if the State agency ensures that funds are added to
the nonprofit school food service account in accordance with this
paragraph.
The minimum that must be added is the product of:
(A) The number of paid lunches claimed by the school food authority
in the previous school year multiplied by
(B) The amount required under paragraph (e)(3) of this section, as
adjusted under paragraph (e)(4) of this section, minus the average price
charged.
(ii) Prohibitions. The following shall not be used to reduce the
average price charged for paid lunches:
(A) Federal sources of revenue;
(B) Revenue from foods sold in competition with lunches or with
breakfasts offered under the School Breakfast Program authorized in 7
CFR part 220. Requirements concerning foods sold in competition with
lunches or breakfasts are found in Sec. 210.11 and Sec. 220.12 of this
chapter, respectively;
(C) In-kind contributions;
(D) Any in-kind contributions converted to direct cash expenditures;
and
(E) Per-meal reimbursements (non-Federal) specifically provided for
support of programs other than the school lunch program.
(iii) Allowable non-Federal revenue sources. Any contribution that
is for the direct support of paid lunches that is not prohibited under
paragraph (e)(5)(ii) of this section may be used as revenue for this
purpose. Such contributions include, but are not limited to:
(A) Per-lunch reimbursements for paid lunches provided by State or
local governments;
(B) Funds provided by organizations, such as school-related or
community groups, to support paid lunches;
(C) Any portion of State revenue matching funds that exceeds the
minimum requirement, as provided in Sec. 210.17, and is provided for
paid lunches; and
(D) A proportion attributable to paid lunches from direct payments
made from school district funds to support the lunch service.
(6) Additional considerations. (i) In any given year, if a school
food authority with an average price lower than the reimbursement
difference is not required by paragraph (e)(4)(ii) of this section to
increase its average price for paid lunches, the school food authority
shall use the unrounded average price as the basis for calculations to
meet paragraph (e)(3) of this section for the next school year.
(ii) If a school food authority has an average price lower than the
reimbursement difference and chooses to increase its average price for
paid lunches in any school year more than is required by this section,
the amount attributable to the additional voluntary increase may be
carried forward to the next school year(s) to meet the requirements of
this section.
(7) Reporting lunch prices. In accordance with guidelines provided
by FNS:
(i) School food authorities shall report prices charged for paid
lunches to the State agency; and
(ii) State agencies shall report these prices to FNS.
(f) Revenue from nonprogram foods. School food authorities must
ensure that the revenue generated from the sale of nonprogram foods
complies with the requirements in this paragraph (f).
(1) Definition of nonprogram foods. For the purposes of this
paragraph, nonprogram foods are those foods and beverages:
[[Page 41]]
(i) Sold in a participating school other than reimbursable meals and
meal supplements; and
(ii) Purchased using funds from the nonprofit school food service
account.
(2) Revenue from nonprogram foods. The proportion of total revenue
from the sale of nonprogram foods to total revenue of the school food
service account shall be equal to or greater than:
(i) The proportion of total food costs associated with obtaining
nonprogram foods to
(ii) The total costs associated with obtaining program and
nonprogram foods from the account.
(3) All revenue from the sale of nonprogram foods shall accrue to
the nonprofit school food service account of a participating school food
authority.
(g) Indirect costs. School food authorities must follow fair and
consistent methodologies to identify and allocate allowable indirect
costs to the nonprofit school food service account, in accordance with 2
CFR part 200 as implemented by 2 CFR part 400.
[53 FR 29147, Aug. 2, 1988, as amended at 60 FR 31215, June 13, 1995; 76
FR 35316, June 17, 2011; 81 FR 50185, July 29, 2016; 89 FR 32073, Apr.
25, 2024]
Sec. 210.15 Reporting and recordkeeping.
(a) Reporting summary. Participating school food authorities are
required to submit forms and reports to the State agency or the
distributing agency, as appropriate, to demonstrate compliance with
Program requirements. These reports include, but are not limited to:
(1) A Claim for Reimbursement and, for the month of October and as
otherwise specified by the State agency, supporting data as specified in
accordance with Sec. 210.8 of this part;
(2) An application and agreement for Program operations between the
school food authority and the State agency, and a Free and Reduced Price
Policy Statement as required under Sec. 210.9;
(3) A written response to reviews pertaining to corrective action
taken for Program deficiencies;
(4) A commodity school's preference whether to receive part of its
donated food allocation in cash for processing and handling of donated
foods as required under Sec. 210.19(b);
(5) A written response to audit findings pertaining to the school
food authority's operation as required under Sec. 210.22;
(6) Information on civil rights complaints, if any, and their
resolution as required under Sec. 210.23;
(7) The number of food safety inspections obtained per school year
by each school under its jurisdiction;
(8) The prices of paid lunches charged by the school food authority;
and
(9) For any local educational agency required to conduct a second
review of free and reduced price applications as required under Sec.
245.11 of this chapter, the number of free and reduced price
applications subject to a second review, the number and percentage of
reviewed applications for which the eligibility determination was
changed, and a summary of the types of changes made.
(b) Recordkeeping summary. In order to participate in the Program, a
school food authority or a school, as applicable, must maintain records
to demonstrate compliance with Program requirements. These records
include but are not limited to:
(1) Documentation of participation data by school in support of the
Claim for Reimbursement and data used in the claims review process, as
required under Sec. 210.8(a), (b), and (c) of this part;
(2) Production and menu records as required under Sec. 210.10 and
documentation to support performance-based cash assistance, as required
under Sec. 210.7(d)(2).
(3) Participation records to demonstrate positive action toward
providing one lunch per child per day as required under Sec.
210.10(a)(2), whichever is applicable;
(4) Currently approved and denied certification documentation for
free and reduced price lunches and a description of the verification
activities, including verified applications, and any accompanying source
documentation in accordance with 7 CFR 245.6a of this Title; and
(5) Records from the food safety program for a period of six months
following a month's temperature records to demonstrate compliance with
Sec. 210.13(c), and records from the most recent food safety inspection
to demonstrate compliance with Sec. 210.13(b);
[[Page 42]]
(6) Records to document compliance with the requirements in Sec.
210.14(e);
(7) Records to document compliance with the requirements in Sec.
210.14(f); and
(8) Records for a three year period to demonstrate the school food
authority's compliance with the professional standards for school
nutrition program directors, managers and personnel established in Sec.
210.30.
(9) Records to document compliance with the local school wellness
policy requirements as set forth in Sec. 210.31(f).
[53 FR 29147, Aug. 2, 1988, as amended at 54 FR 12582, Mar. 28, 1989; 56
FR 32941, July 17, 1991; 60 FR 31215, June 13, 1995; 65 FR 26912, 26922,
May 9, 2000; 70 FR 34630, June 15, 2005; 74 FR 66216, Dec. 15, 2009; 76
FR 35317, June 17, 2011; 77 FR 25035, Apr. 27, 2012; 79 FR 7053, Feb. 6,
2014; 80 FR 11092, Mar. 2, 2015; 81 FR 50169, July 29, 2016; 81 FR
50185, July 29, 2016; 89 FR 32073, Apr. 25, 2024]
Sec. 210.16 Food service management companies.
(a) General. Any school food authority (including a State agency
acting in the capacity of a school food authority) may contract with a
food service management company to manage its food service operation in
one or more of its schools. However, no school or school food authority
may contract with a food service management company to operate an a la
carte food service unless the company agrees to offer free, reduced
price and paid reimbursable lunches to all eligible children. Any school
food authority that employs a food service management company in the
operation of its nonprofit school food service shall:
(1) Adhere to the procurement standards specified in Sec. 210.21
when contracting with the food service management company;
(2) Ensure that the food service operation is in conformance with
the school food authority's agreement under the Program;
(3) Monitor the food service operation through periodic on-site
visits;
(4) Retain control of the quality, extent, and general nature of its
food service, and the prices to be charged the children for meals;
(5) Retain signature authority on the State agency-school food
authority agreement, free and reduced price policy statement and claims;
(6) Ensure that all federally donated foods received by the school
food authority and made available to the food service management company
accrue only to the benefit of the school food authority's nonprofit
school food service and are fully utilized therein;
(7) Maintain applicable health certification and assure that all
State and local regulations are being met by a food service management
company preparing or serving meals at a school food authority facility;
(8) Establish an advisory board composed of parents, teachers, and
students to assist in menu planning;
(9) Obtain written approval of invitations for bids and requests for
proposals before their issuance when required by the State agency. The
school food authority must incorporate all State agency required changes
to its solicitation documents before issuing those documents; and
(10) Ensure that the State agency has reviewed and approved the
contract terms and that the school food authority has incorporated all
State agency required changes into the contract or amendment before any
contract or amendment to an existing food service management company
contract is executed. Any changes made by the school food authority or a
food service management company to a State agency pre-approved prototype
contract or State agency approved contract term must be approved in
writing by the State agency before the contract is executed. When
requested, the school food authority must submit all procurement
documents, including responses submitted by potential contractors, to
the State agency, by the due date established by the State agency.
(b) Invitation to bid. In addition to adhering to the procurement
standards under Sec. 210.21, school food authorities contracting with
food service management companies shall ensure that:
(1) The invitation to bid or request for proposal contains a 21-day
cycle menu developed in accordance with the provisions of Sec. 210.10,
to be used as a standard for the purpose of basing bids or estimating
average cost per meal. A school food authority with no capability to
prepare a cycle menu may,
[[Page 43]]
with State agency approval, require that each food service management
company include a 21-day cycle menu, developed in accordance with the
provisions of Sec. 210.10, with its bid or proposal. The food service
management company must adhere to the cycle for the first 21 days of
meal service. Changes thereafter may be made with the approval of the
school food authority.
(2) Any invitation to bid or request for proposal indicate that
nonperformance subjects the food service management company to specified
sanctions in instances where the food service management company
violates or breaches contract terms. The school food authority shall
indicate these sanctions in accordance with the procurement provisions
stated in Sec. 210.21.
(c) Contracts. Contracts that permit all income and expenses to
accrue to the food service management company and ``cost-plus-a-
percentage-of-cost'' and ``cost-plus-a-percentage-of-income'' contracts
are prohibited. Contracts that provide for fixed fees such as those that
provide for management fees established on a per meal basis are allowed.
Contractual agreements with food service management companies shall
include provisions which ensure that the requirements of this section
are met. Such agreements shall also include the following:
(1) The food service management company shall maintain such records
as the school food authority will need to support its Claim for
Reimbursement under this part, and shall, at a minimum, report claim
information to the school food authority promptly at the end of each
month. Such records shall be made available to the school food
authority, upon request, and shall be retained in accordance with Sec.
210.23(c).
(2) The food service management company shall have State or local
health certification for any facility outside the school in which it
proposes to prepare meals and the food service management company shall
maintain this health certification for the duration of the contract.
(3) No payment is to be made for meals that are spoiled or
unwholesome at time of delivery, do not meet detailed specifications as
developed by the school food authority for each food component specified
in Sec. 210.10, or do not otherwise meet the requirements of the
contract. Specifications shall cover items such a grade, purchase units,
style, condition, weight, ingredients, formulations, and delivery time.
(4) Provisions in part 250, subpart D of this chapter must be
included to ensure the value of donated foods, i.e., USDA Foods, are
fully used in the nonprofit food service and credited to the nonprofit
school food service account.
(d) Duration of contract. The contract between a school food
authority and food service management company shall be of a duration of
no longer than 1 year; and options for the yearly renewal of a contract
signed after February 16, 1988, may not exceed 4 additional years. All
contracts shall include a termination clause whereby either party may
cancel for cause with 60-day notification.
[53 FR 29147, Aug. 2, 1988, as amended at 60 FR 31215, June 13, 1995; 65
FR 26912, May 9, 2000; 72 FR 61491, Oct. 31, 2007; 88 FR 57845, Aug. 23,
2023]
Subpart D_Requirements for State Agency Participation
Sec. 210.17 Matching Federal funds.
(a) State revenue matching. For each school year, the amount of
State revenues appropriated or used specifically by the State for
program purposes shall not be less than 30 percent of the funds received
by such State under section 4 of the National School Lunch Act during
the school year beginning July 1, 1980; provided that, the State
revenues derived from the operation of such programs and State revenues
expended for salaries and administrative expenses of such programs at
the State level are not considered in this computation. However, if the
per capita income of any State is less than the per capita income of the
United States, the matching requirements so computed shall be decreased
by the percentage by which the State per capita income is below the per
capita income of the United States.
(b) Private school exemption. No State in which the State agency is
prohibited
[[Page 44]]
by law from disbursing State appropriated funds to nonpublic schools
shall be required to match general cash assistance funds expended for
meals served in such schools, or to disburse to such schools any of the
State revenues required to meet the requirements of paragraph (a) of
this section. Furthermore, the requirements of this section do not apply
to schools in which the Program is administered by a FNSRO.
(c) Territorial waiver. American Samoa and the Commonwealth of the
Northern Mariana Islands shall be exempted from the matching
requirements of paragraph (a) of this section if their respective
matching requirements are under $100,000.
(d) Applicable revenues. The following State revenues, appropriated
or used specifically for program purposes which are expended for any
school year shall be eligible for meeting the applicable percentage of
the matching requirements prescribed in paragraph (a) of this section
for that school year:
(1) State revenues disbursed by the State agency to school food
authorities for program purposes, including revenue disbursed to
nonprofit private schools where the State administers the program in
such schools;
(2) State revenues made available to school food authorities and
transferred by the school food authorities to the nonprofit school food
service accounts or otherwise expended by the school food authorities in
connection with the nonprofit school food service program; and
(3) State revenues used to finance the costs (other than State
salaries or other State level administrative costs) of the nonprofit
school food service program, i.e.:
(i) Local program supervision;
(ii) Operating the program in participating schools; and
(iii) The intrastate distribution of foods donated under part 250 of
this chapter to schools participating in the program.
(e) Distribution of matching revenues. All State revenues made
available under paragraph (a) of this section are to be disbursed to
school food authorities participating in the Program, except as provided
for under paragraph (b) of this section. Distribution of matching
revenues may be made with respect to a class of school food authorities
as well as with respect to individual school food authorities.
(f) Failure to match. If, in any school year, a State fails to meet
the State revenue matching requirement, as prescribed in paragraph (a)
of this section, the general cash assistance funds utilized by the State
during that school year shall be subject to recall by and repayment to
FNS.
(g) Reports. Within 120 days after the end of each school year, each
State agency shall submit an Annual Report of Revenues (FNS-13) to FNS.
This report identifies the State revenues to be counted toward the State
revenue matching requirements specified in paragraph (a) of this
section.
(h) Accounting system. The State agency shall establish or cause to
be established a system whereby all expended State revenues counted in
meeting the matching requirements prescribed in paragraph (a) of this
section are properly documented and accounted for.
Sec. 210.18 Administrative reviews.
(a) Programs covered and methodology. Each State agency must follow
the requirements of this section to conduct administrative reviews of
school food authorities participating in the National School Lunch
Program and the School Breakfast Program (part 220 of this chapter).
These procedures must also be followed, as applicable, to conduct
administrative reviews of the National School Lunch Program's
Afterschool Snacks and Seamless Summer Option, the Special Milk Program
(part 215 of this chapter), and the Fresh Fruit and Vegetable Program.
To conduct a program review, the State agency must gather and assess
information off-site and/or on-site, observe the school food service
operation, and use a risk-based approach to evaluate compliance with
specific program requirements.
(b) Definitions. The following definitions are provided in
alphabetical order in order to clarify State agency administrative
review requirements:
Administrative reviews means the comprehensive evaluation of all
school food
[[Page 45]]
authorities participating in the programs specified in paragraph (a) of
this section. It includes a review of both critical and general areas in
accordance with paragraphs (g) and (h) of this section, as applicable
for each reviewed program. With FNS approval, the administrative review
may include other areas of program operations determined by the State
agency.
Critical areas means the following two performance standards
described in detail in paragraph (g) of this section:
General areas means the areas of review specified in paragraph (h)
of this section. These areas include free and reduced-price process,
civil rights, school food authority on-site monitoring, reporting and
recordkeeping, food safety, competitive food services, water, program
outreach, resource management, Buy American, and other areas identified
by FNS.
(i) Performance Standard 1--All free, reduced price and paid school
meals claimed for reimbursement are served only to children eligible for
free, reduced price and paid school meals, respectively; and are
counted, recorded, consolidated and reported through a system which
consistently yields correct claims.
(ii) Performance Standard 2--Reimbursable lunches meet the meal
requirements in Sec. 210.10, as applicable to the age/grade group
reviewed. Reimbursable breakfasts meet the meal requirements in Sec.
220.8 of this chapter, as applicable to the age/grade group reviewed.
Day of Review means the day(s) on which the on-site review of the
individual sites selected for review occurs.
Documented corrective action means written notification required of
the school food authority to certify that the corrective action required
for each violation has been completed and to notify the State agency of
the dates of completion. Documented corrective action may be provided at
the time of the review or may be submitted to the State agency within
specified timeframes.
General areas means the areas of review specified in paragraph (h)
of this section. These areas include free and reduced price process,
civil rights, school food authority on-site monitoring, reporting and
recordkeeping, food safety, competitive food services, water, program
outreach, resource management, and other areas identified by FNS.
Participation factor means the percentages of children approved by
the school for free meals, reduced price meals, and paid meals,
respectively, who are participating in the Program. The free
participation factor is derived by dividing the number of free lunches
claimed for any given period by the product of the number of children
approved for free lunches for the same period times the operating days
in that period. A similar computation is used to determine the reduced
price and paid participation factors. The number of children approved
for paid meals is derived by subtracting the number of children approved
for free and reduced price meals for any given period from the total
number of children enrolled in the reviewed school for the same period
of time, if available. If such enrollment figures are not available, the
most recent total number of children enrolled must be used. If school
food authority participation factors are unavailable or unreliable,
State-wide data must be employed.
Review period means the most recent month for which a Claim for
Reimbursement was submitted, provided that it covers at least ten (10)
operating days.
(c) Review cycle. State agencies must conduct administrative reviews
of all school food authorities participating in the National School
Lunch Program (including Afterschool Snacks and the Seamless Summer
Option) and the School Breakfast Program at least once during a 5-year
review cycle, provided that each school food authority is reviewed at
least once every 6 years, depending on review cycle observed. At a
minimum, the on-site portion of the administrative review must be
completed during the school year in which the review began.
(1) Targeted follow-up reviews. A State agency that reviews school
food authorities on a cycle longer than 3 years must identify school
food authorities that are high-risk to receive a targeted follow-up
review. A State agency must develop and receive FNS approval of a
[[Page 46]]
plan to identify school food authorities that meet the high-risk
criteria.
(2) High-risk criteria for targeted follow-up reviews. At a minimum,
a State plan should identify as high-risk those school food authorities
that during the most recent administrative review conducted in
accordance with this Sec. 210.18 had one or more of the following risk
factors as determined by the State Agency: a 10 percent or greater
certification and benefit issuance error rate; incomplete verification
for the review year; or one or more significant or systemic errors in
Performance Standard 1 as defined at (g)(1) of this section, Performance
Standard 2 as defined at paragraph (g)(2) of this section, or allowable
costs.
(3) Timing and scope of targeted follow-up reviews. Within two years
of the review, high-risk school food authorities must receive a targeted
follow-up review. Targeted follow-up reviews must include the areas of
significant or systemic error identified in the previous review, and may
include other areas at the discretion of the State agency. The State
agency may conduct targeted follow-up reviews in the same school year as
the administrative review, and may conduct any additional reviews at its
discretion.
(d) Scheduling school food authorities. The State agency must use
its own criteria to schedule school food authorities for administrative
reviews; provided that the requirements of paragraph (c) of this section
are met. State agencies may take into consideration the findings of the
claims review process required under Sec. 210.8(b)(2) in the selection
of school food authorities.
(1) Schedule of reviews. To ensure no unintended overlap occurs, the
State agency must inform FNS of the anticipated schedule of school food
authority reviews upon request.
(2) Exceptions. In any school year in which FNS or the Office of the
Inspector General (OIG) conducts a review or investigation of a school
food authority in accordance with Sec. 210.19(a)(4), the State agency
must, unless otherwise authorized by FNS, delay conduct of a scheduled
administrative review until the following school year. The State agency
must document any exception authorized under this paragraph.
(e) Number of schools to review. At a minimum, the State agency must
review the number of schools specified in paragraph (e)(1) of this
section and must select the schools to be reviewed on the basis of the
school selection criteria specified in paragraph (e)(2) of this section.
The State agency may review all schools meeting the school selection
criteria specified in paragraph (e)(2) of this section.
(1) Minimum number of schools. State agencies must review at least
one school from each local education agency. Except for residential
child care institutions, the State agency must review all schools with a
free average daily participation of 100 or more and a free participation
factor of 100 percent or more. In no event must the State agency review
less than the minimum number of schools illustrated in Table A for the
National School Lunch Program.
Table A
------------------------------------------------------------------------
Number of schools in the school food Minimum number of schools to
authority review
------------------------------------------------------------------------
1 to 5................................. 1
6 to 10................................ 2
11 to 20............................... 3
21 to 40............................... 4
41 to 60............................... 6
61 to 80............................... 8
81 to 100.............................. 10
101 or more............................ *12
------------------------------------------------------------------------
* Twelve plus 5 percent of the number of schools over 100. Fractions
must be rounded up (0.5) or down (<0.5) to the nearest
whole number.
(2) School selection criteria. (i) Selection of additional schools
to meet the minimum number of schools required under paragraph (e)(1) of
this section, must be based on the following criteria:
(A) Elementary schools with a free average daily participation of
100 or more and a free participation factor of 97 percent or more;
(B) Secondary schools with a free average daily participation of 100
or more and a free participation factor of 77 percent or more; and
(C) Combination schools with a free average daily participation of
100 or more and a free participation factor of 87 percent or more. A
combination school means a school with a mixture of elementary and
secondary grades.
[[Page 47]]
(ii) When the number of schools selected on the basis of the
criteria established in paragraph (e)(2)(i) of this section is not
sufficient to meet the minimum number of schools required under
paragraph (e)(1) of this section, the additional schools selected for
review must be identified using State agency criteria which may include
low participation schools; recommendations from a food service director
based on findings from the on-site visits or the claims review process
required under Sec. 210.8(a); or any school in which the daily meal
counts appear questionable (e.g., identical or very similar claiming
patterns, or large changes in free meal counts).
(iii) In selecting schools for an administrative review of the
School Breakfast Program, State agencies must follow the selection
criteria set forth in this paragraph and FNS' Administrative Review
Manual. At a minimum:
(A) In school food authorities operating only the breakfast program,
State agencies must review the number of schools set forth in Table A in
paragraph (e)(1) of this section.
(B) In school food authorities operating both the lunch and
breakfast programs, State agencies must review the breakfast program in
50 percent of the schools selected for an administrative review under
paragraph (e)(1) of this section that operate the breakfast program.
(C) If none of the schools selected for an administrative review
under paragraph (e)(1) of this section operates the breakfast program,
but the school food authority operates the program elsewhere, the State
agency must follow procedures in the FNS Administrative Review Manual to
select at least one other site for a school breakfast review.
(3) Site selection for other federal program reviews--(i) National
School Lunch Program's Afterschool Snacks. If a school selected for an
administrative review under this section operates Afterschool Snacks,
the State agency must review snack documentation for compliance with
program requirements, according to the FNS Administrative Review Manual.
Otherwise, the State agency is not required to review the Afterschool
Snacks.
(ii) National School Lunch Program's Seamless Summer Option. The
State agency must review Seamless Summer Option at a minimum of one site
if the school food authority selected for review under this section
operates the Seamless Summer Option and only operates congregate meal
service. If the school food authority operates congregate and non-
congregate meal service, a minimum of two sites must be reviewed, one
congregate site and one non-congregate site. If the school food
authority has one site that operates both congregate and non-congregate
meal services, the State agency may review a minimum of one site and
must observe both a congregate and non-congregate meal service at that
one site. This review can take place at any site within the reviewed
school food authority the summer before or after the school year in
which the administrative review is scheduled. The State agency must
review the Seamless Summer Option for compliance with program
requirements, according to the FNS Administrative Review Manual.
(iii) Fresh Fruit and Vegetable Program. The State agency must
review the Fresh Fruit and Vegetable Program at one or more of the
schools selected for an administrative review, as specified in Table B.
If none of the schools selected for the administrative review operates
the Fresh Fruit and Vegetable Program but the school food authority
operates the Program elsewhere, the State agency must follow procedures
in the FNS Administrative Review Manual to select one or more sites for
the program review.
Table B
------------------------------------------------------------------------
Number of schools selected for an NSLP
administrative review that operate the Minimum number of FFVP schools
FFVP to be reviewed
------------------------------------------------------------------------
0 to 5................................. 1
6 to 10................................ 2
11 to 20............................... 3
21 to 40............................... 4
41 to 60............................... 6
61 to 80............................... 8
81 to 100.............................. 10
101 or more............................ 12*
------------------------------------------------------------------------
* Twelve plus 5 percent of the number of schools over 100. Fractions
must be rounded up (0.5) or down (<0.5) to the nearest
whole number.
[[Page 48]]
(iv) Special Milk Program. If a school selected for review under
this section operates the Special Milk Program, the State agency must
review the school's program documentation off-site or on-site, as
prescribed in the FNS Administrative Review Manual. On-site review is
only required if the State agency has identified documentation problems
or if the State agency has identified meal counting or claiming errors
in the reviews conducted under the National School Lunch Program or
School Breakfast Program.
(4) Pervasive problems. If the State agency review finds pervasive
problems in a school food authority, FNS may authorize the State agency
to cease review activities prior to reviewing the required number of
schools under paragraphs (e)(1) and (e)(3) of this section. Where FNS
authorizes the State agency to cease review activity, FNS may either
conduct the review activity itself or refer the school food authority to
OIG.
(5) Noncompliance with meal pattern requirements. If the State
agency determines there is significant noncompliance with the meal
pattern and nutrition requirements set forth in Sec. 210.10 and Sec.
220.8 of this chapter, as applicable, the State agency must select the
school food authority for administrative review earlier in the review
cycle.
(f) Scope of review. During the course of an administrative review
for the National School Lunch Program and the School Breakfast Program,
the State agency must monitor compliance with the critical and general
areas in paragraphs (g) and (h) of this section, respectively. Selected
critical and general areas must be monitored when reviewing the National
School Lunch Program's Afterschool Snacks and the Seamless Summer
Option, the Special Milk Program, and the Fresh Fruit and Vegetable
Program, as applicable and as specified in the FNS Administrative Review
Manual. State agencies may add additional review areas with FNS
approval.
(1) Review forms. State agencies must use the administrative review
forms, tools and workbooks prescribed by FNS.
(2) Timeframes covered by the review. (i) The timeframes covered by
the administrative review include the review period and the day of
review, as defined in paragraph (b) of this section.
(ii) Subject to FNS approval, the State agency may conduct a review
early in the school year, prior to the submission of a Claim for
Reimbursement. In such cases, the review period must be the prior month
of operation in the current school year, provided that such month
includes at least 10 operating days.
(3) Audit results. The State agency may use any recent and currently
applicable results from Federal, State, or local audit activity to meet
FNS monitoring requirements. Such results may be used only when they
pertain to the reviewed school(s) or the overall operation of the school
food authority, when they are relevant to the review period, and when
they adhere to audit standards contained in 2 CFR part 200, subpart F.
The State agency must document the source and the date of the audit. The
content of local level audits activity requires the approval of FNS to
ensure that these audits align with Federal audit standards.
(4) Completion of review requirements outside the administrative
review. State agencies may, with FNS approval, omit specific, redundant
areas of the administrative review, when sufficient oversight is
conducted outside of the administrative review.
(5) Error reduction strategies. State agencies may omit designated
areas of review, in part or entirely, where a school food authority or
State agency has implemented FNS-approved error reduction strategies or
utilized FNS-approved monitoring efficiencies.
(g) Critical areas of review. The performance standards listed in
this paragraph are directly linked to meal access and reimbursement, and
to the meal pattern and nutritional quality of the reimbursable meals
offered. These critical areas must be monitored by the State agency when
conducting administrative reviews of the National School Lunch Program
and the School Breakfast Program. Selected aspects of these critical
areas must also be monitored, as applicable, when conducting
administrative reviews of the National School Lunch Program's
Afterschool
[[Page 49]]
Snacks and the Seamless Summer Option, and of the Special Milk Program.
State agencies may omit designated critical areas of review, in part or
entirely, where school food authority or State agency has implemented
FNS-specified error reduction strategies or utilized FNS-specified
monitoring efficiencies.
(1) Performance Standard 1 (All free, reduced price and paid school
meals claimed for reimbursement are served only to children eligible for
free, reduced price and paid school meals, respectively; and are
counted, recorded, consolidated and reported through a system which
consistently yields correct claims.) The State agency must follow review
procedures stated in this section and as specified in the FNS
Administrative Review Manual to ensure that the school food authority's
certification and benefit issuance processes for school meals offered
under the National School Lunch Program, and School Breakfast Program
are conducted as required in part 245 of this chapter, as applicable. In
addition, the State agency must ensure that benefit counting,
consolidation, recording and claiming are conducted as required in this
part and part 220 of this chapter for the National School Lunch Program
and the School Breakfast Program, respectively. The State agency must
also follow procedures consistent with this section, and as specified in
the FNS Administrative Review Manual, to review applicable areas of
Performance Standard 1 in the National School Lunch Program's
Afterschool Snacks and Seamless Summer Option, and in the Special Milk
Program.
(i) Certification and benefit issuance. The State agency must gather
information and monitor the school food authority's compliance with
program requirements regarding benefit application, direct
certification, and categorical eligibility, as well as the transfer of
benefits to the point-of-service benefit issuance document. To review
this area, the State agency must obtain the benefit issuance document
for each participating school under the jurisdiction of the school food
authority for the day of review or a day in the review period, review
all or a statistically valid sample of student certifications, and
validate that the eligibility certification for free and reduced price
meals was properly transferred to the benefit issuance document and
reflects changes due to verification findings, transfers, or a
household's decision to decline benefits. If the State agency chooses to
review a statistically valid sample of student certifications, the State
agency must use a sample size with a 99 percent confidence level of
accuracy. However, a sample size with a 95 percent confidence level of
accuracy may be used if a school food authority uses an electronic
benefit issuance and certification system with no manual data entry and
the State agency has not identified any potential systemic
noncompliance. Any sample size must be large enough so that there is a
99 or 95 percent, as applicable, chance that the actual accuracy rate
for all certifications is not less than 2 percentage points less than
the accuracy rate found in the sample (i.e., the lower bound of the one-
sided 99/95 percent confidence interval is no more than 2 percentage
points less than the point estimate).
(ii) Meal counting and claiming. The State agency must gather
information and conduct an on-site visit to ensure that the processes
used by the school food authority and reviewed school(s) to count,
record, consolidate, and report the number of reimbursable meals/snacks
served to eligible students by category (i.e., free, reduced price or
paid meal) are in compliance with program requirements and yield correct
claims. The State agency must determine whether:
(A) The daily meal counts, by type, for the review period are more
than the product of the number of children determined by the school/
school food authority to be eligible for free, reduced price, and paid
meals for the review period times an attendance factor. If the meal
count, for any type, appears questionable or significantly exceeds the
product of the number of eligibles, for that type, times an attendance
factor, documentation showing good cause must be available for review by
the State agency.
[[Page 50]]
(B) For each school selected for review, each type of food service
line provides accurate point of service meal counts, by type, and those
meal counts are correctly counted and recorded. If an alternative
counting system is employed (in accordance with Sec. 210.7(c)(2)), the
State agency shall ensure that it provides accurate counts of
reimbursable meals, by type, and is correctly implemented as approved by
the State agency.
(C) For each school selected for review, all meals are correctly
counted, recorded, consolidated and reported for the day they are
served.
(2) Performance Standard 2 (Lunches claimed for reimbursement by the
school food authority meet the meal requirements in Sec. 210.10, as
applicable to the age/grade group reviewed. Breakfasts claimed for
reimbursement by the school food authority meet the meal requirements in
Sec. 220.8 of this chapter, as applicable to the age/grade group
reviewed.) The State agency must follow review procedures, as stated in
this section and detailed in the FNS Administrative Review Manual, to
ensure that meals offered by the school food authority meet the food
component and quantity requirements and the dietary specifications for
each program, as applicable. Review of these critical areas may occur
off-site or on-site. The State agency must also follow procedures
consistent with this section, as specified in the FNS Administrative
Review Manual, to review applicable areas of Performance Standard 2 in
the National School Lunch Program's Afterschool Snacks and Seamless
Summer Option, and in the Special Milk Program.
(i) Meal components and quantities. For each school selected for
review, the State agency must complete a USDA-approved menu tool, review
documentation, and observe the meal service to ensure that meals offered
by the reviewed schools meet the meal patterns for each program. To
review this area, the State agency must:
(A) Review menu and production records for the reviewed schools for
a minimum of one school week (i.e., a minimum number of three
consecutive school days and a maximum of seven consecutive school days)
from the review period. Documentation, including food crediting
documentation, such as food labels, product formulation statements, CN
labels and bid documentation, must be reviewed to ensure compliance with
the lunch and breakfast meal patterns. If the documentation review
reveals problems with food components or quantities, the State agency
must expand the review to, at a minimum, the entire review period. The
State agency should consider a school food authority compliant with the
school meal pattern if:
(1) When evaluating the daily and weekly range requirements for
grains and meat/meat alternates, the documentation shows compliance with
the daily and weekly minimums for these components, regardless of
whether the school food authority has exceeded the recommended weekly
maximums for the same components.
(2) When evaluating the service of frozen fruit, the State agency
determines that the school food authority serves frozen fruit with or
without added sugar.
(B) On the day of review, the State agency must:
(1) Observe a significant number of program meals, as described in
the FNS Administrative Review Manual, at each serving line and review
the corresponding documentation to determine whether all reimbursable
meal service lines offer all of the required meal components/items and
quantities for the age/grade groups being served, as required under
Sec. 210.10, as applicable, and Sec. 220.8 of this chapter, as
applicable. Observe meals at the beginning, middle and end of the meal
service line, and confirm that signage or other methods are used to
assist students in identifying the reimbursable meal. If the State
agency identifies missing components or inadequate quantities prior to
the beginning of the meal service, it must inform the school food
authority and provide an opportunity to make corrections. Additionally,
if visual observation suggests that quantities offered are insufficient
or excessive, the State agency must require the reviewed schools to
provide documentation demonstrating that the required amounts of each
component were available for service for each day of the review period.
[[Page 51]]
(2) Observe a significant number of the program meals counted at the
point of service for each type of serving line to determine whether the
meals selected by the students contain the meal components and food
quantities required for a reimbursable meal under Sec. 210.10, as
applicable, and Sec. 220.8 of this chapter, as applicable.
(3) If Offer versus Serve is in place, observe whether students
select at least three meal components at lunch and at least three food
items at breakfasts, and that the lunches and breakfasts include at
least \1/2\ cup of fruits or vegetables.
(ii) Dietary specifications. The State agency must conduct a meal
compliance risk assessment for each school selected for review to
determine which school is at highest risk for nutrition-related
violations. The State agency must conduct a targeted menu review for the
school at highest risk for noncompliance using one of the options
specified in the FNS Administrative Review Manual. Under the targeted
menu review options, the State agency may conduct or validate an SFA-
conducted nutrient analysis for both lunch and breakfast, or further
evaluate risk for noncompliance and, at a minimum, conduct a nutrient
analysis if further examination shows the school is at high risk for
noncompliance with the dietary specifications in Sec. 210.10 and Sec.
220.8 of this chapter. The State agency is not required to assess
compliance with the dietary specifications when reviewing meals for
preschoolers, and the National School Lunch Program's Afterschool Snacks
and the Seamless Summer Option.
(iii) Performance-based cash assistance. If the school food
authority is receiving performance-based cash assistance under Sec.
210.7(d), the State agency must assess the school food authority's meal
service and documentation of lunches served and determine its continued
eligibility for the performance-based cash assistance.
(h) General areas of review. The general areas listed in this
paragraph reflect requirements that must be monitored by the State
agency when conducting administrative reviews of the National School
Lunch Program and the School Breakfast Program. Selected aspects of
these general areas must also be monitored, as applicable and as
specified in the FNS Administrative Review Manual, when conducting
administrative reviews of the National School Lunch Program's
Afterschool Snacks and Seamless Summer Option, the Fresh Fruit and
Vegetable Program, and the Special Milk Program. State agencies may omit
designated general areas of review, in part or entirely, where the
school food authority or State agency has implemented FNS-specified
error reduction strategies or utilized FNS-specified monitoring
efficiencies. State agencies may omit designated general areas of
review, in part or entirely, where the school food authority or State
agency has implemented FNS-specified error reduction strategies or
utilized FNS-specified monitoring efficiencies. The general areas of
review must include, but are not limited to, the following:
(1) Resource management. The State agency must conduct an assessment
of the school food authority's nonprofit school food service account to
evaluate the risk of noncompliance with resource management
requirements. If risk indicators show that the school food authority is
at high risk for noncompliance with resource management requirements,
the State agency must conduct a comprehensive review including, but not
limited to, the following areas using procedures specified in the FNS
Administrative Review Manual.
(i) Maintenance of the nonprofit school food service account. The
State agency must confirm the school food authority's resource
management is consistent with the maintenance of the nonprofit school
food service account requirements in Sec. Sec. 210.2, 210.14,
210.19(a), and 210.21.
(ii) Paid lunch equity. The State agency must review compliance with
the requirements for pricing paid lunches in Sec. 210.14(e).
(iii) Revenue from nonprogram foods. The State agency must ensure
that all non-reimbursable foods sold by the school food service,
including, but not limited to, a la carte food items, adult meals, and
vended meals, generate at least the same proportion of school
[[Page 52]]
food authority revenues as they contribute to school food authority food
costs, as required in Sec. 210.14(f).
(iv) Indirect costs. The State agency must ensure that the school
food authority follows fair and consistent methodologies to identify and
allocate allowable indirect costs to school food service accounts, as
required in 2 CFR part 200 and Sec. 210.14(g).
(2) General Program Compliance--(i) Free and reduced price process.
In the course of the review of each school food authority, the State
agency must:
(A) Confirm the free and reduced price policy statement, as required
in Sec. 245.10 of this chapter, is implemented as approved.
(B) Ensure that the process used to verify children's eligibility
for free and reduced price meals in a sample of household applications
is consistent with the verification requirements, procedures, and
deadlines established in Sec. 245.6a of this chapter.
(C) Determine that, for each reviewed school, the meal count system
does not overtly identify children eligible for free and reduced price
meals, as required under Sec. 245.8 of this chapter.
(D) Review at least 10 denied applications to evaluate whether the
determining official correctly denied applicants for free and reduced
price meals, and whether denied households were provided notification in
accordance with Sec. 245.6(c)(7)of this chapter.
(E) Confirm that a second review of applications has been conducted
and that information has been correctly reported to the State agency as
required in Sec. 245.11, if applicable.
(ii) Civil rights. The State agency must examine the school food
authority's compliance with the civil rights provisions specified in
Sec. 210.23(b) to ensure that no child is denied benefits or otherwise
discriminated against in any of the programs reviewed under this section
because of race, color, national origin, age, sex, or disability.
(iii) School food authority on-site monitoring. The State agency
must ensure that the school food authority conducts on-site reviews of
each school under its jurisdiction, as required by Sec. Sec.
210.8(a)(1) and 220.11(d) of this chapter, and monitors claims and
readily observable general areas of review in accordance with Sec. Sec.
210.8(a)(2) and (a)(3), and 220.11(d) of this chapter.
(iv) Competitive food standards. The State agency must ensure that
the local educational agency and school food authority comply with the
nutrition standards for competitive foods in Sec. Sec. 210.11 and
220.12 of this chapter, and retain documentation demonstrating
compliance with the competitive food service and standards.
(v) Water. The State agency must ensure that plain potable water is
available and accessible to children at no charge as specified in Sec.
210.10(a)(1)(i) and Sec. 220.8(a)(1) of this chapter.
(vi) Food safety. The State agency must examine records to confirm
that each school food authority under its jurisdiction meets the food
safety requirements of Sec. 210.13.
(vii) Reporting and recordkeeping. The State agency must determine
that the school food authority submits reports and maintains records in
accordance with program requirements in this part, and parts 220 and 245
of this chapter, and as specified in the FNS Administrative Review
Manual.
(viii) Program outreach. The State agency must ensure the school
food authority is conducting outreach activities to increase
participation in the School Breakfast Program and the Summer Food
Service Program, as required in Sec. 210.12(d). If the State agency
administering the Summer Food Service Program is not the same State
agency that administers the National School Lunch Program, then the two
State agencies must work together to implement outreach measures.
(ix) Professional standards. The State agency shall ensure the local
educational agency and school food authority complies with the
professional standards for school nutrition program directors, managers,
and personnel established in Sec. 210.30.
(x) Local school wellness. The State agency must ensure the local
educational agency complies with the local school wellness requirements
set forth in Sec. 210.31.
(xi) Buy American. The State agency must ensure that the school food
authority complies with the Buy American requirements set forth in
[[Page 53]]
Sec. 210.21(d) and 7 CFR 220.16(d), as specified in the FNS
Administrative Review Manual.
(i) Entrance and exit conferences and notification--(1) Entrance
conference. The State agency may hold an entrance conference with the
appropriate school food authority staff at the beginning of the on-site
administrative review to discuss the results of any off-site
assessments, the scope of the on-site review, and the number of schools
to be reviewed.
(2) Exit conference. The State agency must hold an exit conference
at the close of the administrative review and of any subsequent follow-
up review to discuss the violations observed, the extent of the
violations and a preliminary assessment of the actions needed to correct
the violations. The State agency must discuss an appropriate deadline(s)
for completion of corrective action, provided that the deadline(s)
results in the completion of corrective action on a timely basis.
(3) Notification. The State agency must provide written notification
of the review findings to the school food authority's Superintendent (or
equivalent in a non-public school food authority) or authorized
representative, preferably no later than 30 days after the exit
conference for each review. The written notification must include the
date(s) of review, date of the exit conference, review findings, the
needed corrective actions, the deadlines for completion of the
corrective action, and the potential fiscal action. As a part of the
denial of all or a part of a Claim for Reimbursement or withholding
payment in accordance with the provisions of this section, the State
agency must provide the school food authority a written notice which
details the grounds on which the denial of all or a part of the Claim
for Reimbursement or withholding payment is based. This notice, must be
provided by certified mail, or its equivalent, or sent electronically by
email or facsimile. This notice shall also include a statement
indicating that the school food authority may appeal the denial of all
or a part of a Claim for Reimbursement or withholding payment and the
entity (i.e., FNS or State agency) to which the appeal should be
directed. The notice is considered to be received by the school food
authority when it is delivered by certified mail, return receipt (or the
equivalent private delivery service), by facsimile, or by email. If the
notice is undeliverable, it is considered to be received by the school
food authority five days after being sent to the addressee's last known
mailing address, facsimile number, or email address. The State agency
shall notify the school food authority, in writing, of the appeal
procedures as specified in paragraph (p) of this section for appeals of
State agency findings, and for appeals of FNS findings, provide a copy
of Sec. 210.29(d)(3).
(j) Corrective action. Corrective action is required for any
violation under either the critical or general areas of the review.
Corrective action must be applied to all schools in the school food
authority, as appropriate, to ensure that deficient practices and
procedures are revised system-wide. Corrective actions may include
training, technical assistance, recalculation of data to ensure the
accuracy of any claim that the school food authority is preparing at the
time of the review, or other actions. Fiscal action must be taken in
accordance with paragraph (l) of this section.
(1) Extensions of the timeframes. If the State agency determines
that extraordinary circumstances make a school food authority unable to
complete the required corrective action within the timeframes specified
by the State agency, the State agency may extend the timeframes upon
written request of the school food authority.
(2) Documented corrective action. Documented corrective action is
required for any degree of violation of general or critical areas
identified in an administrative review. Documented corrective action may
be provided at the time of the review; however, it must be postmarked or
submitted to the State agency electronically by email or facsimile, no
later than 30 days from the deadline for completion of each required
corrective action, as specified under paragraph (i)(2) of this section
or as otherwise extended by the State agency under paragraph (j)(1) of
this
[[Page 54]]
section. The State agency must maintain any documented corrective action
on file for review by FNS.
(k) Withholding payment. At a minimum, the State agency must
withhold all program payments to a school food authority as follows:
(1) Cause for withholding. (i) The State agency must withhold all
Program payments to a school food authority if documented corrective
action for critical area violations is not provided with the deadlines
specified in paragraph (j)(2) of this section;
(ii) The State agency must withhold all Program payments to a school
food authority if the State agency finds that corrective action for
critical area violation was not completed;
(iii) The State agency may withhold Program payments to a school
food authority at its discretion, if the State agency found a critical
area violation on a previous review and the school food authority
continues to have the same error for the same cause; and
(iv) For general area violations, the State agency may withhold
Program payments to a school food authority at its discretion, if the
State agency finds that documented corrective action is not provided
within the deadlines specified in paragraph (j)(2) of this section,
corrective action is not complete, or corrective action was not taken as
specified in the documented corrective action.
(2) Duration of withholding. In all cases, Program payments must be
withheld until such time as corrective action is completed, documented
corrective action is received and deemed acceptable by the State agency,
or the State agency completes a follow-up review and confirms that the
problem has been corrected. Subsequent to the State agency's acceptance
of the corrective actions, payments will be released for all meals
served in accordance with the provisions of this part during the period
the payments were withheld. In very serious cases, the State agency will
evaluate whether the degree of non-compliance warrants termination in
accordance with Sec. 210.25.
(3) Exceptions. The State agency may, at its discretion, reduce the
amount required to be withheld from a school food authority pursuant to
paragraph (k)(1)(i) through (iii) of this section by as much as 60
percent of the total Program payments when it is determined to be in the
best interest of the Program. FNS may authorize a State agency to limit
withholding of funds to an amount less than 40 percent of the total
Program payments, if FNS determines such action to be in the best
interest of the Program.
(4) Failure to withhold payments. FNS may suspend or withhold
Program payments, in whole or in part, to those State agencies failing
to withhold Program payments in accordance with paragraph (k)(1) of this
section and may withhold administrative funds in accordance with Sec.
235.11(b) of this chapter. The withholding of Program payments will
remain in effect until such time as the State agency documents
compliance with paragraph (k)(1) of this section to FNS. Subsequent to
the documentation of compliance, any withheld administrative funds will
be released and payment will be released for any meals served in
accordance with the provisions of this part during the period the
payments were withheld.
(l) Fiscal action. The State agency must take fiscal action for all
Performance Standard 1 violations and specific Performance Standard 2
violations identified during an administrative review, including
targeted follow-up review or other reviews, as specified in this
section. Fiscal action must be taken in accordance with the principles
in Sec. 210.19(c) and the procedures established in the FNS
Administrative Review Manual. The State agency must follow the fiscal
action formula prescribed by FNS to calculate the correct entitlement
for a school food authority or a school. While there is no fiscal action
required for general area violations, the State agency has the ability
to withhold funds for repeat or egregious violations occurring in the
majority of the general areas as described in paragraph (k)(1)(iv) of
this section.
(1) Performance Standard 1 violations. A State agency is required to
take fiscal action for Performance Standard 1 violations, in accordance
with this paragraph and paragraph (l)(3).
(i) For certification and benefit issuance errors cited under
paragraph
[[Page 55]]
(g)(1)(i) of this section, the total number of free and reduced price
meals claimed must be adjusted to according to procedures established by
FNS.
(ii) For meal counting and claiming errors cited under paragraph
(g)(1)(ii) of this section, the State agency must apply fiscal action to
the incorrect meal counts at the school food authority level, or only to
the reviewed schools where violations were identified, as applicable.
(2) Performance Standard 2 violations. Fiscal action for Performance
Standard 2 violations applies as follows:
(i) For missing meal components or missing production records cited
under paragraph (g)(2) of this section, the State agency must apply
fiscal action.
(ii) For repeated violations involving food quantities, whole grain-
rich foods, milk type, and vegetable subgroups cited under paragraph
(g)(2) of this section, the State agency has discretion to apply fiscal
action as follows:
(A) If the meals contain insufficient quantities of the required
meal components, the deficient meals may be disallowed and reclaimed.
(B) If no whole grain-rich foods are offered during the week of
review, meals for up to the entire week of review may be disallowed and
reclaimed.
(C) If insufficient whole grain-rich foods are offered during the
week of review, meals for up to the entire week of review may be
disallowed and/or reclaimed.
(D) If an unallowable milk type is offered, or no milk variety is
offered, the deficient meals may be disallowed and reclaimed.
(E) If one vegetable subgroup is not offered over the course of the
week of review, meals for up to the entire week of review may be
disallowed and reclaimed.
(F) If a weekly vegetable subgroup is offered in insufficient
quantity to meet the weekly vegetable subgroup requirement, meals for
one day of the week of review may be disallowed and reclaimed.
(G) If the amount of juice offered exceeds the weekly limitation,
meals for up to the entire week of review may be disallowed and/or
reclaimed.
(iii) For repeated violations of the dietary specifications cited
under paragraph (g)(2)(ii) of this section, the State agency has
discretion to apply fiscal action to the reviewed school as follows:
(A) If the average meal offered over the course of the week of
review does not meet one of the dietary specifications, meals for the
entire week of review may be disallowed and reclaimed; and
(B) Fiscal action is limited to the school selected for the targeted
menu review and must be supported by a nutrient analysis of the meals at
issue using USDA-approved software.
(iv) The following conditions must be met prior to applying fiscal
action as described in paragraphs (l)(2)(ii) and (iii) of this section:
(A) Technical assistance has been given by the State agency;
(B) Corrective action has been previously required and monitored by
the State agency; and
(C) The school food authority remains noncompliant with the meal
requirements established in part 210 and part 220 of this chapter.
(3) Duration of fiscal action. Fiscal action must be extended back
to the beginning of the school year or that point in time during the
current school year when the infraction first occurred for all
violations of Performance Standard 1 and specific violations of
Performance Standard 2. Based on the severity and longevity of the
problem, the State agency may extend fiscal action back to previous
school years. If corrective action occurs, the State agency may limit
the duration of fiscal action for Performance Standard 1 and Performance
Standard 2 violations as follows:
(i) Performance Standard 1 certification and benefit issuance
violations. The total number of free and reduced price meals claimed for
the review period and the month of the on-site review must be adjusted
to reflect the State calculated certification and benefit issuance
adjustment factors.
(ii) Other Performance Standard 1 and Performance Standard 2
violations. With the exception of violations described in paragraph
(l)(3)(i) of this section, a State agency may limit fiscal action from
the point corrective action occurs back through the beginning of the
review period for errors.
[[Page 56]]
(A) If corrective action occurs during the on-site review month or
after, the State agency would be required to apply fiscal action from
the point corrective action occurs back through the beginning of the on-
site review month, and for the review period;
(B) If corrective action occurs during the review period, the State
agency would be required to apply fiscal action from the point
corrective action occurs back through the beginning of the review
period;
(C) If corrective action occurs prior to the review period, no
fiscal action would be required; and
(D) If corrective action occurs in a claim month between the review
period and the on-site review month, the State agency would apply fiscal
action only to the review period.
(4) Performance-based cash assistance. In addition to fiscal action
described in paragraphs (l)(2)(i) through (v) of this section, school
food authorities found to be out of compliance with the meal patterns or
nutrition standards set forth in Sec. 210.10 may not earn performance-
based cash assistance authorized under Sec. 210.4(b)(1) unless
immediate corrective action occurs. School food authorities will not be
eligible for the performance-based reimbursement beginning the month
immediately following the administrative review and, at State
discretion, for the month of review. Performance-based cash assistance
may resume beginning in the first full month the school food authority
demonstrates to the satisfaction of the State agency that corrective
action has taken place.
(m) Transparency requirement. The most recent administrative review
final results must be easily available to the public.
(1) The State agency must post a summary of the most recent results
for each school food authority on the State agency's public Web site,
and make a copy of the final administrative review report available to
the public upon request. A State agency may also strongly encourage each
school food authority to post a summary of the most recent results on
its public Web site, and make a copy of the final administrative review
report available to the public upon request.
(2) The summary must cover meal access and reimbursement, meal
patterns and nutritional quality of school meals, school nutrition
environment (including food safety, local school wellness policy, and
competitive foods), civil rights, and program participation.
(3) The summary must be posted no later than 30 days after the State
agency provides the results of administrative review to the school food
authority.
(n) Reporting requirement. Each State agency must report to FNS the
results of the administrative reviews by March 1 of each school year on
a form designated by FNS. In such annual reports, the State agency must
include the results of all administrative reviews conducted in the
preceding school year.
(o) Recordkeeping. Each State agency must keep records which
document the details of all reviews and demonstrate the degree of
compliance with the critical and general areas of review. Records must
be retained as specified in Sec. 210.23(c) and include documented
corrective action, and documentation of withholding of payments and
fiscal action, including recoveries made. Additionally, the State agency
must have on file:
(1) Criteria for selecting schools for administrative reviews in
accordance with paragraphs (e)(2)(ii) and (i)(2)(ii) of this section.
(2) Documentation demonstrating compliance with the statistical
sampling requirements in accordance with paragraph (g)(1)(i) of this
section, if applicable.
(p) School food authority appeal of State agency findings. Except
for FNS-conducted reviews authorized under Sec. 210.29(d)(2), each
State agency must establish an appeal procedure to be followed by a
school food authority requesting a review of a denial of all or a part
of the Claim for Reimbursement, withholding payment arising from
administrative or follow-up review activity conducted by the State
agency under this Sec. 210.18, or fines established under Sec. 210.26,
or Sec. 215.15 or Sec. 220.18 of this chapter. State agencies may use
their own appeal procedures provided the same procedures are applied to
all
[[Page 57]]
appellants in the State and the procedures meet the following
requirements: Appellants are assured of a fair and impartial hearing
before an independent official at which they may be represented by legal
counsel; decisions are rendered in a timely manner not to exceed 120
days from the date of the receipt of the request for review; appellants
are afforded the right to either a review of the record with the right
to file written information, or a hearing which they may attend in
person; and adequate notice is given of the time, date, place and
procedures of the hearing. If the State agency has not established its
own appeal procedures or the procedures do not meet the above listed
criteria, the State agency shall observe the following procedures at a
minimum:
(1) The written request for a review must be postmarked within 15
calendar days of the date the appellant received the notice of the
denial of all or a part of the Claim for Reimbursement, withholding of
payment, or fines established under Sec. 210.26, or Sec. 215.15 or
Sec. 220.18 of this chapter, and the State agency must acknowledge the
receipt of the request for appeal within 10 calendar days;
(2) The appellant may refute the action specified in the notice in
person and by written documentation to the review official. In order to
be considered, written documentation must be filed with the review
official not later than 30 calendar days after the appellant received
the notice. The appellant may retain legal counsel, or may be
represented by another person. A hearing shall be held by the review
official in addition to, or in lieu of, a review of written information
submitted by the appellant only if the appellant so specifies in the
letter of request for review. Failure of the appellant school food
authority's representative to appear at a scheduled hearing shall
constitute the appellant school food authority's waiver of the right to
a personal appearance before the review official, unless the review
official agrees to reschedule the hearing. A representative of the State
agency shall be allowed to attend the hearing to respond to the
appellant's testimony and to answer questions posed by the review
official;
(3) If the appellant has requested a hearing, the appellant and the
State agency shall be provided with at least 10 calendar days advance
written notice, sent by certified mail, or its equivalent, or sent
electronically by email or facsimile, of the time, date and place of the
hearing;
(4) Any information on which the State agency's action was based
shall be available to the appellant for inspection from the date of
receipt of the request for review;
(5) The review official shall be an independent and impartial
official other than, and not accountable to, any person authorized to
make decisions that are subject to appeal under the provisions of this
section;
(6) The review official shall make a determination based on
information provided by the State agency and the appellant, and on
program regulations;
(7) Within 60 calendar days of the State agency's receipt of the
request for review, by written notice, sent by certified mail, or its
equivalent, or electronically by email or facsimile, the review official
shall inform the State agency and the appellant of the determination of
the review official. The final determination shall take effect upon
receipt of the written notice of the final decision by the school food
authority;
(8) The State agency's action shall remain in effect during the
appeal process; and
(9) The determination by the State review official is the final
administrative determination to be afforded to the appellant.
(q) FNS review activity. The term ``State agency'' and all the
provisions specified in paragraphs (a) through (h) of this section refer
to FNS when FNS conducts administrative reviews in accordance with Sec.
210.29(d)(2). FNS will notify the State agency of the review findings
and the need for corrective action and fiscal action. The State agency
shall pursue any needed follow-up activity.
[81 FR 50185, July 29, 2016, as amended at 83 FR 25357, June 1, 2018; 88
FR 57845, Aug. 23, 2023; 88 FR 90347, Dec. 29, 2023; 89 FR 32073, Apr.
25, 2024]
[[Page 58]]
Sec. 210.19 Additional responsibilities.
(a) General Program management. Each State agency shall provide an
adequate number of consultative, technical and managerial personnel to
administer programs and monitor performance in complying with all
Program requirements.
(1) Assurance of compliance for finances. Each State agency shall
ensure that school food authorities comply with the requirements to
account for all revenues and expenditures of their nonprofit school food
service. School food authorities shall meet the requirements for the
allowability of nonprofit school food service expenditures in accordance
with this part and, 2 CFR part 200, subpart D and USDA implementing
regulations 2 CFR part 400 and part 415, as applicable. All costs
resulting from contracts that do not meet the requirements of this part
are unallowable nonprofit school food service account expenses. When the
school food authority fails to incorporate State agency required changes
to solicitation or contract documents, all costs resulting from the
subsequent contract award are unallowable charges to the nonprofit
school food service account. The State agency shall ensure compliance
with the requirements to limit net cash resources and shall provide for
approval of net cash resources in excess of three months' average
expenditures. Each State agency shall monitor, through review or audit
or by other means, the net cash resources of the nonprofit school food
service in each school food authority participating in the Program. In
the event that net cash resources exceed 3 months' average expenditures
for the school food authority's nonprofit school food service or such
other amount as may be approved in accordance with this paragraph, the
State agency may require the school food authority to reduce the price
children are charged for lunches, in a manner that is consistent with
the paid lunch equity provision in Sec. 210.14(e) and corresponding FNS
guidance, improve food quality or take other action designed to improve
the nonprofit school food service. In the absence of any such action,
the State agency shall make adjustments in the rate of reimbursement
under the Program. Each State agency shall ensure that school food
authorities comply with the requirements for pricing paid lunches and
nonprogram foods as required in Sec. 210.14(e) and Sec. 210.14(f).
(2) Improved management practices. The State agency must work with
the school food authority toward improving the school food authority's
management practices where the State agency has found poor food service
management practices leading to decreasing or low child participation,
menu acceptance, or program efficiency. The State agency should provide
training and technical assistance to the school food authority or direct
the school food authority to places to obtain such resources, such as
the Institute of Child Nutrition.
(3) Program compliance. Each State agency shall require that school
food authorities comply with the applicable provisions of this part. The
State agency shall ensure compliance through audits, administrative
reviews, technical assistance, training guidance materials or by other
means.
(4) Investigations. Each State agency shall promptly investigate
complaints received or irregularities noted in connection with the
operation of the Program, and shall take appropriate action to correct
any irregularities. State agencies shall maintain on file, evidence of
such investigations and actions. FNS and OIG may make reviews or
investigations at the request of the State agency or where FNS or OIG
determines reviews or investigations are appropriate.
(5) Food service management companies. (i) The State agency must
annually review and approve each contract and contract amendment,
including all supporting documentation, between any school food
authority and food service management company before implementation of
the contract by either party to ensure compliance with all the
provisions and standards set forth in this part.
(A) When the State agency develops a prototype contract for use by
the school food authority that meets the provisions and standards set
forth in this part, this annual review may be limited to changes made to
that contract.
[[Page 59]]
(B) The State agency may establish due dates for submission of the
contract or contract amendment documents.
(ii) The State agency must perform a review of each school food
authority that contracts with a food service management company, at
least once during each 5-year period. The reviews must examine the
school food authority's compliance with Sec. 210.16 of this part.
(iii) The State agency may require all food service management
companies to register with the State agency prior to contracting for
food service with any school food authority in the State.
(iv) State agencies must provide assistance to school food
authorities upon request to assure compliance with the requirements for
contracting with a food service management company.
(b) Donated food distribution information. Information on schools
eligible to receive donated foods available under section 6 of the
National School Lunch Act (42 U.S.C. 1755) shall be prepared each year
by the State agency with accompanying information on the average daily
number of lunches to be served in such schools. This information shall
be prepared as early as practicable each school year and forwarded no
later than September 1 to the Distributing agency. The State agency
shall be responsible for promptly revising the information to reflect
additions or deletions of eligible schools, and for providing such
adjustments in participation as are determined necessary by the State
agency. Schools shall be consulted by the Distributing agency with
respect to the needs of such schools relating to the manner of selection
and distribution of commodity assistance.
(c) Fiscal action. State agencies are responsible for ensuring
Program integrity at the school food authority level. State agencies
must take fiscal action against school food authorities for Claims for
Reimbursement that are not properly payable, including, if warranted,
the disallowance of funds for failure to take corrective action to
comply with requirements in parts 210, 215, and 220 of this chapter. In
taking fiscal action, State agencies must use their own procedures
within the constraints of this part and must maintain all records
pertaining to action taken under this section. The State agency may
refer to FNS for assistance in making a claim determination under this
part.
(1) Definition. Fiscal action includes, but is not limited to, the
recovery of overpayment through direct assessment or offset of future
claims, disallowance of overclaims as reflected in unpaid Claims for
Reimbursement, submission of a revised Claim for Reimbursement, and
correction of records to ensure that unfiled Claims for Reimbursement
are corrected when filed. Fiscal action also includes disallowance of
funds for failure to take corrective action to meet the meal
requirements in parts 210, 215, and 220 of this chapter, including the
disallowance of performance-based cash assistance described in Sec.
210.4(b)(1).
(2) General principles. When taking fiscal action, State agencies
shall consider the following:
(i) The State agency shall identify the school food authority's
correct entitlement and take fiscal action when any school food
authority claims or receives more Federal funds than earned under Sec.
210.7 of this part. In order to take fiscal action, the State agency
shall identify accurate counts of reimbursable meals through available
data, if possible. In the absence of reliable data, the State agency
shall reconstruct the meal accounts in accordance with procedures
established by FNS.
(ii) Unless otherwise specified under Sec. 210.18(l) of this part,
fiscal action shall be extended back to the beginning of the school year
or that point in time during the current school year when the infraction
first occurred, as applicable. Based on the severity and longevity of
the problem, the State agency may extend fiscal action back to previous
school years, as applicable. The State agency shall ensure that any
Claim for Reimbursement, filed subsequent to the reviews conducted under
Sec. 210.18 and prior to the implementation of corrective action, is
limited to meals eligible for reimbursement under this part.
(iii) In taking fiscal action, State agencies shall assume that
children determined by the reviewer to be incorrectly approved for free
and reduced
[[Page 60]]
price meals participated at the same rate as correctly approved children
in the corresponding meal category.
(3) Failure to collect. If a State agency fails to disallow a claim
or recover an overpayment from a school food authority, as described in
this section, FNS will notify the State agency that a claim may be
assessed against the State agency. In all such cases, the State agency
shall have full opportunity to submit evidence concerning overpayment.
If after considering all available information, FNS determines that a
claim is warranted, FNS will assess a claim in the amount of such
overpayment against the State agency. If the State agency fails to pay
any such demand for funds promptly, FNS will reduce the State agency's
Letter of Credit by the sum due in accordance with FNS' existing offset
procedures for Letter of Credit. In such event, the State agency shall
provide the funds necessary to maintain Program operations at the level
of earnings from a source other than the Program.
(4) Interest charge. If an agreement cannot be reached with the
State agency for payment of its debts or for offset of debts on its
current Letter of Credit, interest will be charged against the State
agency from the date the demand letter was sent, at the rate established
by the Secretary of Treasury.
(5) Use of recovered payment. The amounts recovered by the State
agency from school food authorities may be utilized during the fiscal
year for which the funds were initially available, first, to make
payments to school food authorities for the purposes of the Program; and
second, to repay any State funds expended in the reimbursement of claims
under the Program and not otherwise repaid. Any amounts recovered which
are not so utilized shall be returned to FNS in accordance with the
requirements of this part.
(6) Exceptions. The State agency need not disallow payment or
collect an overpayment when any review or audit reveals that a school
food authority is approving applications which indicate that the
households' incomes are within the Income Eligibility Guidelines issued
by the Department or the applications contain Supplemental Nutrition
Assistance Program or TANF case numbers or FDPIR case numbers or other
FDPIR identifiers but the applications are missing the information
specified in paragraph (1)(ii) of the definition of Documentation in
Sec. 245.2 of this chapter.
(7) Claims adjustment. FNS will have the authority to determine the
amount of, to settle, and to adjust any claim arising under the Program,
and to compromise or deny such claim or any part thereof. FNS will also
have the authority to waive such claims if FNS determines that to do so
would serve the purposes of the Program. This provision shall not
diminish the authority of the Attorney General of the United States
under section 516 of title 28, U.S. Code, to conduct litigation on
behalf of the United States.
(d) Management evaluations. Each State agency shall provide FNS with
full opportunity to conduct management evaluations of all State agency
Program operations and shall provide OIG with full opportunity to
conduct audits of all State agency Program operations. Each State agency
shall make available its records, including records of the receipt and
disbursement of funds under the Program and records of any claim
compromised in accordance with this paragraph, upon a reasonable request
by FNS, OIG, or the Comptroller General of the United States. FNS and
OIG retain the right to visit schools and OIG also has the right to make
audits of the records and operations of any school. In conducting
management evaluations, reviews, or audits in a fiscal year, the State
agency, FNS, or OIG may disregard an overpayment if the overpayment does
not exceed $600. A State agency may establish, through State law,
regulation or procedure, an alternate disregard threshold that does not
exceed $600. This disregard may be made once per each management
evaluation, review, or audit per Program within a fiscal year. However,
no overpayment is to be disregarded where there is substantial evidence
of violations of criminal law or civil fraud statutes.
(e) Additional requirements. Nothing contained in this part shall
prevent a State agency from imposing additional requirements for
participation in the
[[Page 61]]
Program which are not inconsistent with the provisions of this part.
(f) Cooperation with the Child and Adult Care Food Program. On an
annual basis, the State agency must provide the State agency which
administers the Child and Adult Care Food Program with a list of all
schools in the State participating in the National School Lunch Program
in which 50 percent or more of enrolled children have been determined
eligible for free or reduced price meals as of the last operating day of
the previous October, or other month specified by the State agency. The
lists must be provided by February 1 of each year or, if data is based
on a month other than October, within 90 calendar days following the end
of the month designated by the State agency. The State agency may
provide updated free and reduced price enrollment data on individual
schools to the State agency which administers the Child and Adult Care
Food Program only when unusual circumstances render the initial data
obsolete. In addition, the State agency must provide the current list,
upon request, to sponsoring organizations of day care homes
participating in the Child and Adult Care Food Program.
[53 FR 29147, Aug. 2, 1988]
Editorial Note: For Federal Register citations affecting Sec.
210.19, see the List of CFR Sections Affected, which appears in the
Finding Aids section of the printed volume and at www.govinfo.gov.
Sec. 210.20 Reporting and recordkeeping.
(a) Reporting summary. Participating State agencies shall submit
forms and reports to FNS to demonstrate compliance with Program
requirements. The reports include but are not limited to:
(1) Requests for cash to make reimbursement payments to school food
authorities as required under Sec. 210.5(a);
(2) Information on the amounts of Federal Program funds expended and
obligated to date (FNS-777) as required under Sec. 210.5(d);
(3) Statewide totals on Program participation (FNS-10) as required
under Sec. 210.5(d);
(4) Information on State funds provided by the State to meet the
State matching requirements (FNS-13) specified under Sec. 210.17(g);
(5) Results of reviews and audits;
(6) The prices of paid lunches charged by each school food
authority; and
(7) For each local educational agency required to conduct a second
review of applications under Sec. 245.11 of this chapter, the number of
free and reduced price applications subject to a second review, the
results of the reviews including the number and percentage of reviewed
applications for which the eligibility determination was changed, and a
summary of the types of changes made.
(b) Recordkeeping summary. Participating State agencies are required
to maintain records to demonstrate compliance with Program requirements.
The records include but are not limited to:
(1) Accounting records and source documents to control the receipt,
custody and disbursement of Federal Program funds as required under
Sec. 210.5(a);
(2) Documentation supporting all school food authority claims paid
by the State agency as required under Sec. 210.5(d);
(3) Documentation to support the amount the State agency reported
having used for State revenue matching as required under Sec.
210.17(h);
(4) Records supporting the State agency's review of net cash
resources as required under Sec. 210.19(a);
(5) Reports on the results of investigations of complaints received
or irregularities noted in connection with Program operations as
required under Sec. 210.19(a)
(6) Records of all reviews and audits, including records of action
taken to correct Program violations; and records of fiscal action taken,
including documentation of recoveries made;
(7) Documentation of action taken to disallow improper claims
submitted by school food authorities, as required by Sec. 210.19(c) and
as determined through claims processing, resulting from actions such as
reviews, audits and USDA audits;
(8) Records of USDA audit findings, State agency's and school food
authorities' responses to them and of corrective action taken as
required by Sec. 210.22(a);
[[Page 62]]
(9) Records pertaining to civil rights responsibilities as defined
under Sec. 210.23(b);
(10) Records supplied by the school food authorities showing the
number of food safety inspections obtained by schools for the current
and three most recent school years.
(11) Records showing compliance with the requirements in Sec.
210.14(e)(5) and records supplied annually by school food authorities
showing paid meal prices charged as required by Sec. 210.14(e)(6);
(12) Records to document compliance with the requirements in Sec.
210.14(f); and
(13) Records for a three year period to demonstrate compliance with
the professional standards for State directors of school nutrition
programs established in Sec. 235.11(h) of this chapter.
[53 FR 29147, Aug. 2, 1988, as amended at 56 FR 32948, July 17, 1991; 56
FR 55527, Oct. 28, 1991; 64 FR 50741, Sept. 20, 1999; 70 FR 34630, June
15, 2005; 76 FR 35318, June 17, 2011; 78 FR 13449, Feb. 28, 2013; 79 FR
7054, Feb. 6, 2014; 80 FR 11092, Mar. 2, 2015; 81 FR 50193, July 29,
2016; 88 FR 57847, Aug. 23, 2023; 89 FR 32074, Apr. 25, 2024]
Subpart E_State Agency and School Food Authority Responsibilities
Sec. 210.21 Procurement.
(a) General. State agencies and school food authorities shall comply
with the requirements of this part and 2 CFR part 200, subpart D and
USDA implementing regulations 2 CFR part 400 and part 415, as
applicable, which implement the applicable requirements, concerning the
procurement of all goods and services with nonprofit school food service
account funds.
(b) Contractual responsibilities. The standards contained in this
part and 2 CFR part 200, subpart D and USDA implementing regulations 2
CFR part 400 and part 415, as applicable, do not relieve the State
agency or school food authority of any contractual responsibilities
under its contracts. The State agency or school food authority is the
responsible authority, without recourse to FNS, regarding the settlement
and satisfaction of all contractual and administrative issues arising
out of procurements entered into in connection with the Program. This
includes, but is not limited to source evaluation, protests, disputes,
claims, or other matters of a contractual nature. Matters concerning
violation of law are to be referred to the local, State, or Federal
authority that has proper jurisdiction.
(c) Procedures. The State agency may elect to follow either the
State laws, policies and procedures as authorized by 2 CFR 200.317, or
the procurement standards for other governmental grantees and all
governmental subgrantees in accordance with 2 CFR 200.318 through 2 CFR
200.326. Regardless of the option selected, States must ensure that all
contracts include any clauses required by Federal statutes and executive
orders and that the requirements 2 CFR 200.236 and Appendix II, Contract
Provisions for Non-Federal Entity Contracts Under Federal Award are
followed. A school food authority may use its own procurement procedures
which reflect applicable State and local laws and regulations, provided
that procurements made with nonprofit school food service account funds
adhere to the standards set forth in this part and in 2 CFR part 200,
subpart D, as applicable. School food authority procedures must include
a written code of standards of conduct meeting the minimum standards of
2 CFR 200.318, as applicable.
(1) Pre-issuance review requirement. The State agency may impose a
pre-issuance review requirement on a school food authority's proposed
procurement. The school food authority must make available, upon request
by the State agency, its procurement documents, including but not
limited to solicitation documents, specifications, evaluation criteria,
procurement procedures, proposed contracts and contract terms. School
food authorities shall comply with State agency requests for changes to
procurement procedures and solicitation and contract documents to ensure
that, to the State agency's satisfaction, such procedures and documents
reflect applicable procurement and contract requirements and the
requirements of this part.
(2) Prototype solicitation documents and contracts. The school food
authority must obtain the State agency's prior
[[Page 63]]
written approval for any change made to prototype solicitation or
contract documents before issuing the revised solicitation documents or
execution of the revised contract.
(3) Prohibited expenditures. No expenditure may be made from the
nonprofit school food service account for any cost resulting from a
procurement failing to meet the requirements of this part.
(d) Buy American--(1) Definitions. For the purpose of this paragraph
(d):
(i) Domestic commodity or product means:
(A) An agricultural commodity that is produced in the United States;
and
(B) A food product that is processed in the United States
substantially using agricultural commodities that are produced in the
United States.
(ii) Substantially using agriculture commodities that are produced
in the United States means over 51 percent of a food product must
consist of agricultural commodities that were grown domestically.
(2) In general. Subject to paragraph (d)(4) of this section, a
school food authority must purchase, to the maximum extent practicable,
domestic commodities or products.
(3) Required language. School food authorities must include language
requiring the purchase of foods that meet the Buy American requirements
in paragraph (d)(1) of this section in all procurement procedures,
solicitations, and contracts.
(4) Limitations. Paragraphs (d)(2) and (3) of this section apply
only to:
(i) A school food authority located in the contiguous United States;
and
(ii) A purchase of domestic commodity or product for the school
lunch program under this part.
(5) Exceptions. The purchase of foods not meeting the definition in
paragraph (d)(1) of this section is only permissible when the following
criteria are met:
(i) The school food authority determines that one of the following
limited exceptions is met:
(A) The product is listed in the Federal Acquisitions Regulations
(FAR) at 48 CFR 25.104 and/or is not produced or manufactured in the
U.S. in sufficient and reasonably available quantities of a satisfactory
quality; or
(B) Competitive bids reveal the cost of a United States product is
significantly higher than the non-domestic product.
(ii) Non-domestic food purchases (those that do not meet the
definition of domestic commodity or product, as defined in paragraph
(d)(1) of this section) must not exceed the following caps by the
established deadlines:
(A) By July 1, 2025, non-domestic food purchases must not exceed 10
percent of total annual commercial food costs that a school food
authority purchases per school year.
(B) By July 1, 2028, non-domestic food purchases must not exceed 8
percent of total annual commercial food costs that a school food
authority purchases per school year.
(C) By July 1, 2031, non-domestic food purchases must not exceed 5
percent of total annual commercial food costs that a school food
authority purchases per school year.
(iii) School food authorities must maintain documentation, except
when the item purchased is found on the FAR at 48 CFR 25.104 when using
an exception under paragraph (d)(5)(i) of this section.
(iv) School food authorities must maintain documentation, to
demonstrate that when using an exception under paragraph (d)(5)(i) of
this section their non-domestic food purchases do not exceed the annual
threshold specified in paragraph (d)(5)(ii) of this section.
(6) Harvested fish. To meet the definition of a domestic commodity
or product, harvested fish must meet the following requirements:
(i) Farmed fish must be harvested within the United States or any
territory or possession of the United States; and
(ii) Wild caught fish must be harvested within the Exclusive
Economic Zone of the United States or by a United States flagged vessel.
(7) Applicability to Hawaii. Paragraph (d)(2) of this section
applies to school food authorities in Hawaii with respect to domestic
commodities or products that are produced in Hawaii in sufficient
quantities to meet the needs of
[[Page 64]]
meals provided under the school lunch program under this part.
(8) Temporary accommodation. For school food authorities that
demonstrate they cannot meet the threshold, State agencies may provide
an accommodation for temporary relief from the requirement as the State
agency works with the school food authority to increase domestic
purchases.
(e) Restrictions on the sale of milk. A school food authority
participating in the Program, or a person approved by a school
participating in the Program, must not directly or indirectly restrict
the sale or marketing of fluid milk (as described in Sec. 210.10(d)(4)
of this chapter) at any time or in any place on school premises or at
any school-sponsored event.
(f) Cost reimbursable contracts--(1) Required provisions. The school
food authority must include the following provisions in all cost
reimbursable contracts, including contracts with cost reimbursable
provisions, and in solicitation documents prepared to obtain offers for
such contracts:
(i) Allowable costs will be paid from the nonprofit school food
service account to the contractor net of all discounts, rebates and
other applicable credits accruing to or received by the contractor or
any assignee under the contract, to the extent those credits are
allocable to the allowable portion of the costs billed to the school
food authority;
(ii)(A) The contractor must separately identify for each cost
submitted for payment to the school food authority the amount of that
cost that is allowable (can be paid from the nonprofit school food
service account) and the amount that is unallowable (cannot be paid from
the nonprofit school food service account); or
(B) The contractor must exclude all unallowable costs from its
billing documents and certify that only allowable costs are submitted
for payment and records have been established that maintain the
visibility of unallowable costs, including directly associated costs in
a manner suitable for contract cost determination and verification;
(iii) The contractor's determination of its allowable costs must be
made in compliance with the applicable Departmental and Program
regulations and Office of Management and Budget cost circulars;
(iv) The contractor must identify the amount of each discount,
rebate and other applicable credit on bills and invoices presented to
the school food authority for payment and individually identify the
amount as a discount, rebate, or in the case of other applicable
credits, the nature of the credit. If approved by the State agency, the
school food authority may permit the contractor to report this
information on a less frequent basis than monthly, but no less
frequently than annually;
(v) The contractor must identify the method by which it will report
discounts, rebates and other applicable credits allocable to the
contract that are not reported prior to conclusion of the contract; and
(vi) The contractor must maintain documentation of costs and
discounts, rebates and other applicable credits, and must furnish such
documentation upon request to the school food authority, the State
agency, or the Department.
(2) Prohibited expenditures. No expenditure may be made from the
nonprofit school food service account for any cost resulting from a cost
reimbursable contract that fails to include the requirements of this
section, nor may any expenditure be made from the nonprofit school food
service account that permits or results in the contractor receiving
payments in excess of the contractor's actual, net allowable costs.
(g) Geographic preference. (1) A school food authority participating
in the Program, as well as State agencies making purchases on behalf of
such school food authorities, may apply a geographic preference when
procuring unprocessed locally grown or locally raised agricultural
products, including the use of ``locally grown'', ``locally raised'', or
``locally caught'' as procurement specifications or selection criteria
for unprocessed or minimally processed food items. When utilizing the
geographic preference to procure such products, the school food
authority making the purchase or the State agency making purchases on
behalf of such school food authorities have the discretion to determine
the local area
[[Page 65]]
to which the geographic preference option will be applied, so long as
there are an appropriate number of qualified firms able to compete;
(2) For the purpose of applying the optional geographic procurement
preference in paragraph (g)(1) of this section, ``unprocessed locally
grown or locally raised agricultural products'' means only those
agricultural products that retain their inherent character. The effects
of the following food handling and preservation techniques shall not be
considered as changing an agricultural product into a product of a
different kind or character: Cooling; refrigerating; freezing; size
adjustment made by peeling, slicing, dicing, cutting, chopping,
shucking, and grinding; forming ground products into patties without any
additives or fillers; drying/dehydration; washing; packaging (such as
placing eggs in cartons), vacuum packing and bagging (such as placing
vegetables in bags or combining two or more types of vegetables or
fruits in a single package); the addition of ascorbic acid or other
preservatives to prevent oxidation of produce; butchering livestock and
poultry; cleaning fish; and the pasteurization of milk.
(h) Procurement training. (1) State directors of school nutrition
programs, State directors of distributing agencies, and school nutrition
program directors, management, and staff tasked with National School
Lunch Program procurement responsibilities must complete annual training
on Federal procurement standards annually.
(2) Procurement training may count towards the professional
standards training standards at Sec. 210.30(g) of this part and Sec.
235.11(h) of this chapter.
(3) State agencies and school food authorities must retain records
to document compliance with the requirement in this section.
[53 FR 29147, Aug. 2, 1988, as amended at 64 FR 50741, Sept. 20, 1999;
70 FR 70033, Nov. 21, 2005; 71 FR 39516, July 13, 2006; 72 FR 61491,
Oct. 31, 2007; 76 FR 22607, Apr. 22, 2011; 77 FR 4153, Jan. 26, 2012; 81
FR 66489, Sept. 28, 2016; 88 FR 57847, Aug. 23, 2023; 89 FR 32074, Apr.
25, 2024]
Sec. 210.22 Audits.
(a) General. Unless otherwise exempt, audits at the State and school
food authority levels shall be conducted in accordance with 2 CFR part
200, subpart F and Appendix XI (Compliance Supplement) and USDA
implementing regulations 2 CFR part 400 and part 415.
(b) Audit procedure. These requirements call for organization-wide
financial and compliance audits to ascertain whether financial
operations are conducted properly; financial statements are presented
fairly; recipients and subrecipients comply with the laws and
regulations that affect the expenditures of Federal funds; recipients
and subrecipients have established procedures to meet the objectives of
federally assisted programs; and recipients and subrecipients are
providing accurate and reliable information concerning grant funds.
States and school food authorities shall use their own procedures to
arrange for and prescribe the scope of independent audits, provided that
such audits comply with the requirements set forth in 2 CFR part 200,
subpart F and Appendix XI, and USDA implementing regulations 2 CFR part
400 and part 415.
[53 FR 29147, Aug. 2, 1988, as amended at 71 FR 39516, July 13, 2006; 81
FR 66488, Sept. 28, 2016]
Sec. 210.23 Other responsibilities.
(a) Free and reduced price lunches and afterschool snacks. State
agencies and school food authorities must ensure that lunches and
afterschool snacks are made available free or at a reduced price to all
children who are determined by the school food authority to be eligible
for such benefits. The determination of a child's eligibility for free
or reduced price lunches and afterschool snacks must made in accordance
with part 245 of this chapter.
(b) Civil rights. In the operation of the Program, no child shall be
denied benefits or be otherwise discriminated against because of race,
color, national origin, age, sex, or disability. State agencies and
school food authorities shall comply with the requirements of: Title VI
of the Civil Rights Act of 1964; title IX of the Education Amendments
[[Page 66]]
of 1972; section 504 of the Rehabilitation Act of 1973; the Age
Discrimination Act of 1975; Department of Agriculture regulations on
nondiscrimination (7 CFR parts 15, 15a, and 15b); and FNS Instruction
113-1.
(c) Retention of records. State agencies and school food authorities
may retain necessary records in their original form or on microfilm.
State agency records shall be retained for a period of 3 years after the
date of submission of the final Financial Status Report for the fiscal
year. School food authority records shall be retained for a period of 3
years after submission of the final Claim for Reimbursement for the
fiscal year. In either case, if audit findings have not been resolved,
the records shall be retained beyond the 3-year period as long as
required for the resolution of the issues raised by the audit.
(d) Program evaluations. States, State agencies, local educational
agencies, school food authorities, schools and contractors must
cooperate in studies and evaluations conducted by or on behalf of the
Department, related to programs authorized under the Richard B. Russell
National School Lunch Act and the Child Nutrition Act of 1966.
[53 FR 29147, Aug. 2, 1988, as amended at 58 FR 42489, Aug. 10, 1993; 64
FR 50741, Sept. 20, 1999; 72 FR 24183, May 2, 2007; 76 FR 22797, Apr.
25, 2011; 76 FR 37982, June 29, 2011; 81 FR 50193, July 29, 2016; 89 FR
32075, Apr. 25, 2024]
Subpart F_Additional Provisions
Sec. 210.24 Withholding payments.
In accordance with Departmental regulations at 2 CFR 200.338 through
200.342, the State agency shall withhold Program payments, in whole or
in part, to any school food authority which has failed to comply with
the provisions of this part. Program payments shall be withheld until
the school food authority takes corrective action satisfactory to the
State agency, or gives evidence that such corrective action will be
taken, or until the State agency terminates the grant in accordance with
Sec. 210.25 of this part. Subsequent to the State agency's acceptance
of the corrective actions, payments will be released for any lunches
served in accordance with the provisions of this part during the period
the payments were withheld.
[56 FR 32948, July 17, 1991, as amended at 71 FR 39516, July 13, 2006;
72 FR 61492, Oct. 31, 2007; 81 FR 66488, Sept. 28, 2016]
Sec. 210.25 Suspension, termination and grant closeout procedures.
Whenever it is determined that a State agency has materially failed
to comply with the provisions of this part, or with FNS guidelines and
instructions, FNS may suspend or terminate the Program in whole, or in
part, or take any other action as may be available and appropriate. A
State agency may also terminate the Program by mutual agreement with
FNS. FNS and the State agency shall comply with the provisions of 2 CFR
part 200, subpart D and USDA implementing regulations 2 CFR part 400 and
part 415 concerning grant suspension, termination and closeout
procedures. Furthermore, the State agency shall apply these provisions,
as applicable, to suspension or termination of the Program in school
food authorities.
[53 FR 29147, Aug. 2, 1988. Redesignated at 56 FR 32948, July 17, 1991,
and amended at 71 FR 39516, July 13, 2006; 81 FR 66488, 66490, Sept. 28,
2016]
Sec. 210.26 Penalties and fines.
(a) Penalties. Whomever embezzles, willfully misapplies, steals, or
obtains by fraud any funds, assets, or property provided under this part
whether received directly or indirectly from the Department will, if
such funds, assets, or property are of a value of $100 or more, be fined
no more than $25,000 or imprisoned not more than 5 years or both; or if
such funds, assets, or property are of a value of less than $100, be
fined not more than $1,000 or imprisoned not more than 1 year or both.
Whomever receives, conceals, or retains for personal use or gain, funds,
assets, or property provided under this part, whether received directly
or indirectly from the Department, knowing such funds, assets, or
property have been embezzled, willfully misapplied, stolen, or obtained
by fraud, will be subject to the same penalties.
(b) Fines. (1) The State agency may establish a fine against any
school food authority when it has determined that
[[Page 67]]
the school food authority or a school under its agreement has:
(i) Failed to correct severe mismanagement of this Program or a
Child Nutrition Program under parts 225 or 226 of this chapter;
(ii) Disregarded a Program requirement of which the school food
authority or school had been informed; or
(iii) Failed to correct repeated violations of Program requirements
under this part or under parts 225 or 226 of this chapter.
(2) FNS may direct the State agency to establish a fine against any
school food authority when it has determined that the school food
authority or school meets the criteria set forth under paragraph (b)(1)
of this section.
(3) Funds used to pay fines established under this paragraph must be
derived from non-Federal sources. The State agency must calculate the
fine based on the amount of Program reimbursement earned by the school
food authority or school for the most recent fiscal year for which full
year data is available, provided that the fine does not exceed the
equivalent of:
(i) For the first fine, 1 percent of the amount of meal
reimbursement earned for the fiscal year;
(ii) For the second fine, 5 percent of the amount of meal
reimbursement earned for the fiscal year; and
(iii) For the third or subsequent fine, 10 percent of the amount of
meal reimbursement earned for the fiscal year.
(4) The State agency must inform FNS at least 30 days prior to
establishing the fine under this paragraph. The State agency must send
the school food authority written notification of the fine established
under this paragraph and provide a copy of the notification to FNS. The
notification must:
(i) Specify the violations or actions which constitute the basis for
the fine and indicate the amount of the fine;
(ii) Inform the school food authority that it may appeal the fine
and advise the school food authority of the appeal procedures
established under Sec. 210.18(p);
(iii) Indicate the effective date and payment procedures should the
school food authority not exercise its right to appeal within the
specified timeframe.
(5) Any school food authority subject to a fine under paragraph
(b)(1) of this section may appeal the State agency's determination. In
appealing a fine, the school food authority must submit to the State
agency any pertinent information, explanation, or evidence addressing
the Program violations identified by the State agency. Any school food
authority seeking to appeal the State agency determination must follow
State agency appeal procedures.
(6) The decision of the State agency review official is final and
not subject to further administrative or judicial review. Failure to pay
a fine established under this paragraph may be grounds for suspension or
termination.
(7) Money received by the State agency as a result of a fine
established under this paragraph against a school food authority and any
interest charged in the collection of these fines must be remitted to
FNS, and then remitted to the United States Treasury.
[88 FR 57847, Aug. 23, 2023]
Sec. 210.27 Educational prohibitions.
In carrying out the provisions of the Act, the Department shall not
impose any requirements with respect to teaching personnel, curriculum,
instructions, methods of instruction, or materials of instruction in any
school as a condition for participation in the Program.
[53 FR 29147, Aug. 2, 1988. Redesignated at 56 FR 32948, July 17, 1991,
as amended at 64 FR 50741, Sept. 20, 1999]
Sec. 210.28 Pilot project exemptions.
Those State agencies or school food authorities selected for the
pilot projects mandated under section 18(d) of the Act may be exempted
by the Department from some or all of the counting and free and reduced
price application requirements of this part and 7 CFR part 245, as
necessary, to conduct an approved pilot project. Additionally, those
schools selected for pilot projects that also operate the School
Breakfast Program (7 CFR part 220) and/or the Special Milk Program for
Children (7 CFR part 215), may be exempted from the counting and free
and reduced price application requirements mandated under these
Programs. The Department shall notify the appropriate State agencies and
[[Page 68]]
school food authorities of its determination of which requirements are
exempted after the Department's selection of pilot projects.
[55 FR 41504, Oct. 12, 1990. Redesignated at 56 FR 32948, July 17, 1991,
And further redesignated at 64 FR 50741, Sept. 20, 1999]
Sec. 210.29 Management evaluations.
(a) Management evaluations. FNS will conduct a comprehensive
management evaluation of each State agency's administration of the
National School Lunch Program.
(b) Basis for evaluations. FNS will evaluate all aspects of State
agency management of the Program using tools such as State agency
reviews as required under Sec. 210.18 of this part; reviews conducted
by FNS in accordance with Sec. 210.18 of this part; FNS reviews of
school food authorities and schools authorized under Sec. 210.19(a)(4)
of this part; follow-up actions taken by the State agency to correct
violations found during reviews; FNS observations of State agency
reviews; and audit reports.
(c) Scope of management evaluations. The management evaluation will
determine whether the State agency has taken steps to ensure school food
authority compliance with Program regulations, and whether the State
agency is administering the Program in accordance with Program
requirements and good management practices.
(1) Local compliance. FNS will evaluate whether the State agency has
actively taken steps to ensure that school food authorities comply with
the provisions of this part.
(2) State agency compliance. FNS will evaluate whether the State
agency has fulfilled its State level responsibilities, including, but
not limited to the following areas: use of Federal funds; reporting and
recordkeeping; agreements with school food authorities; review of food
service management company contracts; review of the claims payment
process; implementation of the State agency's monitoring
responsibilities; initiation and completion of corrective action;
recovery of overpayments; disallowance of claims that are not properly
payable; withholding of Program payments; oversight of school food
authority procurement activities; training and guidance activities;
civil rights; and compliance with the State Administrative Expense Funds
requirements as specified in 7 CFR part 235.
(d) School food authority reviews. FNS will examine State agency
administration of the Program by reviewing local Program operations.
When conducting these reviews under paragraph (d)(2) of this section,
FNS will follow all the administrative review requirements specified in
Sec. 210.18(a)-(h) of this part. When FNS conducts reviews, the
findings will be sent to the State agency to ensure all the needed
follow-up activity occurs. The State agency will, in all cases, be
invited to accompany FNS reviewers.
(1) Observation of State agency reviews. FNS may observe the State
agency conduct of any review as required under this part. At State
agency request, FNS may assist in the conduct of the review.
(2) Section 210.18 reviews. FNS will conduct administrative reviews
in accordance with Sec. 210.18(a)-(h) of this part which will count
toward meeting the State agency responsibilities identified under Sec.
210.18 of this part.
(3) School food authority appeal of FNS findings. When
administrative or follow-up review activity conducted by FNS in
accordance with the provisions of paragraph (d)(2) of this section
results in the denial of all or part of a Claim for Reimbursement or
withholding of payment, a school food authority may appeal the FNS
findings by filing a written request with the Food and Nutrition Service
in accordance with the appeal procedures specified in this paragraph
(d)(3):
(i) The written request for a review of the record shall be
postmarked within 15 calendar days of the date the appellant received
the notice of the denial of all or a part of the Claim for Reimbursement
or withholding payment and the envelope containing the request shall be
prominently marked ``REQUEST FOR REVIEW''. FNS will acknowledge the
receipt of the request for appeal within 10 calendar days. The
acknowledgement will include the name and address of the FNS
Administrative Review Officer (ARO) reviewing the case. FNS will also
notify the State agency of the request for appeal.
[[Page 69]]
(ii) The appellant may refute the action specified in the notice in
person and by written documentation to the ARO. In order to be
considered, written documentation must be filed with the ARO not later
than 30 calendar days after the appellant received the notice. The
appellant may retain legal counsel, or may be represented by another
person. A hearing shall be held by the ARO in addition to, or in lieu
of, a review of written information submitted by the appellant only if
the appellant so specifies in the letter of request for review. Failure
of the appellant school food authority's representative to appear at a
scheduled hearing shall constitute the appellant school food authority's
waiver of the right to a personal appearance before the ARO, unless the
ARO agrees to reschedule the hearing. A representative of FNS shall be
allowed to attend the hearing to respond to the appellant's testimony
and to answer questions posed by the ARO;
(iii) If the appellant has requested a hearing, the appellant shall
be provided with a least 10 calendar days advance written notice, sent
by certified mail, return receipt requested, of the time, date, and
place of the hearing;
(iv) Any information on which FNS's action was based shall be
available to the appellant for inspection from the date of receipt of
the request for review;
(v) The ARO shall be an independent and impartial official other
than, and not accountable to, any person authorized to make decisions
that are subject to appeal under the provisions of this section;
(vi) The ARO shall make a determination based on information
provided by FNS and the appellant, and on Program regulations;
(vii) Within 60 calendar days of the receipt of the request for
review, by written notice, sent by certified mail, return receipt
requested, the ARO shall inform FNS, the State agency and the appellant
of the determination of the ARO. The final determination shall take
effect upon receipt of the written notice of the final decision by the
school food authority;
(viii) The action being appealed shall remain in effect during the
appeal process;
(ix) The determination by the ARO is the final administrative
determination to be afforded to the appellant.
(4) Coordination with State agency. FNS will coordinate school food
authority selection with the State agency to ensure that no unintended
overlap exists and to ensure reviews are conducted in a consistent
manner.
(e) Management evaluation findings. FNS will consider the results of
all its review activity within each State, including school food
authority reviews, in performing management evaluations and issuing
management evaluation reports. FNS will communicate the findings of the
management evaluation to appropriate State agency personnel in an exit
conference. Subsequent to the exit conference, the State agency will be
notified in writing of the management evaluation findings and any needed
corrective actions or fiscal sanctions in accordance with the provisions
Sec. 210.25 of this part and/or 7 CFR part 235.
[56 FR 32949, July 17, 1991, as amended at 57 FR 38586, Aug. 26, 1992.
Redesignated at 64 FR 50741, Sept. 20, 1999, as amended at 81 FR 50193,
July 29, 2016; 89 FR 32075, Apr. 25, 2024]
Sec. 210.30 School nutrition program professional standards.
(a) General. School food authorities that operate the National
School Lunch Program, or the School Breakfast Program (part 220 of this
chapter), must establish and implement professional standards for school
nutrition program directors, managers, and staff, as defined in Sec.
210.2.
(b) Minimum standards for all school nutrition program directors.
Each school food authority must ensure that all newly hired school
nutrition program directors meet minimum hiring standards and ensure
that all new and existing directors have completed the minimum annual
training/education requirements for school nutrition program directors,
as set forth below:
(1) Hiring standards. All school nutrition program directors hired
on or after July 1, 2015, must meet the following minimum educational
requirements, as applicable:
[[Page 70]]
(i) School nutrition program directors with local educational agency
enrollment of 2,499 students or fewer. Directors must meet the
requirements in paragraph (b)(1)(i)(A), (B), (C), or (D) of this
section. However, a State agency may approve a school food authority to
use the nonprofit school food service account to pay the salary of a
school nutrition program director who does not meet the hiring standards
herein so long as the school food authority is complying with a State
agency-approved plan to ensure the director will meet the requirements.
(A) A bachelor's degree, or equivalent educational experience, as
determined by the State agency, with an academic major or concentration
in food and nutrition, food service management, dietetics, family and
consumer sciences, nutrition education, culinary arts, business, or a
related field;
(B) A bachelor's degree, or equivalent educational experience, as
determined by the State agency, with any academic major or area of
concentration, and either a State-recognized certificate for school
nutrition directors, or at least one year of relevant food service
experience. At the discretion of the State agency, and on an individual
basis, documented relevant food service experience may be unpaid;
(C) An associate's degree, or equivalent educational experience, as
determined by the State agency, with an academic major or area of
concentration in food and nutrition, food service management, dietetics,
family and consumer sciences, nutrition education, culinary arts,
business, or a related field and at least one year of relevant food
service experience. At the discretion of the State agency, and on an
individual basis, documented relevant food service experience may be
unpaid; or
(D) A high school diploma or equivalency (such as the general
educational development diploma), and at least three years of relevant
food service experience. At the discretion of the State agency, and on
an individual basis, documented relevant food service experience may be
unpaid. Directors hired under this criterion are strongly encouraged to
work toward attaining an associate's degree in an academic major in at
least one of the fields listed in paragraph (b)(1)(i)(C) of this
section.
(ii) School nutrition program directors with local educational
agency enrollment of 2,500 to 9,999 students. Directors must meet the
requirements in either paragraph (b)(1)(ii)(A), (B), (C), or (D) of this
section.
(A) A bachelor's degree, or equivalent educational experience, as
determined by the State agency, with an academic major or concentration
in food and nutrition, food service management, dietetics, family and
consumer sciences, nutrition education, culinary arts, business, or a
related field;
(B) A bachelor's degree, or equivalent educational experience, as
determined by the State agency, with any academic major or area of
concentration, and a State-recognized certificate for school nutrition
directors;
(C) A bachelor's degree in any academic major and at least two years
of relevant experience in school nutrition programs; or
(D) An associate's degree, or equivalent educational experience, as
determined by the State agency, with an academic major or area of
concentration in food and nutrition, food service management, dietetics,
family and consumer sciences, nutrition education, culinary arts,
business, or a related field and at least two years of relevant school
nutrition program experience. Directors hired with an associate's degree
are strongly encouraged to work toward attaining a bachelor's degree in
an academic major in the fields listed in this paragraph (b)(1)(ii)(D).
(iii) School nutrition program directors with local educational
agency enrollment of 10,000 or more students. Directors must meet the
requirements in either paragraph (b)(1)(iii)(A), (B), or (C) of this
section.
(A) A bachelor's degree, or equivalent educational experience, as
determined by the State agency, with an academic major or area of
concentration in food and nutrition, food service management, dietetics,
family and consumer sciences, nutrition education, culinary arts,
business, or a related field;
(B) A bachelor's degree, or equivalent educational experience, as
determined by the State agency, with any academic major or area of
concentration,
[[Page 71]]
and a State-recognized certificate for school nutrition directors; or
(C) A bachelor's degree in any major and at least five years of
experience in management of school nutrition programs.
(D) School food authorities are strongly encouraged to seek out
individuals who possess a master's degree or are willing to work toward
a master's degree in the fields listed in this paragraph. At least one
year of management experience, preferably in school nutrition, is
strongly recommended. It is also strongly recommended that directors
have at least three credit hours at the university level in food service
management and at least three credit hours in nutritional sciences at
the time of hire.
(iv) Exceptions to the hiring standards. (A) For a local educational
agency with less than 500 students, the State agency may approve the
hire of a director who meets one of the educational criteria in
paragraphs (b)(1)(i)(B) through (D) of this section but has less than
the required years of relevant food service experience.
(B) For a local educational agency with 2,500 or more students, the
State agency may approve the hire of a director who does not meet the
educational criteria in paragraphs (b)(1)(ii)(A) through (D) or
paragraphs (b)(1)(iii)(A) through (C) of this section, as applicable,
but who has at least 10 years of school nutrition program experience.
(C) Acting school nutrition program directors are not required to
meet the hiring standards established in this paragraph (b)(1) of this
section; however, the State agency may require acting school nutrition
program directors expected to serve for more than 30 business days to
meet the hiring standards established in established in this paragraph
(b)(1).
(v) School nutrition program directors for all local educational
agency sizes. All school nutrition program directors, for all local
educational agency sizes, must have completed at least eight hours of
food safety training within five years prior to their starting date or
complete eight hours of food safety training within 30 calendar days of
their starting date. At the discretion of the State agency, all school
nutrition program directors, regardless of their starting date, may be
required to complete eight hours of food safety training every five
years.
(2) [Reserved]
(c) Continuing education/training standards for all school nutrition
program directors. Each school year, the school food authority must
ensure that all school nutrition program directors (including acting
directors, at the discretion of the State agency), complete 12 hours of
annual continuing education/training. The annual training must include,
but is not limited to, administrative practices (including training in
application, certification, verification, meal counting, and meal
claiming procedures), as applicable, and any other specific topics
identified by FNS, as needed, to address Program integrity or other
critical issues. Continuing education/training required under this
paragraph (c) is in addition to the food safety training required in the
first year of employment under paragraph (b)(1)(v) of this section.
(d) Continuing education/training standards for all school nutrition
program managers. Each school year, the school food authority must
ensure that all school nutrition program managers have completed 10
hours of annual continuing education/training. The annual training must
include, but is not limited to, the following topics, as applicable:
(1) Administrative practices (including training in application,
certification, verification, meal counting, and meal claiming
procedures);
(2) The identification of reimbursable meals at the point of
service;
(3) Nutrition;
(4) Health and safety standards; and
(5) Any specific topics identified by FNS, as needed, to address
Program integrity or other critical issues.
(e) Continuing education/training standards for all staff with
responsibility for school nutrition programs. Each school year, the
school food authority must ensure that all staff with responsibility for
school nutrition programs that work an average of at least 20 hours per
week, other than school nutrition program directors and managers,
completes 6 hours of annual training in areas applicable to their
[[Page 72]]
jobs. Part-time staff working an average of less than 20 hours per week
must complete 4 hours of annual training. The annual training must
include, but is not limited to, the following topics, as applicable to
their positions and responsibilities:
(1) Free and reduced price eligibility;
(2) Application, certification, and verification procedures;
(3) The identification of reimbursable meals at the point of
service;
(4) Nutrition;
(5) Health and safety standards; and
(6) Any specific topics identified by FNS, as needed, to address
Program integrity or other critical issues.
(f) Summary of required minimum continued education/training
standards. The annual training requirements for school nutrition program
directors, managers, and staff are summarized in the following table.
Table 1 to Paragraph (f)--Summary of Required Annual Training 1 2
------------------------------------------------------------------------
------------------------------------------------------------------------
School Nutrition Program Directors Each year, at least 12 hours of
annual education/training.
Includes topics such as:
Administrative
practices (including training in
application, certification,
verification, meal counting, and
meal claiming procedures).
Any specific
topics required by FNS, as
needed, to address Program
integrity and other critical
issues.
This required continuing education/
training is in addition to the food
safety training required in the
first year of employment, or for
all school nutrition program
directors if determined by the
State agency.
School Nutrition Program Managers. Each year, at least 10 hours of
annual education/training.
Includes topics such as:
Administrative
practices (including training in
application, certification,
verification, meal counting, and
meal claiming procedures).
The
identification of reimbursable
meals at the point of service.
Nutrition,
health, and safety standards.
Any specific
topics required by FNS, as needed,
to address Program integrity or
other critical issues.
School Nutrition Program Staff.... Each year, at least 6 hours of
annual education/training.
Includes topics such as:
Free and reduced
price eligibility.
Application,
certification, and verification
procedures.
The
identification of reimbursable
meals at the point of service.
Nutrition,
health, and safety standards.
Any specific
topics required by FNS, as needed,
to address Program integrity or
other critical issues.
This requirement applies to staff,
other than directors and managers,
who work at least 20 hours per
week.
Acting and Temporary Staff, At the discretion of the State
Substitutes, and Volunteers. agency, acting and temporary staff,
substitutes, and volunteers must
complete training in one or more of
the following topics within 30
calendar days of their start date:
Free and
reduced price eligibility.
Application,
certification, and verification
procedures.
The
identification of reimbursable
meals at the point of service.
Nutrition,
health, and safety standards.
Any specific
topics required by FNS, as needed,
to address Program integrity or
other critical issues.
------------------------------------------------------------------------
\1\ School nutrition program directors, managers, and staff may carry
over excess annual training hours to an immediately previous or
subsequent school year and demonstrate compliance with the training
requirements over a period of two school years, provided that some
training hours are completed each school year.
[[Page 73]]
\2\ Program directors, managers, and staff hired on or after January 1
of each school year must complete half of their required annual
training hours by June 30 of the school year in which they were hired.
(g) Use of food service funds for training costs. Costs associated
with annual continuing education/training required under paragraphs
(b)(3), (c) and (d) of this section are allowed provided they are
reasonable, allocable, and necessary in accordance with the cost
principles set forth in 2 CFR part 225, Cost Principles for State, Local
and Indian Tribal Governments (OMB Circular A-87). However, food service
funds must not be used to pay for the cost of college credits incurred
by an individual to meet the hiring requirements in paragraphs (b)(1)(i)
through (iv) and (b)(2) of this section.
(h) School food authority oversight. Each school year, the school
food authority director must document compliance with the requirements
of this section for all staff with responsibility for school nutrition
programs, including directors, managers, and staff. Documentation must
be adequate to establish, to the State's satisfaction during
administrative reviews, that employees are meeting the minimum
professional standards. The school food authority must certify that:
(1) The school nutrition program director meets the hiring standards
and training requirements set forth in paragraph (b) of this section.
(2) Each employee has completed the applicable training requirements
in paragraphs (c) and (d) of this section no later than the end of each
school year.
(3) Each employee tasked with Program procurement has completed
annual procurement training, as required under Sec. 210.21(h), by the
end of each school year.
[80 FR 11092, Mar. 2, 2015; 80 FR 26181, May 7, 2015. Redesignated at 81
FR 50169, July 29, 2016 and further redesignated and amended at 81 FR
93792, Dec. 22, 2016; 84 FR 6959, Mar. 1, 2019; 84 FR 8247, Mar. 7,
2019; 88 FR 57848, Aug. 23, 2023; 89 FR 32075, Apr. 25, 2024]
Sec. 210.31 Local school wellness policy.
(a) General. Each local educational agency must establish a local
school wellness policy for all schools participating in the National
School Lunch Program and/or School Breakfast Program under the
jurisdiction of the local educational agency. The local school wellness
policy is a written plan that includes methods to promote student
wellness, prevent and reduce childhood obesity, and provide assurance
that school meals and other food and beverages sold and otherwise made
available on the school campus during the school day are consistent with
applicable minimum Federal standards.
(b) Definitions. For the purposes of this section:
(1) School campus means the term as defined in Sec. 210.11(a)(4).
(2) School day means the term as defined in Sec. 210.11(a)(5).
(c) Content of the plan. At a minimum, local school wellness
policies must contain:
(1) Specific goals for nutrition promotion and education, physical
activity, and other school-based activities that promote student
wellness. In developing these goals, local educational agencies must
review and consider evidence-based strategies and techniques;
(2) Standards for all foods and beverages provided, but not sold, to
students during the school day on each participating school campus under
the jurisdiction of the local educational agency;
(3) Standards and nutrition guidelines for all foods and beverages
sold to students during the school day on each participating school
campus under the jurisdiction of the local educational agency that;
(i) Are consistent with applicable requirements set forth under
Sec. Sec. 210.10 and 220.8 of this chapter;
(ii) Are consistent with the nutrition standards set forth under
Sec. 210.11;
(iii) Permit marketing on the school campus during the school day of
only those foods and beverages that meet the nutrition standards under
Sec. 210.11; and
(iv) Promote student health and reduce childhood obesity.
(4) Identification of the position of the LEA or school official(s)
or school official(s) responsible for the implementation and oversight
of the local school wellness policy to ensure each school's compliance
with the policy;
[[Page 74]]
(5) A description of the manner in which parents, students,
representatives of the school food authority, teachers of physical
education, school health professionals, the school board, school
administrators, and the general public are provided an opportunity to
participate in the development, implementation, and periodic review and
update of the local school wellness policy; and
(6) A description of the plan for measuring the implementation of
the local school wellness policy, and for reporting local school
wellness policy content and implementation issues to the public, as
required in paragraphs (d) and (e) of this section.
(d) Public involvement and public notification. Each local
educational agency must:
(1) Permit parents, students, representatives of the school food
authority, teachers of physical education, school health professionals,
the school board, school administrators, and the general public to
participate in the development, implementation, and periodic review and
update of the local school wellness policy;
(2) Inform the public about the content and implementation of the
local school wellness policy, and make the policy and any updates to the
policy available to the public on an annual basis;
(3) Inform the public about progress toward meeting the goals of the
local school wellness policy and compliance with the local school
wellness policy by making the triennial assessment, as required in
paragraph (e)(2) of this section, available to the public in an
accessible and easily understood manner.
(e) Implementation assessments and updates. Each local educational
agency must:
(1) Designate one or more local educational agency officials or
school officials to ensure that each participating school complies with
the local school wellness policy;
(2) At least once every three years, assess schools' compliance with
the local school wellness policy, and make assessment results available
to the public. The assessment must measure the implementation of the
local school wellness policy, and include:
(i) The extent to which schools under the jurisdiction of the local
educational agency are in compliance with the local school wellness
policy;
(ii) The extent to which the local educational agency's local school
wellness policy compares to model local school wellness policies; and
(iii) A description of the progress made in attaining the goals of
the local school wellness policy.
(3) Make appropriate updates or modifications to the local school
wellness policy, based on the triennial assessment.
(f) Recordkeeping requirement. Each local educational agency must
retain records to document compliance with the requirements of this
section. These records include but are not limited to:
(1) The written local school wellness policy;
(2) Documentation demonstrating compliance with community
involvement requirements, including requirements to make the local
school wellness policy and triennial assessments available to the public
as required in paragraph (e) of this section; and
(3) Documentation of the triennial assessment of the local school
wellness policy for each school under its jurisdiction.
[81 FR 51069, July 29, 2016. Redesignated at 81 FR 93792, Dec. 22, 2016]
Sec. 210.32 Program information.
Persons seeking information about this Program should contact their
State administering agency or the appropriate FNSRO. The FNS website has
contact information for State agencies at https://www.fns.usda.gov/
contacts and FNSROs at https://www.fns.usda.gov/ fns-regional-offices.
[88 FR 57848, Aug. 23, 2023]
Sec. 210.33 OMB control numbers.
The following control numbers have been assigned to the information
collection requirements in 7 CFR part 210 by the Office of Management
and Budget pursuant to the Paperwork Reduction Act of 1980, Public Law
96-511.
[[Page 75]]
------------------------------------------------------------------------
7 CFR section where
requirements are described Current OMB control No.
------------------------------------------------------------------------
210.3(b)..................... 0584-0067
210.4(b)..................... 0584-0002
210.5(d)..................... 0584-0006; 0584-0002; 0584-0067; 0584-
0567 (to be merged with 0584-0006)
210.7........................ 0584-0567 (to be merged with 0584-0006)
210.8........................ 0584-0284; 0584-0006
210.9........................ 0584-0006
210.10....................... 0584-0006; 0584-0494
210.11....................... 0584-0576 (to be merged with 0584-0006)
210.13....................... 0584-0006
210.14....................... 0584-0006
210.15....................... 0584-0006
210.17....................... 0584-0075
210.18....................... 0584-0006
210.19....................... 0584-0006
210.20....................... 0584-0006; 0584-0002; 0584-0067
210.23....................... 0584-0006
------------------------------------------------------------------------
[80 FR 11092, Mar. 2, 2015. Redesignated at 81 FR 50169, July 29, 2016]
Sec. 210.34 Seamless Summer Option non-congregate meal service.
A school food authority operating the Seamless Summer Option in a
rural area may be approved to offer a non-congregate meal service
consistent with that established in part 225 of this chapter. Such
school food authorities must comply with the non-congregate meal service
provisions set forth at Sec. 225.16(b)(5)(i) and (iv) of this chapter
and may use the non-congregate meal service options contained in Sec.
225.16(i) of this chapter.
[88 FR 90347, Dec. 29, 2023]
Sec. Appendix A to Part 210--Alternate Foods for Meals
I. Enriched Macaroni Products with Fortified Protein
1. Schools may utilize the enriched macaroni products with fortified
protein defined in paragraph 3 as a food item in meeting the meal
requirements of this part under the following terms and conditions:
(a) One ounce (28.35 grams) of a dry enriched macaroni product with
fortified protein may be used to meet not more than one-half of the meat
or meat alternate requirements specified in Sec. 210.10, when served in
combination with 1 or more ounces (28.35 grams) of cooked meat, poultry,
fish, or cheese. The size of servings of the cooked combination may be
adjusted for various age groups.
(b) Only enriched macaroni products with fortified protein that bear
a label containing substantially the following legend shall be so
utilized: ``One ounce (28.35 grams) dry weight of this product meets
one-half of the meat or meat alternate requirements of lunch or supper
of the USDA child nutrition programs when served in combination with 1
or more ounces (28.35 grams) of cooked meat, poultry, fish, or cheese.
In those States where State or local law prohibits the wording
specified, a legend acceptable to both the State or local authorities
and FNS shall be substituted.''
(c) Enriched macaroni product may not be used for infants under 1
year of age.
2. Only enriched macaroni products with fortified protein that have
been accepted by FNS for use in the USDA Child Nutrition Programs may be
labeled as provided in paragraph 1(b) of this appendix. Manufacturers
seeking acceptance of their product shall furnish FNS a chemical
analysis, the Protein Digestibility-Corrected Amino Acid Score (PDCAAS),
and such other pertinent data as may be requested by FNS, except that
prior to November 7, 1994, manufacturers may submit protein efficiency
ratio analysis in lieu of the PDCAAS. This information is to be
forwarded to: Director, Nutrition and Technical Services Division, Food
and Nutrition Service, U.S. Department of Agriculture, 3101 Park Center
Drive, room 607, Alexandria, VA 22302. All laboratory analyses are to be
performed by independent or other laboratories acceptable to FNS. (FNS
prefers an independent laboratory.) All laboratories shall retain the
``raw'' laboratory data for a period of 1 year. Such information shall
be made available to FNS upon request. Manufacturers must notify FNS if
there is a change in the protein portion of their product after the
original testing. Manufacturers who report such a change in protein in a
previously approved product must submit protein data in accordance with
the method specified in this paragraph.
3. The product should not be designed in such a manner that would
require it to be
[[Page 76]]
classified as a Dietary Supplement as described by the Food and Drug
Administration (FDA) in 21 CFR part 105. To be accepted by FNS, enriched
macaroni products with fortified protein must conform to the following
requirements:
(a)(1) Each of these foods is produced by drying formed units of
dough made with one or more of the milled wheat ingredients designated
in 21 CFR 139.110(a) and 139.138(a), and other ingredients to enable the
finished food to meet the protein requirements set out in paragraph
3.(a)(2)(i) under Enriched Macaroni Products with Fortified Protein in
this appendix. Edible protein sources, including food grade flours or
meals made from nonwheat cereals or from oilseeds, may be used. Vitamin
and mineral enrichment nutrients are added to bring the food into
conformity with the requirements of paragraph (b) under Enriched
Macaroni Products with Fortified Protein in this appendix. Safe and
suitable ingredients, as provided for in paragraph (c) under Enriched
Macaroni Products with Fortified Protein in this appendix, may be added.
The proportion of the milled wheat ingredient is larger than the
proportion of any other ingredient used.
(2) Each such finished food, when tested by the methods described in
the pertinent sections of ``Official Methods of Analysis of the AOAC
International,'' (formerly the Association of Official Analytical
Chemists), 15th Ed. (1990) meets the following specifications. This
publication is incorporated by reference in accordance with 5 U.S.C.
552(a) and 1 CFR part 51. Copies may be obtained from the AOAC
International, 2200 Wilson Blvd., suite 400, Arlington, VA 22201-3301.
This publication may be examined at the Food and Nutrition Service,
Nutrition and Technical Services Division, 3101 Park Center Drive, room
607, Alexandria, Virginia 22302 or at the National Archives and Records
Administration (NARA). For information on the availability of this
material at NARA, call 202-741-6030, or go to: http://www.archives.gov/
federal_register/code_of_ federal_regulations/ ibr_locations.html.
(i) The protein content (N x 6.25) is not less than 20 percent by
weight (on a 13 percent moisture basis) as determined by the appropriate
method of analysis in the AOAC manual cited in (a)(2) under Enriched
Macaroni Products with Fortified Protein in this appendix. The protein
quality is not less than 95 percent that of casein as determined on a
dry basis by the PDCAAS method as described below:
(A) The PDCAAS shall be determined by the methods given in sections
5.4.1, 7.2.1. and 8.0 as described in ``Protein Quality Evaluation,
Report of the Joint FAO/WHO Expert Consultation on Protein Quality
Evaluation,'' Rome, 1990, as published by the Food and Agriculture
Organization (FAO) of the United Nations/World Health Organization
(WHO). This report is incorporated by reference in accordance with 5
U.S.C. 552(a) and 1 CFR part 51. Copies of this report may be obtained
from the Nutrition and Technical Services Division, Food and Nutrition
Service, 3101 Park Center Drive, room 607, Alexandria, Virginia 22302.
This report may also be inspected at the National Archives and Records
Administration (NARA). For information on the availability of this
material at NARA, call 202-741-6030, or go to: http://www.archives.gov/
federal_register/ code_of_ federal_regulations/ibr_ locations.html.
(B) The standard used for assessing protein quality in the PDCAAS
method is the amino acid scoring pattern established by FAO/WHO and
United Nations University (UNU) in 1985 for preschool children 2 to 5
years of age which has been adopted by the National Academy of Sciences,
Recommended Dietary Allowances (RDA), 1989.
(C) To calculate the PDCAAS for an individual food, the test food
must be analyzed for proximate analysis and amino acid composition
according to AOAC methods.
(D) The PDCAAS may be calculated using FDA's limited data base of
published true digestibility values (determined using humans and rats).
The true digestibility values contained in the WHO/FAO report referenced
in paragraph 3.(a)(2)(i)(A) under Enriched Macaroni Products with
Fortified Protein in this appendix may also be used. If the
digestibility of the protein is not available from these sources it must
be determined by a laboratory according to methods in the FAO/WHO report
(sections 7.2.1 and 8.0).
(E) The most limiting essential amino acid (that is, the amino acid
that is present at the lowest level in the test food compared to the
standard) is identified in the test food by comparing the levels of
individual amino acids in the test food with the 1985 FAO/WHO/UNU
pattern of essential amino acids established as a standard for children
2 to 5 years of age.
(F) The value of the most limiting amino acid (the ratio of the
amino acid in the test food over the amino acid value from the pattern)
is multiplied by the percent of digestibility of the protein. The
resulting number is the PDCAAS.
(G) The PDCAAS of food mixtures must be calculated from data for the
amino acid composition and digestibility of the individual components by
means of a weighted average procedure. An example for calculating a
PDCAAS for a food mixture of varying protein sources is shown in section
8.0 of the FAO/WHO report cited in paragraph 3.(a)(2)(i)(A) under
Enriched Macaroni Products with Fortified Protein in this appendix.
(H) For the purpose of this regulation, each 100 grams of the
product (on a 13 percent moisture basis) must contain protein in amounts
which is equivalent to that provided by 20 grams of protein with a
quality
[[Page 77]]
of not less than 95 percent casein. The equivalent grams of protein
required per 100 grams of product (on a 13 percent moisture basis) would
be determined by the following equation:
[GRAPHIC] [TIFF OMITTED] TR07OC94.022
X = grams of protein required per 100 grams of product
a = 20 grams (amount of protein if casein)
b = .95 [95% x 1 (PDCAAS of casein)
c = PDCAAS for protein used in formulation
(ii) The total solids content is not less than 87 percent by weight
as determined by the methods described in the ``Official Methods of
Analysis of the AOAC International'' cited in paragraph (a)(2) under
Enriched Macaroni Products with Fortified Protein in this appendix.
(b)(1) Each pound of food covered by this section shall contain 5
milligrams of thiamine, 2.2 milligrams of riboflavin, 34 milligrams of
niacin or niacinamide, and 16.5 milligrams of iron.
(2) Each pound of such food may also contain 625 milligrams of
calcium.
(3) Only harmless and assimilable forms of iron and calcium may be
added. The enrichment nutrients may be added in a harmless carrier used
only in a quantity necessary to effect a uniform distribution of the
nutrients in the finished food. Reasonable overages, within the limits
of good manufacturing practice, may be used to assure that the
prescribed levels of the vitamins and mineral(s) in paragraphs (b)(1)
and (2) under Enriched Macaroni Products with Fortified Protein in this
appendix are maintained throughout the expected shelf life of the food
under customary conditions of distribution.
(c) Ingredients that serve a useful purpose such as to fortify the
protein or facilitate production of the food are the safe and suitable
ingredients referred to in paragraph (a) under Enriched Macaroni
Products with Fortified Protein in this appendix. This does not include
color additives, artificial flavorings, artificial sweeteners, chemical
preservatives, or starches. Ingredients deemed suitable for use by this
paragraph are added in amounts that are not in excess of those
reasonably required to achieve their intended purposes. Ingredients are
deemed to be safe if they are not food additives within the meaning of
section 201(s) of the Federal Food, Drug and Cosmetic Act, or in case
they are food additives if they are used in conformity with regulations
established pursuant to section 409 of the act.
(d)(1) The name of any food covered by this section is ``Enriched
Wheat ________ Macaroni Product with Fortified Protein'', the blank
being filled in with appropriate word(s) such as ``Soy'' to show the
source of any flours or meals used that were made from non-wheat cereals
or from oilseeds. In lieu of the words ``Macaroni Product'' the words
``Macaroni'', ``Spaghetti'', or ``Vermicelli'' as appropriate, may be
used if the units conform in shape and size to the requirements of 21
CFR 139.110 (b), (c), or (d).
(2) When any ingredient not designated in the part of the name
prescribed in paragraph (d)(1) under Enriched Macaroni Products with
Fortified Protein in this appendix, is added in such proportion as to
contribute 10 percent or more of the quantity of protein contained in
the finished food, the name shall include the statement ``Made with
________'', the blank being filled in with the name of each such
ingredient, e.g. ``Made with nonfat milk''.
(3) When, in conformity with paragraph (d)(1) or (d)(2) under
Enriched Macaroni Products with Fortified Protein in this appendix, two
or more ingredients are listed in the name, their designations shall be
arranged in descending order of predominance by weight.
(4) If a food is made to comply with a section of 21 CFR part 139,
but also meets the compositional requirements of the Enriched Macaroni
with Fortified Protein Appendix, it may alternatively bear the name set
out in the other section.
(e) Each ingredient used shall declare its common name as required
by the applicable section of 21 CFR part 101. In addition, the
ingredients statement shall appear in letters not less than one half the
size of that required by 21 CFR 101.105 for the declaration of net
quantity of contents, and in no case less than one-sixteenth of an inch
in height.
II. Alternate Protein Products
A. What Are the Criteria for Alternate Protein Products Used in the
National School Lunch Program?
1. An alternate protein product used in meals planned under the
food-based menu planning approaches in Sec. 210.10(k), must meet all of
the criteria in this section.
2. An alternate protein product whether used alone or in combination
with meat or other meat alternates must meet the following criteria:
a. The alternate protein product must be processed so that some
portion of the non-protein constituents of the food is removed. These
alternate protein products must be safe and suitable edible products
produced from plant or animal sources.
b. The biological quality of the protein in the alternate protein
product must be at least 80 percent that of casein, determined by
performing a Protein Digestibility Corrected Amino Acid Score (PDCAAS).
c. The alternate protein product must contain at least 18 percent
protein by weight when fully hydrated or formulated. (``When
[[Page 78]]
hydrated or formulated'' refers to a dry alternate protein product and
the amount of water, fat, oil, colors, flavors or any other substances
which have been added).
d. Manufacturers supplying an alternate protein product to
participating schools or institutions must provide documentation that
the product meets the criteria in paragraphs A2. a through c of this
appendix.
e. Manufacturers should provide information on the percent protein
contained in the dry alternate protein product and on an as prepared
basis.
f. For an alternate protein product mix, manufacturers should
provide information on:
(1) the amount by weight of dry alternate protein product in the
package;
(2) hydration instructions; and
(3) instructions on how to combine the mix with meat or other meat
alternates.
B. How Are Alternate Protein Products Used in the National School Lunch
Program?
1. Schools, institutions, and service institutions may use alternate
protein products to fulfill all or part of the meat/meat alternate
component discussed in Sec. 210.10.
2. The following terms and conditions apply:
a. The alternate protein product may be used alone or in combination
with other food ingredients. Examples of combination items are beef
patties, beef crumbles, pizza topping, meat loaf, meat sauce, taco
filling, burritos, and tuna salad.
b. Alternate protein products may be used in the dry form
(nonhydrated), partially hydrated or fully hydrated form. The moisture
content of the fully hydrated alternate protein product (if prepared
from a dry concentrated form) must be such that the mixture will have a
minimum of 18 percent protein by weight or equivalent amount for the dry
or partially hydrated form (based on the level that would be provided if
the product were fully hydrated).
C. How Are Commercially Prepared Products Used in the National School
Lunch Program?
Schools, institutions, and service institutions may use a
commercially prepared meat or meat alternate product combined with
alternate protein products or use a commercially prepared product that
contains only alternate protein products.
[51 FR 34874, Sept. 30, 1986; 51 FR 41295, Nov. 14, 1986, as amended at
53 FR 29164, Aug. 2, 1988; 59 FR 51086, Oct. 7, 1994; 60 FR 31216; June
13, 1995; 61 FR 37671, July 19, 1996; 65 FR 12434, Mar. 9, 2000; 65 FR
26912, May 9, 2000; 69 FR 18803, Apr. 9, 2004]
Sec. Appendix B to Part 210 [Reserved]
Sec. Appendix C to Part 210--Child Nutrition Labeling Program
1. The Child Nutrition (CN) Labeling Program is a voluntary
technical assistance program administered by the Food and Nutrition
Service in conjunction with the Food Safety and Inspection Service
(FSIS), and Agricultural Marketing Service (AMS) of the U.S. Department
of Agriculture, and National Marine Fisheries Service of the U.S.
Department of Commerce (USDC) for the Child Nutrition Programs. This
program essentially involves the review of a manufacturer's recipe or
product formulation to determine the contribution a serving of a
commercially prepared product makes toward meal pattern requirements and
a review of the CN label statement to ensure its accuracy. CN labeled
products must be produced in accordance with all requirements set forth
in this rule.
2. Products eligible for CN labels are as follows:
(a) Commercially prepared food products that contribute
significantly to the meat/meat alternate component of meal pattern
requirements of 7 CFR 210.10, 225.20, and 226.20 and are served in the
main dish.
(b) Juice drinks and juice drink products that contain a minimum of
50 percent full-strength juice by volume.
3. For the purpose of this appendix the following definitions apply:
(a) ``CN label'' is a food product label that contains a CN label
statement and CN logo as defined in paragraph 3 (b) and (c) below.
(b) The ``CN logo'' (as shown below) is a distinct border which is
used around the edges of a ``CN label statement'' as defined in
paragraph 3(c).
[[Page 79]]
[GRAPHIC] [TIFF OMITTED] TC17SE91.000
(c) The ``CN label statement'' includes the following:
(1) The product identification number (assigned by FNS),
(2) The statement of the product's contribution toward meal pattern
requirements of 7 CFR 210.10, Sec. 220.8 or Sec. 220.8a, whichever is
applicable, Sec. Sec. 225.20, and 226.20. The statement shall identify
the contribution of a specific portion of a meat/meat alternate product
toward the meat/meat alternate, bread/bread alternate, and/or vegetable/
fruit component of the meal pattern requirements. For juice drinks and
juice drink products the statement shall identify their contribution
toward the vegetable/fruit component of the meal pattern requirements,
(3) Statement specifying that the use of the CN logo and CN
statement was authorized by FNS, and
(4) The approval date.
For example:
[GRAPHIC] [TIFF OMITTED] TC17SE91.001
(d) Federal inspection means inspection of food products by FSIS,
AMS or USDC.
4. Food processors or manufacturers may use the CN label statement
and CN logo as defined in paragraph 3 (b) and (c) under the following
terms and conditions:
(a) The CN label must be reviewed and approved at the national level
by FNS and appropriate USDA or USDC Federal agency responsible for the
inspection of the product.
(b) The CN labeled product must be produced under Federal inspection
by USDA or USDC. The Federal inspection must be performed in accordance
with an approved partial or total quality control program or standards
established by the appropriate Federal inspection service.
(c) The CN label statement must be printed as an integral part of
the product label along with the product name, ingredient listing, the
inspection shield or mark for the appropriate inspection program, the
establishment number where appropriate, and the manufacturer's or
distributor's name and address. The inspection marking for CN labeled
non-meat, non-poultry, and non-seafood products with the exception of
juice drinks and juice drink products is established as follows:
[GRAPHIC] [TIFF OMITTED] TC17SE91.002
(d) Yields for determining the product's contribution toward meal
pattern requirements must be calculated using the Food Buying Guide for
Child Nutrition Programs (Program AID Number 1331).
5. In the event a company uses the CN logo and CN label statement
inappropriately, the company will be directed to discontinue the use of
the logo and statement and the matter will be referred to the
appropriate agency for action to be taken against the company.
6. Products that bear a CN label statement as set forth in paragraph
3(c) carry a warranty. This means that if a food service authority
participating in the Child Nutrition Programs purchases a CN labeled
product and uses it in accordance with the manufacturer's directions,
the school or institution will not have an audit claim filed against it
for the CN labeled product for noncompliance with the meal pattern
requirements of 7 CFR 210.10, Sec. 220.8 or Sec. 220.8a, whichever is
[[Page 80]]
applicable, Sec. Sec. 225.20, and 226.20. If a State or Federal auditor
finds that a product that is CN labeled does not actually meet the meal
pattern requirements claimed on the label, the auditor will report this
finding to FNS. FNS will prepare a report of the findings and send it to
the appropriate divisions of FSIS and AMS of the USDA, National Marine
Fisheries Services of the USDC, Food and Drug Administration, or the
Department of Justice for action against the company. Any or all of the
following courses of action may be taken:
(a) The company's CN label may be revoked for a specific period of
time;
(b) The appropriate agency may pursue a misbranding or mislabeling
action against the company producing the product;
(c) The company's name will be circulated to regional FNS offices;
(d) FNS will require the food service program involved to notify the
State agency of the labeling violation.
7. FNS is authorized to issue operational policies, procedures, and
instructions for the CN Labeling Program. To apply for a CN label and to
obtain additional information on CN label application procedures write
to: CN Labels, U.S. Department of Agriculture, Food and Nutrition
Service, Nutrition and Technical Services Division, 3101 Park Center
Drive, Alexandria, Virginia 22302.
[51 FR 34874, Sept. 30, 1986, as amended at 53 FR 29164, Aug. 2, 1988;
60 FR 31216, June 13, 1995; 65 FR 26912, May 9, 2000]
PART 215_SPECIAL MILK PROGRAM FOR CHILDREN--Table of Contents
Sec.
215.1 General purpose and scope.
215.2 Definitions.
215.3 Administration.
215.4 Payments of funds to States and FNSROs.
215.5 Method of payment to States.
215.6 Use of funds.
215.7 Requirements for participation.
215.7a Fluid milk and non-dairy milk substitute requirements.
215.8 Reimbursement payments.
215.9 Effective date for reimbursement.
215.10 Reimbursement procedures.
215.11 Special responsibilities of State agencies.
215.12 Claims against schools or child-care institutions.
215.13 Management evaluations and audits.
215.13a Determining eligibility for free milk in child-care
institutions.
215.14 Nondiscrimination.
215.14a Procurement standards.
215.15 Withholding payments and establishing fines.
215.16 Suspension, termination and grant closeout procedures.
215.17 Program information.
215.18 Information collection/recordkeeping--OMB assigned control
numbers.
Authority: 42 U.S.C. 1772 and 1779.
Sec. 215.1 General purpose and scope.
This part announces the policies and prescribes the general
regulations with respect to the Special Milk Program for Children, under
the Child Nutrition Act of 1966, as amended, and sets forth the general
requirements for participation in the program. The Act reads in
pertinent part as follows:
Section 3(a)(1) There is hereby authorized to be appropriated for
the fiscal year ending June 30, 1970, and for each succeeding fiscal
year such sums as may be necessary to enable the Secretary of
Agriculture, under such rules and regulations as he may deem in the
public interest, to encourage consumption of fluid milk by children in
the United States in (A) nonprofit schools of high school grade and
under, except as provided in paragraph (2), which do not participate in
a meal service program authorized under this Act or the National School
Lunch Act, and (B) nonprofit nursery schools, child care centers,
settlement houses, summer camps, and similar nonprofit institutions
devoted to the care and training of children, which do not participate
in a meal service program authorized under this Act or the National
School Lunch Act.
(2) The limitation imposed under paragraph (1)(A) for participation
of nonprofit schools in the special milk program shall not apply to
split-session kindergarten programs conducted in schools in which
children do not have access to the meal service program operating in
schools the children attend as authorized under this Act or the National
School Lunch Act (42 U.S.C. 1751 et seq.).
(3) For the purposes of this section ``United States'' means the
fifty States, Guam, the Commonwealth of Puerto Rico, the Virgin Islands,
American Samoa, the Trust Territory of the Pacific Islands, and the
District of Columbia.
(4) The Secretary shall administer the special milk program provided
for by this section to the maximum extent practicable in the same manner
as he administered the special milk program provided for by Pub. L. 89-
642, as amended, during the fiscal year ending June 30, 1969.
(5) Any school or nonprofit child care institution which does not
participate in a meal service program authorized under this Act or the
National School Lunch Act shall receive the special milk program upon
their request.
[[Page 81]]
(6) Children who qualify for free lunches under guidelines
established by the Secretary shall, at the option of the school involved
(or of the local educational agency involved in the case of a public
school) be eligible for free milk upon their request.
(7) For the fiscal year ending June 30, 1975, and for subsequent
school years, the minimum rate of reimbursement for a half-pint of milk
served in schools and other eligible institutions shall not be less than
5 cents per half-pint served to eligible children, and such minimum rate
of reimbursement shall be adjusted on an annual basis each school year
to reflect changes in the Producer Price Index for Fresh Processed Milk
published by the Bureau of Labor Statistics of the Department of Labor.
(8) Such adjustment shall be computed to the nearest one-fourth
cent.
(9) Notwithstanding any other provision of this section, in no event
shall the minimum rate of reimbursement exceed the cost to the school or
institution of milk served to children.
[52 FR 7562, Mar. 12, 1987]
Sec. 215.2 Definitions.
For the purpose of this part, the term:
2 CFR part 200, means the Uniform Administrative Requirements, Cost
Principles, and Audit Requirements for Federal Awards published by OMB.
The part reference covers applicable: Acronyms and Definitions (subpart
A), General Provisions (subpart B), Post Federal Award Requirements
(subpart D), Cost Principles (subpart E), and Audit Requirements
(subpart F). (NOTE: Pre-Federal Award Requirements and Contents of
Federal Awards (subpart C) does not apply to the National School Lunch
Program).
Act means the Child Nutrition Act of 1966.
Adults means those persons not included under the definition of
children.
Applicable credits shall have the meaning established in 2 CFR part
200 and USDA implementing regulations 2 CFR part 400 and part 415.
Child and Adult Care Food Program means the program authorized by
section 17 of the National School Lunch Act, as amended.
Child care institution means any nonprofit nursery school, child
care center, settlement house, summer camp, service institution
participating in the Summer Food Program for Children pursuant to part
225 of this chapter, institution participating in the Child and Adult
Care Food Program pursuant to part 226 of this chapter, or similar
nonprofit institution devoted to the care and training of children. The
term ``child care institution'' also includes a nonprofit agency to
which such institution has delegated authority for the operation of a
milk program in the institution. It does not include any institution
falling within the definition of ``School'' of this section.
Child means
(1) A person under 19 chronological years of age in a Child care
institution as defined in this section;
(2) A person under 21 chronological years of age attending a school
as defined in paragraphs (3) and (4) of the definition of School in this
section;
(3) A student of high school grade or under attending school as
defined in paragraphs (1) and (2) of the definition of School in this
section; or
(4) A student who is mentally or physically disabled as determined
by the State and who is participating in a school program established
for the mentally or physically disabled, of high school grade or under
as determined by the State educational agency in paragraphs (1) and (2)
of the definition of School in this section.
CND means the Child Nutrition Division of the Food and Nutrition
Service of the Department.
Contractor means a commercial enterprise, public or nonprofit
private organization or individual that enters into a contract with a
school food authority.
Cost of milk means the net purchase price paid by the school or
child care institution to the milk supplier for milk delivered to the
school or child care institution. This shall not include any amount paid
to the milk supplier for servicing, rental of or installment purchase of
milk service equipment.
Cost reimbursable contract means a contract that provides for
payment of incurred costs to the extent prescribed in the contract, with
or without a fixed fee.
Department means the U.S. Department of Agriculture.
Disclosure means reveal or use individual children's program
eligibility information obtained through the free
[[Page 82]]
milk eligibility process for a purpose other than for the purpose for
which the information was obtained. The term refers to access, release,
or transfer of personal data about children by means of print, tape,
microfilm, microfiche, electronic communication or any other means.
Family means a group of related or nonrelated individuals, who are
not residents of an institution or boarding house, but who are living as
one economic unit.
Fiscal year means the period of 12 calendar months beginning October
1, 1977, and each October 1 of any calendar year thereafter and ending
September 30 of the following calendar year.
Fixed fee means an agreed upon amount that is fixed at the inception
of the contract. In a cost reimbursable contract, the fixed fee includes
the contractor's direct and indirect administrative costs and profit
allocable to the contract.
FNS means the Food and Nutrition Service of the U.S. Department of
Agriculture.
FNSRO means Food and Nutrition Services Regional Offices, of the
Food and Nutrition Service of the U.S. Department of Agriculture.
Free milk means milk for which neither the child nor any member of
his family pays or is required to work in the school or child-care
institution or in its food service.
Local educational agency means a public board of education or other
public or private nonprofit authority legally constituted within a State
for either administrative control or direction of, or to perform a
service function for, public or private nonprofit elementary schools or
secondary schools in a city, county, township, school district, or other
political subdivision of a State, or for a combination of school
districts or counties that is recognized in a State as an administrative
agency for its public or private nonprofit elementary schools or
secondary schools. The term also includes any other public or private
nonprofit institution or agency having administrative control and
direction of a public or private nonprofit elementary school or
secondary school, including residential child care institutions, Bureau
of Indian Affairs schools, and educational service agencies and
consortia of those agencies, as well as the State educational agency in
a State or territory in which the State educational agency is the sole
educational agency for all public or private nonprofit schools.
Medicaid means the State medical assistance program under title XIX
of the Social Security Act (42 U.S.C. 1396 et seq.).
Milk means pasteurized fluid types of unflavored or flavored whole
milk, lowfat milk, skim milk, or cultured buttermilk which meet State
and local standards for such milk. In Alaska, Hawaii, American Samoa,
Guam, Puerto Rico, the Trust Territory of the Pacific Islands, and the
Virgin Islands, if a sufficient supply of such types of fluid milk
cannot be obtained, milk shall include reconstituted or recombined milk.
All milk should contain vitamins A and D at levels specified by the Food
and Drug Administration and consistent with State and local standards
for such milk.
National School Lunch Program means the program under which general
cash-for-food assistance and special cash assistance are made available
to schools pursuant to part 210 of this chapter.
Needy children means:
(1) Children who attend schools participating in the Program and who
meet the School Food Authority's eligibility standards for free milk
approved by the State agency, or FNSRO where applicable, under part 245
of this chapter; and
(2) Children who attend child-care institutions participating in the
Program and who meet the eligibility standards for free milk approved by
the State agency, or FNSRO where applicable, under Sec. 215.13a of this
part.
Nonpricing program means a program which does not sell milk to
children. This shall include any such program in which children are
normally provided milk, along with food and other services, in a school
or child-care institution financed by a tuition, boarding, camping or
other fee, or by private donations or endowments.
Nonprofit means, when applied to schools or institutions eligible
for the Program, exempt from income tax
[[Page 83]]
under section 501(c)(3) of the Internal Revenue Code of 1986.
Nonprofit milk service means milk service maintained by or on behalf
of the school or child-care institution for the benefit of the children,
all of the income from which is used solely for the operation or
improvement of such milk service.
Nonprofit school food service account means the restricted account
in which all of the revenue from the nonprofit milk service maintained
for the benefit of children is retained and used only for the operation
or improvement of the nonprofit milk service.
OA means the Office of Audit of the United States Department of
Agriculture.
OIG means the Office of the Inspector General of the Department.
Pricing program means a program which sells milk to children. This
shall include any such program in which maximum use is made of Program
reimbursement payments in lowering, or reducing to ``zero,'' wherever
possible, the price per half pint which children would normally pay for
milk.
Program means the Special Milk Program for Children.
Reimbursement means financial assistance paid or payable to
participating schools and child care institutions for milk served to
eligible children.
School means: (1) An educational unit of high school grade or under,
recognized as part of the educational system in the State and operating
under public or nonprofit private ownership in a single building or
complex of buildings; (2) any public or nonprofit private classes of
preprimary grade when they are conducted in the aforementioned schools;
or (3) any public or nonprofit private residential child care
institution, or distinct part of such institution, which operates
principally for the care of children, and, if private, is licensed to
provide residential child care services under the appropriate licensing
code by the State or a subordinate level of government, except for
residential summer camps which participate in the Summer Food Service
Program for Children, Job Corps centers funded by the Department of
Labor, and private foster homes. The term residential child care
institutions includes, but is not limited to: Homes for the mentally,
emotionally or physically impaired, and unmarried mothers and their
infants; group homes; halfway houses; orphanages; temporary shelters for
abused children and for runaway children; long-term care facilities for
chronically ill children; and juvenile detention centers. A long-term
care facility is a hospital, skilled nursing facility, intermediate care
facility, or distinct part thereof, which is intended for the care of
children confined for 30 days or more.
School Breakfast Program means the program authorized by section 4
of the Child Nutrition Act of 1966, as amended.
School Food Authority means the governing body which is responsible
for the administration of one or more schools and which has the legal
authority to operate a milk program therein. The term ``School Food
Authority'' also includes a nonprofit agency to which such governing
body has delegated authority for the operation of a milk program in a
school.
School year means the period of 12 calendar months beginning July 1,
1977, and each July 1 of any calendar year thereafter and ending June 30
of the following calendar year.
Split-session means an educational program operating for
approximately one-half of the normal school day.
State means any of the 50 States, District of Columbia, the
Commonwealth of Puerto Rico, the Virgin Islands, Guam, and, as
applicable, American Samoa and the Commonwealth of the Northern
Marianas.
State agency means the State educational agency or any other State
agency that has been designated by the Governor or other appropriate
executive or legislative authority of the State and approved by the
Department to administer the Program.
State Children's Health Insurance Program (SCHIP) means the State
medical assistance program under title XXI of the Social Security Act
(42 U.S.C. 1397aa et seq.).
Summer Food Service Program for Children means the program
authorized by section 13 of the National School Lunch Act, as amended.
[[Page 84]]
USDA implementing regulations include the following: 2 CFR part 400,
Uniform Administrative Requirements, Cost Principles, and Audit
Requirements for Federal Awards; 2 CFR part 415, General Program
Administrative Regulations; 2 CFR part 416, General Program
Administrative Regulations for Grants and Cooperative Agreements to
State and Local Governments; and 2 CFR part 418, New Restrictions on
Lobbying.
(Sec. 11, Pub. L. 95-166, 91 Stat. 1337 (42 U.S.C. 1772, 1753, 1766;
sec. 10(a), Pub. L. 95-627, 92 Stat. 3623 (42 U.S.C. 1760; sec. 10(d)),
Pub. L. 95-627, 92 Stat. 3624 (42 U.S.C. 1757); sec. 14, Pub. L. 95-627,
92 Stat. 3625-3626; sec. 205, Pub. L. 96-499, The Omnibus Reconciliation
Act of 1980, 94 Stat. 2599; secs. 807 and 808, Pub. L. 97-35, 95 Stat.
521-535 (42 U.S.C. 1772, 1784, 1760))
[32 FR 12587, Aug. 31, 1967]
Editorial Note: For Federal Register citations affecting Sec.
215.2, see the List of CFR Sections Affected, which appears in the
Finding Aids section of the printed volume and at www.govinfo.gov.
Sec. 215.3 Administration.
(a) Within the Department, FNS shall act on behalf of the Department
in the administration of the Program. Within FNS, CND shall be
responsible for Program administration.
(b) Within the States, to the extent practicable and permissible
under State law, responsibility for the administration of the Program in
schools and child care institutions shall be in the educational agency
of the State: Provided, however, That another State agency, upon request
by the Governor or other appropriate State executive or legislative
authority, may be approved to administer the Program in schools as
described in paragraph (3) of the definition of School in Sec. 215.2 or
in child care institutions.
(c) FNSRO shall administer the Program in any School or any Child
care institution as defined in Sec. 215.2 wherein the State agency is
not permitted by law to disburse Federal funds paid to it under the
Program; Provided, however, That FNSRO shall also administer the Program
in all other schools and child-care institutions which have been under
continuous FNS administration since October 1, 1980 unless the
administration of such schools and institutions is assumed by a State
agency. References in this part to ``FNSRO where applicable'' are to
FNSRO as the agency administering the Program to schools or child-care
institutions within certain States.
(d) Each State agency desiring to take part in the Program shall
enter into a written agreement with the Department for the
administration of the Program in the State in accordance with the
provisions of this part, 7 CFR parts 235, 245, 15, 15a, 15b and, as
applicable, 2 CFR part 200, subpart D and USDA implementing regulations
2 CFR part 400, subparts B and D and USDA implementing regulations 2 CFR
part 400 and part 415, and FNS Instructions. Such agreement shall cover
the operation of the Program during the period specified therein and may
be extended at the option of the Department.
(e) Authority to waive statute and regulations. (1) As authorized
under section 12(l) of the Richard B. Russell National School Lunch Act,
FNS may waive provisions of such Act or the Child Nutrition Act of 1966,
as amended, and the provisions of this part with respect to a State
agency or eligible service provider. The provisions of this part
required by other statutes may not be waived under this authority. FNS
may only approve requests for a waiver that are submitted by a State
agency and comply with the requirements at section 12(l)(1) and the
limitations at section 12(l)(4), including that FNS may not grant a
waiver that increases Federal costs.
(2)(i) A State agency may submit a request for a waiver under
paragraph (e)(1) of this section in accordance with section 12(l)(2) and
the provisions of this part.
(ii) A State agency may submit a request to waive specific statutory
or regulatory requirements on behalf of eligible service providers that
operate in the State. Any waiver where the State concurs must be
submitted to the appropriate FNSRO.
(3)(i) An eligible service provider may submit a request for a
waiver under paragraph (e)(1) of this section in accordance with section
12(l) and the provisions of this part. Any waiver request
[[Page 85]]
submitted by an eligible service provider must be submitted to the State
agency for review. A State agency must act promptly on such a waiver
request and must deny or concur with a request submitted by an eligible
service provider.
(ii) If a State agency concurs with a request from an eligible
service provider, the State agency must promptly forward to the
appropriate FNSRO the request and a rationale, consistent with section
12(l)(2), supporting the request. By forwarding the request to the
FNSRO, the State agency affirms:
(A) The request meets all requirements for waiver submissions; and,
(B) The State agency will conduct all monitoring requirements
related to regular Program operations and the implementation of the
waiver.
(iii) If the State agency denies the request, the State agency must
notify the requesting eligible service provider and state the reason for
denying the request in writing within 30 calendar days of the State
agency's receipt of the request. The State agency response is final and
may not be appealed to FNS.
(Secs. 804, 816 and 817, Pub. L. 97-35; 95 Stat. 521-535 (42 U.S.C.
1753, 1756, 1759, 1771 and 1785))
[Amdt. 14, 41 FR 31174, July 27, 1976, as amended by Amdt. 24, 47 FR
14133 Apr. 2, 1982; Amdt. 36, 54 FR 2989, Jan. 23, 1989; 71 FR 39516,
July 13, 2006; 72 FR 63791, Nov. 13, 2007; 81 FR 66490, Sept. 28, 2016;
87 FR 57354, Sept. 19, 2022]
Sec. 215.4 Payments of funds to States and FNSROs.
(a) For each fiscal year, the Secretary shall make payments to each
State agency at such times as he may determine from the funds
appropriated for Program reimbursement. Subject to Sec. 215.11(c)(2),
the total of these payments for each State for any fiscal year shall be
limited to the amount of reimbursement payable to School Food
Authorities and child care institutions under Sec. 215.8 of this part
for the total number of half-pints of milk served under the Program to
eligible children from October 1 to September 30.
(b) Each State agency shall be responsible for controlling Program
reimbursement payments so as to keep within the funds made available to
it, and for the timely reporting to FNS of the number of half pints of
milk actually served. The Secretary shall increase or decrease the
available level of funding by adjusting the State agency's Letter of
Credit when appropriate.
(Pub. L. 97-370, 96 Stat. 1806)
[Amdt. 14, 41 FR 31174, July 27, 1976, as amended by Amdt. 30, 49 FR
18986, May 4, 1984]
Sec. 215.5 Method of payment to States.
(a) Funds to be paid to any State shall be made available by means
of Letters of Credit issued by FNS in favor of the State agency. The
State agency shall:
(1) Obtain funds needed to reimburse School Food Authorities and
child-care institutions through presentation by designated State
officials of a Payment Voucher on Letter of Credit (Treasury Form GFO
7578) in accordance with procedures prescribed by FNS and approved by
the U.S. Treasury Department;
(2) Submit requests for funds only at such times and in such amounts
as will permit prompt payment of claims;
(3) Use the funds received from such requests without delay for the
purpose for which drawn. Notwithstanding the foregoing provisions, if
funds are made available by Congress for the operation of the Program
under a continuing resolution, Letters of Credit shall reflect only the
amount available for the effective period of the resolution.
(b) [Reserved]
(c) The State agency shall release to FNS any Federal funds made
available to it under the Program which are unobligated at the end of
each fiscal year. Release of funds by the State agency shall be made as
soon as practicable but in no event later than 30 days following demand
by FNSRO, and shall be reflected by a related adjustment in the State
agency's Letter of Credit.
[Amdt. 13, 39 FR 28416, Aug. 7, 1974, as amended by Amdt. 14, 41 FR
31174, July 27, 1976]
Sec. 215.6 Use of funds.
(a) Federal funds made available under the Program shall be used to
encourage the consumption of milk through reimbursement payments to
[[Page 86]]
schools and child-care institutions in connection with the purchase and
service of milk to children in accordance with the provisions of this
part: Provided, however, That, with the approval of FNS, any State
agency, or FNSRO where applicable, may reserve for use in carrying out
special developmental projects an amount equal to not more than 1 per
centum of the Federal funds so made available for any fiscal year.
(b) Whoever embezzles, willfully misapplies, steals, or obtains by
fraud any funds, assets, or property provided under this part, whether
received directly or indirectly from the Department, shall: (1) If such
funds, assets, or property are of a value of $100 or more, be fined not
more than $25,000 or imprisoned not more than 5 years or both; or (2) if
such funds, assets, or property are of a value of less than $100, be
fined not more than $1,000 or imprisoned not more than one year or both.
(c) Whoever receives, conceals, or retains to his use or gain funds,
assets, or property provided under this part, whether received directly
or indirectly from the Department, knowing such funds, assets, or
property have been embezzled, willfully misapplied, stolen, or obtained
by fraud, shall be subject to the same penalties provided in paragraph
(b) of this section.
(Sec. 10(a), Pub. L. 95-627, 92 Stat. 3623 (42 U.S.C. 1760; sec.
10(d)(3), Pub. L. 95-627, 92 Stat. 3624 (42 U.S.C. 1757); sec. 14, Pub.
L. 95-627, 92 Stat. 3625-3626; 44 U.S.C. 3506))
[Amdt. 14, 41 FR 31174, July 27, 1976, as amended by Amdt. 18, 44 FR
37898, June 29, 1979; 47 FR 746, Jan. 7, 1982; 64 FR 50741, Sept. 20,
1999]
Sec. 215.7 Requirements for participation.
(a) Any school or nonprofit child care institution shall receive the
Special Milk Program upon request provided it does not participate in a
meal service program authorized under the Child Nutrition Act of 1966 or
the National School Lunch Act; except that schools with such meal
service may receive the Special Milk Program upon request only for the
children attending split-session kindergarten programs who do not have
access to the meal service. Each School Food Authority or child-care
institution shall make written application to the State agency, or FNSRO
where applicable, for any school or child-care institution in which it
desires to operate the Program, if such school or child-care institution
did not participate in the Program in the prior fiscal year.
(b) Any School Food Authority or child care institution
participating in the Program may elect to serve free milk to children
eligible for free meals. Upon application for the Program, each School
Food Authority or child care institution:
(1) Shall be required by the State agency, or FNSRO where
applicable, to state whether or not it wishes to provide free milk in
the schools or institutions participating under its jurisdiction and
(2) If it so wishes to provide free milk, shall also submit for
approval a free milk policy statement which, if for a school, shall be
in accordance with part 245 of this chapter or, if for a child care
institution, shall be in accordance with Sec. 215.13a of this part.
(c) The application shall include information in sufficient detail
to enable the State agency, or FNSRO where applicable, to determine
whether the School Food Authority or child-care institution is eligible
to participate in the Program and extent of the need for Program
payments.
(d) Each school food authority or child care institution approved to
participate in the program shall enter into a written agreement with the
State agency or FNSRO, as applicable, that may be amended as necessary.
Nothing in the preceding sentence shall be construed to limit the
ability of the State agency to suspend or terminate the agreement in
accordance with Sec. 215.15. If a single State agency administers any
combination of the Child Nutrition Programs, that State agency shall
provide each SFA with a single agreement with respect to the operation
of those programs. Such agreement shall provide that the School Food
Authority or child-care institution shall, with respect to participating
schools and child-care institutions under its jurisdiction:
(1) Operate a nonprofit milk service. However, school food
authorities may use facilities, equipment, and personnel supported with
funds provided
[[Page 87]]
to a school food authority under this part to support a nonprofit
nutrition program for the elderly, including a program funded under the
Older Americans Act of 1965 (42 U.S.C. 3001 et seq.).
(2) If electing to provide free milk (i) serve milk free to all
eligible children, at times that milk is made available to nonneedy
children under the Program; and (ii) make no discrimination against any
needy child because of his inability to pay for the milk.
(3) Comply with the requirements of the Department's regulations
respecting nondiscrimination (7 CFR part 15);
(4) Claim reimbursement only for milk as defined in this part and in
accordance with the provisions of Sec. 215.8 and Sec. 215.10;
(5) Submit Claims for Reimbursement in accordance with Sec. 215.10
of this part and procedures established by the State agency or FNSRO
where applicable;
(6) Maintain a financial management system as prescribed by the
State agency, or FNSRO where applicable;
(7) Upon request, make all records pertaining to its milk program
available to the State agency and to FNS or OA for audit and
administrative review, at any reasonable time and place. Such records
shall be retained for a period of three years after the end of the
fiscal year to which they pertain, except that, if audit findings have
not been resolved, the records shall be retained beyond the three-year
period as long as required for the resolution of the issues raised by
the audit;
(8) Retain the individual applications for free milk submitted by
families for a period of three years after the end of the fiscal year to
which they pertain, except that, if audit findings have not been
resolved, the records shall be retained beyond the three-year period as
long as required for the resolution of the issues raised by the audit.
(e) State requirements. Nothing contained in this part shall prevent
a State agency from imposing additional requirements for participation
in the Program which are not inconsistent with the provision of this
part.
(f) Program evaluations. Local educational agencies, school food
authorities, schools, child care institutions and contractors must
cooperate in studies and evaluations conducted by or on behalf of the
Department, related to programs authorized under the Richard B. Russell
National School Lunch Act and the Child Nutrition Act of 1966.
(Sec. 11, Pub. L. 95-166, 91 Stat. 1337 (42 U.S.C. 1772, 1753, 1766);
sec. 5, Pub. L. 95-627, 92 Stat. 3619 (42 U.S.C. 1772); secs. 801, 803,
812; Pub. L. 97-35, 95 Stat. 521-535 (42 U.S.C. 1753, 1759(a), 1773,
1758); 44 U.S.C. 3506)
[Amdt. 13, 39 FR 28416, Aug. 7, 1974]
Editorial Note: For Federal Register citations affecting Sec.
215.7, see the List of CFR Sections Affected, which appears in the
Finding Aids section of the printed volume and at www.govinfo.gov.
Sec. 215.7a Fluid milk and non-dairy milk substitute requirements.
Fluid milk and non-dairy fluid milk substitutes served must meet the
requirements as outlined in this section.
(a) Types of fluid milk. All fluid milk served in the Program must
be pasteurized fluid milk which meets State and local standards for such
milk, have vitamins A and D at levels specified by the Food and Drug
Administration, and must be consistent with State and local standards
for such milk. Lactose-free and reduced-lactose milk that meet the fat
content and flavor specifications for each age group may also be
offered. Fluid milk must also meet the following requirements:
(1) Children 1 year old. Children one year of age must be served
unflavored whole milk.
(2) Children 2 through 5 years old. Children two through five years
old must be served either unflavored low-fat (1 percent) or unflavored
fat-free (skim) milk.
(3) Children 6 years old and older. Children 6 years old and older
must be served low-fat (1 percent fat or less) or fat-free (skim) milk.
Milk may be flavored or unflavored.
(b) Fluid milk substitutes for non-disability reasons. (1) A school
food authority or child care institution may offer fluid milk
substitutes based on a written request from a child's parent or
guardian, a State licensed healthcare professional, or registered
dietitian. A school food authority or child care institution choosing to
offer fluid milk substitutes for a non-disability reason is not required
to offer the specific
[[Page 88]]
fluid milk substitutes requested but may offer the fluid milk
substitutes of its choice, provided the fluid milk substitutes offered
meet the requirements of paragraph (b)(2) of this section.
(2) If a school food authority or child care institution chooses to
offer one or more fluid milk substitutes for non-disability reasons, the
fluid milk substitutes must provide, at a minimum, the nutrients listed
in the following table. Fluid milk substitutes must be fortified in
accordance with fortification guidelines issued by the Food and Drug
Administration.
Table 1 to Paragraph (b)(2)--Nutrient Requirements for Fluid Milk
Substitutes
------------------------------------------------------------------------
Nutrient Per cup (8 fl. oz.)
------------------------------------------------------------------------
Calcium................................... 276 mg.
Protein................................... 8 g.
Vitamin A................................. 150 mcg. retinol activity
equivalents (RAE).
Vitamin D................................. 2.5 mcg.
Magnesium................................. 24 mg.
Phosphorus................................ 222 mg.
Potassium................................. 349 mg.
Riboflavin................................ 0.44 mg.
Vitamin B-12.............................. 1.1 mcg.
------------------------------------------------------------------------
(3) Expenses incurred when providing fluid milk substitutes that
exceed program reimbursements must be paid by the school food authority
or child care institution; costs may be paid from the nonprofit food
service account.
[81 FR 24375, Apr. 25, 2016, as amended at 82 FR 56714, Nov. 30, 2017;
83 FR 63790, Dec. 12, 2018; 85 FR 74849, Nov. 24, 2020; 87 FR 7006, Feb.
7, 2022; 89 FR 32077, Apr. 25, 2024]
Sec. 215.8 Reimbursement payments.
(a) [Reserved]
(b)(1) The rate of reimbursement per half-pint of milk purchased and
(i) served in nonpricing programs to all children; (ii) served to all
children in pricing programs by institutions and School Food Authorities
not electing to provide free milk; and (iii) served to children other
than needy children in pricing programs by institutions and School Food
Authorities electing to provide free milk shall be the rate announced by
the Secretary for the applicable school year. However, in no event shall
the reimbursement for each half-pint (236 ml.) of milk served to
children exceed the cost of the milk to the school or child care
institution.
(2) The rate of reimbursement for milk purchased and served free to
needy children in pricing programs by institutions and School Food
Authorities electing to provide free milk shall be the average cost of
milk, i.e., the total cost of all milk purchased during the claim
period, divided by the total number of purchased half-pints.
(c) Schools and child-care institutions having pricing programs
shall use the reimbursement payments received to reduce the price of
milk to children.
(Sec. 11, Pub. L. 95-166, 91 Stat. 1337 (42 U.S.C. 1772, 1753, 1766);
sec. 5, Pub. L. 95-627, 92 Stat. 3619 (42 U.S.C. 1772); Omnibus
Reconciliation Act of 1980, sec. 209, Pub. L. 96-499, 94 Stat. 2599;
secs. 807 and 808, Pub. L. 97-35, 95 Stat. 521-535, 42 U.S.C. 1772,
1784, 1760; secs. 805 and 819, Pub. L. 97-35, 95 Stat. 521-535 (42
U.S.C. 1773))
[Amdt. 13, 39 FR 28416, Aug. 7, 1974, as amended by Amdt. 16, 43 FR
1060, Jan. 6, 1978; 44 FR 10700, Feb. 23, 1979; Amdt. 17, 44 FR 33047,
June 8, 1979; 46 FR 51365, Oct. 20, 1981; Amdt. 23, 47 FR 14134, Apr. 2,
1982; 82 FR 56714, Nov. 30, 2017]
Sec. 215.9 Effective date for reimbursement.
(a) A State Agency, or FNSRO where applicable, may grant written
approval to begin operations under the Program prior to the receipt of
the application from the School Food Authority or child-care
institution. Such written approval shall be attached to the subsequently
filed application, and the agreement executed by the School Food
Authority or child-care institution shall be effective from the date
upon which the School Food Authority or child-care institution was
authorized to begin operations: Provided, however, That such effective
date shall not be earlier than the calendar month preceding the calendar
month in which the agreement is executed by the State Agency or by the
Department.
(b) Reimbursement payments pursuant to Sec. 215.8 shall be made for
milk purchased and served to children at any time during the effective
period of an agreement between a School Food
[[Page 89]]
Authority or child care institution and the State agency or the
Department.
(Sec. 11, Pub. L. 95-166, 91 Stat. 1337 (42 U.S.C. 1772, 1753, 1766))
[32 FR 12587, Aug. 31, 1967, as amended by Amdt. 5, 37 FR 14686, July
22, 1972; Amdt. 13, 39 FR 28417, Aug. 7, 1974; Amdt. 16, 43 FR 1060,
Jan. 6, 1978; 44 FR 10700, Feb. 23, 1979]
Sec. 215.10 Reimbursement procedures.
(a) To be entitled to reimbursement under this part, each School
Food Authority shall submit to the State agency, or FNSRO where
applicable, a monthly Claim for Reimbursement.
(b) Claims for Reimbursement shall include data in sufficient detail
to justify the reimbursement claimed and to enable the State agency to
provide the Reports of School Program Operations required under Sec.
215.11(c)(2). Unless otherwise approved by FNS, the Claim for
Reimbursement for any month shall include only milk served in that month
except if the first or last month of Program operations for any year
contains 10 operating days or less, such month may be added to the Claim
for Reimbursement for the appropriate adjacent month; however, Claims
for Reimbursement may not combine operations occurring in two fiscal
years. If a single State agency administers any combination of the Child
Nutrition Programs, the SFA shall be able to use a common claim form
with respect to claims for reimbursement for meals served under those
programs. A final Claim for Reimbursement shall be postmarked and/or
submitted to the State agency, or FNSRO where applicable, not later than
60 days following the last day of the full month covered by the claim.
State agencies may establish shorter deadlines at their discretion.
Claims not postmarked and/or submitted within 60 days shall not be paid
with Program funds unless FNS determines that an exception should be
granted. The State agency, or FNSRO where applicable, shall promptly
take corrective action with respect to any Claim for Reimbursement as
determined necessary through its claim review process or otherwise. In
taking such corrective action, State agencies may make upward
adjustments in Program funds claimed on claims filed within the 60 day
deadline if such adjustments are completed within 90 days of the last
day of the claim month and are reflected in the final Report of School
Program Operations (FNS-10) for the claim month which is required under
Sec. 215.11(c)(2). Upward adjustments in Program funds claimed which
are not reflected in the final FNS-10 for the claim month shall not be
made unless authorized by FNS. Downward adjustments in Program funds
claimed shall always be made, without FNS authorization, regardless of
when it is determined that such adjustments are necessary.
(c) [Reserved]
(d) In submitting a Claim for Reimbursement, each School Food
Authority or child-care institution shall certify that the claim is true
and correct; that records are available to support the claim; that the
claim is in accordance with the existing agreement; and that payment
therefor has not been received.
(e) Milk served to adults is not eligible for reimbursement.
(f) Any School Food Authority or child care institution which
operates both a nonpricing and pricing milk program in the same school
or child care institution, may elect to claim reimbursement for:
(1) All milk purchased and served to children under the Program at
the nonpricing rate prescribed in Sec. 215.8(b) (1), or (2) only milk
purchased and served to children in the pricing program at the rates
prescribed in Sec. 215.8(b) (1) and (2) for pricing programs.
(Sec. 11, Pub. L. 95-166, 91 Stat. 1337 (42 U.S.C. 1772, 1753, 1766);
Pub. L. 97-370, 96 Stat. 1806)
[Amdt. 13, 39 FR 28417, Aug. 7, 1974, as amended by Amdt. 14, 41 FR
31175, July 27, 1976; Amdt. 16, 43 FR 1060, Jan. 6, 1978; 44 FR 10700,
Feb. 23, 1979; 45 FR 82622, Dec. 16, 1980; 48 FR 20896, May 10, 1983;
Amdt. 30, 49 FR 18986, May 4, 1984; 64 FR 50742, Sept. 20, 1999]
Sec. 215.11 Special responsibilities of State agencies.
(a) [Reserved]
(b) Program assistance. Each State agency, or FNSRO where
applicable, shall provide Program assistance, as follows:
[[Page 90]]
(1) Consultive, technical, and managerial personnel to administer
the Program and monitor performance of schools and child-care
institutions and to measure progress toward achieving Program goals.
(2) Visits to participating schools and child-care institutions to
ensure compliance with Program regulations and with the Department's
nondiscrimination regulations (part 15 of this title), issued under
title VI of the Civil Rights Act of 1964. State agencies shall conduct
reviews of schools participating in the Program for compliance with the
provisions of this part when such schools are being reviewed under the
provisions identified under Sec. 210.18 of this title. Compliance
reviews of participating schools shall focus on the reviewed school's
compliance with the required certification, counting, claiming, and milk
service procedures. School food authorities may appeal a denial of all
or a part of the Claim for Reimbursement or withholding of payment
arising from review activity conducted by the State agency under Sec.
210.18 of this title or by FNS under Sec. 210.30(d)(2) of this title.
Any such appeal shall be subject to the procedures set forth under Sec.
210.18(q) of this title or Sec. 210.30(d)(3) of this title, as
appropriate.
(3) Documentation of such Program assistance shall be maintained on
file by the State agency, or FNSRO where applicable.
(c) Records and reports. (1) Each State agency shall maintain
Program records as necessary to support the reimbursement payments made
to child care institutions or School Food Authorities under Sec. Sec.
215.8 and 215.10 and the reports submitted to FNS under Sec.
215.11(c)(2). The records may be kept in their original form or on
microfilm, and shall be retained for a period of three years after the
date of submission of the final Financial Status Report for the fiscal
year, except that if audit findings have not been resolved, the records
shall be retained beyond the three-year period as long as required for
the resolution of the issues raised by the audit.
(2) Each State agency shall submit to FNS a final Report of School
Program Operations (FNS-10) for each month which shall be limited to
claims submitted in accordance with Sec. 215.10(b) and which shall be
postmarked and/or submitted no later than 90 days following the last day
of the month covered by the report. States shall not receive Program
funds for any month for which the final report is not submitted within
this time limit unless FNS grants an exception. Upward adjustments to a
State agency's report shall not be made after 90 days from the month
covered by the report unless authorized by FNS. Downward adjustments
shall always be made, without FNS authorization, regardless of when it
is determined that such adjustments are necessary. Adjustments shall be
reported to FNS in accordance with procedures established by FNS. Each
State agency shall also submit to FNS a quarterly Financial Status
Report (FNS-777) on the use of Program funds. Such reports shall be
postmarked and/or submitted no later than 30 days after the end of each
fiscal year quarter. Obligations shall be reported only for the fiscal
year in which they occur. A final Financial Status Report for each
fiscal year shall be postmarked and/or submitted to FNS within 120 days
after the end of the fiscal year. FNS shall not be responsible for
reimbursing unpaid program obligations reported later than 120 days
after the close of the fiscal year in which they were incurred.
(d) Compliance. State agencies, or FNSROs where applicable, shall
require School Food Authorities and child-care institutions to comply
with applicable provisions of this part.
(e) Investigations. Each State Agency shall promptly investigate
complaints received or irregularities noted in connection with the
operation of the Program and shall take appropriate action to correct
any irregularities. State Agencies shall maintain on file evidence of
such investigations and actions. The Office of Investigation of the
Department (OI) shall make investigations at the request of the State
Agency or if CND or FNSRO determines investigations by OI are
appropriate.
(f) Program evaluations. States, State agencies, and contractors
must cooperate in studies and evaluations conducted by or on behalf of
the Department, related to programs authorized
[[Page 91]]
under the Richard B. Russell National School Lunch Act and the Child
Nutrition Act of 1966.
(Sec. 11, Pub. L. 95-166, 91 Stat. 1337 (42 U.S.C. 1772, 1753, 1766); 44
U.S.C. 3506; sec. 812, Pub. L. 97-35, 95 Stat. 521-535 (42 U.S.C.
1759a))
[32 FR 12587, Aug. 31, 1967, as amended by Amdt. 13, 39 FR 28417, Aug.
7, 1974; Amdt. 14, 41 FR 31175, July 27, 1976; 47 FR 745, Jan. 7, 1982;
Amdt. 25, 47 FR 18564, Apr. 30, 1982; Amdt. 30, 49 FR 18987, May 4,
1984; 56 FR 32949, July 17, 1991; 57 FR 38586, Aug. 26, 1992; 76 FR
37982, June 29, 2011; 81 FR 50193, July 29, 2016; 81 FR 66490, Sept. 28,
2016; 83 FR 14173, Apr. 3, 2018]
Sec. 215.12 Claims against schools or child-care institutions.
(a) State agencies, or FNSROs where applicable, shall disallow any
portion of a claim and recover any payment made to a School Food
Authority or child-care institution that was not properly payable under
this part. State agencies will use their own procedures to disallow
claims and recover overpayments already made.
(b) [Reserved]
(c) The State Agency may refer any matter in connection with this
section to FNSRO and CND for determination of the action to be taken.
(d) Each State agency shall maintain all records pertaining to
action taken under this section. Such records shall be retained for a
period of three years after the date of the submission of the final
Financial Status Report, except that, if audit findings have not been
resolved, the records shall be retained beyond the three-year period as
long as required for the resolution of the issues raised by the audit.
(e) If CND does not concur with the State Agency action in paying a
claim or a reclaim, or in failing to collect an overpayment FNSRO shall
assert a claim against the State Agency for the amount of such claim,
reclaim or overpayment. In all such cases, the State Agency shall have
full opportunity to submit to CND evidence or information concerning the
action taken. If in the determination of CND, the State Agency's action
was unwarranted, the State Agency shall promptly pay to FNS the amount
of the claim, reclaim, or overpayment.
(f) The amounts recovered by the State Agency from schools and
child-care institutions may be utilized, first, to make reimbursement
payments for milk served during the fiscal year for which the funds were
initially available, and second, to repay any State funds expended in
the reimbursement of claims under the program and not otherwise repaid.
Any amounts recovered which are not so utilized shall be returned to FNS
in accordance with the requirements of Sec. 215.5(c).
(g) With respect to schools or child-care institutions in which
FNSRO administers the Program, when FNSRO disallows a claim or a portion
of a claim, or makes a demand for refund of an alleged overpayment, it
shall notify the School Food Authority or child-care institutions of the
reasons for such disallowance or demand and the School Food Authority or
child-care institutions shall have full opportunity to submit evidence
or to file reclaim for any amount disallowed or demanded in the same
manner afforded in this section to schools or child-care institutions
administered by State Agencies.
(h) The Secretary shall have the authority to determine the amount
of, to settle, and to adjust any claims arising under the Program, and
to compromise or deny such claim or any part thereof. The Secretary
shall also have the authority to waive such claims if the Secretary
determines that to do so would serve the purposes of the Program. This
provision shall not diminish the authority of the Attorney General of
the United States under section 516 of Title 28, U.S. Code, to conduct
litigation on behalf of the United States.
(47 FR 745, Jan. 7, 1982 (44 U.S.C. 3506; secs. 804, 816 and 817, Pub.
L. 97-35; 95 Stat. 521-535 (42 U.S.C. 1753, 1756, 1759, 1771 and 1785))
[32 FR 12587, Aug. 31, 1967, as amended by Amdt. 5, 37 FR 14686, July
22, 1972; Amdt. 13, 39 FR 28418, Aug. 7, 1974; Amdt. 14, 41 FR 31175,
July 27, 1976; 47 FR 745, Jan. 7, 1982; Amdt. 24, 47 FR 14133, Apr. 2,
1982]
Sec. 215.13 Management evaluations and audits.
(a) Unless otherwise exempt, audits at the State and school food
authority/child care institution levels shall be conducted in accordance
with 2 CFR
[[Page 92]]
part 200, subpart F, and Appendix XI, Compliance Supplement and USDA's
implementing regulations 2 CFR part 400 and part 415.
(b) Each State agency shall provide FNS with full opportunity to
conduct management evaluations (including visits to schools and child-
care institutions) of any operations of the State agency under the
Program and shall provide OIG with full opportunity to conduct audits
(including visits to schools and child-care institutions) of all
operations of the State agency under the Program. Each State agency
shall make available its records, including records of the receipt and
expenditure of funds under the Program, upon a reasonable request by FNS
or OIG. OIG shall also have the right to make audits of the records and
operations of any school or child-care institution.
(c) In conducting management evaluations, reviews or audits for any
fiscal year, the State agency, FNS, or OIG may disregard any overpayment
if the total overpayment does not exceed $600 or, in the case of State
agency claims in State administered Programs, it does not exceed the
amount established under State law, regulations or procedure as a
minimum amount for which claim will be made for State losses but not to
exceed $600. However, no overpayment is to be disregarded where there is
substantial evidence of violations of criminal law or civil fraud
statutes.
(Secs. 805 and 819, Pub. L. 97-35, 95 Stat. 521-535 (42 U.S.C. 1773);
sec. 812, Pub. L. 97-35, 95 Stat. 521-535 (42 U.S.C. 1759a))
[Amdt. 14, 41 FR 31175, July 27, 1976, as amended at 43 FR 58925, Dec.
22, 1978; Amdt. 23, 47 FR 14135, Apr. 2, 1982; Amdt. 25, 47 FR 18564,
Apr. 30, 1982; Amdt. 36, 54 FR 2990, Jan. 23, 1989; 57 FR 38586, Aug.
26, 1992; 59 FR 1894, Jan. 13, 1994; 64 FR 50742, Sept. 20, 1999; 71 FR
39516, July 13, 2006; 81 FR 66490, Sept. 28, 2016]
Sec. 215.13a Determining eligibility for free milk in child-care
institutions.
(a) General. Child care institutions which operate pricing programs
may elect to make free milk available, as set forth in Sec.
215.7(d)(2), to children who meet the approved eligibility criteria.
Such child care institutions shall determine the children who are
eligible for free milk and assure that there is no physical segregation
of, or other discrimination against, or overt identification of,
children unable to pay the full price for milk.
(b) Action by State agencies and FNSROs. Each State agency, or FNSRO
where applicable, upon application for the program by a child care
institution operating a pricing program, and annually thereafter, shall
require the institution to state whether or not it wishes to serve free
milk to eligible children at times that milk is provided under the
Program. It shall annually require each child care institution electing
to provide free milk to submit a free milk policy statement and shall
provide such institutions with a prototype free milk policy statement
and a copy of the State's family-size income standards for determining
eligibility for free meals and milk under the National School Lunch and
School Breakfast Programs to assist the institutions in meeting its
responsibilities.
(c) Action by institutions. Each child care institution which
operates a pricing program shall inform the State agency, or FNSRO where
applicable, at the time it applies for Program participation and at
least annually thereafter, whether or not it wishes to provide free
milk. Institutions electing to provide free milk shall annually submit a
written free milk policy statement for determining free milk eligibility
of children under their jurisdiction, which shall contain the items
specified in paragraph (d) of this section. Such institutions shall not
be approved for Program participation of their agreements renewed unless
the free milk policy has been reviewed and approved. Pending approval or
a revision of a policy statement, the existing policy shall remain in
effect.
(d) Policy statement. A free milk policy statement as required in
paragraph (c) of this section shall contain the following:
(1) The specific criteria to be used in determining eligibility for
free milk. These criteria shall give consideration to economic need as
reflected by family size and income. The criteria used by the child-care
institution may not result in the eligibility of children from families
whose incomes exceed
[[Page 93]]
the State's family-size income standards for determining eligibility for
free meals under the National School Lunch and School Breakfast
Programs.
(2) The method by which the child-care institution will collect
information from families in order to determine a child's eligibility
for free milk.
(3) The method by which the child-care institution will collect milk
payments so as to prevent the overt identification of children receiving
free milk.
(4) A hearing procedure substantially like that outlined in part 245
of this chapter.
(5) An assurance that there will be no discrimination against free
milk recipients and no discrimination against any child on the basis of
race, color, or national origin.
(e) Public announcement of eligibility criteria. Each child care
institution which elects to make free milk available under the Program
shall annually make a public announcement of the availability of free
milk to children who meet the approved eligibility criteria to the
information media serving the area from which its attendance is drawn.
The public announcement must also state that milk is available to all
children in attendance without regard to race, color, or national
origin.
(f) Statement requirements. The free milk application provided to
households must include a statement informing households of how
information provided on the application will be used. Each application
must include substantially the following statement: ``The Richard B.
Russell National School Lunch Act requires the information on this
application. You do not have to give the information, but if you do not,
we cannot approve your child for free milk. You must include the last
four digits of the social security number of the adult household member
who signs the application. The last four digits of the social security
number are not required when you list a Supplemental Nutrition
Assistance Program (SNAP), Temporary Assistance for Needy Families
(TANF) Program or Food Distribution Program on Indian Reservations
(FDPIR) case number for your child or other FDPIR identifier or when you
indicate that the adult household member signing the application does
not have a social security number. We will use your information to
determine if your child is eligible for free milk, and for
administration and enforcement of the Program.'' When the State agency
or child care institution, as appropriate, plans to use or disclose
children's eligibility information for non-program purposes, additional
information, as specified in paragraph (i) of this section must be added
to this statement. State agencies and child care institutions are
responsible for drafting the appropriate statement.
(g) Disclosure of children's free milk eligibility information to
certain programs and individuals without parental consent. The State
agency or child care institution, as appropriate, may disclose aggregate
information about children eligible for free milk to any party without
parental notification and consent when children cannot be identified
through release of the aggregate data or by means of deduction.
Additionally, the State agency or child care institution may disclose
information that identifies children eligible for free milk to the
programs and the individuals specified in this paragraph (g) without
parent/guardian consent. The State agency or child care institution that
makes the free milk eligibility determination is responsible for
deciding whether to disclose program eligibility information.
(1) Persons authorized to receive eligibility information. Only
persons directly connected with the administration or enforcement of a
program or activity listed in paragraphs (g)(2) or (g)(3) of this
section may have access to children's free milk eligibility information,
without parental consent. Persons considered directly connected with
administration or enforcement of a program or activity listed in
paragraphs (g)(2) or (g)(3) of this section are Federal, State, or local
program operators responsible for the ongoing operation of the program
or activity or persons responsible for program compliance. Program
operators may include persons responsible for carrying out program
requirements and monitoring, reviewing, auditing, or investigating the
program. Program operators may include contractors, to the extent those
persons have a need to know the
[[Page 94]]
information for program administration or enforcement. Contractors may
include evaluators, auditors, and others with whom Federal or State
agencies and program operators contract with to assist in the
administration or enforcement of their program on their behalf.
(2) Disclosure of children's names and free milk eligibility status.
The State agency or child care institution, as appropriate, may
disclose, without parental consent, only children's names and
eligibility status (whether they are eligible for free milk) to persons
directly connected with the administration or enforcement of:
(i) A Federal education program;
(ii) A State health program or State education program administered
by the State or local education agency;
(iii) A Federal, State, or local means-tested nutrition program with
eligibility standards comparable to the National School Lunch Program
(i.e., food assistance programs for households with incomes at or below
185 percent of the Federal poverty level); or
(iv) A third party contractor assisting in verification of
eligibility efforts by contacting households who fail to respond to
requests for verification of their eligibility.
(3) Disclosure of all eligibility information. In addition to
children's names and eligibility status, the State agency or child care
institution, as appropriate, may disclose, without parental consent, all
eligibility information obtained through the free milk eligibility
process (including all information on the application or obtained
through direct certification) to:
(i) Persons directly connected with the administration or
enforcement of programs authorized under the Richard B. Russell National
School Lunch Act or the Child Nutrition Act of 1966. This means that all
eligibility information obtained for the Special Milk Program may be
disclosed to persons directly connected with administering or enforcing
regulations under the National School Lunch Program, School Breakfast
Program, Child and Adult Care Food Program, Summer Food Service Program
and the Special Supplemental Nutrition Program for Women, Infants and
Children (WIC) (Parts 210, 220, 226, 225, and 246, respectively, of this
chapter);
(ii) The Comptroller General of the United States for purposes of
audit and examination; and
(iii) Federal, State, and local law enforcement officials for the
purpose of investigating any alleged violation of the programs listed in
paragraphs (g)(2) and (g)(3) of this section.
(4) Use of free milk eligibility information by programs other than
Medicaid or the State Children's Health Insurance Program (SCHIP). State
agencies and child care institutions may use children's free milk
eligibility information for administering or enforcing the Special Milk
Program. Additionally, any other Federal, State, or local agency charged
with administering or enforcing the Special Milk Program may use the
information for that purpose. Individuals and programs to which
children's free milk eligibility information has been disclosed under
this section may use the information only in the administration or
enforcement of the receiving program. No further disclosure of the
information may be made.
(h) Disclosure of children's free milk eligibility information to
Medicaid and/or SCHIP, unless parents decline. Children's free milk
eligibility information only may be disclosed to Medicaid or SCHIP when
both the State agency and the child care institution so elect, the
parent/guardian does not decline to have their eligibility information
disclosed and the other provisions described in paragraph (h)(1) of this
section are met. The State agency or child care institution, as
appropriate, may disclose children's names, eligibility status (whether
they are eligible for free milk), and any other eligibility information
obtained through the free milk application or obtained through direct
certification to persons directly connected with the administration of
Medicaid or SCHIP. Persons directly connected to the administration of
Medicaid and SCHIP are State employees and persons authorized under
Federal and State Medicaid and SCHIP requirements to carry out initial
processing of Medicaid or SCHIP applications or to make eligibility
determinations for Medicaid or SCHIP.
[[Page 95]]
(1) The State agency must ensure that:
(i) The child care institution and health insurance program
officials have a written agreement that requires the health insurance
program agency to use the eligibility information to seek to enroll
children in Medicaid and SCHIP; and
(ii) Parents/guardians are notified that their eligibility
information may be disclosed to Medicaid or SCHIP and given an
opportunity to decline to have their children's eligibility information
disclosed, prior to any disclosure.
(2) Use of children's free milk eligibility information by Medicaid/
SCHIP. Medicaid and SCHIP agencies and health insurance program
operators receiving children's free milk eligibility information must
use the information to identify eligible children and enroll them in
Medicaid or SCHIP. The Medicaid and SCHIP enrollment process may include
targeting and identifying children from low-income households who are
potentially eligible for Medicaid or SCHIP for the purpose of seeking to
enroll them in Medicaid or SCHIP. No further disclosure of the
information may be made. Medicaid and SCHIP agencies and health
insurance program operators also may verify children's eligibility in a
program under the Child Nutrition Act of 1966 or the Richard B. Russell
National School Lunch Act.
(i) Notifying households of potential uses and disclosures of
children's free milk eligibility information. Households must be
informed that the information they provide on the free milk application
will be used to determine eligibility for free milk and that their
eligibility information may be disclosed to other programs.
(1) For disclosures to programs, other than Medicaid or SCHIP, that
are permitted access to children's eligibility information without
parent/guardian consent, the State agency or child care institution, as
appropriate, must notify parents/guardians at the time of application
that their children's free milk eligibility information may be
disclosed. The State agency or child care institution, as appropriate,
must add substantially the following statement to the statement required
under paragraph (f) of this section, ``We may share your eligibility
information with education, health, and nutrition programs to help them
evaluate, fund, or determine benefits for their programs; auditors for
program reviews; and law enforcement officials to help them look into
violations of program rules.'' For children determined eligible for free
milk through direct certification, the notice of potential disclosure
may be included in the document informing parents/guardians of their
children's eligibility for free milk through direct certification
process.
(2) For disclosure to Medicaid or SCHIP, the State agency or child
care institution, as appropriate, must notify parents/guardians that
their children's free milk eligibility information will be disclosed to
Medicaid and/or SCHIP unless the parent/guardian elects not to have
their information disclosed and notifies the State agency or child care
institution, as appropriate, by a date specified by the State agency or
child care institution, as appropriate. Only the parent or guardian who
is a member of the household or family for purposes of the free milk
application may decline the disclosure of eligibility information to
Medicaid or SCHIP. The notification must inform parents/guardians that
they are not required to consent to the disclosure, that the
information, if disclosed, will be used to identify eligible children
and seek to enroll them in Medicaid or SCHIP, and that their decision
will not affect their children's eligibility for free milk. The
notification may be included in the letter/notice to parents/guardians
that accompanies the free milk application, on the application itself or
in a separate notice provided to parents/guardians. The notice must give
parents/guardians adequate time to respond if they do not want their
information disclosed. The State agency or child care institution, as
appropriate, must add substantially the following statement to the
statement required under paragraph (f) of this section, ``We may share
your information with Medicaid or the State Children's Health Insurance
Program, unless you tell us not to. The information, if disclosed, will
be used to identify eligible children and seek to enroll them in
Medicaid or
[[Page 96]]
SCHIP.'' For children determined eligible for free milk through direct
certification, the notice of potential disclosure and opportunity to
decline the disclosure may be included in the document informing
parents/guardians of their children's eligibility for free milk through
direct certification.
(j) Other disclosures. State agencies and child care institutions
that plan to use or disclose identifying information about children
eligible for free milk to programs or individuals not specified in this
section must obtain written consent from children's parents or guardians
prior to the use or disclosure.
(1) The consent must identify the information that will be shared
and how the information will be used.
(2) There must be a statement informing parents and guardians that
failing to sign the consent will not affect the child's eligibility for
free milk and that the individuals or programs receiving the information
will not share the information with any other entity or program.
(3) Parents/guardians must be permitted to limit the consent only to
those programs with which they wish to share information.
(4) The consent statement must be signed and dated by the child's
parent or guardian who is a member of the household for purposes of the
free milk application.
(k) Agreements with programs/individuals receiving children's free
milk eligibility information. Agreements or Memoranda of Understanding
(MOU) are recommended or required as follows:
(1) The State agency or child care institution, as appropriate,
should have a written agreement or MOU with programs or individuals
receiving eligibility information, prior to disclosing children's free
milk eligibility information. The agreement or MOU should include
information similar to that required for disclosures to Medicaid and
SCHIP specified in paragraph (k)(2) of this section.
(2) For disclosures to Medicaid or SCHIP, the State agency or child
care institution, as appropriate, must have a written agreement with the
State or local agency or agencies administering Medicaid or SCHIP prior
to disclosing children's free milk eligibility information to those
agencies. At a minimum, the agreement must:
(i) Identify the health insurance program or health agency receiving
children's eligibility information;
(ii) Describe the information that will be disclosed;
(iii) Require that the Medicaid or SCHIP agency use the information
obtained and specify that the information must be used to seek to enroll
children in Medicaid or SCHIP;
(iv) Require that the Medicaid or SCHIP agency describe how they
will use the information obtained;
(v) Describe how the information will be protected from unauthorized
uses and disclosures;
(vi) Describe the penalties for unauthorized disclosure; and
(vii) Be signed by both the Medicaid or SCHIP program or agency and
the State agency or child care institution, as appropriate.
(l) Penalties for unauthorized disclosure or misuse of children's
free milk eligibility information. In accordance with section 9(b)(6)(C)
of the Richard B. Russell National School Lunch Act (42 U.S.C.
1758(b)(6)(C)), any individual who publishes, divulges, discloses or
makes known in any manner, or to any extent not authorized by statute or
this section, any information obtained under this section will be fined
not more than $1,000 or imprisoned for up to 1 year, or both.
(Sec. 11, Pub. L. 95-166, 91 Stat. 1337 (42 U.S.C. 1772, 1753, 1766);
sec. 5, Pub. L. 95-627, 92 Stat. 3619 (42 U.S.C. 1772))
[Amdt. 14, 41 FR 31176, July 27, 1976, as amended by Amdt. 16, 43 FR
1060, Jan. 6, 1978; 44 FR 10700, Feb. 23, 1979; Amdt. 17, 44 FR 33047,
June 8, 1979; 66 FR 2201, Jan. 11, 2001; 72 FR 10892, Mar. 12, 2007; 76
FR 22798, Apr. 25, 2011; 78 FR 13449, Feb. 28, 2013]
Sec. 215.14 Nondiscrimination.
The Department's regulations on nondiscrimination in federally
assisted programs are set forth in part 15 of this title. The
Department's agreements with State agencies, the State agencies'
agreements with School Food Authorities and child-care institutions and
the FNSRO agreements with School Food Authorities administering
[[Page 97]]
nonprofit private schools and with child-care institutions shall contain
the assurances required by such regulations. When different types of
milk are served to children, (a) a uniform price for each type of milk
served shall be charged to all non-needy children in the school or
child-care institution who purchase milk, and (b) needy children shall
be given the opportunity to select any type of milk offered.
(44 U.S.C. 3506)
[Amdt. 13, 39 FR 28418, Aug. 7, 1974, as amended at 47 FR 745, Jan. 7,
1982]
Sec. 215.14a Procurement standards.
(a) General. State agencies and school food authorities shall comply
with the requirements of this part and 2 CFR part 200 and USDA
implementing regulations 2 CFR part 400 and part 415, as applicable
concerning the procurement of all goods and services with nonprofit
school food service account funds.
(b) Contractual responsibilities. The standards contained in this
part and 2 CFR part 200, subpart D and USDA implementing regulations 2
CFR part 200 subparts B and D and USDA implementing regulations 2 CFR
part 400 and part 415, as applicable, do not relieve the State agency or
School Food Authority of any contractual responsibilities under its
contract. The State agency or School Food Authority is the responsible
authority, without recourse to FNS, regarding the settlement and
satisfaction of all contractual and administrative issues arising out of
procurements entered into in connection with the Program. This includes
but is not limited to: Source evaluation, protests, disputes, claims, or
other matters of a contractual nature. Matters concerning violation of
law are to be referred to the local, State or Federal authority that has
proper jurisdiction.
(c) Procedures. The State agency may elect to follow either the
State laws, policies and procedures as authorized by 2 CFR 200.317, or
the procurement standards for other governmental grantees and all
governmental subgrantees in accordance with 2 CFR 200.318 through 2 CFR
200.326. Regardless of the option selected, States must ensure that all
contracts include any clauses required by Federal statutes and executive
orders and that the requirements of 2 CFR 200.236 and Appendix II,
Contract Provisions for Non-Federal Entity Contracts Under Federal Award
are followed. The school food authority or child care institution may
use its own procurement procedures which reflect applicable State or
local laws and regulations, provided that procurements made with
nonprofit school food service account funds adhere to the standards set
forth in this part and in 2 CFR part 200, subpart D and USDA
implementing regulations 2 CFR part 400 and part 415 as applicable.
School food authority procedures must include a written code of
standards of conduct meeting the minimum standards of 2 CFR 200.318, as
applicable.
(1) Pre-issuance review requirement. The State agency may impose a
pre-issuance review requirement on a school food authority's proposed
procurement. The school food authority must make available, upon request
of the State agency, its procurement documents, including but not
limited to solicitation documents, specifications, evaluation criteria,
procurement procedures, proposed contracts and contract terms. School
food authorities shall comply with State agency requests for changes to
procurement procedures and solicitation and contract documents to ensure
that, to the State agency's satisfaction, such procedures and documents
reflect applicable procurement and contract requirements and the
requirements of this part.
(2) Prototype solicitation documents and contracts. The school food
authority must obtain the State agency's prior written approval for any
change made to prototype solicitation or contract documents before
issuing the revised solicitation documents or execution of the revised
contract.
(3) Prohibited expenditures. No expenditure may be made from the
nonprofit school food service account for any cost resulting from a
procurement failing to meet the requirements of this part.
[[Page 98]]
(d) Cost reimbursable contracts--(1) Required provisions. The school
food authority must include the following provisions in all cost
reimbursable contracts, including contracts with cost reimbursable
provisions, and in solicitation documents prepared to obtain offers for
such contracts:
(i) Allowable costs will be paid from the nonprofit school food
service account to the contractor net of all discounts, rebates and
other applicable credits accruing to or received by the contractor or
any assignee under the contract, to the extent those credits are
allocable to the allowable portion of the costs billed to the school
food authority;
(ii)(A) The contractor must separately identify for each cost
submitted for payment to the school food authority the amount of that
cost that is allowable (can be paid from the nonprofit school food
service account) and the amount that is unallowable (cannot be paid from
the nonprofit school food service account), or
(B) The contractor must exclude all unallowable costs from its
billing documents and certify that only allowable costs are submitted
for payment and records have been established that maintain the
visibility of unallowable costs, including directly associated costs in
a manner suitable for contract cost determination and verification;
(iii) The contractor's determination of its allowable costs must be
made in compliance with the applicable Departmental and Program
regulations and Office of Management and Budget cost circulars;
(iv) The contractor must identify the amount of each discount,
rebate and other applicable credit on bills and invoices presented to
the school food authority for payment and identify the amount as a
discount, rebate, or in the case of other applicable credits, the nature
of the credit. If approved by the State agency, the school food
authority may permit the contractor to report this information on a less
frequent basis than monthly, but no less frequently than annually;
(v) The contractor must identify the method by which it will report
discounts, rebates and other applicable credits allocable to the
contract that are not reported prior to conclusion of the contract; and
(vi) The contractor must maintain documentation of costs and
discounts, rebates and other applicable credits, and must furnish such
documentation upon request to the school food authority, the State
agency, or the Department.
(2) Prohibited expenditures. No expenditure may be made from the
nonprofit school food service account for any cost resulting from a cost
reimbursable contract that fails to include the requirements of this
section, nor may any expenditure be made from the nonprofit school food
service account that permits or results in the contractor receiving
payments in excess of the contractor's actual, net allowable costs.
(e) Geographic preference. A school food authority participating in
the Program may apply a geographic preference when procuring milk,
including the use of ``locally grown'', ``locally raised'', or ``locally
caught'' as procurement specifications or selection criteria for
unprocessed or minimally processed food items. When utilizing the
geographic preference to procure milk, the school food authority making
the purchase has the discretion to determine the local area to which the
geographic preference option will be applied, so long as there are an
appropriate number of qualified firms able to compete.
(Pub. L. 79-396, 60 Stat. 231 (42 U.S.C. 1751); Pub. L. 89-642, 80 Stat.
885-890 (42 U.S.C. 1773); Pub. L. 91-248, 84 Stat. 207 (42 U.S.C. 1759))
[Amdt. 27, 48 FR 19355, Apr. 29, 1983, as amended at 71 FR 39516, July
13, 2006; 72 FR 61492, Oct. 31, 2007; 76 FR 22607, Apr. 22, 2011; 81 FR
66490, Sept. 28, 2016; 89 FR 32078, Apr. 25, 2024]
Sec. 215.15 Withholding payments and establishing fines.
(a) Withholding payments. In accordance with Departmental
regulations 2 CFR 200.338 through 200.342, the State agency must
withhold Program payments, in whole or in part, from any school food
authority which has failed to comply with the provisions of this part.
Program payments must be withheld until the school food authority takes
corrective action satisfactory to
[[Page 99]]
the State agency, or gives evidence that such corrective actions will be
taken, or until the State agency terminates the grant in accordance with
Sec. 215.16. Subsequent to the State agency's acceptance of the
corrective actions, payments will be released for any milk served in
accordance with the provisions of this part during the period the
payments were withheld.
(b) Fines. (1) The State agency may establish a fine against any
school food authority when it has determined that the school food
authority or a school under its agreement has:
(i) Failed to correct severe mismanagement of the Program;
(ii) Disregarded a Program requirement of which the school food
authority or school had been informed; or
(iii) Failed to correct repeated violations of Program requirements.
(2) FNS may direct the State agency to establish a fine against any
school food authority when it has determined that the school food
authority or school meets the criteria set forth under paragraph (b)(1)
of this section.
(3) Funds used to pay a fine established under this paragraph must
be derived from non-Federal sources. The State agency must calculate the
fine based on the amount of Program reimbursement earned by the school
food authority or school for the most recent fiscal year for which full
year data is available, provided that the fine does not exceed the
equivalent of:
(i) For the first fine, 1 percent of the amount of reimbursement for
milk earned for the fiscal year;
(ii) For the second fine, 5 percent of the amount of reimbursement
for milk earned for the fiscal year; and
(iii) For the third or subsequent fine, 10 percent of the amount of
reimbursement for milk earned for the fiscal year.
(4) The State agency must inform FNS at least 30 days prior to
establishing a fine under this paragraph. The State agency must send the
school food authority written notification of the fine established under
this paragraph and provide a copy of the notification to FNS. The
notification must:
(i) Specify the violations or actions which constitute the basis for
the fine and indicate the amount of the fine;
(ii) Inform the school food authority that it may appeal the fine
and advise the school food authority of the appeal procedures
established under Sec. 210.18(p) of this chapter;
(iii) Indicate the effective date and payment procedures should the
school food authority not exercise its right to appeal within the
specified timeframe.
(5) Any school food authority subject to a fine under paragraph
(b)(1) of this section may appeal the State agency's determination. In
appealing a fine, the school food authority must submit to the State
agency any pertinent information, explanation, or evidence addressing
the Program violations identified by the State agency. Any school food
authority seeking to appeal the State agency determination must follow
State agency appeal procedures.
(6) The decision of the State agency review official is final and
not subject to further administrative or judicial review. Failure to pay
a fine established under this paragraph may be grounds for suspension or
termination.
(7) Money received by the State agency as a result of a fine
established under this paragraph against a school food authority and any
interest charged in the collection of these fines must be remitted to
FNS, and then remitted to the United States Treasury.
[88 FR 57848, Aug. 23, 2023]
Sec. 215.16 Suspension, termination and grant closeout procedures.
Whenever it is determined that a State agency has materially failed
to comply with the provisions of this part, or with FNS guidelines and
instructions, FNS may suspend or terminate the Program in whole, or in
part, or take any other action as may be available and appropriate. A
State agency may also terminate the Program by mutual agreement with
FNS. FNS and the State agency shall comply with the provisions of 2 CFR
part 200, subpart D and USDA implementing regulations 2 CFR subparts B
and D and USDA implementing regulations 2 CFR part 400 and part 415,
concerning grant suspension, termination and closeout procedures.
Furthermore, the
[[Page 100]]
State agency, or FNSRO where applicable, shall apply these provisions to
suspension or termination of the Program in School Food Authorities.
[Amdt. 30, 49 FR 18987, May 4, 1984, as amended at 71 FR 39517, July 13,
2006. Redesignated at 72 FR 61493, Oct. 31, 2007, as amended at 81 FR
66490, Sept. 28, 2016]
Sec. 215.17 Program information.
Persons seeking information about this Program should contact their
State administering agency or the appropriate FNSRO. The FNS website has
contact information for State agencies at https://www.fns.usda.gov/
contacts and FNSROs at https://www.fns.usda.gov/ fns-regional-offices.
[88 FR 57848, Aug. 23, 2023]
Sec. 215.18 Information collection/recordkeeping--OMB assigned control numbers.
------------------------------------------------------------------------
Current OMB
7 CFR section where requirements are described control No.
------------------------------------------------------------------------
215.3(d)................................................ 0584-0067
215.5(a)................................................ 0584-0005
215.7................................................... 0584-0005
215.10(a), (b), (d)..................................... 0584-0005
215.11(c)(1)............................................ 0584-0005
215.11(c)(2)............................................ 0584-0594
215.12(d)............................................... 0584-0005
215.13a................................................. 0584-0026
215.14a................................................. 0584-0005
------------------------------------------------------------------------
[81 FR 50193, July 29, 2016]
PART 220_SCHOOL BREAKFAST PROGRAM--Table of Contents
Sec.
220.1 General purpose and scope.
220.2 Definitions.
220.3 Administration.
220.4 Payment of funds to States and FNSROs.
220.5 Method of payment to States.
220.6 Use of funds.
220.7 Requirements for participation.
220.8 Meal requirements for breakfasts.
220.9 Reimbursement payments.
220.10 Effective date for reimbursement.
220.11 Reimbursement procedures.
220.12 Competitive food services.
220.13 Special responsibilities of State agencies.
220.14 Claims against school food authorities.
220.15 Management evaluations and audits.
220.16 Procurement standards.
220.17 Prohibitions.
220.18 Withholding payments and establishing fines.
220.19 Suspension, termination and grant closeout procedures.
220.20 Free and reduced price breakfasts.
220.21 Program information.
220.22 Information collection/recordkeeping--OMB assigned control
numbers.
220.23 Seamless Summer Option non-congregate meal service.
Appendix A to Part 220--Alternate Foods for Meals
Appendix B to Part 220 [Reserved]
Appendix C to Part 220--Child Nutrition (CN) Labeling Program
Authority: 42 U.S.C. 1773, 1779, unless otherwise noted.
Sec. 220.1 General purpose and scope.
This part announces the policies and prescribes the regulations
necessary to carry out the provisions of section 4 of the Child
Nutrition Act of 1966, as amended, which authorizes payments to the
States to assist them to initiate, maintain, or expand nonprofit
breakfast programs in schools.
[Amdt. 25, 41 FR 34758, Aug. 17, 1976]
Sec. 220.2 Definitions.
For the purpose of this part the term:
2 CFR part 200, means the Uniform Administrative Requirements, Cost
Principles, and Audit Requirements for Federal Awards published by OMB.
The part reference covers applicable: Acronyms and Definitions (subpart
A), General Provisions (subpart B), Post Federal Award Requirements
(subpart D), Cost Principles (subpart E), and Audit Requirements
(subpart F). (NOTE: Pre-Federal Award Requirements and Contents of
Federal Awards (subpart C) does not apply to the National School Lunch
Program).
Act means the Child Nutrition Act of 1966, as amended.
Applicable credits shall have the meaning established in 2 CFR part
200 and USDA implementing regulations 2 CFR parts 400 and 415.
Breakfast means a meal which meets the meal requirements set out in
Sec. 220.8, and which is served to a child in the morning hours. The
meal must be served at or close to the beginning of the child's day at
school.
Child means:
[[Page 101]]
(1) A student of high school grade or under as determined by the
State educational agency, who is enrolled in an educational unit of high
school grade or under as described in paragraphs (1) and (2) of the
definition of ``School'' in this section, including students with a
disability who participate in a school program established for persons
with disabilities; or
(2) A person under 21 chronological years of age who is enrolled in
an institution or center as described in paragraph (3) of the definition
of ``School'' in this section.
Contractor means a commercial enterprise, public or nonprofit
private organization or individual that enters into a contract with a
school food authority.
Cost reimbursable contract means a contract that provides for
payment of incurred costs to the extent prescribed in the contract, with
or without a fixed fee.
Department means the United States Department of Agriculture.
Distributing Agency means a State agency which enters into an
agreement with the Department for the distribution to schools of donated
foods pursuant to part 250 of this chapter.
Fiscal year means a period of 12 calendar months beginning on
October 1 of any year and ending September 30 of the following year.
Fixed fee means an agreed upon amount that is fixed at the inception
of the contract. In a cost reimbursable contract, the fixed fee includes
the contractor's direct and indirect administrative costs and profit
allocable to the contract.
Fixed-price contract means a contract that charges a fixed cost per
meal, or a fixed cost for a certain time period. Fixed-price contracts
may include an economic price adjustment tied to a standard index.
FNS means the Food and Nutrition Service, United States Department
of Agriculture.
FNSRO means the appropriate Regional Office of the Food and
Nutrition Service of the Department.
Food item means a specific food offered within a meal component.
Free breakfast means a breakfast served under the Program to a child
from a household eligible for such benefits under part 245 of this
chapter and for which neither the child nor any member of the household
pays or is required to work.
Infant cereal means any iron fortified dry cereal especially
formulated and generally recognized as cereal for infants that is
routinely mixed with breast milk or iron-fortified infant formula prior
to consumption.
Infant formula means any iron-fortified infant formula intended for
dietary use solely as a food for normal healthy infants excluding those
formulas specifically formulated for infants with inborn errors of
metabolism or digestive or absorptive problems. Infant formula, as
served, must be in liquid state at recommended dilution.
Local educational agency means a public board of education or other
public or private nonprofit authority legally constituted within a State
for either administrative control or direction of, or to perform a
service function for, public or private nonprofit elementary schools or
secondary schools in a city, county, township, school district, or other
political subdivision of a State, or for a combination of school
districts or counties that is recognized in a State as an administrative
agency for its public or private nonprofit elementary schools or
secondary schools. The term also includes any other public or private
nonprofit institution or agency having administrative control and
direction of a public or private nonprofit elementary school or
secondary school, including residential child care institutions, Bureau
of Indian Affairs schools, and educational service agencies and
consortia of those agencies, as well as the State educational agency in
a State or territory in which the State educational agency is the sole
educational agency for all public or private nonprofit schools.
Meal component means one of the food groups which comprise
reimbursable meals. The meal components are: fruits, vegetables, grains,
meats/meat alternates, and fluid milk.
National School Lunch Program means the Program authorized by the
National School Lunch Act.
Net cash resources means all monies as determined in accordance with
the
[[Page 102]]
State agency's established accounting system, that are available to or
have accrued to a School Food Authority's nonprofit school food service
at any given time, less cash payable. Such monies may include but are
not limited to, cash on hand, cash receivable, earnings or investments,
cash on deposit and the value of stocks, bonds or other negotiable
securities.
Nonprofit means, when applied to schools or institutions eligible
for the Program, exempt from income tax under section 501(c)(3) of the
Internal Revenue Code of 1986.
Nonprofit school food service means all food service operations
conducted by the school food authority principally for the benefit of
school children, all of the revenue from which is used solely for the
operation or improvement of such food service.
Nonprofit school food service account means the restricted account
in which all of the revenue from all food service operations conducted
by the school food authority principally for the benefit of school
children is retained and used only for the operation or improvement of
the nonprofit school food service.
OIG means the Office of the Inspector General of the Department.
Program means the School Breakfast Program.
Reduced price breakfast means a breakfast served under the Program:
(1) To a child from a household eligible for such benefits under
part 245 of this chapter;
(2) For which the price is less than the school food authority
designated full price of the breakfast and which does not exceed the
maximum allowable reduced price specified under part 245 of this
chapter; and
(3) For which neither the child nor any member of the household is
required to work.
Reimbursement means Federal cash assistance including advances paid
or payable to participating schools for breakfasts meeting the
requirements of Sec. 220.8 served to eligible children.
Revenue when applied to nonprofit school food service means all
monies received by or accruing to the nonprofit school food service in
accordance with the State agency's established accounting system
including, but not limited to, children's payments, earnings on
investments, other local revenues, State revenues, and Federal cash
reimbursements.
School means:
(1) An educational unit of high school grade or under, recognized as
part of the educational system in the State and operating under public
or nonprofit private ownership in a single building or complex of
buildings;
(2) Any public or nonprofit private classes of preprimary grade when
they are conducted in the aforementioned schools; or
(3) Any public or nonprofit private residential child care
institution, or distinct part of such institution, which operates
principally for the care of children, and, if private, is licensed to
provide residential child care services under the appropriate licensing
code by the State or a subordinate level of government, except for
residential summer camps which participate in the Summer Food Service
Program for Children, Job Corps centers funded by the Department of
Labor, and private foster homes.
School Breakfast Program means the program authorized by section 4
of the Child Nutrition Act of 1966.
School in severe need means a school determined to be eligible for
rates of reimbursement in excess of the prescribed National Average
Payment Factors, based upon the criteria set forth in Sec. 220.9(d).
School food authority means the governing body which is responsible
for the administration of one or more schools; and has legal authority
to operate the Program therein or be otherwise approved by FNS to
operate the Program.
School week means the period of time used to determine compliance
with the meal requirements in Sec. 220.8. The period must be a normal
school week of five consecutive days; however, to accommodate shortened
weeks resulting from holidays and other scheduling needs, the period
must be a minimum of three consecutive days and a maximum of seven
consecutive days. Weeks in which school breakfasts are offered less than
three times must be combined
[[Page 103]]
with either the previous or the coming week.
Seamless Summer Option means the meal service alternative authorized
by Section 13(a)(8) of the Richard B. Russell National School Lunch Act,
42 U.S.C. 1761(a)(8), under which public or nonprofit school food
authorities participating in the National School Lunch Program or School
Breakfast Program offer meals at no cost to children during the
traditional summer vacation periods and, for year-round schools,
vacation periods longer than 10 school days.
Secretary means the Secretary of Agriculture.
State means any of the 50 States, District of Columbia, the
Commonwealth of Puerto Rico, the Virgin Islands, Guam, and, as
applicable, American Samoa and the Commonwealth of the Northern
Marianas.
State agency means:
(1) The State educational agency;
(2) Such other agency of the State as has been designated by the
Governor or other appropriate executive or legislative authority of the
State and approved by the Department to administer the Program in
schools as specified in Sec. 210.3(b) of this chapter; or
(3) The FNSRO, where the FNSRO administers the Program as specified
in Sec. 210.3(c) of this chapter.
State educational agency means, as the State legislature may
determine:
(1) The chief State school officer (such as the State Superintendent
of Public Instruction, Commissioner of Education, or similar officer),
or
(2) A board of education controlling the State department of
education.
Tofu means a soybean-derived food, made by a process in which
soybeans are soaked, ground, mixed with water, heated, filtered,
coagulated, and formed into cakes. Basic ingredients are whole soybeans,
one or more food-grade coagulants (typically a salt or an acid), and
water. Tofu products must conform to FNS guidance to count toward the
meats/meat alternates component.
USDA implementing regulations include the following: 2 CFR part 400,
Uniform Administrative Requirements, Cost Principles, and Audit
Requirements for Federal Awards; 2 CFR part 415, General Program
Administrative Regulations; 2 CFR part 416, General Program
Administrative Regulations for Grants and Cooperative Agreements to
State and Local Governments; and 2 CFR part 418, New Restrictions on
Lobbying.
Whole grain-rich is the term designated by FNS to indicate that the
grain content of a product is between 50 and 100 percent whole grain
with any remaining grains being enriched.
Whole grains means grains that consist of the intact, ground,
cracked, or flaked grain seed whose principal anatomical components--the
starchy endosperm, germ and bran--are present in the same relative
proportions as they exist in the intact grain seed.
Yogurt means commercially prepared coagulated milk products obtained
by the fermentation of specific bacteria, that meet milk fat or milk
solid requirements and to which flavoring foods or ingredients may be
added. These products are covered by the Food and Drug Administration's
Definition and Standard of Identity for yogurt, 21 CFR 131.200, and low-
fat yogurt and non-fat yogurt covered as a standardized food under 21
CFR 130.10.
[Amdt. 25, 41 FR 34758, Aug. 17, 1976]
Editorial Note: For Federal Register citations affecting Sec.
220.2, see the List of CFR Sections Affected, which appears in the
Finding Aids section of the printed volume and at www.govinfo.gov.
Sec. 220.3 Administration.
(a) Within the Department, FNS shall act on behalf of the Department
in the administration of the Program covered by this part.
(b) Within the States, responsibility for the administration of the
Program in schools as described in paragraphs (1) and (2) of the
definition of School in Sec. 220.2 shall be in the State educational
agency, except that FNSRO shall administer the Program with respect to
nonprofit private schools and adding in their place the words ``as
described in paragraph (1) of the definition of School in Sec. 220.2 in
any State wherein the State educational agency is not permitted by law
to disburse Federal funds paid to it under the Program; Provided,
however, That FNSRO shall also administer the Program in all
[[Page 104]]
other nonprofit private schools which have been under continuous FNS
administration since October 1, 1980, unless the administration of such
private schools is assumed by a State agency.
(c) Within the States, responsibility for the administration of the
Program in schools, as described in paragraph (3) of the definition of
School in Sec. 220.2, shall be in the State educational agency, or if
the State educational agency cannot administer the Program in such
schools, such other agency of the State as has been designated by the
Governor or other appropriate executive or legislative authority of the
State and approved by the Department to administer the Program in such
schools: Provided, however, That FNSRO shall administer the Program in
such schools if the State agency is not permitted by law to disburse
Federal funds paid to it under the Program to such schools; and
Provided, further, That FNSRO shall also administer the Program in all
other such schools which have been under continuous FNS administration
since October 1, 1980, unless the administration of such schools is
assumed by a State agency.
(d) References in this part to ``FNSRO where applicable'' are to
FNSRO as the agency administering the Program.
(e) Each State agency desiring to take part in any of the programs
shall enter into a written agreement with the Department for the
administration of the Program in the State in accordance with the
provisions of this part, 7 CFR parts 235, 245, 15, 15a, 15b and, as
applicable, 2 CFR part 200, subpart D and USDA implementing regulations
2 CFR part 400 subparts B and D and USDA implementing regulations 2 CFR
part 400 and part 415 and FNS Instructions. Such agreement shall cover
the operation of the Program during the period specified therein and may
be extended at the option of the Department.
(f) Authority to waive statute and regulations. (1) As authorized
under section 12(l) of the Richard B. Russell National School Lunch Act,
FNS may waive provisions of such Act or the Child Nutrition Act of 1966,
as amended, and the provisions of this part with respect to a State
agency or eligible service provider. The provisions of this part
required by other statutes may not be waived under this authority. FNS
may only approve requests for a waiver that are submitted by a State
agency and comply with the requirements at section 12(l)(1) and the
limitations at section 12(l)(4), including that FNS may not grant a
waiver that increases Federal costs.
(2)(i) A State agency may submit a request for a waiver under
paragraph (f)(1) of this section in accordance with section 12(l)(2) and
the provisions of this part.
(ii) A State agency may submit a request to waive specific statutory
or regulatory requirements on behalf of eligible service providers that
operate in the State. Any waiver where the State concurs must be
submitted to the appropriate FNSRO.
(3)(i) An eligible service provider may submit a request for a
waiver under paragraph (e)(1) of this section in accordance with section
12(l) and the provisions of this part. Any waiver request submitted by
an eligible service provider must be submitted to the State agency for
review. A State agency must act promptly on such a waiver request and
must deny or concur with a request submitted by an eligible service
provider.
(ii) If a State agency concurs with a request from an eligible
service provider, the State agency must promptly forward to the
appropriate FNSRO the request and a rationale, consistent with section
12(l)(2), supporting the request. By forwarding the request to the
FNSRO, the State agency affirms:
(A) The request meets all requirements for waiver submissions; and,
(B) The State agency will conduct all monitoring requirements
related to regular Program operations and the implementation of the
waiver.
(iii) If the State agency denies the request, the State agency must
notify the requesting eligible service provider and state the reason for
denying the request in writing within 30 calendar days of the State
agency's receipt of the request. The State agency response
[[Page 105]]
is final and may not be appealed to FNS.
(Sec. 804, 816 and 817, Pub. L. 97-35, 95 Stat. 521-535 (42 U.S.C. 1753,
1756, 1759, 1771 and 1785); 44 U.S.C. 3506)
[Amdt. 25, 41 FR 34759, Aug. 17, 1976, as amended at 47 FR 745, Jan. 7,
1982; Amdt. 42, 47 FR 14133, Apr. 2, 1982; Amdt. 56, 54 FR 2990, Jan.
23, 1989; 71 FR 39517, July 13, 2006; 72 FR 63792, Nov. 13, 2007; 81 FR
66491, Sept. 28, 2016; 87 FR 57354, Sept. 19, 2022; 89 FR 32080, Apr.
25, 2024]
Sec. 220.4 Payment of funds to States and FNSROs.
(a) To the extent funds are available, the Secretary shall make
breakfast assistance payments to each State agency for breakfasts served
to children under the Program. Subject to Sec. 220.13(b)(2), the total
of these payments for each State for any fiscal year shall be limited to
the total amount of reimbursement payable to eligible schools within the
State under this part for the fiscal year.
(b) The Secretary shall prescribe by July 1 of each fiscal year
annual adjustments to the nearest one-fourth cent in the national
average per breakfast factors for all breakfasts and for free and
reduced price breakfasts, that shall reflect changes in the cost of
operating a breakfast program.
(c) In addition to the funds made available under paragraph (a) of
this section, funds shall be made available to the State agencies, and
FNSROs where applicable, in such amounts as are needed to finance
reimbursement rates assigned in accordance with the provisions of Sec.
220.9(c).
(Secs. 801, 803, 812; Pub. L. 97-35, 95 Stat. 521-535 (42 U.S.C. 1753,
1759(a), 1773, 1758); Pub. L. 97-370, 96 Stat. 1806)
[38 FR 35554, Dec. 28, 1973, as amended at 40 FR 30923, July 24, 1975;
46 FR 51367, Oct. 20, 1981; 48 FR 20896, May 10, 1983; Amdt. 49, 49 FR
18987, May 4, 1984]
Sec. 220.5 Method of payment to States.
Funds to be paid to any State for the School Breakfast Program shall
be made available by means of Letters of Credit issued by FNS in favor
of the State agency. The State agency shall:
(a) Obtain funds needed for reimbursement to School Food Authorities
through presentation by designated State officials of a payment Voucher
on Letter of Credit in accordance with procedures prescribed by FNS and
approved by the U.S. Treasury Department; (b) submit requests for funds
only at such times and in such amounts, as will permit prompt payment of
claims or authorized advances; and (c) use the funds received from such
requests without delay for the purpose for which drawn.
[Amdt. 25, 41 FR 34759, Aug. 17, 1976]
Sec. 220.6 Use of funds.
(a) Federal funds made available under the School Breakfast Program
shall be used by State agencies, or FNSROs where applicable, to
reimburse or make advance payments to School Food Authorities in
connection with breakfasts served in accordance with the provisions of
this part. However, with the approval of FNS, any State agency, or FNSRO
where applicable, may reserve for use in carrying out special
developmental projects an amount up to 1 per centum of the funds earned
in any fiscal year under the School Breakfast Program. Advance payments
to School Food Authorities may be made at such times and in such amounts
as are necessary to meet current obligations.
(b) Whoever embezzles, willfully misapplies, steals, or obtains by
fraud any funds, assets, or property provided under this part, whether
received directly or indirectly from the Department, shall--
(1) If such funds, assets, or property are of a value of $100 or
more, be fined not more than $25,000 or imprisoned not more than 5 years
or both; or
(2) If such funds, assets, or property are of a value of less than
$100, be fined not more than $1,000 or imprisoned not more than one year
or both.
(c) Whoever receives, conceals, or retains to his use or gain funds,
assets, or property provided under this part, whether received directly
or indirectly from the Department, knowing such funds, assets, or
property have been embezzled, willfully misapplied, stolen, or obtained
by fraud, shall be subject
[[Page 106]]
to the same penalties provided in paragraph (b) of this section.
(Sec. 10(a), Pub. L. 95-627, 92 Stat. 3623 (42 U.S.C. 1760); sec.
10(d)(3), Pub. L. 95-627, 92 Stat. 3624 (42 U.S.C. 1757); sec. 14, Pub.
L. 95-627, 92 Stat. 3625-3626)
[40 FR 30923, July 24, 1975, as amended by Amdt. 25, 41 FR 34759, Aug.
17, 1976; Amdt. 28, 44 FR 37899, June 29, 1979; 64 FR 50742, Sept. 20,
1999]
Sec. 220.7 Requirements for participation.
(a) The School Food Authority shall make written application to the
State agency, or FNSRO where applicable, for any school in which it
desires to operate the School Breakfast Program, if such school did not
participate in the Program in the prior fiscal year. The School Food
Authority shall also submit for approval, either with the application or
at the request of the State agency, or FNSRO where applicable, a free
and reduced price policy statement in accordance with part 245 of this
chapter. A School Food Authority which simultaneously makes application
for the National School Lunch Program and the School Breakfast Program
shall submit one free and reduced price policy statement which shall
provide that the terms, conditions, and eligibility criteria set forth
in such policy statement shall apply to the service of free and reduced
price lunches and to the service of free and reduced price breakfasts.
If, at the time application is made for the School Breakfast Program, a
School Food Authority has an approved free and reduced price policy
statement on file with the State agency, or FNSRO where applicable, for
the National School Lunch Program, it need only confirm in writing that
such approved policy statement will also apply to the operation of its
School Breakfast Program. Applications for the School Breakfast Program
shall not be approved in the absence of an approved free and reduced
price policy statement.
(1) A school which also either participates in the National School
Lunch Program or only receives donations of commodities for its
nonprofit lunch program under the provisions of part 250 of this chapter
(commodity only school) shall apply the same set of eligibility criteria
so that children who are eligible for free lunches shall also be
eligible for free breakfasts and children who are eligible for reduced
price lunches shall also be eligible for reduced price breakfasts.
(2) Schools shall obtain a minimum of two food safety inspections
per school year conducted by a State or local governmental agency
responsible for food safety inspections. Schools participating in more
than one child nutrition program shall only be required to obtain a
minimum of two food safety inspections per school year if the food
preparation and service for all meal programs take place at the same
facility. Schools shall post in a publicly visible location a report of
the most recent inspection conducted, and provide a copy of the
inspection report to a member of the public upon request.
(3) The school food authority must implement a food safety program
meeting the requirements of Sec. Sec. 210.13(c) and 210.15(b)(5) of
this chapter at each facility or part of a facility where food is
stored, prepared, or served.
(b) Applications shall solicit information in sufficient detail to
enable the State agency to determine whether the School Food Authority
is eligible to participate in the Program and extent of the need for
Program payments.
(c) Within the funds available to them, State agencies, or FNSRO's
where applicable, shall approve for participation in the School
Breakfast Program any school making application and agreeing to carry
out the program in accordance with this part. State agencies, or FNSRO's
where applicable, have a positive obligation, however, to extend the
benefits of the School Breakfast Program to children attending schools
in areas where poor economic conditions exist.
(d)(1) Any school food authority (including a State agency acting in
the capacity of a school food authority) may contract with a food
service management company to manage its food service operation in one
or more of its schools. However, no school or school food authority may
contract with a food service management company to operate an a la carte
food service unless the company agrees to offer free,
[[Page 107]]
reduced price and paid reimbursable breakfasts to all eligible children.
Any school food authority that employs a food service management company
in the operation of its nonprofit school food service shall:
(i) Adhere to the procurement standards specified in Sec. 220.16
when contracting with the food service management company;
(ii) Ensure that the food service operation is in conformance with
the school food authority's agreement under the Program;
(iii) Monitor the food service operation through periodic on-site
visits;
(iv) Retain control of the quality, extent, and general nature of
its food service, and the prices to be charged the children for meals;
(v) Retain signature authority on the State agency-school food
authority agreement, free and reduced price policy statement and claims;
(vi) Ensure that all federally donated foods received by the school
food authority and made available to the food service management company
accrue only to the benefit of the school food authority's nonprofit
school food service and are fully utilized therein;
(vii) Maintain applicable health certification and assure that all
State and local regulations are being met by a food service management
company preparing or serving meals at a school food authority facility;
(viii) Obtain written approval of invitations for bids and requests
for proposals before their issuance when required by the State agency.
The school food authority must incorporate all State agency required
changes to its solicitation documents before issuing those documents;
and
(ix) Ensure that the State agency has reviewed and approved the
contract terms and the school food authority has incorporated all State
agency required changes into the contract or amendment before any
contract or amendment to an existing food service management company
contract is executed. Any changes made by the school food authority or a
food service management company to a State agency pre-approved prototype
contract or State agency approved contract term must be approved in
writing by the State agency before the contract is executed. When
requested, the school food authority must submit all procurement
documents, including responses submitted by potential contractors, to
the State agency, by the due date established by the State agency.
(2) In addition to adhering to the procurement standards under this
part, school food authorities contracting with food service management
companies shall ensure that:
(i) The invitation to bid or request for proposal contains a 21-day
cycle menu developed in accordance with the provisions of Sec. 220.8,
to be used as a standard for the purpose of basing bids or estimating
average cost per meal. A school food authority with no capability to
prepare a cycle menu may, with State agency approval, require that each
food service management company include a 21-day cycle menu, developed
in accordance with the provisions of Sec. 220.8, with its bid or
proposal. The food service management company must adhere to the cycle
for the first 21 days of meal service. Changes thereafter may be made
with the approval of the school food authority; and
(ii) Any invitation to bid or request for proposal indicate that
nonperformance subjects the food service management company to specified
sanctions in instances where the food service management company
violates or breaches contract terms. The school food authority shall
indicate these sanctions in accordance with the procurement provisions
stated in Sec. 220.16.
(3) Contracts that permit all income and expenses to accrue to the
food service management company and ``cost-plus-a-percentage-of-cost''
and ``cost-plus-a-percentage-of-income'' contracts are prohibited.
Contracts that provide for fixed fees such as those that provide for
management fees established on a per meal basis are allowed. Contractual
agreements with food service management companies shall include
provisions which ensure that the requirements of this section are met.
Such agreements shall also include the following requirements:
(i) The food service management company shall maintain such records
[[Page 108]]
as the school food authority will need to support its Claim for
Reimbursement under this part, and shall, at a minimum, report claim
information to the school food authority promptly at the end of each
month. Such records shall be made available to the school food
authority, upon request, and shall be available for a period of 3 years
from the date of the submission of the final Financial Status Report,
for inspection and audit by representatives of the State agency, of the
Department, and of the Government Accountability Office at any
reasonable time and place. If audit findings have not been resolved, the
records shall be retained beyond the three-year period (as long as
required for the resolution of the issues raised by the audit);
(ii) The food service management company must have State or local
health certification for any facility outside the school in which it
proposes to prepare meals and the food service management company must
maintain this health certification for the duration of the contract;
(iii) No payment is to be made for meals that are spoiled or
unwholesome at time of delivery, do not meet detailed specifications as
developed by the school food authority for each meal component specified
in Sec. 220.8, or do not otherwise meet the requirements of the
contract. Specifications will cover items such a grade, purchase units,
style, condition, weight, ingredients, formulations, and delivery time;
and
(iv) Provisions in part 250, subpart D of this chapter must be
included to ensure the value of donated foods, i.e., USDA Foods, are
fully used in the nonprofit food service and credited to the nonprofit
school food service account.
(4) The contract between a school food authority and food service
management company shall be of a duration of no longer than 1 year and
options for the yearly renewal of the contract shall not exceed 4
additional years. All contracts shall include a termination clause
whereby either party may cancel for cause with 60-day notification.
(e) Each school food authority approved to participate in the
program shall enter into a written agreement with the State agency or
the Department through the FNSRO, as applicable, that may be amended as
necessary. Nothing in the preceding sentence shall be construed to limit
the ability of the State agency or the FNSRO to suspend or terminate the
agreement in accordance with Sec. 220.18. If a single State agency
administers any combination of the Child Nutrition Programs, that State
agency shall provide each SFA with a single agreement with respect to
the operation of those programs. Such agreements shall provide that the
School Food Authority shall, with respect to participating schools under
its jurisdiction:
(1)(i) Maintain a nonprofit school food service;
(ii) In accordance with the financial management system established
under Sec. 220.13(i) of this part, use all revenues received by such
food service only for the operation or improvement of that food service
Except that, facilities, equipment, and personnel support with funds
provided to a school food authority under this part may be used to
support a nonprofit nutrition program for the elderly, including a
program funded under the Older Americans Act of 1965 (42 U.S.C. 3001 et
seq.);
(iii) Revenues received by the nonprofit school food service must
not be used to purchase land or buildings or to construct buildings;
(iv) Limit its net cash resources to an amount that does not exceed
three months average expenditure for its nonprofit school food service
or such other amount as may be approved by the State agency; and
(v) Observe the limitations on any competitive food service as set
forth in Sec. 220.12 of this part;
(2) Serve breakfasts which meet the minimum requirements prescribed
in Sec. 220.8;
(3) Price the breakfast as a unit;
(4) Serve breakfast free or at a reduced price to all children who
are determined by the local education agency to be eligible for such
meals under part 245 of this chapter;
(5) Make no discrimination against any child because of the child's
inability to pay the full price of the breakfasts;
[[Page 109]]
(6) Claim reimbursement at the assigned rates only for breakfasts
served in accordance with the agreement;
(7) Submit Claims for Reimbursement in accordance with Sec. 220.11
of this part and procedures established by the State agency, or FNSRO
where applicable;
(8) Maintain, in the storage, preparation and service of food,
proper sanitation and health standards in conformance with all
applicable State and local laws and regulations, and comply with the
food safety requirements in paragraph (a)(2) and paragraph (a)(3) of
this section;
(9) Purchase, in as large quantities as may be efficiently utilized
in its nonprofit school food service, foods designated as plentiful by
the State agency;
(10) Accept and use, in as large quantities as may be efficiently
utilized in its nonprofit school food service, such foods as may be
offered as a donation by the Department;
(11) Maintain necessary facilities for storing, preparing, and
serving food;
(12) Maintain a financial management system as prescribed by the
State agency, or FNSRO where applicable;
(13) Upon request, make all accounts and records pertaining to its
nonprofit school food service available to the State agency and to FNS
for audit or review at a reasonable time and place. Such records must be
retained for a period of three years after the end of the fiscal year to
which they pertain, except that if audit findings have not been
resolved, the records must be retained beyond the three-year period as
long as required for the resolution of the issues raised by the audit;
(14) Retain documentation of free or reduced price eligibility as
follows:
(i) Maintain files of currently approved and denied free and reduced
price applications which must be readily retrievable by school for a
period of three years after the end of the fiscal year to which they
pertain; or
(ii) Maintain files with the names of children currently approved
for free meals through direct certification with the supporting
documentation, as specified in Sec. 245.6(b)(4) of this chapter, which
must be readily retrievable by school. Documentation for direct
certification must include information obtained directly from the
appropriate State or local agency, or other appropriate individual, as
specified by FNS, that:
(A) A child in the Family, as defined in Sec. 245.2 of this
chapter, is receiving benefits from SNAP, FDPIR or TANF, as defined in
Sec. 245.2 of this chapter; if one child is receiving such benefits,
all children in that family are considered to be directly certified;
(B) The child is a homeless child as defined in Sec. 245.2 of this
chapter;
(C) The child is a runaway child as defined in Sec. 245.2 of this
chapter;
(D) The child is a migrant child as defined in Sec. 245.2 of this
chapter;
(E) The child is a Head Start child, as defined in Sec. 245.2 of
this chapter; or
(F) The child is a foster child as defined in Sec. 245.2 of this
chapter.
(15) Comply with the requirements of the Department's regulations
respecting nondiscrimination (7 CFR part 15).
(f) Nothing contained in this part shall prevent the State Agency
from imposing additional requirements for participation in the program
which are not inconsistent with the provisions of this part.
(g) Program evaluations. Local educational agencies, school food
authorities, schools, and contractors must cooperate in studies and
evaluations conducted by or on behalf of the Department, related to
programs authorized under the Richard B. Russell National School Lunch
Act and the Child Nutrition Act of 1966.
(h) Local educational agencies must comply with the provisions of
Sec. 210.31 of this chapter regarding the development, implementation,
periodic review and update, and public notification of the local school
wellness policy.
(44 U.S.C. 3506; sec. 819, Pub. L. 97-35, 95 Stat. 533 (42 U.S.C. 1759a,
1773 and 1757); Pub. L. 79-396, 60 Stat. 231 (42 U.S.C. 1751); Pub. L.
89-647, 80 Stat. 885-890 (42 U.S.C. 1773); Pub. L. 91-248, 84 Stat. 207
(42 U.S.C. 1759))
[32 FR 34, Jan. 5, 1967]
Editorial Note: For Federal Register citations affecting Sec.
220.7, see the List of CFR Sections Affected, which appears in the
Finding Aids section of the printed volume and at www.govinfo.gov.
[[Page 110]]
Sec. 220.8 Meal requirements for breakfasts.
(a) General requirements. This section contains the meal
requirements applicable to school breakfasts for students in grades K
through 12, and for children under the age of 5. In general, school food
authorities must ensure that participating schools provide nutritious,
well-balanced, and age-appropriate breakfasts to all the children they
serve to improve their diet and safeguard their health.
(1) General nutrition requirements. School breakfasts offered to
children age 5 and older must meet, at a minimum, the meal requirements
in paragraph (b) of this section. Schools must follow a food-based menu
planning approach and produce enough food to offer each child the
quantities specified in the meal pattern established in paragraph (c) of
this section for each age/grade group served in the school. In addition,
school breakfasts must meet the dietary specifications in paragraph (f)
of this section. Schools offering breakfasts to children ages 1 to 4 and
infants must meet the meal pattern requirements in paragraphs (o) and
(p) of this section, as applicable. When breakfast is served in the
cafeteria, schools must make plain potable water available and
accessible without restriction to children at no charge.
(2) Unit pricing. Schools must price each meal as a unit. The price
of a reimbursable breakfast does not change if the student does not take
a food item or requests smaller portions. Schools must identify, near or
at the beginning of the serving line(s), the food items that constitute
the unit-priced reimbursable school meal(s).
(3) Production and menu records. Schools or school food authorities,
as applicable, must keep production and menu records for the meals they
produce. These records must show how the meals offered contribute to the
required meal components and food quantities for each age/grade group
every day. Schools or school food authorities must maintain records of
the latest nutritional analysis of the school menus conducted by the
State agency. Information on maintaining production and menu records may
be found in FNS guidance.
(b) Meal requirements for school breakfasts. School breakfasts for
children ages 5 and older must reflect food and nutrition requirements
specified by the Secretary. Compliance with these requirements is
measured as follows:
(1) On a daily basis:
(i) Meals offered to each age/grade group must include the meal
components and food quantities specified in the meal pattern in
paragraph (c) of this section;
(ii) Meal selected by each student must have the number of meal
components required for a reimbursable meal and include at least one
fruit or vegetable.
(2) Over a 5-day school week:
(i) Average calorie content of the meals offered to each age/grade
group must be within the minimum and maximum calorie levels specified in
paragraph (f) of this section;
(ii) Average saturated fat content of the meals offered to each age/
grade group must be less than 10 percent of total calories as specified
in paragraph (f) of this section;
(iii) By July 1, 2027, average added sugars content of the meals
offered to each age/grade group must be less than 10 percent of total
calories as specified in paragraph (f) of this section; and
(iv) Average sodium content of the meals offered to each age/grade
group must not exceed the maximum level specified in paragraph (f) of
this section.
(c) Meal pattern for school breakfasts for grades K through 12. A
school must offer the meal components and quantities required in the
breakfast meal pattern established in the following table:
Table 1 to Paragraph (c) Introductory Text--School Breakfast Program Meal Pattern
----------------------------------------------------------------------------------------------------------------
Amount of food \1\ per week (minimum per day)
Meal components -----------------------------------------------
Grades K-5 Grades 6-8 Grades 9-12
----------------------------------------------------------------------------------------------------------------
Fruits (cups) \2\............................................... 5 (1) 5 (1) 5 (1)
Vegetables (cups) \2\........................................... 0 0 0
[[Page 111]]
Dark Green Subgroup......................................... 0 0 0
Red/Orange Subgroup......................................... 0 0 0
Beans, Peas, and Lentils Subgroup........................... 0 0 0
Starchy Subgroup............................................ 0 0 0
Other Vegetables Subgroup................................... 0 0 0
Grains or Meats/Meat Alternates (oz. eq) \3\.................... 7-10 (1) 8-10 (1) 9-10 (1)
Fluid Milk (cups) \4\........................................... 5 (1) 5 (1) 5 (1)
----------------------------------------------------------------------------------------------------------------
Dietary Specifications: Daily Amount Based on the Average for a 5-Day Week \5\
----------------------------------------------------------------------------------------------------------------
Minimum-Maximum Calories (kcal)................................. 350-500 400-550 450-600
Saturated Fat (% of total calories)............................. <10 <10 <10
Added Sugars (% of total calories).............................. <10 <10 <10
Sodium Limit: In place through June 30, 2027.................... <=540 mg <=600 mg <=640 mg
Sodium Limit: Must be implemented by July 1, 2027............... <=485 mg <=535 mg <=570 mg
----------------------------------------------------------------------------------------------------------------
\1\ Food items included in each group and subgroup and amount equivalents.
\2\ Minimum creditable serving is \1/8\ cup. Schools must offer 1 cup of fruit daily and 5 cups of fruit weekly.
Schools may substitute vegetables for fruit at breakfast as described in paragraphs (c)(2)(i) and (ii) of this
section.
\3\ Minimum creditable serving is 0.25 oz. eq. School may offer grains, meats/meat alternates, or a combination
of both to meet the daily and weekly ounce equivalents for this combined component. At least 80 percent of
grains offered weekly at breakfast must be whole grain-rich as defined in Sec. 210.2 of this chapter, and
the remaining grain items offered must be enriched.
\4\ Minimum creditable serving is 8 fluid ounces. All fluid milk must be fat-free (skim) or low-fat (1 percent
fat or less) and must meet the requirements in paragraph (d) of this section.
\5\ By July 1, 2027, schools must meet the dietary specification for added sugars. Schools must meet the sodium
limits by the dates specified in this chart. Discretionary sources of calories may be added to the meal
pattern if within the dietary specifications.
(1) Age/grade groups. Schools must plan menus for students using the
following age/grade groups: Grades K-5 (ages 5-10), grades 6-8 (ages 11-
13), and grades 9-12 (ages 14-18). If an unusual grade configuration in
a school prevents the use of the established age/grade groups, students
in grades K-5 and grades 6-8 may be offered the same food quantities at
breakfast provided that the calorie and sodium standards for each age/
grade group are met. No customization of the established age/grade
groups is allowed.
(2) Meal components. Schools must offer students in each age/grade
group the meal components specified in meal pattern in this paragraph
(c). Meal component descriptions in Sec. 210.10 of this chapter apply
to this Program.
(i) Fruits component. Schools must offer daily the fruit quantities
specified in the breakfast meal pattern in this paragraph (c). Fruits
that are fresh, frozen, or dried, or canned in light syrup, water or
fruit juice may be offered to meet the fruits component requirements.
Vegetables may be offered in place of all or part of the required fruits
at breakfast. Schools that choose to offer vegetables in place of fruits
at breakfast one day per school week may offer any vegetables, including
starchy vegetables. Schools that choose to offer vegetables in place of
fruits at breakfast two or more days per school week must offer at least
two different vegetable subgroups as defined in Sec. 210.10(c)(2)(ii)
of this chapter. All fruits are credited based on their volume as
served, except that \1/4\ cup of dried fruit counts as \1/2\ cup of
fruit. Only pasteurized, full-strength fruit juice may be offered, and
may be credited to meet no more than one-half of the fruit component.
(ii) Vegetables component. Schools are not required to offer
vegetables as part of the breakfast menu but may offer vegetables to
meet part or all of the fruit requirement. Schools that choose to offer
vegetables in place of fruits at breakfast one day per school week may
offer any vegetables, including starchy vegetables. Schools that choose
to offer vegetables in place of fruits at breakfast two or more days
more than one day per school week must offer vegetables from at least
two different vegetable subgroups as defined in Sec. 210.10(c)(2)(ii)
of this chapter. Fresh, frozen, or canned vegetables and dry beans,
peas, and lentils may be offered to meet the fruit requirement. All
[[Page 112]]
vegetables are credited based on their volume as served, except that 1
cup of leafy greens counts as \1/2\ cup of vegetables and tomato paste
and tomato puree are credited based on calculated volume of the whole
food equivalency. Pasteurized, full-strength vegetable juice may be
offered to meet no more than one-half of the vegetable component. Cooked
dry beans, peas, and lentils may be counted as either a vegetable or as
a meat/meat alternate but not as both in the same dish.
(iii) Grains. Grains offered at breakfast count toward the combined
grains and meats/meat alternates component. Schools may offer grains,
meats/meat alternates, or a combination of both to meet the daily and
weekly ounce equivalents for this combined component. Information on
crediting grain items may be found in FNS guidance.
(A) Whole grain-rich requirement. Whole grain-rich is the term
designated by FNS to indicate that the grain content of a product is
between 50 and 100 percent whole grain with any remaining grains being
enriched. At least 80 percent of grains offered at breakfast weekly,
based on ounce equivalents, must meet the whole grain-rich criteria as
defined in Sec. 220.2, and the remaining grain items offered must be
enriched.
(B) Breakfast cereals. By July 1, 2025, breakfast cereals must
contain no more than 6 grams of added sugars per dry ounce.
(C) Daily and weekly servings. The grains component is based on
minimum daily servings plus total servings over a 5-day school week.
Schools serving breakfast 6 or 7 days per week must increase the weekly
grains quantity by approximately 20 percent (\1/5\) for each additional
day. When schools operate less than 5 days per week, they may decrease
the weekly quantity by approximately 20 percent (\1/5\) for each day
less than 5.
(iv) Meats/meat alternates. Meats/meat alternates offered at
breakfast count toward the combined grains and meats/meat alternates
component. Schools may offer grains, meats/meat alternates, or a
combination of both to meet the daily and weekly ounce equivalents for
this combined component. Information on crediting meats/meat alternates
may be found in FNS guidance.
(A) Enriched macaroni. Enriched macaroni with fortified protein, as
defined in appendix A to part 210 of this chapter, may be used to meet
part of the meats/meat alternates requirement when used as specified in
appendix A to part 210.
(B) Nuts and seeds. Nuts and seeds and their butters are allowed as
meat alternates. Acorns, chestnuts, and coconuts do not credit as meat
alternates because of their low protein and iron content. Nut and seed
meals or flours may credit only if they meet the requirements for
Alternate Protein Products established in appendix A to this part.
(C) Yogurt. Yogurt may be offered to meet all or part of the
combined grains and meats/meat alternates component. Yogurt may be plain
or flavored, unsweetened or sweetened. By July 1, 2025, yogurt must
contain no more than 12 grams of added sugars per 6 ounces (2 grams of
added sugars per ounce). Noncommercial and/or non-standardized yogurt
products, such as frozen yogurt, drinkable yogurt products, homemade
yogurt, yogurt flavored products, yogurt bars, yogurt covered fruits
and/or nuts or similar products are not creditable. Four ounces (weight)
or \1/2\ cup (volume) of yogurt equals one ounce of the meats/meat
alternates requirement.
(D) Tofu and soy products. Commercial tofu and soy products may be
offered to meet all or part of the combined grains and meats/meat
alternates component. Noncommercial and/or non-standardized tofu and
products are not creditable.
(E) Beans, peas, and lentils. Cooked dry beans, peas, and lentils
may be used to meet all or part of the combined grains and meats/meat
alternates component. Beans, peas, and lentils are identified in this
section and include foods such as black beans, garbanzo beans, lentils,
kidney beans, mature lima beans, navy beans, pinto beans, and split
peas. Cooked dry beans, peas, and lentils may be counted as either a
vegetable or as a meat/meat alternate but not as both in the same dish.
(F) Other meat alternates. Other meat alternates, such as cheese and
eggs, may be used to meet all or part of the
[[Page 113]]
combined grains and meats/meat alternates component.
(v) Fluid milk component. Fluid milk must be offered daily in
accordance with paragraph (d) of this section.
(3) Grain substitutions. (i) Schools in American Samoa, Guam,
Hawaii, Puerto Rico, and the U.S. Virgin Islands may serve any
vegetable, including vegetables such as breadfruit, prairie turnips,
plantains, sweet potatoes, and yams, to meet the combined grains and
meats/meat alternates component.
(ii) School food authorities and schools that are tribally operated,
operated by the Bureau of Indian Education, and that serve primarily
American Indian or Alaska Native children, may serve any vegetable,
including vegetables such as breadfruit, prairie turnips, plantains,
sweet potatoes, and yams, to meet the combined grains and meats/meat
alternates component.
(4) Traditional Indigenous foods. Traditional Indigenous foods may
credit toward the required meal components. Information on food
crediting may be found in FNS guidance. Schools are encouraged to serve
traditional Indigenous foods as part of their breakfast service. Per the
Agriculture Improvement Act of 2014, as amended (25 U.S.C. 1685(b)(5))
traditional foods means food that has traditionally been prepared and
consumed by an American Indian tribe, including wild game meat; fish;
seafood; marine mammals; plants; and berries.
(d) Fluid milk requirements. Schools must offer students a variety
(at least two different options) of fluid milk at breakfast daily. All
fluid milk must be fat-free (skim) or low-fat (1 percent fat or less).
Milk with higher fat content is not creditable. Low-fat or fat-free
lactose-free and reduced-lactose fluid milk may also be offered. Milk
may be flavored or unflavored, provided that unflavored milk is offered
at each meal service. By July 1, 2025, flavored milk must contain no
more than 10 grams of added sugars per 8 fluid ounces, or for flavored
milk sold as competitive food for middle and high schools, 15 grams of
added sugars per 12 fluid ounces. Schools must also comply with other
applicable fluid milk requirements in Sec. 210.10(d) of this chapter.
(e) Offer versus serve for grades K through 12. School breakfast
must offer daily at least the three meal components required in the meal
pattern in paragraph (c) of this section. To exercise the offer versus
serve option at breakfast, a school food authority or school must offer
a minimum of four food items daily as part of the required components.
Under offer versus serve, students are allowed to decline one of the
four food items, provided that students select at least \1/2\ cup of the
fruit component for a reimbursable meal. If only three food items are
offered at breakfast, school food authorities or schools may not
exercise the offer versus serve option.
(f) Dietary specifications--(1) Calories. School breakfasts offered
to each age/grade group must meet, on average over the school week, the
minimum and maximum calorie levels specified in the following table:
Table 2 to Paragraph (f)(1)--School Breakfast Program Calorie Ranges
----------------------------------------------------------------------------------------------------------------
Grades K-5 Grades 6-8 Grades 9-12
----------------------------------------------------------------------------------------------------------------
Average Daily Minimum-Maximum Calories (kcal) \1\............ 350-500 400-550 450-600
----------------------------------------------------------------------------------------------------------------
\1\ The average daily amount must fall within the minimum and maximum levels. Discretionary sources of calories
may be added to the meal pattern if within the dietary specifications.
(2) Saturated fat. School breakfast offered to all age/grade groups
must, on average over the school week, provide less than 10 percent of
total calories from saturated fat.
(3) Added sugars. By July 1, 2027, school breakfasts offered to all
age/grade groups must, on average over the school week, provide less
than 10 percent of total calories from added sugars.
(4) Sodium. School breakfasts offered to each age/grade group must
meet, on average over the school week, the levels of sodium specified in
the following table within the established deadlines:
[[Page 114]]
Table 3 to Paragraph (f)(4)--School Breakfast Program Sodium Limits
------------------------------------------------------------------------
Sodium limit:
Sodium limit: in must be
Age/grade group place through implemented by
June 30, 2027 July 1, 2027
(mg) (mg)
------------------------------------------------------------------------
Grades K-5........................ <=540 <=485
Grades 6-8........................ <=600 <=535
Grades 9-12....................... <=640 <=570
------------------------------------------------------------------------
(g) Compliance assistance. The State agency and school food
authority must provide technical assistance and training to assist
schools in planning breakfasts that meet the meal pattern in paragraph
(c) of this section, the dietary specifications established in paragraph
(f) of this section, and the meal pattern in paragraphs (o) and (p) of
this section, as applicable. Compliance assistance may be offered during
training, onsite visits, and/or administrative reviews.
(h) State agency responsibilities for monitoring dietary
specifications. When required by the Administrative Review process set
forth in Sec. 210.18 of this chapter, the State agency must conduct a
weighted nutrient analysis to evaluate the average levels of calories,
saturated fat, added sugars, and sodium of the breakfasts offered to
students in grades K-12 during one week within the review period. The
nutrient analysis must be conducted in accordance with the procedures
established in Sec. 210.10(i)(3) of this chapter. If the results of the
nutrient analysis indicate that the school breakfasts do not meet the
specifications for calories, saturated fat, added sugars, or sodium
specified in paragraph (f) of this section, the State agency or school
food authority must provide technical assistance and require the
reviewed school to take corrective action to meet the requirements.
(i) Nutrient analyses of school meals. Any nutrient analysis of
school breakfasts conducted under the administrative review process set
forth in Sec. 210.18 of this chapter must be performed in accordance
with the procedures established in Sec. 210.10(i) of this chapter. The
purpose of the nutrient analysis is to determine the average levels of
calories, saturated fat, added sugars, and sodium in the breakfasts
offered to each age grade group over a school week.
(j) Responsibility for monitoring meal requirements. Compliance with
the applicable breakfast requirements in paragraph (b) of this section,
including the dietary specifications, and paragraphs (o) and (p) of this
section will be monitored by the State agency through administrative
reviews authorized in Sec. 210.18 of this chapter.
(k) Menu choices at breakfast. The requirements in Sec. 210.10(k)
of this chapter also apply to this Program.
(l) Requirements for breakfast period--(1) Timing. Schools must
offer breakfasts meeting the requirements of this section at or near the
beginning of the school day.
(2) [Reserved]
(m) Modifications and variations in reimbursable meals. The
requirements in Sec. 210.10(m) of this chapter also apply to this
Program.
(n) Nutrition disclosure. The requirements in Sec. 210.10(n) of
this chapter also apply to this Program.
(o) Breakfast requirements for preschoolers--(1) Breakfasts served
to preschoolers. Schools serving breakfast to preschoolers under the
School Breakfast Program must serve the meal components and quantities
required in the breakfast meal pattern established for the Child and
Adult Care Food Program under Sec. 226.20(a), (c)(1), and (d) of this
chapter. In addition, schools serving breakfasts to this age group must
comply with the requirements set forth in paragraphs (a), (c)(3), (g),
and (k) through (m) of this section, as applicable.
(2) Preschooler breakfast meal pattern table. The minimum amounts of
meal components to be served at breakfast are as follows:
[[Page 115]]
Table 4 to Paragraph (o)(2)--Preschool Breakfast Meal Pattern
[Select the appropriate components for a reimbursable meal]
----------------------------------------------------------------------------------------------------------------
Minimum quantities
Meal components and food items \1\ ----------------------------------------------------------------------------
Ages 1-2 Ages 3-5
----------------------------------------------------------------------------------------------------------------
Fluid Milk \2\..................... 4 fluid ounces....................... 6 fluid ounces.
Vegetables, Fruits, or portions of \1/4\ cup............................ \1/2\ cup.
both \3\.
Grains (oz. eq.) \4\............... \1/2\ ounce equivalent............... \1/2\ ounce equivalent.
----------------------------------------------------------------------------------------------------------------
\1\ Must serve all three components for a reimbursable meal.
\2\ Must be unflavored whole milk for children age one. Must be unflavored low-fat (1 percent) or unflavored fat-
free (skim) milk for children two through five years old.
\3\ Pasteurized full-strength juice may only be offered to meet the vegetable or fruit requirement at one meal,
including snack, per day.
\4\ At least one serving per day, across all eating occasions, must be whole grain-rich. Grain-based desserts do
not count toward meeting the grains requirement. Meats/meat alternates may be offered in place of the entire
grains requirement, up to 3 times per week at breakfast. One ounce equivalent of a meat/meat alternate credits
equal to one ounce equivalent of grains. Through September 30, 2025, breakfast cereals must contain no more
than 6 grams of total sugars per dry ounce. By October 1, 2025, breakfast cereals must contain no more than 6
grams of added sugars per dry ounce. Information on crediting grain items and meats/meat alternates may be
found in FNS guidance.
(p) Breakfast requirements for infants--(1) Breakfasts served to
infants. Schools serving breakfasts to infants ages birth through 11
months under the School Breakfast Program must serve the meal components
and quantities required in the breakfast meal pattern established for
the Child and Adult Care Food Program, under Sec. 226.20(a), (b), and
(d) of this chapter. In addition, schools serving breakfasts to infants
must comply with the requirements set forth in paragraphs (a), (c)(3),
(g), and (k) through (m) of this section as applicable.
(2) Infant breakfast meal pattern table. The minimum amounts of meal
components to be served at breakfast are as follows:
Table 5 to Paragraph (p)(2)--Infant Breakfast Meal Pattern
------------------------------------------------------------------------
Birth through 5 months 6 through 11 months
------------------------------------------------------------------------
4-6 fluid ounces breast milk \1\ or 6-8 fluid ounces breast milk
formula \2\. \1\ or formula; \2\ and
0-\1/2\ ounce equivalent infant
cereal; 2 3 or
0-4 tablespoons meat, fish,
poultry, whole egg, cooked dry
beans, peas, or lentils; or
0-2 ounces of cheese; or
0-4 ounces (volume) of cottage
cheese; or
0-4 ounces or \1/2\ cup of
yogurt; \4\ or a combination
of the above; \5\ and
0-2 tablespoons vegetable or
fruit, or a combination of
both.5 6
------------------------------------------------------------------------
\1\ Breast milk or formula, or portions of both, must be served;
however, it is recommended that breast milk be served from birth
through 11 months. For some breastfed infants who regularly consume
less than the minimum amount of breast milk per feeding, a serving of
less than the minimum amount of breast milk may be offered, with
additional breast milk offered at a later time if the infant will
consume more.
\2\ Infant formula and dry infant cereal must be iron-fortified.
\3\ Information on crediting grain items may be found in FNS guidance.
\4\ Through September 30, 2025, yogurt must contain no more than 23
grams of total sugars per 6 ounces. By October 1, 2025, yogurt must
contain no more than 12 grams of added sugars per 6 ounces (2 grams of
added sugars per ounce).
\5\ A serving of this component is required when the infant is
developmentally ready to accept it.
\6\ Fruit and vegetable juices must not be served.
(q) Severability. If any provision of this section is held to be
invalid or unenforceable by its terms, or as applied to any person or
circumstances, it shall be severable from this section and not affect
the remainder thereof. In the event of such holding of invalidity or
unenforceability of a provision, the meal pattern requirements covered
by that provision reverts to the version immediately preceding the
invalidated provision.
[77 FR 4154, Jan. 26, 2012, as amended at 78 FR 39093, June 28, 2013; 81
FR 24375, Apr. 25, 2016; 81 FR 50193, July 29, 2016; 81 FR 75675, Nov.
1, 2016; 82 FR 56714, Nov. 30, 2017; 83 FR 63790, Dec. 12, 2018; 84 FR
50292, Sept. 25, 2019; 85 FR 7854, Feb. 12, 2020; 85 FR 74849, Nov. 24,
2020; 86 FR 57546, Oct. 18, 2021; 87 FR 7006, Feb. 7, 2022; 87 FR 47332,
Aug. 3, 2022; 87 FR 52329, Aug. 25, 2022; 89 FR 32080, Apr. 25, 2024]
[[Page 116]]
Sec. 220.9 Reimbursement payments.
(a) State agencies, or FNSRO's where applicable, shall make
reimbursement payments to schools only in connection with breakfasts
meeting the requirements of Sec. 220.8, and reported in accordance with
Sec. 220.11(b) of this part. School Food Authorities shall plan for and
prepare breakfasts on the basis of participation trends, with the
objective of providing one breakfast per child per day. Production and
participation records shall be maintained to demonstrate positive action
toward this objective. In recognition of the fluctuation in
participation levels which makes it difficult to precisely estimate the
number of breakfasts needed and to reduce the resultant waste, any
excess breakfasts that are prepared may be served to eligible children
and may be claimed for reimbursement unless the State agency, or FNSRO
where applicable, determines that the School Food Authority has failed
to plan and prepare breakfasts with the objective of providing one
breakfast per child per day. In no event shall the School Food Authority
claim reimbursement for free and reduced price breakfasts in excess of
the number of children approved for free and reduced price meals.
(b) The rates of reimbursement for breakfasts served to eligible
children in schools not in severe need are the applicable national
average payment factors for breakfasts. The maximum rates of
reimbursement for breakfasts served to eligible children in schools
determined to be in severe need are those prescribed by the Secretary.
National average payment factors and maximum rates of reimbursement for
the School Breakfast Program shall be prescribed annually by the
Secretary in the Federal Register.
(c) The total reimbursement for breakfasts served to eligible
children in schools not in severe need, and schools in severe need
during the school year shall not exceed the sum of the products obtained
by multiplying the total numbers of such free, reduced price and paid
breakfasts, respectively, by the applicable rate of reimbursement for
each type of breakfast as prescribed for the school year.
(d) The State agency, or FNSRO where applicable, shall determine
whether a school is in severe need based on the following eligibility
criteria:
(1) The school is participating in or desiring to initiate a
breakfast program; and
(2) At least 40 percent of the lunches served to students at the
school in the second preceding school year were served free or at a
reduced price. Schools that did not serve lunches in the second
preceding year and that would like to receive reimbursement at the
severe need rate may apply to their administering State agency. The
administering State agency shall approve or deny such requests in
accordance with guidance, issued by the Secretary, that determines that
the second preceding school year requirement would otherwise have been
met.
(Sec. 6, Pub. L. 95-627, 92 Stat. 3620 (42 U.S.C. 1776; secs. 801, 803,
812; Pub. L. 97-35, 95 Stat. 521-535, 42 U.S.C. 1753, 1759(a), 1758,
1773; sec. 819, Pub. L. 97-35, 95 Stat. 533 (42 U.S.C. 1759a, 1773 and
1757); 44 U.S.C. 3506))
[Amdt. 25, 41 FR 34760, Aug. 17, 1976, as amended by Amdt. 29, 44 FR
48159, Aug. 17, 1979; Amdt. 38, 46 FR 50928, Oct. 16, 1981; 46 FR 51368,
Oct. 20, 1981; 47 FR 746, Jan. 7, 1982; 47 FR 31375, July 20, 1982; 48
FR 40196, 40197, Sept. 6, 1983; 60 FR 31222, June 13, 1995; 65 FR 26923,
May 9, 2000; 70 FR 66249, Nov. 2, 2005]
Sec. 220.10 Effective date for reimbursement.
Reimbursement payments under the School Breakfast Program may be
made only to School Food Authorities operating under an agreement with
the State Agency or the Department, and may be made only after execution
of the agreement. Such payments may include reimbursement in connection
with breakfasts served in accordance with provisions of the program in
the calendar month preceding the calendar month in which the agreement
is executed.
[32 FR 35, Jan. 5, 1967, as amended by Amdt. 9, 37 FR 9613, May 13,
1972]
Sec. 220.11 Reimbursement procedures.
(a) To be entitled to reimbursement under this part, each School
Food Authority shall submit to the State agency, or FNSRO where
applicable, a monthly Claim for Reimbursement.
[[Page 117]]
(b) Claims for Reimbursement shall include data in sufficient detail
to justify the reimbursement claimed and to enable the State agency to
provide the Reports of School Program Operations required under Sec.
220.13(b)(2). Unless otherwise approved by FNS, the Claim for
Reimbursement for any month shall include only breakfasts served in that
month except if the first or last month of Program operations for any
year contains 10 operating days or less, such month may be added to the
Claim for Reimbursement for the appropriate adjacent month; however,
Claims for Reimbursement may not combine operations occurring in two
fiscal years. If a single State agency administers any combination of
the Child Nutrition Programs, the SFA shall be able to use a common
claim form with respect to claims for reimbursement for meals served
under those programs. A final Claim for Reimbursement shall be
postmarked and/or submitted to the State agency, or FNSRO where
applicable, not later than 60 days following the last day of the full
month covered by the claim. State agencies may establish shorter
deadlines at their discretion. Claims not postmarked and/or submitted
within 60 days shall not be paid with Program funds unless FNS
determines that an exception should be granted. The State agency, or
FNSRO where applicable, shall promptly take corrective action with
respect to any Claim for Reimbursement as determined necessary through
its claim review process or otherwise. In taking such corrective action,
State agencies may make upward adjustments in Program funds claimed on
claims filed within the 60 day deadline if such adjustments are
completed within 90 days of the last day of the claim month and are
reflected in the final Report of School Program Operations (FNS-10) for
the claim month which is required under Sec. 220.13(b)(2). Upward
adjustments in Program funds claimed which are not reflected in the
final FNS-10 for the claim month shall not be made unless authorized by
FNS. Downward adjustments in Program funds claimed shall always be made,
without FNS authorization, regardless of when it is determined that such
adjustments are necessary.
(c) Where a school participates in both the National School Lunch
Program and the School Breakfast Program, the State agency or FNSRO,
where applicable, may authorize the submission of one claim for
reimbursement to cover both programs.
(d) The school food authority shall establish internal controls
which ensure the accuracy of breakfast counts prior to the submission of
the monthly Claim for Reimbursement. At a minimum, these internal
controls shall include: an on-site review of the breakfast counting and
claiming system employed by each school within the jurisdiction of the
school food authority; comparisons of daily free, reduced price and paid
breakfast counts against data which will assist in the identification of
breakfast counts in excess of the number of free, reduced price and paid
breakfasts served each day to children eligible for such breakfasts; and
a system for following up on those breakfast counts which suggest the
likelihood of breakfast counting problems.
(1) On-site reviews. Every school year, each school food authority
with more than one school shall perform no less than one on-site review
of the breakfast counting and claiming system and the readily observable
general areas of review identified under Sec. 210.18(h) of this
chapter, as specified by FNS, for a minimum of 50 percent of schools
under its jurisdiction with every school within the jurisdiction being
reviewed at least once every two years. The on-site review shall take
place prior to February 1 of each school year. Further, if the review
discloses problems with a school's meal counting or claiming procedures
or general review areas, the school food authority shall ensure that the
school implements corrective action, and within 45 days of the review,
conduct a follow-up on-site review to determine that the corrective
action resolved the problems. Each on-site review shall ensure that the
school's claim is based on the counting system and that the counting
system, as implemented, yields the actual number of reimbursable free,
reduced price and paid breakfasts, respectively, served for each day of
operation.
(2) School food authority claims review process. Prior to the
submission of a
[[Page 118]]
monthly Claim for Reimbursement, each school food authority shall review
the breakfast count data for each school under its jurisdiction to
ensure the accuracy of the monthly Claim for Reimbursement. The
objective of this review is to ensure that monthly claims include only
the number of free, reduced price and paid breakfasts served on any day
of operation to children currently eligible for such breakfasts.
(e) Notwithstanding any other provision of this section, the State
agency, or FNSRO where applicable, may advance funds available for the
School Breakfast Program to a School Food Authority in an amount equal
to the reimbursement estimated for the total number of breakfasts,
including free and reduced price breakfasts, to be served to children
for 1 month. The State agency, or FNSRO where applicable, shall require
School Food Authorities who receive advances of funds under the
provisions of this paragraph to make timely submissions of claims for
reimbursement on a monthly basis and shall suspend advances of funds in
the absence of such timely submissions. Following the receipt of claims
the State agency, or FNSRO where applicable, shall make such adjustments
as are necessary in such advances of funds to insure that the total
amount of reimbursement received by a School Food Authority for the
fiscal year will not exceed an amount equal to the number of breakfasts,
including free and reduced price breakfast, served to children times the
respective rates of reimbursement assigned by the State agency, or FNSRO
where applicable, in accordance with Sec. 220.9.
(Title 1, Chapter I, Pub. L. 96-38, 93 Stat. 98 (42 U.S.C. 1776a); secs.
807 and 808, Pub. L. 97-35, 95 Stat. 521-535, 42 U.S.C. 1772, 1784,
1760; sec. 819, Pub. L. 97-35, 95 Stat. 533 (42 U.S.C. 1759a, 1773,
1757); Pub. L. 97-370, 96 Stat. 1806)
[32 FR 35, Jan. 5, 1967, as amended by Amdt. 9, 37 FR 9613, May 13,
1972; 40 FR 30924, July 24, 1975; 45 FR 82622, Dec. 16, 1980; 47 FR
31376, July 20, 1982; 48 FR 40196, Sept. 6, 1983; Amdt. 49, 49 FR 18987,
May 4, 1984; 64 FR 50742, Sept. 20, 1999; 81 FR 50193, July 29, 2016]
Sec. 220.12 Competitive food services.
School food authorities must comply with the competitive food
service and standards requirements specified in Sec. 210.11 of this
chapter.
[78 FR 39093, June 28, 2013]
Sec. 220.13 Special responsibilities of State agencies.
(a) [Reserved]
(a-1) Each State agency, or FNSRO where applicable, shall require
each School Food Authority of a school participating in the School
Breakfast Program to develop and file for approval a free and reduced
price policy statement in accordance with paragraph (a) of Sec. 220.7.
(b) Records and reports. (1) Each State agency shall maintain
Program records as necessary to support the reimbursement payments made
to School Food Authorities under Sec. 220.9 and the reports submitted
to FNS under Sec. 220.13(b)(2). The records may be kept in their
original form or on microfilm, and shall be retained for a period of
three years after the date of submission of the final Financial Status
Report for the fiscal year, except that if audit findings have not been
resolved, the records shall be retained beyond the three-year period as
long as required for the resolution of the issues raised by the audit.
(2) Each State agency shall submit to FNS a final Report of School
Program Operations (FNS-10) for each month which shall be limited to
claims submitted in accordance with Sec. 220.11(b) and which shall be
postmarked and/or submitted no later than 90 days following the last day
of the month covered by the report. States shall not receive Program
funds for any month for which the final report is not submitted within
this time limit unless FNS grants an exception. Upward adjustments to a
State agency's report shall not be made after 90 days from the month
covered by the report unless authorized by FNS. Downward adjustments
shall always be made, without FNS authorization, regardless of when it
is determined that such adjustments are necessary. Adjustments shall be
reported to FNS in accordance with procedures established by FNS. Each
State agency shall also submit to FNS a quarterly Financial Status
Report (FNS-777) on the use of Program funds. Such reports shall be
postmarked and/
[[Page 119]]
or submitted no later than 30 days after the end of each fiscal year
quarter. Obligations shall be reported only for the fiscal year in which
they occur. A final Financial Status Report for each fiscal year shall
be postmarked and/or submitted to FNS within 120 days after the end of
the fiscal year. FNS shall not be responsible for reimbursing unpaid
Program obligations reported later than 120 days after the close of the
fiscal year in which they were incurred.
(3) Each State agency must keep the records supplied by school food
authorities showing the number of food safety inspections obtained by
schools for the current and three most recent school years.
(c) Each State agency must promptly investigate complaints received
or irregularities noted in connection with the operation of either
program, and must take appropriate action to correct any irregularities.
State agencies must maintain on file evidence of such investigations and
actions. FNS will make investigations at the request of the State agency
or where FNS determines investigations are appropriate.
(d) The State agency shall release to FNS any Federal funds made
available to it under the Act which are unobligated at the end of each
fiscal year. Any such funds shall remain available to FNS for the
purposes of the programs authorized by the Act until expended. Release
of funds by the State Agency shall be made as soon as practicable, but
in any event not later than 30 days following demand by FNSRO and shall
be reflected by related adjustment in the State Agency's Letter of
Credit.
(e) State agencies shall provide School Food Authorities with
monthly information on foods available in plentiful supply, based on
information provided by the Department.
(f) Each State agency shall provide program assistance as follows:
(1) Each State agency or FNSRO where applicable shall provide
consultative, technical, and managerial personnel to administer
programs, monitor performance, and measure progress toward achieving
program goals.
(2) State agencies must conduct administrative reviews of the school
meal programs specified in Sec. 210.18 of this chapter to ensure that
schools participating in the designated programs comply with the
provisions of this title. The reviews of selected schools must focus on
compliance with the critical and general areas of review identified in
Sec. 210.18 for each program, as applicable, and must be conducted as
specified in the FNS Administrative Review Manual for each program.
School food authorities may appeal a denial of all or a part of the
Claim for Reimbursement or withholding of payment arising from review
activity conducted by the State agency under Sec. 210.18 of this
chapter or by FNS under Sec. 210.29(d)(2) of this chapter. Any such
appeal shall be subject to the procedures set forth under Sec.
210.18(p) of this chapter or Sec. 210.29(d)(3) of this chapter, as
appropriate.
(3) For the purposes of compliance with the meal requirements in
Sec. 220.8, the State agency must follow the provisions specified in
Sec. 210.18(g) of this chapter, as applicable.
(4) State agency assistance must include visits to participating
schools selected for administrative reviews under Sec. 210.18 of this
chapter to ensure compliance with program regulations and with the
Department's nondiscrimination regulations (part 15 of this title),
issued under title VI, of the Civil Rights Act of 1964.
(5) Documentation of such assistance shall be maintained on file by
the State agency, or FNSRO where applicable.
(g) State agencies shall adequately safeguard all assets and monitor
resource management as required under Sec. 210.18 of this chapter, and
in conformance with the procedures specified in the FNS Administrative
Review Manual, to assure that assets are used solely for authorized
purposes.
(h) [Reserved]
(i) Each State agency, or FNS where applicable, shall establish a
financial management system under which School Food Authorities shall
account for all revenues and expenditures of their nonprofit school food
service. The system shall prescribe the allowability of nonprofit school
food service expenditures in accordance with this part and
[[Page 120]]
2 CFR part 200, subpart D and E, as applicable, and USDA implementing
regulations 2 CFR part 400 and part 415, as applicable. The system shall
permit determination of school food service net cash resources, and
shall include any criteria for approval of net cash resources in excess
of three months average expenditures. In addition, School Food
Authorities shall be required to account separately for other food
services which are operated by the School Food Authority.
(j) During audits, administrative reviews, or by other means, State
agencies, or FNSROs where applicable, shall be responsible for
monitoring the net cash resources of the nonprofit school food service
of each School Food Authority participating in the Program. In the event
that such resources exceed three months average expenditures for the
School Food Authority's nonprofit school food service, or such amount as
may be approved by the State agency or FNSRO where applicable, the State
agency or FNSRO where applicable, may require the School Food Authority
to reduce children's prices, improve food quality or take other actions
designed to improve the nonprofit school food service. In the absence of
any such action, adjustments in the rates of reimbursement under the
Program shall be made.
(k) State agencies shall require compliance by School Food
Authorities with applicable provisions of this part.
(l) Program evaluations. States, State agencies, and contractors
must cooperate in studies and evaluations conducted by or on behalf of
the Department, related to programs authorized under the Richard B.
Russell National School Lunch Act and the Child Nutrition Act of 1966.
(44 U.S.C. 3506; sec. 812, Pub. L. 97-35, 95 Stat. 521-535 (42 U.S.C.
1759a); sec. 819, Pub. L. 97-35, 95 Stat. 533 (42 U.S.C. 1759a, 1773 and
1757); Pub. L. 79-396, 60 Stat. 231 (42 U.S.C. 1751); Pub. L. 89-642, 80
Stat 885-890 (42 U.S.C. 1773); Pub. L. 91-248, 84 Stat. 207 (42 U.S.C.
1759))
[32 FR 37, Jan. 5, 1967. Redesignated by Amdt. 2, 33 FR 14513, Sept. 27,
1968]
Editorial Note: For Federal Register citations affecting Sec.
220.13, see the List of CFR Sections Affected, which appears in the
Finding Aids section of the printed volume and at www.govinfo.gov.
Sec. 220.14 Claims against school food authorities.
(a) State agencies shall disallow any portion of a claim and recover
any payment made to a School Food Authority that was not properly
payable under this part. State agencies will use their own procedures to
disallow claims and recover overpayments already made.
(b) [Reserved]
(c) The State agency may refer to FNS for determination any action
it proposes to take under this section.
(d) The State agency shall maintain all records pertaining to action
taken under this section. Such records shall be retained for a period of
3 years after the end of the fiscal year to which they pertain.
(e) If FNS does not concur with the State agency's action in paying
a claim or a reclaim, or in failing to collect an overpayment, FNS will
assert a claim against the State agency for the amount of such claim,
reclaim, or overpayment. In all such cases the State agency will have
full opportunity to submit to FNS evidence or information concerning the
action taken. If, in the determination of FNS, the State agency's action
was unwarranted, the State agency must promptly pay to FNS the amount of
the claim, reclaim, or overpayment.
(f) The amounts recovered by the State agency from Schools may be
utilized, first, to make payments to School Food Authorities for the
purposes of the related program during the fiscal year for which the
funds were initially available, and second to repay any State funds
expended in the reimbursement of claims under the program and not
otherwise repaid. Any amounts recovered which are not so utilized shall
be returned to FNS in accordance with the requirements of this part.
(g) With respect to School Food Authorities of schools in which the
program is administered by FNSRO, when FNSRO disallows a claim or a
portion of a claim, or makes a demand for refund of an alleged
overpayment, it shall notify the School Food Authority of the reasons
for such disallowance or demand and the School Food Authority shall have
full opportunity to submit evidence or to file reclaims for any amounts
disallowed or demanded in the
[[Page 121]]
same manner as that afforded in this section to School Food Authorities
of schools in which the program is administered by State agencies.
(h) In the event that the State agency or FNSRO, where applicable,
finds that a school food authority is failing to meet the requirements
of Sec. 220.8 of this part, the State agency or FNSRO need not disallow
payment or collect an overpayment arising out of such failure, if the
State agency or FNSRO takes such other action as, in its opinion, will
have a corrective effect.
(i) The Secretary shall have the authority to determine the amount
of, to settle, and to adjust any claim arising under the Program, and to
compromise or deny such claim or any part thereof. The Secretary shall
also have the authority to waive such claims if the Secretary determines
that to do so would serve the purposes of the Program. This provision
shall not diminish the authority of the Attorney General of the United
States under section 516 of Title 28, U.S. Code, to conduct litigation
on behalf of the United States.
(44 U.S.C. 3506; secs. 804, 816 and 817, Pub. L. 97-35, 95 Stat. 521-535
(42 U.S.C. 1753, 1756, 1759, 1771 and 1785))
[32 FR 37, Jan. 5, 1967. Redesignated by Amdt. 2, 33 FR 14513, Sept. 27,
1968, and amended by Amdt. 9, 37 FR 9614, May 13, 1972; 40 FR 30925,
July 24, 1975. Redesignated and amended by Amdt. 25, 41 FR 34757, 34760,
Aug. 17, 1976; 47 FR 746, Jan. 7, 1982; Amdt. 42, 47 FR 14134, Apr. 2,
1982; 60 FR 31222, June 13, 1995; 65 FR 26931, May 9, 2000; 81 FR 50194,
July 29, 2016; 89 FR 32084, Apr. 25, 2024]
Sec. 220.15 Management evaluations and audits.
(a) Unless otherwise exempt, audits at the State and institution
levels shall be conducted in accordance with 2 CFR part 200, subpart F
and Appendix XI, Compliance Supplement, and USDA implementing
regulations 2 CFR part 400 and part 415.
(b) Each State agency shall provide FNS with full opportunity to
conduct management evaluations (including visits to schools) of all
operations of the State agency under the programs covered by this part
and shall provide OIG with full opportunity to conduct audits (including
visits to schools) of all operations of the State agency under such
programs. Each State agency shall make available its records, including
records of the receipt and expenditure of funds under such programs,
upon a reasonable request by FNS or OIG. OIG shall also have the right
to make audits of the records and operations of any school.
(c) In conducting management evaluations, reviews, or audits in a
fiscal year, the State agency, FNS, or OIG may disregard an overpayment
if the overpayment does not exceed $600. A State agency may establish,
through State law, regulation or procedure, an alternate disregard
threshold that does not exceed $600. This disregard may be made once per
each management evaluation, review, or audit per Program within a fiscal
year. However, no overpayment is to be disregarded where there is
substantial evidence of violations of criminal law or civil fraud
statutes.
(Secs. 805 and 819, Pub. L. 97-35, 95 Stat. 521-535 (42 U.S.C. 1773);
sec. 812, Pub. L. 97-35, 95 Stat. 521-535 (42 U.S.C. 1759a))
[40 FR 30925, July 24, 1975. Redesignated and amended by Amdt. 25, 41 FR
34757, 34760, Aug. 17, 1976; 43 FR 59825, Dec. 22, 1978; Amdt. 41, 47 FR
14135, Apr. 2, 1982; Amdt. 43, 47 FR 18564, Apr. 30, 1982; Amdt. 56, 54
FR 2990, Jan. 23, 1989; 57 FR 38587, Aug. 26, 1992; 59 FR 1894, Jan. 13,
1994; 64 FR 50742, Sept. 20, 1999; 71 FR 30563, May 30, 2006; 71 FR
39517, July 13, 2006; 81 FR 66491, Sept. 28, 2016]
Sec. 220.16 Procurement standards.
(a) General. State agencies and school food authorities shall comply
with the requirements of this part 2 CFR part 200, subpart D and USDA
implementing regulations 2 CFR part 400 and part 415, as applicable,
which implement the applicable Office of Management and Budget
Circulars, concerning the procurement of all goods and services with
nonprofit school food service account funds.
(b) Contractual responsibilities. The standards contained in 2 CFR
part 200, subpart D and USDA implementing regulations 2 CFR part 400 and
part 415, as applicable, do not relieve the State agency or School Food
Authority of any contractual responsibilities under its contract. The
State agency or School Food Authority is the responsible authority,
without recourse to
[[Page 122]]
FNS, regarding the settlement and satisfaction of all contractual and
administrative issues arising out of procurements entered into in
connection with the Program. This includes but is not limited to: Source
evaluation, protests, disputes, claims, or other matters of a
contractual nature. Matters concerning violation of law are to be
referred to the local, State or Federal authority that has proper
jurisdiction.
(c) Procedures. The State agency may elect to follow either the
State laws, policies and procedures as authorized by 2 CFR 200.317, or
the procurement standards for other governmental grantees and all
governmental subgrantees in accordance with 2 CFR 200.318 through 2 CFR
200.326. Regardless of the option selected, States must ensure that all
contracts include any clauses required by Federal statutes and executive
orders and that the requirements of 2 CFR 200.326 are followed. The
school food authority may use its own procurement procedures which
reflect applicable State and local laws and regulations, provided that
procurements made with nonprofit school food service account funds
adhere to the standards set forth in this part 2 CFR 200.326 and
Appendix II, Contract Provisions for Non-Federal Entity Contracts Under
Federal Award as applicable. School food authority procedures must
include a written code of standards of conduct meeting the minimum
standards of 2 CFR 200.318, as applicable.
(1) Pre-issuance review requirement. The State agency may impose a
pre-issuance review requirement on a school food authority's proposed
procurement. The school food authority must make available, upon request
of the State agency, its procurement documents, including but not
limited to solicitation documents, specifications, evaluation criteria,
procurement procedures, proposed contracts and contract terms. School
food authorities shall comply with State agency requests for changes to
procurement procedures and solicitation and contract documents to ensure
that, to the State agency's satisfaction, such procedures and documents
reflect applicable procurement and contract requirements and the
requirements of this part.
(2) Prototype solicitation documents and contracts. The school food
authority must obtain the State agency's prior written approval for any
change made to prototype solicitation or contract documents before
issuing the revised solicitation documents or execution of the revised
contract.
(3) Prohibited expenditures. No expenditure may be made from the
nonprofit school food service account for any cost resulting from a
procurement failing to meet the requirements of this part.
(d) Buy American--(1) Definitions. For the purpose of this paragraph
(d):
(i) Domestic commodity or product means:
(A) An agricultural commodity that is produced in the United States;
and
(B) A food product that is processed in the United States
substantially using agricultural commodities that are produced in the
United States.
(ii) Substantially using agriculture commodities that are produced
in the United States means over 51 percent of a food product must
consist of agricultural commodities that were grown domestically.
(2) In general. Subject to paragraph (d)(4) of this section, a
school food authority must purchase, to the maximum extent practicable,
domestic commodities or products.
(3) Required language. School food authorities must include language
requiring the purchase of foods that meet the Buy American requirements
in paragraph (d)(1) of this section in all procurement procedures,
solicitations, and contracts.
(4) Limitations. Paragraphs (d)(2) and (3) of this section apply
only to:
(i) A school food authority located in the contiguous United States;
and
(ii) A purchase of domestic commodity or product for the school
breakfast program under this part.
(5) Exceptions. The purchase of foods not meeting the definition in
paragraph (d)(1) of this section is only permissible when the following
criteria are met:
(i) The school food authority determines that one of the following
limited exceptions is met:
(A) The product is listed in the Federal Acquisition Regulation
(FAR) at
[[Page 123]]
48 CFR 25.104 and/or is not produced or manufactured in the U.S. in
sufficient and reasonably available quantities of a satisfactory
quality; or
(B) Competitive bids reveal the cost of a United States product is
significantly higher than the non-domestic product.
(ii) Non-domestic food purchases (those that do not meet the
definition of domestic commodity or product, as defined in paragraph
(d)(1) of this section) must not exceed the following caps by the
established deadlines:
(A) By July 1, 2025, non-domestic food purchases must not exceed 10
percent of total annual commercial food costs that a school food
authority purchases per school year.
(B) By July 1, 2028, non-domestic food purchases must not exceed 8
percent of total annual commercial food costs that a school food
authority purchases per school year.
(C) By July 1, 2031, non-domestic food purchases must not exceed 5
percent of total annual commercial food costs that a school food
authority purchases per school year.
(iii) School food authorities must maintain documentation, except
when the item purchased is found on the FAR at 48 CFR 25.104 when using
an exception under paragraph (d)(5)(i) of this section.
(iv) School food authorities must maintain documentation, to
demonstrate that when using an exception under paragraph (d)(5)(i) of
this section their non-domestic food purchases do not exceed the annual
threshold specified in paragraph (d)(5)(ii) of this section.
(6) Harvested fish. To meet the definition of a domestic commodity
or product, harvested fish must meet the following requirements:
(i) Farmed fish must be harvested within the United States or any
territory or possession of the United States; and
(ii) Wild caught fish must be harvested within the Exclusive
Economic Zone of the United States or by a United States flagged vessel.
(7) Applicability to Hawaii. Paragraph (d)(2) of this section
applies to school food authorities in Hawaii with respect to domestic
commodities or products that are produced in Hawaii in sufficient
quantities to meet the needs of meals provided under the school
breakfast program under this part.
(8) Temporary accommodation. For school food authorities that
demonstrate they cannot meet the threshold, State agencies may provide
an accommodation for temporary relief from the requirement as the State
agency works with the school food authority to increase domestic
purchases.
(e) Cost reimbursable contracts--(1) Required provisions. The school
food authority must include the following provisions in all cost
reimbursable contracts, including contracts with cost reimbursable
provisions, and in solicitation documents prepared to obtain offers for
such contracts:
(i) Allowable costs will be paid from the nonprofit school food
service account to the contractor net of all discounts, rebates and
other applicable credits accruing to or received by the contractor or
any assignee under the contract, to the extent those credits are
allocable to the allowable portion of the costs billed to the school
food authority;
(ii)(A) The contractor must separately identify for each cost
submitted for payment to the school food authority the amount of that
cost that is allowable (can be paid from the nonprofit school food
service account) and the amount that is unallowable (cannot be paid from
the nonprofit school food service account), or;
(B) The contractor must exclude all unallowable costs from its
billing documents and certify that only allowable costs are submitted
for payment and records have been established that maintain the
visibility of unallowable costs, including directly associated costs in
a manner suitable for contract cost determination and verification;
(iii) The contractor's determination of its allowable costs must be
made in compliance with the applicable Departmental and Program
regulations and Office of Management and Budget cost circulars;
(iv) The contractor must identify the amount of each discount,
rebate and other applicable credit on bills and invoices presented to
the school food authority for payment and identify the
[[Page 124]]
amount as a discount, rebate, or in the case of other applicable
credits, the nature of the credit. If approved by the State agency, the
school food authority may permit the contractor to report this
information on a less frequent basis than monthly, but no less
frequently than annually;
(v) The contractor must identify the method by which it will report
discounts, rebates and other applicable credits allocable to the
contract that are not reported prior to conclusion of the contract; and
(vi) The contractor must maintain documentation of costs and
discounts, rebates, and other applicable credits, and must furnish such
documentation upon request to the school food authority, the State
agency, or the Department.
(2) Prohibited expenditures. No expenditure may be made from the
nonprofit school food service account for any cost resulting from a cost
reimbursable contract that fails to include the requirements of this
section, nor may any expenditure be made from the nonprofit school food
service account that permits or results in the contractor receiving
payments in excess of the contractor's actual, net allowable costs.
(f) Geographic preference. (1) School food authorities participating
in the Program, as well as State agencies making purchases on behalf of
such school food authorities, may apply a geographic preference when
procuring unprocessed locally grown or locally raised agricultural
products, including the use of ``locally grown'', ``locally raised'', or
``locally caught'' as procurement specifications or selection criteria
for unprocessed or minimally processed food items. When utilizing the
geographic preference to procure such products, the school food
authority making the purchase or the State agency making purchases on
behalf of such school food authorities have the discretion to determine
the local area to which the geographic preference option will be
applied, so long as there are an appropriate number of qualified firms
able to compete;
(2) For the purpose of applying the optional geographic preference
in paragraph (f)(1) of this section, ``unprocessed locally grown or
locally raised agricultural products'' means only those agricultural
products that retain their inherent character. The effects of the
following food handling and preservation techniques shall not be
considered as changing an agricultural product into a product of a
different kind or character: Cooling; refrigerating; freezing; size
adjustment made by peeling, slicing, dicing, cutting, chopping,
shucking, and grinding; forming ground products into patties without any
additives or fillers; drying/dehydration; washing; packaging (such as
placing eggs in cartons), vacuum packing and bagging (such as placing
vegetables in bags or combining two or more types of vegetables or
fruits in a single package); addition of ascorbic acid or other
preservatives to prevent oxidation of produce; butchering livestock and
poultry; cleaning fish; and the pasteurization of milk.
(Pub. L. 79-396, 60 Stat. 231 (42 U.S.C. 1751); Pub. L. 89-642, 80 Stat.
885-890 (42 U.S.C. 1773); Pub. L. 91-248, 84 Stat. 207 (42 U.S.C. 1759))
[Amdt. 45, 48 FR 19355, Apr. 29, 1983, as amended at 64 FR 50743, Sept.
20, 1999; 71 FR 39517, July 13, 2006; 72 FR 61494, Oct. 31, 2007; 76 FR
22607, Apr. 22, 2011; 81 FR 66491, Sept. 28, 2016; 89 FR 32084, Apr. 25,
2024]
Sec. 220.17 Prohibitions.
(a) In carrying out the provisions of this part, the Department
shall not impose any requirements with respect to teaching personnel,
curriculum, instructions, methods of instruction, and materials of
instruction in any school as a condition for participation in the
Program.
(b) The value of assistance to children under the Act shall not be
considered to be income or resources for any purposes under any Federal
or State laws, including, but not limited to, laws relating to taxation,
welfare, and public assistance programs. Expenditure of funds from State
and local sources for the maintenance of food programs for children
shall not be diminished as a result of funds received under the Act.
[32 FR 37, Jan. 5, 1967. Redesignated by Amdt. 2, 33 FR 14513, Sept. 27,
1968. Redesignated and amended by Amdt. 25, 41 FR 34757, 34760, Aug. 17,
1976; 64 FR 50743, Sept. 20, 1999]
[[Page 125]]
Sec. 220.18 Withholding payments and establishing fines.
(a) Withholding payments. In accordance with 2 CFR 200.338 through
342, the State agency must withhold Program payments, in whole or in
part, from any school food authority which has failed to comply with the
provisions of this part. Program payments must be withheld until the
school food authority takes corrective action that is satisfactory to
the State agency, or gives evidence that such corrective actions will be
taken, or until the State agency terminates the grant in accordance with
Sec. 220.19. Subsequent to the State agency's acceptance of the
corrective actions, payments will be released for any breakfasts served
in accordance with the provisions of this part during the period the
payments were withheld.
(b) Fines. (1) The State agency may establish a fine against any
school food authority when it has determined that the school food
authority or a school under its agreement has:
(i) Failed to correct severe mismanagement of the Program or a Child
Nutrition Program under parts 225 or 226 of this chapter;
(ii) Disregarded a Program requirement of which the school food
authority or school had been informed; or
(iii) Failed to correct repeated violations of Program requirements
under this part or under parts 225 or 226 of this chapter.
(2) FNS may direct the State agency to establish a fine against any
school food authority when it has determined that the school food
authority or school meets the criteria set forth under paragraph (b)(1)
of this section.
(3) Funds used to pay a fine established under this paragraph must
be derived from non-Federal sources. The State agency must calculate the
fine based on the amount of Program reimbursement earned by the school
food authority or school for the most recent fiscal year for which full
year data are available, provided that the fine does not exceed the
equivalent of:
(i) For the first fine, 1 percent of the amount of meal
reimbursement earned for the fiscal year;
(ii) For the second fine, 5 percent of the amount of meal
reimbursement earned for the fiscal year; and
(iii) For the third or subsequent fine, 10 percent of the amount of
meal reimbursement earned for the fiscal year.
(4) The State agency must inform FNS at least 30 days prior to
establishing a fine under this paragraph. The State agency must send the
school food authority written notification of the fine established under
this paragraph and provide a copy of the notification to FNS. The
notification must:
(i) Specify the violations or actions which constitute the basis for
the fine and indicate the amount of the fine;
(ii) Inform the school food authority that it may appeal the fine,
and advise the school food authority of the appeal procedures
established under Sec. 210.18(p) of this chapter;
(iii) Indicate the effective date and payment procedures should the
school food authority not exercise its right to appeal within the
specified timeframe.
(5) Any school food authority subject to a fine under paragraph
(b)(1) of this section may appeal the State agency's determination. In
appealing a fine, the school food authority must submit to the State
agency any pertinent information, explanation, or evidence addressing
the Program violations identified by the State agency. Any school food
authority seeking to appeal the State agency determination must follow
State agency appeal procedures.
(6) The decision of the State agency review official is final and
not subject to further administrative or judicial review. Failure to pay
a fine established under this paragraph may be grounds for suspension or
termination.
(7) Money received by the State agency as a result of a fine
established under this paragraph against a school food authority and any
interest charged in the collection of these fines must be remitted to
FNS, and then remitted to the United States Treasury.
[88 FR 57849, Aug. 23, 2023]
Sec. 220.19 Suspension, termination and grant closeout procedures.
Whenever it is determined that a State agency has materially failed
to comply with the provisions of this
[[Page 126]]
part, or with FNS guidelines and instructions, FNS may suspend or
terminate the Program in whole, or in part, or take any other action as
may be available and appropriate. A State agency may also terminate the
Program by mutual agreement with FNS. FNS and the State agency shall
comply with the provisions of 2 CFR part 200, subpart D and USDA
implementing regulations 2 CFR part 400 subparts B and D and USDA
implementing regulations 2 CFR part 400 and part 415 concerning grant
suspension, termination and closeout procedures. Furthermore, the State
agency or FNSRO were applicable, shall apply these provisions to
suspension or termination of the Program in School Food Authorities.
[Amdt. 49, 49 FR 18988, May 4, 1984, as amended at 71 FR 39517, July 13,
2006. Redesignated at 72 FR 61495, Oct. 31, 2007, as amended at 81 FR
66491, Sept. 28, 2016]
Sec. 220.20 Free and reduced price breakfasts.
The determination of the children to whom free and reduced price
breakfasts are to be served because of inability to pay the full price
thereof, and the serving of the breakfasts to such children, shall be
effected in accordance with part 245 of this chapter.
[Amdt. 25, 41 FR 34760, Aug. 17, 1976. Redesignated at 72 FR 61495, Oct.
31, 2007]
Sec. 220.21 Program information.
Persons seeking information about this Program should contact their
State administering agency or the appropriate FNSRO. The FNS website has
contact information for State agencies at https://www.fns.usda.gov/
contacts and FNSROs at https://www.fns.usda.gov/ fns-regional-offices.
[88 FR 57849, Aug. 23, 2023]
Sec. 220.22 Information collection/recordkeeping--OMB assigned control numbers.
------------------------------------------------------------------------
Current OMB
7 CFR section where requirements are described control No.
------------------------------------------------------------------------
220.3(e)................................................ 0584-0067
220.7(a),(d), (e)....................................... 0584-0012
220.8(a)(3), (o)........................................ 0584-0012
220.9(a)................................................ 0584-0012
220.11 (a)-(b).......................................... 0584-0012
220.13 (a-1), (b), (c), (e), (f)........................ 0584-0012
0584-0594
220.14(d)............................................... 0584-0012
220.15.................................................. 0584-0012
------------------------------------------------------------------------
[81 FR 50194, July 29, 2016]
Sec. 220.23 Seamless Summer Option non-congregate meal service.
A school food authority participating in the National School Lunch
Program's Seamless Summer Option, and which is approved to offer a non-
congregate meal service, must comply with the provisions specified in
Sec. 210.34 of this chapter.
[88 FR 90347, Dec. 29, 2023]
Sec. Appendix A to Part 220--Alternate Foods for Meals
Alternate Protein Products
A. What Are the Criteria for Alternate Protein Products Used in the
School Breakfast Program?
1. An alternate protein product used in meals planned under the
food-based menu planning approaches in Sec. 220.8(g), must meet all of
the criteria in this section.
2. An alternate protein product whether used alone or in combination
with meat or other meat alternates must meet the following criteria:
a. The alternate protein product must be processed so that some
portion of the non-protein constituents of the food is removed. These
alternate protein products must be safe and suitable edible products
produced from plant or animal sources.
b. The biological quality of the protein in the alternate protein
product must be at least 80 percent that of casein, determined by
performing a Protein Digestibility Corrected Amino Acid Score (PDCAAS).
c. The alternate protein product must contain at least 18 percent
protein by weight when fully hydrated or formulated. (``When hydrated or
formulated'' refers to a dry alternate protein product and the amount of
water, fat, oil, colors, flavors or any other substances which have been
added).
d. Manufacturers supplying an alternate protein product to
participating schools or institutions must provide documentation that
the product meets the criteria in paragraphs A.2. a through c of this
appendix.
e. Manufacturers should provide information on the percent protein
contained in the dry alternate protein product and on an as prepared
basis.
f. For an alternate protein product mix, manufacturers should
provide information on:
(1) The amount by weight of dry alternate protein product in the
package;
[[Page 127]]
(2) Hydration instructions; and
(3) instructions on how to combine the mix with meat or other meat
alternates.
B. How Are Alternate Protein Products Used in the School Breakfast
Program?
1. Schools, institutions, and service institutions may use alternate
protein products to fulfill all or part of the meat/meat alternate
component discussed in Sec. 220.8. The following terms and conditions
apply:
a. The alternate protein product may be used alone or in combination
with other food ingredients. Examples of combination items are beef
patties, beef crumbles, pizza topping, meat loaf, meat sauce, taco
filling, burritos, and tuna salad.
b. Alternate protein products may be used in the dry form
(nonhydrated), partially hydrated or fully hydrated form. The moisture
content of the fully hydrated alternate protein product (if prepared
from a dry concentrated form) must be such that the mixture will have a
minimum of 18 percent protein by weight or equivalent amount for the dry
or partially hydrated form (based on the level that would be provided if
the product were fully hydrated).
C. How Are Commercially Prepared Products Used in the School Breakfast
Program?
Schools, institutions, and service institutions may use a
commercially prepared meat or other meat alternate products combined
with alternate protein products or use a commercially prepared product
that contains only alternate protein products.
(Secs. 804, 816, 817, and 819, Pub. L. 97-35, 95 Stat. 521-535 (42
U.S.C. 1753, 1756, 1759, 1771, 1773 and 1785))
[Amdt. 18, 39 FR 11249, Mar. 27, 1974, as amended at 40 FR 37027, Aug.
25, 1975; Amdt. 45, 48 FR 195, Jan. 4, 1983; Amdt. 57, 54 FR 13048, Mar.
30, 1989; 60 FR 31222, June 13, 1995; 65 FR 12436, Mar. 9, 2000; 65 FR
26923, May 9, 2000. Redesignated at 72 FR 61495, Oct. 31, 2007; 77 FR
4167, Jan. 26, 2012]
Sec. Appendix B to Part 220 [Reserved]
Sec. Appendix C to Part 220--Child Nutrition (CN) Labeling Program
1. The Child Nutrition (CN) Labeling Program is a voluntary
technical assistance program administered by the Food and Nutrition
Service (FNS) in conjunction with the Food Safety and Inspection Service
(FSIS), and Agricultural Marketing Service (AMS) of the U.S. Department
of Agriculture (USDA), and National Marine Fisheries Service of the U.S.
Department of Commerce (USDC) for the Child Nutrition Programs. This
program essentially involves the review of a manufacturer's recipe or
product formulation to determine the contribution a serving of a
commercially prepared product makes toward meal pattern requirements and
a review of the CN label statement to ensure its accuracy. CN labeled
products must be produced in accordance with all requirements set forth
in this rule.
2. Products eligible for CN labels are as follows:
(a) Commercially prepared food products that contribute
significantly to the meat/meat alternate component of meal pattern
requirements of 7 CFR 210.10 or 210.10a, whichever is applicable,
225.21, and 226.20 and are served in the main dish.
(b) Juice drinks and juice drink products that contain a minimum of
50 percent full-strength juice by volume.
3. For the purpose of this appendix the following definitions apply:
(a) ``CN label'' is a food product label that contains a CN label
statement and CN logo as defined in paragraph 3 (b) and (c) below.
(b) The ``CN logo'' (as shown below) is a distinct border which is
used around the edges of a ``CN label statement'' as defined in
paragraph 3(c).
[GRAPHIC] [TIFF OMITTED] TC17SE91.003
(c) The ``CN label statement'' includes the following:
(1) The product identification number (assigned by FNS),
[[Page 128]]
(2) The statement of the product's contribution toward meal pattern
requirements of 7 CFR 210.10 or 210.10a, whichever is applicable, 220.8,
225.21, and 226.20. The statement shall identify the contribution of a
specific portion of a meat/meat alternate product toward the meat/meat
alternate, bread/bread alternate, and/or vegetable/fruit component of
the meal pattern requirements. For juice drinks and juice drink products
the statement shall identify their contribution toward the vegetable/
fruit component of the meal pattern requirements,
(3) Statement specifying that the use of the CN logo and CN
statement was authorized by FNS, and
(4) The approval date.
For example:
[GRAPHIC] [TIFF OMITTED] TC17SE91.004
(d) Federal inspection means inspection of food products by FSIS,
AMS or USDC.
4. Food processors or manufacturers may use the CN label statement
and CN logo as defined in paragraph 3 (b) and (c) under the following
terms and conditions:
(a) The CN label must be reviewed and approved at the national level
by the Food and Nutrition Service and appropriate USDA or USDC Federal
agency responsible for the inspection of the product.
(b) The CN labeled product must be produced under Federal inspection
by USDA or USDC. The Federal inspection must be performed in accordance
with an approved partial or total quality control program or standards
established by the appropriate Federal inspection service.
(c) The CN label statement must be printed as an integral part of
the product label along with the product name, ingredient listing, the
inspection shield or mark for the appropriate inspection program, the
establishment number where appropriate, and the manufacturer's or
distributor's name and address.
(1) The inspection marking for CN labeled non-meat, non-poultry, and
non-seafood products with the exception of juice drinks and juice drink
products is established as follows:
[GRAPHIC] [TIFF OMITTED] TC17SE91.005
(d) Yields for determining the product's contribution toward meal
pattern requirements must be calculated using the Food Buying Guide for
Child Nutrition Programs (Program Aid Number 1331).
5. In the event a company uses the CN logo and CN label statement
inappropriately, the company will be directed to discontinue the use of
the logo and statement and the matter will be referred to the
appropriate agency for action to be taken against the company.
6. Products that bear a CN label statement as set forth in paragraph
3(c) carry a warranty. This means that if a food service authority
participating in the child nutrition programs purchases a CN labeled
product and uses it in accordance with the manufacturer's directions,
the school or institution will not have an audit claim filed against it
for the CN labeled product for noncompliance with the meal pattern
requirements of 7 CFR 210.10 or 210.10a, whichever is applicable, 220.8,
225.21, and 226.20. If a State or Federal auditor finds that a product
that is CN labeled does not actually meet the meal pattern requirements
claimed on the label, the auditor will report this finding to FNS. FNS
will prepare a report of the findings and send it to the appropriate
divisions of FSIS and AMS of the USDA, National Marine Fisheries
Services of the USDC, Food and Drug Administration, or the Department of
Justice for action against the company.
Any or all of the following courses of action may be taken:
(a) The company's CN label may be revoked for a specific period of
time;
(b) The appropriate agency may pursue a misbranding or mislabeling
action against the company producing the product;
(c) The company's name will be circulated to regional FNS offices;
(d) FNS will require the food service program involved to notify the
State agency of the labeling violation.
7. FNS is authorized to issue operational policies, procedures, and
instructions for the CN Labeling Program.
To apply for a CN label and to obtain additional information on CN
label application
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procedures write to: CN Labels, U.S. Department of Agriculture, Food and
Nutrition Service, Nutrition and Technical Services Division, 3101 Park
Center Drive, Alexandria, Virginia 22302.
(National School Lunch Act, secs. 9, 13, 17; 42 U.S.C. 1758, 1761, 1766;
7 CFR 210.10, 220.8, 225.21, 226.20)
[49 FR 18457, May 1, 1984; 49 FR 45109, Nov. 15, 1984; 60 FR 31222, June
13, 1995; 65 FR 26923, May 9, 2000]
PART 225_SUMMER FOOD SERVICE PROGRAM--Table of Contents
Subpart A_General
Sec.
225.1 General purpose and scope.
225.2 Definitions.
225.3 Administration.
Subpart B_State Agency Provisions
225.4 Program management and administration plan.
225.5 Payments to State agencies and use of Program funds.
225.6 State agency responsibilities.
225.7 Program monitoring and assistance.
225.8 Records and reports.
225.9 Program assistance to sponsors.
225.10 Audits and management evaluations.
225.11 Corrective action procedures.
225.12 Claims against sponsors.
225.13 Appeal procedures.
Subpart C_Sponsor and Site Provisions
225.14 Requirements for sponsor participation.
225.15 Management responsibilities of sponsors.
225.16 Meal service requirements.
Subpart D_General Administrative Provisions
225.17 Procurement standards.
225.18 Miscellaneous administrative provisions.
225.19 Program information.
225.20 Information collection/recordkeeping--OMB assigned control
numbers.
Appendix A to Part 225--Alternate Foods for Meals
Appendix B to Part 225 [Reserved]
Appendix C to Part 225--Child Nutrition (CN) Labeling Program
Authority: Secs. 9, 13 and 14, Richard B. Russell National School
Lunch Act, as amended (42 U.S.C. 1758, 1761 and 1762a).
Source: 54 FR 18208, Apr. 27, 1989, unless otherwise noted.
Subpart A_General
Sec. 225.1 General purpose and scope.
This part establishes the regulations under which the Secretary will
administer a Summer Food Service Program. Section 13 of the Act
authorizes the Secretary to assist States through grants-in-aid to
conduct nonprofit food service programs for children during the summer
months and at other approved times. The primary purpose of the Program
is to provide food service to children from needy areas during periods
when area schools are closed for vacation.
Sec. 225.2 Definitions.
2 CFR part 200, means the Uniform Administrative Requirements, Cost
Principles, and Audit Requirements for Federal Awards published by OMB.
The part reference covers applicable: Acronyms and Definitions (subpart
A), General Provisions (subpart B), Post Federal Award Requirements
(subpart D), Cost Principles (subpart E), and Audit Requirements
(subpart F). (NOTE: Pre-Federal Award Requirements and Contents of
Federal Awards (subpart C) does not apply to the National School Lunch
Program).
Act means the National School Lunch Act, as amended.
Administrative costs means costs incurred by a sponsor related to
planning, organizing, and managing a food service under the Program, and
excluding interest costs and operating costs.
Adult means, for the purposes of the collection of the last four
digits of social security numbers as a condition of eligibility for
Program meals, any individual 21 years of age or older.
Advance payments means financial assistance made available to a
sponsor for its operating costs and/or administrative costs prior to the
end of the month in which such costs will be incurred.
Areas in which poor economic conditions exist means:
(1) The attendance area of a school in which at least 50 percent of
the enrolled children have been determined eligible for free or reduced-
price school meals under the National School Lunch Program and the
School Breakfast Program;
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(2) A geographic area where, based on the most recent census data
available or information provided from a department of welfare or zoning
commission, at least 50 percent of the children residing in that area
are eligible for free or reduced-price school meals under the National
School Lunch Program and the School Breakfast Program;
(3) A geographic area where a site demonstrates, based on other
approved sources, that at least 50 percent of the children enrolled at
the site are eligible for free or reduced-price school meals under the
National School Lunch Program and the School Breakfast Program; or
(4) A closed enrolled site in which at least 50 percent of the
enrolled children at the site are eligible for free or reduced-price
school meals under the National School Lunch Program and the School
Breakfast Program, as determined by approval of applications in
accordance with Sec. 225.15(f).
Camps means residential summer camps and nonresidential day camps
which offer a regularly scheduled food service as part of an organized
program for enrolled children. Nonresidential camp sites shall offer a
continuous schedule of organized cultural or recreational programs for
enrolled children between meal services.
Children means:
(1) Persons 18 years of age and under; and
(2) Persons over 18 years of age who are determined by a State
educational agency or a local public educational agency of a State to be
mentally or physically disabled and who participate in a public or
nonprofit private school program established for the mentally or
physically disabled.
Children's Health Insurance Program (CHIP) means the State medical
assistance program under title XXI of the Social Security Act (42 U.S.C.
1397aa et seq.).
Closed enrolled site means a site which is open only to enrolled
children, as opposed to the community at large, and in which at least 50
percent of the enrolled children at the site are eligible for free or
reduced-price school meals under the National School Lunch Program and
the School Breakfast Program, as determined by approval of applications
in accordance with Sec. 225.15(f), or on the basis of documentation
that the site meets paragraph (1), (2), or (3) of the definition of
``Areas in which poor economic conditions exist'' as provided in this
section.
Conditional non-congregate site means a site which qualifies for
Program participation because it conducts a non-congregate meal service
for eligible children in an area that does not meet the definition of
``areas in which poor economic conditions exist'' and is not a ``Camp,''
as defined in this section.
Congregate meal service means a food service at which meals that are
provided to children are consumed on site in a supervised setting.
Continuous school calendar means a situation in which all or part of
the student body of a school is (a) on a vacation for periods of 15
continuous school days or more during the period October through April
and (b) in attendance at regularly scheduled classes during most of the
period May through September.
Costs of obtaining food means costs related to obtaining food for
consumption by children. Such costs may include, in addition to the
purchase price of agricultural commodities and other food, the cost of
processing, distributing, transporting, storing, or handling any food
purchased for, or donated to, the Program.
Current income means income, as defined in Sec. 225.15(f)(4)(vi),
received during the month prior to application for free meals. If such
income does not accurately reflect the household's annual income, income
must be based on the projected annual household income. If the prior
year's income provides an accurate reflection of the household's current
annual income, the prior year may be used as a base for the projected
annual income.
Department means the U.S. Department of Agriculture.
Disclosure means reveal or use individual children's program
eligibility information obtained through the free and reduced price meal
eligibility process for a purpose other than for the purpose for which
the information was obtained. The term refers to access, release, or
transfer of personal data about children by means of print, tape,
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microfilm, microfiche, electronic communication or any other means.
Documentation means:
(1) The completion of the following information on a free meal
application:
(i) Names of all household members;
(ii) Income received by each household member, identified by source
of income (such as earnings, wages, welfare, pensions, support payments,
unemployment compensation, social security and other cash income);
(iii) The signature of an adult household member; and
(iv) The last four digits of the Social Security number of the adult
household member who signs the application, or an indication that the
adult does not possess a Social Security number; or
(2) For a child who is a member of a household receiving SNAP,
FDPIR, or TANF benefits, ``documentation'' means completion of only the
following information on a free meal application:
(i) The name(s) and appropriate SNAP, FDPIR, or TANF case number(s)
for the child(ren); and
(ii) The signature of an adult member of the household.
Excess funds means the difference between any advance funding and
reimbursement funding, when advance funds received by a sponsor are
greater than the reimbursement amount earned by a sponsor.
Experienced site means a site which, as determined by the State
agency, has successfully participated in the Program in the prior year.
Experienced sponsor means a sponsor which, as determined by the
State agency, has successfully participated in the Program in the prior
year.
Family means a group of related or nonrelated individuals who are
not residents of an institution or boarding house but who are living as
one economic unit.
FDPIR household means any individual or group of individuals which
is currently certified to receive assistance as a household under the
Food Distribution Program on Indian Reservations.
Fiscal year means the period beginning October 1 of any calendar
year and ending September 30 of the following calendar year.
FNS means the Food and Nutrition Service of the Department.
FNSRO means the appropriate FNS Regional Office.
Food service management company means any commercial enterprise or
nonprofit organization with which a sponsor may contract for preparing
unitized meals, with or without milk, for use in the Program, or for
managing a sponsor's food service operations in accordance with the
limitations set forth in Sec. 225.15. Food service management companies
may be: (a) Public agencies or entities; (b) private, nonprofit
organizations; or (c) private, for-profit companies.
Foster child means a child who is formally placed by a court or a
State child welfare agency, as defined in Sec. 245.2 of this chapter.
Good standing means the status of a program operator that meets its
Program responsibilities, is current with its financial obligations,
and, if applicable, has fully implemented all corrective actions within
the required period of time.
Household means ``family,'' as defined in this section.
Income accruing to the program means all funds used by a sponsor in
its food service program, including but not limited to all monies, other
than program payments, received from Federal, State and local
governments, from food sales to adults, and from any other source
including cash donations or grants. Income accruing to the Program will
be deducted from combined operating and administrative costs.
Income standards means the family-size and income standards
prescribed annually by the Secretary for determining eligibility for
reduced price meals under the National School Lunch Program and the
School Breakfast Program.
Meals means food which is served to children at a food service site
and which meets the nutritional requirements set out in this part.
Medicaid means the State medical assistance program under title XIX
of the Social Security Act (42 U.S.C. 1396 et seq.).
Milk means whole milk, lowfat milk, skim milk, and buttermilk. All
milk must be fluid and pasteurized and must
[[Page 132]]
meet State and local standards for the appropriate type of milk. Milk
served may be flavored or unflavored. In Alaska, Hawaii, American Samoa,
Guam, Puerto Rico, the Trust Territory of the Pacific Islands, the
Northern Mariana Islands, and the Virgin Islands of the United States,
if a sufficient supply of such types of fluid milk cannot be obtained,
reconstituted or recombined milk may be used. All milk should contain
Vitamins A and D at the levels specified by the Food and Drug
Administration and at levels consistent with State and local standards
for such milk.
Needy children means children from families whose incomes are equal
to or below the Secretary's published Child Nutrition Programs: Income
Eligibility Guidelines.
Net cash resources means all monies, as determined in accordance
with the State agency's established accounting system that are available
to or have accrued to a sponsor's nonprofit food service at any given
time, less cash payable. Such monies may include, but are not limited
to, cash on hand, cash receivable, earnings on investments, cash on
deposit and the value of stocks, bonds, or other negotiable securities.
New site means a site which did not participate in the Program in
the prior year, an experienced site that is proposing to operate a non-
congregate meal service for the first time, or, as determined by the
State agency, a site which has experienced significant staff turnover
from the prior year.
New sponsor means a sponsor which did not participate in the Program
in the prior year, or, as determined by the State agency, a sponsor
which has experienced significant staff turnover from the prior year.
Non-congregate meal service means a food service at which meals are
provided for children to consume all of the components off site. Non-
congregate meal service must only be operated at sites designated as
``Rural'' with no ``Congregate meal service,'' as determined in Sec.
225.6(h)(3) and (4).
Nonprofit food service means all food service operations conducted
by the sponsor principally for the benefit of children, all of the
revenue from which is used solely for the operation or improvement of
such food services.
Nonprofit food service account means the restricted account in which
all of the revenue from all food service operations conducted by the
sponsor principally for the benefit of children is retained and used
only for the operation or improvement of the nonprofit food service.
This account must include, as appropriate, non-Federal funds used to
support program operations, and proceeds from non-program foods.
NYSP means the National Youth Sports Program administered by the
National Collegiate Athletic Association.
NYSP feeding site means a site at which all of the children
receiving Program meals are enrolled in the NYSP and which qualifies for
Program participation on the basis of documentation that the site meets
the definition of ``areas in which poor economic conditions exist'' as
provided in this section.
OIG means the Office of the Inspector General of the Department.
Open site means a site at which meals are made available to all
children in the area and which is located in an area in which at least
50 percent of the children are from households that would be eligible
for free or reduced price school meals under the National School Lunch
Program and the School Breakfast Program, as determined in accordance
with paragraph (1), (2), or (3) of the definition of ``Areas in which
poor economic conditions exist.''
Operating costs means the cost of operating a food service under the
Program:
(1) Including the:
(i) Cost of obtaining food;
(ii) Labor directly involved in the preparation and service of food;
(iii) Cost of nonfood supplies;
(iv) Rental and use allowances for equipment and space; and
(v) Cost of transporting children in rural areas to feeding sites in
rural areas;
(vi) Cost of delivering non-congregate meals in rural areas; but
(2) Excluding:
(i) The cost of the purchase of land, acquisition or construction of
buildings;
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(ii) Alteration of existing buildings;
(iii) Interest costs;
(iv) The value of in-kind donations; and
(v) Administrative costs.
Private nonprofit means tax exempt under section 501(a) of the
Internal Revenue Code of 1986, as amended.
Private nonprofit organization means an organization (other than
private nonprofit residential camps, school food authorities, or
colleges or universities participating in the NYSP) that:
(a) Exercises full control and authority over the operation of the
Program at all sites under the sponsorship of the organization;
(b) Provides ongoing year-round activities for children or families;
(c) Demonstrates that the organization has adequate management and
the fiscal capacity to operate the Program;
(d) Is an organization described in section 501(c) of the Internal
Revenue Code of 1986 and exempt from taxation under 501(a) of that Code;
and
(e) Meets applicable State and local health, safety, and sanitation
standards.
Program means the Summer Food Service Program for Children
authorized by Section 13 of the Act.
Program funds means Federal financial assistance made available to
State agencies for the purpose of making Program payments.
Program payments means financial assistance in the form of start-up
payments, advance payments, or reimbursement paid to sponsors for
operating and administrative costs.
Restricted open site means a site which is initially open to broad
community participation, but at which the sponsor restricts or limits
attendance for reasons of security, safety or control. Site eligibility
for a restricted open site shall be documented in accordance with
paragraph (1), (2), or (3) of the definition of ``Areas in which poor
economic conditions exist.''
Rural means:
(1) Any area in a county which is not a part of a Metropolitan
Statistical Area based on the Office of Management and Budget's
Delineations of Metropolitan Statistical Areas;
(2) Any area in a county classified as a non-metropolitan area based
on USDA Economic Research Service's Rural-Urban Continuum Codes and
Urban Influence Codes;
(3) Any census tract classified as a non-metropolitan area based on
USDA Economic Research Service's Rural-Urban Commuting Area codes;
(4) Any area of a Metropolitan Statistical Area which is not part of
a Census Bureau-defined urban area;
(5) Any area of a State which is not part of an urban area as
determined by the Secretary;
(6) Any subsequent substitution or update of the aforementioned
classification schemes that Federal governing bodies create; or
(7) Any ``pocket'' within a Metropolitan Statistical Area which, at
the option of the State agency and with FNSRO approval, is determined to
be rural in character based on other data sources.
School food authority means the governing body which is responsible
for the administration of one or more schools and which has the legal
authority to operate a lunch program in those schools. In addition, for
the purpose of determining the applicability of food service management
company registration and bid procedure requirements, ``school food
authority'' also means any college or university which participates in
the Program.
Secretary means the Secretary of Agriculture.
Self-preparation site means a site that prepares the majority of
meals that will be served at its site or receives meals that are
prepared at its sponsor's central kitchen. The site does not contract
with a food service management company for unitized meals, with or
without milk, or for management services.
Self-preparation sponsor means a sponsor which prepares the meals
that will be served at its site(s) and does not contract with a food
service management company for unitized meals, with or without milk, or
for management services.
Session means a specified period of time during which an enrolled
group of children attend camp.
Site means the place where a child receives a program meal. A site
may be the indoor or outdoor location where
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congregate meals are served, a stop on a delivery route of a mobile
congregate meal service, or the distribution location or route for a
non-congregate meal service. However, a child's residence is not
considered a non-congregate meal site for Program monitoring purposes.
Site supervisor means the individual who has been trained by the
sponsor and is responsible for all administrative and management
activities at the site, including, but not limited to: maintaining
documentation of meal deliveries, ensuring that all meals served are
safe, and maintaining accurate point of service meal counts. Except for
non-congregate meal service sites using delivery services, the
individual is on site for the duration of the food service.
SNAP household means any individual or group of individuals which is
currently certified to receive assistance as a household from SNAP, the
Supplemental Nutrition Assistance Program, as defined in Sec. 245.2 of
this chapter.
Special account means an account which a State agency may require a
vended sponsor to establish with the State agency or with a Federally
insured bank. Operating costs payable to the sponsor by the State agency
are deposited in the account and disbursement of monies from the account
must be authorized by both the sponsor and the food service management
company.
Sponsor means a public or private nonprofit school food authority, a
public or private nonprofit residential summer camp, a unit of local,
municipal, county or State government, a public or private nonprofit
college or university currently participating in the NYSP, or a private
nonprofit organization which develops a special summer or other school
vacation program providing food service similar to that made available
to children during the school year under the National School Lunch and
School Breakfast Programs and which is approved to participate in the
Program. Sponsors are referred to in the Act as ``service
institutions''.
Start-up payments means financial assistance made available to a
sponsor for administrative costs to enable it to effectively plan a
summer food service, and to establish effective management procedures
for such a service. These payments shall be deducted from subsequent
administrative cost payments.
State means any of the 50 States, the District of Columbia, the
Commonwealth of Puerto Rico, the Virgin Islands of the United States,
Guam, American Samoa, the Trust Territory of the Pacific Islands, and
the Northern Mariana Islands.
State agency means the State educational agency or an alternate
agency that has been designated by the Governor or other appropriate
executive or legislative authority of the State and which has been
approved by the Department to administer the Program within the State,
or, in States where FNS administers the Program, FNSRO.
TANF means the State funded program under part A of title IV of the
Social Security Act that the Secretary determines complies with
standards established by the Secretary that ensure that the standards
under the State program are comparable to or more restrictive than those
in effect on June 1, 1995. This program is commonly referred to as
Temporary Assistance for Needy Families, although States may refer to
the program by another name.
Termination for convenience means:
(1) Termination of a State agency's participation in the Program in
whole, or in part, when FNS and the State agency agree that the
continuation of the Program would not produce beneficial results
commensurate with the further expenditure of funds; or
(2) Termination of a permanent operating agreement by a State agency
or sponsor due to considerations unrelated to either party's performance
of Program responsibilities under the agreement.
Unaffiliated site means a site that is legally distinct from the
sponsor.
Unanticipated school closure means any period from October through
April (or any time of the year in an area with a continuous school
calendar) during which children who are not in school due to a natural
disaster, building repair, court order, labor-management disputes, or,
when approved by the State agency, similar cause, may be served meals at
non-school sites through the Summer Food Service Program.
[[Page 135]]
Unit of local, municipal, county or State government means an entity
which is so recognized by the State constitution or State laws, such as
the State administrative procedures act, tax laws, or other applicable
State laws which delineate authority for government responsibility in
the State.
USDA implementing regulations include the following: 2 CFR part 400,
Uniform Administrative Requirements, Cost Principles, and Audit
Requirements for Federal Awards; 2 CFR part 415, General Program
Administrative Regulations; 2 CFR part 416, General Program
Administrative Regulations for Grants and Cooperative Agreements to
State and Local Governments; and 2 CFR part 418, New Restrictions on
Lobbying.
Unused reimbursement means the difference between the amount of
reimbursement earned and received and allowable costs, when
reimbursement exceeds costs.
Vended site means a site that serves unitized meals, with or without
milk, that are procured through a formal agreement or contract with:
(1) Public agencies or entities, such as a school food authority;
(2) Private, nonprofit organizations; or
(3) Private, for-profit companies, such as a commercial food
distributor or food service management company.
Vended sponsor means a sponsor which purchases from a food service
management company the unitized meals, with or without milk, which it
will serve at its site(s), or a sponsor which purchases management
services, subject to the limitations set forth in Sec. 225.15, from a
food service management company.
Yogurt means commercially prepared coagulated milk products obtained
by the fermentation of specific bacteria, that meet milk fat or milk
solid requirements and to which flavoring foods or ingredients may be
added. These products are covered by the Food and Drug Administration's
Standard of Identity for yogurt, lowfat yogurt, and nonfat yogurt, (21
CFR 131.200), (21 CFR 131.203), (21 CFR 131.206), respectively.
[54 FR 18208, Apr. 27, 1989, as amended at 54 FR 27153, June 28, 1989;
55 FR 13466, Apr. 10, 1990; 61 FR 25553, May 22, 1996; 64 FR 72483, Dec.
28, 1999; 64 FR 72895, Dec. 29, 1999; 66 FR 2202, Jan. 11, 2001; 71 FR
39518, July 13, 2006; 72 FR 10895, Mar. 12, 2007; 76 FR 22798, Apr. 25,
2011; 78 FR 13449, Feb. 28, 2013; 81 FR 66492, Sept. 28, 2016; 83 FR
25357, June 1, 2018; 87 FR 57355, Sept. 19, 2022; 87 FR 79213, Dec. 27,
2022; 88 FR 57849, Aug. 23, 2023; 88 FR 90347, Dec. 29, 2023]
Sec. 225.3 Administration.
(a) Responsibility within the Department. FNS shall act on behalf of
the Department in the administration of the Program.
(b) State administered programs. Within the State, responsibility
for the administration of the Program must be in the State agency. Each
State agency must notify the Department by January 1 of the fiscal year
regarding its intention to administer the Program. Each State agency
desiring to take part in the Program must enter into a written agreement
with FNS for the administration of the Program in accordance with the
provisions of this part. The agreement must cover the operation of the
Program during the period specified therein and may be extended by
written consent of both parties. The agreement must contain an assurance
that the State agency will comply with the Department's
nondiscrimination regulations (7 CFR part 15) issued under title VI of
the Civil Rights Act of 1964, and any Instructions issued by FNS
pursuant to 7 CFR part 15, title IX of the Education Amendments of 1972,
and section 504 of the Rehabilitation Act of 1973. However, if a State
educational agency is not permitted by law to disburse funds to any of
the nonpublic schools in the State, the Secretary must disburse the
funds directly to such schools within the State for the same purposes
and subject to the same conditions as the disbursements to public
schools within the State by the State educational agency.
(c) Regional office administered programs. The Secretary shall not
administer the Program in the States, except that if a FNSRO has
continuously administered the Program in any State
[[Page 136]]
since October 1, 1980, FNS shall continue to administer the Program in
that State. In States in which FNSRO administers the Program, it shall
have all of the responsibilities of a State agency and shall earn State
administrative and Program funds as set forth in this part. A State in
which FNS administers the Program may, upon request to FNS, assume
administration of the Program.
(d) Authority to waive statute and regulations. (1) As authorized
under section 12(l) of the Richard B. Russell National School Lunch Act,
FNS may waive provisions of such Act or the Child Nutrition Act of 1966,
as amended, and the provisions of this part with respect to a State
agency or eligible service provider. The provisions of this part
required by other statutes may not be waived under this authority. FNS
may only approve requests for a waiver that are submitted by a State
agency and comply with the requirements at section 12(l)(1) and the
limitations at section 12(l)(4), including that FNS may not grant a
waiver that increases Federal costs.
(2)(i) A State agency may submit a request for a waiver under
paragraph (d)(1) of this section in accordance with section 12(l)(2) and
the provisions of this part.
(ii) A State agency may submit a request to waive specific statutory
or regulatory requirements on behalf of eligible service providers that
operate in the State. Any waiver where the State concurs must be
submitted to the appropriate FNSRO.
(3)(i) An eligible service provider may submit a request for a
waiver under paragraph (e)(1) of this section in accordance with section
12(l) and the provisions of this part. Any waiver request submitted by
an eligible service provider must be submitted to the State agency for
review. A State agency must act promptly on such a waiver request and
must deny or concur with a request submitted by an eligible service
provider.
(ii) If a State agency concurs with a request from an eligible
service provider, the State agency must promptly forward to the
appropriate FNSRO the request and a rationale, consistent with section
12(l)(2), supporting the request. By forwarding the request to the
FNSRO, the State agency affirms:
(A) The request meets all requirements for waiver submissions; and,
(B) The State agency will conduct all monitoring requirements
related to regular Program operations and the implementation of the
waiver.
(iii) If the State agency denies the request, the State agency must
notify the requesting eligible service provider and state the reason for
denying the request in writing within 30 calendar days of the State
agency's receipt of the request. The State agency response is final and
may not be appealed to FNS.
(e) Coordinated Services Plan. (1) Each State agency must establish,
and update annually as needed, a plan to coordinate the statewide
availability of services offered through the Summer Food Service Program
described in this part and the Summer Electronic Benefits Transfer (EBT)
Program regulations (7 CFR part 292).
(2) Only one plan must be established for each State in which both
the Summer Food Service Program and the Summer EBT Program is
administered. If more than one agency administers the Summer Food
Service Program and Summer EBT within a respective State, they must work
together to develop and implement the plan. States should also ensure
that plans include the National School Lunch Program's Seamless Summer
Program if appropriate.
(3) The plan must include, at minimum, the following information:
(i) A description of the roles and responsibilities of each State
administering agency, and, as applicable, any other agencies, Indian
Tribal Organizations, or public or private organizations which will be
involved in administering the Programs;
(ii) A description of how the State agency and any other
organizations included in the plan will coordinate outreach and
programmatic activities to maximize the reach of the Summer Food Service
Program and Summer EBT Program;
(iii) Metrics to assess Program reach and coverage; and
(iv) The State agency's plans to partner with other Federal, State,
Tribal,
[[Page 137]]
or local programs to aid participants in accessing all Federal, State,
Tribal, or local programs for which they are eligible.
(4) States must notify the public about their plan and make it
available to the public through a website, and should, to the maximum
extent practicable, solicit and consider input on plan development and
implementation from other State, Tribal, and local agencies;
organizations involved in the administration of nutrition and human
services programs; participants; and other stakeholders.
(5) States must consult with FNS on the development of and any
significant subsequent updates to their plan. Initial Plans must be
submitted to FNS no later than January 1, 2025. States must submit
updates annually when significant changes are made to the plan, and
otherwise no less than every 3 years.
[54 FR 18208, Apr. 27, 1989, as amended at 55 FR 13466, Apr. 10, 1990;
64 FR 72483, Dec. 28, 1999; 87 FR 57356, Sept. 19, 2022; 88 FR 90348,
Dec. 29, 2023]
Subpart B_State Agency Provisions
Sec. 225.4 Program management and administration plan.
(a) Not later than February 15 of each year, each State agency shall
submit to FNSRO a Program management and administration plan for that
fiscal year.
(b) Each plan shall be acted on or approved by March 15 or, if it is
submitted late, within 30 calendar days of receipt of the plan. If the
plan initially submitted is not approved, the State agency and FNS shall
work together to ensure that changes to the plan, in the form of
amendments, are submitted so that the plan can be approved within 60
calendar days following the initial submission of the plan. Upon
approval of the plan, the State agency shall be notified of the level of
State administrative funding which it is assured of receiving under
Sec. 225.5(a)(3).
(c) Approval of the Plan by FNS shall be a prerequisite to the
withdrawal of Program funds by the State from the Letter of Credit and
to the donation by the Department of any commodities for use in the
State's Program.
(d) The Plan must include, at a minimum, the following information:
(1) The State's administrative budget for the fiscal year, and the
State's plan to comply with any standards prescribed by the Secretary
for the use of these funds;
(2) The State's plan for use of Program funds and funds from within
the State to the maximum extent practicable to reach needy children;
(3) The State's plans for providing technical assistance and
training to eligible sponsors;
(4) The State's plans for monitoring and inspecting sponsors,
feeding sites, and food service management companies and for ensuring
that such companies do not enter into contracts for more meals than they
can provide effectively and efficiently;
(5) The State's plan for timely and effective action against Program
violators;
(6) The State's plan for ensuring the fiscal integrity of sponsors
not subject to auditing requirements prescribed by the Secretary;
(7) The State's plan for ensuring compliance with the food service
management company procurement monitoring requirements set forth at
Sec. 225.6(l);
(8) An estimate of the State's need, if any, for monies available to
pay for the cost of conducting health inspections and meal quality
tests;
(9) The State's plan to provide a reasonable opportunity for
children to access meals across all areas of the State; and
(10) The State's plan for Program delivery in areas that could
benefit the most from the provision of non-congregate meals, including
the State's plan to identify areas with no congregate meal service, and
target priority areas for non-congregate meal service.
[54 FR 18208, Apr. 27, 1989, as amended at 55 FR 13466, Apr. 10, 1990;
64 FR 72483, Dec. 28, 1999; 87 FR 57356, Sept. 19, 2022; 88 FR 90349,
Dec. 29, 2023]
[[Page 138]]
Sec. 225.5 Payments to State agencies and use of Program funds.
(a) State administrative funds--(1) Administrative funding formula.
For each fiscal year, FNS shall pay to each State agency for
administrative expenses incurred in the Program an amount equal to
(i) 20 percent of the first $50,000 in Program funds properly
payable to the State in the preceding fiscal year;
(ii) 10 percent of the next $100,000 in Program funds properly
payable to the State in the preceding fiscal year;
(iii) 5 percent of the next $250,000 in Program funds properly
payable to the State in the preceding fiscal year; and
(iv) 2\1/2\ percent of any remaining Program funds properly payable
to the State in the preceding fiscal year,
Provided, however, That FNS may make appropriate adjustments in the
level of State administrative funds to reflect changes in Program size
from the preceding fiscal year as evidenced by information submitted in
the State Program management and administration plan and any other
information available to FNS. If a State agency fails to submit timely
and accurate reports under Sec. 225.8(c) of this part, State
administrative funds payable under this paragraph shall be subject to
sanction. For such failure, FNS may recover, withhold, or cancel payment
of up to one hundred percent of the funds payable to the State agency
under this paragraph during the fiscal year.
(2) Use of State administrative funds. State administrative funds
paid to any State shall be used by State agencies to employ personnel,
including travel and related expenses, and to supervise and give
technical assistance to sponsors in their initiation, expansion, and
conduct of any food service for which Program funds are made available.
State agencies may also use administrative funds for such other
administrative expenses as are set forth in their approved Program
management and administration plan.
(3) Funding assurance. At the time FNS approves the State's
management and administration plan, the State shall be assured of
receiving State administrative funding equal to the lesser of the
following amounts: 80 percent of the amount obtained by applying the
formula set forth in paragraph (a)(1) of this section to the total
amount of Program payments made within the State during the prior fiscal
year; or, 80 percent of the amount obtained by applying the formula set
forth in paragraph (a)(1) to the amount of Program funds estimated to be
needed in the management and administration plan. The State agency shall
be assured that it will receive no less than this level unless FNS
determines that the State agency has failed or is failing to meet its
responsibilities under this part.
(4) Limitation. In no event may the total payment for State
administrative costs in any fiscal year exceed the total amount of
expenditures incurred by the State agency in administering the Program.
(5) Full use of Federal funds. States and State agencies must
support the full use of Federal funds provided to State agencies for the
administration of Child Nutrition Programs, and exclude such funds from
State budget restrictions or limitations including, hiring freezes, work
furloughs, and travel restrictions.
(b) State administrative funds Letter of Credit. (1) At the
beginning of each fiscal year, FNS shall make available to each
participating State agency by Letter of Credit an initial allocation of
State administrative funds for use in that fiscal year. This allocation
shall not exceed one-third of the administrative funds provided to the
State in the preceding fiscal year. For State agencies which did not
receive any Program funds during the preceding fiscal year, the amount
to be made available shall be determined by FNS.
(2) Additional State administrative funds shall be made available
upon the receipt and approval by FNS of the State's Program management
and administration plan. The amount of such funds, plus the initial
allocation, shall not exceed 80 percent of the State administrative
funds determined by the formula set forth in paragraph (a)(1) of this
section and based on the estimates set forth in the approved Program
management and administration plan.
(3) Any remaining State administrative funds shall be paid to each
State agency as soon as practicable after the
[[Page 139]]
conduct of the funding assessment described in paragraph (c) of this
section. However, regardless of whether such assessment is made, the
remaining administrative funds shall be paid no later than September 1.
The remaining administrative payment shall be in an amount equal to that
determined to be needed during the funding evaluation or, if such
evaluation is not conducted, the amount owed the State in accordance
with paragraph (a)(1) of this section, less the amounts paid under
paragraphs (b) (1) and (2) of this section.
(c) Administrative funding evaluation. FNSRO shall conduct data on
the need for Program and State administrative funding within any State
agency if the funding needs estimated in a State's management and
administration plan are no longer accurate. Based on this data, FNS may
make adjustments in the level of State administrative funding paid or
payable to the State agency under paragraph (b) of this section to
reflect changes in the size of the State's Program as compared to that
estimated in its management and administration plan. The data shall be
based on approved Program participation levels and shall be collected
during the period of Program operations. As soon as possible following
this data collection, payment of any additional administrative funds
owed shall be made to the State agency. The payment may reflect
adjustments made to the level of State administrative funding based on
the information collected during the funding assessment. However, FNS
shall not decrease the amount of a State's administrative funds as a
result of this assessment unless the State failed to make reasonable
efforts to administer the Program as proposed in its management and
administration plan or the State incurred unnecessary expenses.
(d) Letter of Credit for Program payments. (1) Not later than April
15 of each fiscal year, FNS shall make available to each participating
State in a Letter of Credit an amount equal to 65 percent of the
preceding fiscal year's Program payments for operating costs plus 65
percent of the preceding fiscal year's Program payments for
administrative costs in the State. This amount may be adjusted to
reflect changes in reimbursement rates made pursuant to Sec.
225.9(d)(8). However, the State shall not withdraw funds from this
Letter of Credit until its Program management and administration plan is
approved by FNS.
(2) Based on the State agency's approved management and
administration plan, FNS shall, if necessary, adjust the State's Letter
of Credit to ensure that 65 percent of estimated current year Program
operating and administrative funding needs is available. Such adjustment
shall be made no later than May 15, or within 90 days of FNS receipt of
the State agency's management and administration plan, whichever date is
later.
(3) Subsequent to the adjustment provided for in paragraph (d)(2) of
this section, FNS will, if necessary, make one additional adjustment to
ensure that the State agency's Letter of Credit contains at least 65
percent of the Program operating and administrative funds needed during
the current fiscal year. Such adjustment may be based on the
administrative funding assessment provided for in paragraph (c) of this
section, if one is conducted, or on any additional information which
demonstrates that the funds available in the Letter of Credit do not
equal at least 65 percent of current year Program needs. In no case will
such adjustments be made later than September 1. Funds made available in
the Letter of Credit shall be used by the State agency to make Program
payments to sponsors.
(4) The Letter of Credit shall include sufficient funds to enable
the State agency to make advance payments to sponsors serving areas in
which schools operate under a continuous school calendar. These funds
shall be made available no later than the first day of the month prior
to the month during which the food service will be conducted.
(5) FNS shall make available any remaining Program funds due within
45 days of the receipt of valid claims for reimbursement from sponsors
by the State agency. However, no payment shall be made for claims
submitted later than 60 days after the month covered by the claim unless
an exception is granted by FNS.
[[Page 140]]
(6) Each State agency shall release to FNS any Program funds which
it determines are unobligated as of September 30 of each fiscal year.
Release of funds by the State agency shall be made as soon as
practicable, but in no event later than 30 calendar days following
demand by FNS, and shall be accomplished by an adjustment in the State
agency's Letter of Credit.
(e) Adjustment to Letter of Credit. Prior to May 15 of each fiscal
year, FNS shall make any adjustments necessary in each State's Letter of
Credit to reflect actual expenditures in the preceding fiscal year's
Program.
(f) Health inspection funds. If the State agency's approved
management and administration plan estimates a need for health
inspection funding, FNS shall make available by letter of credit an
amount up to one percent of Program funds estimated to be needed in the
management and administration plan. Such amount may be adjusted, based
on the administrative funding assessment provided for in paragraph (c)
of this section, if such assessment is conducted. Health inspection
funds shall be used solely to enable State or local health departments
or other governmental agencies charged with health inspection functions
to carry out health inspections and meal quality tests, provided that if
these agencies cannot perform such inspections or tests, the State
agency may use the funds to contract with an independent agency to
conduct the inspection or meal quality tests. Funds so provided but not
expended or obligated shall be returned to the Department by September
30 of the same fiscal year.
[54 FR 18208, Apr. 27, 1989, as amended at 76 FR 37982, June 29, 2011]
Sec. 225.6 State agency responsibilities.
(a) General responsibilities. (1) The State agency shall provide
sufficient qualified consultative, technical, and managerial personnel
to administer the Program, monitor performance, and measure progress in
achieving Program goals. The State agency shall assign Program
responsibilities to personnel to ensure that all applicable requirements
under this part are met.
(2) By February 1 of each fiscal year, each State agency must
announce the purpose, eligibility criteria, and availability of the
Program throughout the State, through appropriate means of
communication. As part of this effort, each State agency must:
(i) Identify areas in which poor economic conditions exist to
qualify for the Program and actively seek eligible applicant sponsors to
serve:
(A) Rural areas;
(B) Indian Tribal territories; and
(C) Areas with a concentration of migrant farm workers.
(ii) The State agency must identify rural areas with no congregate
meal service and encourage participating sponsors to provide non-
congregate meals to eligible children in those areas.
(iii) The State agency must target outreach efforts to priority
outreach areas.
(iv) For approval of closed enrolled sites, the State agency must
establish criteria to ensure that operation of a closed enrolled site
does not limit Program access for eligible children in the area where
the site is located.
(3) Each State agency shall require applicant sponsors submitting
Program application site information sheets, Program agreements, or a
request for advance payments, and sponsors submitting claims for
reimbursement to certify that the information submitted on these forms
is true and correct and that the sponsor is aware that deliberate
misrepresentation or withholding of information may result in
prosecution under applicable State and Federal statutes.
(4) In addition to the warnings specified in paragraph (a)(3) of
this section, State agencies may include the following information on
applications and pre-application materials distributed to prospective
sponsors:
(i) The criminal penalties and provisions established in section
12(g) of the National School Lunch Act (42 U.S.C. 1760(g)) that states
substantially: Whoever embezzles, willfully misapplies, steals, or
obtains by fraud any funds, assets, or property that are the subject of
a grant or other form of assistance under this Act or the Child
Nutrition Act of 1966 (42 U.S.C. 1771 et seq.), whether received
directly or indirectly from the United States Department of
[[Page 141]]
Agriculture, or whoever receives, conceals, or retains such funds,
assets, or property to personal use or gain, knowing such funds, assets,
or property have been embezzled, willfully misapplied, stolen, or
obtained by fraud shall, if such funds, assets, or property are of the
value of $100 or more, be fined not more than $25,000 or imprisoned not
more than five years, or both, or, if such funds, assets, or property
are of a value of less than $100, shall be fined not more than $1,000 or
imprisoned for not more than one year, or both.
(ii) The procedures for termination from Program participation of
any site or sponsor which is determined to be seriously deficient in its
administration of the Program. In addition, the application may also
state that appeals of sponsor or site terminations will follow
procedures mandated by the State agency and will also meet the minimum
requirements of 7 CFR 225.13.
(b) Approval of sponsor applications. (1) Each State agency must
inform all of the previous year's sponsors which meet current
eligibility requirements and all other potential sponsors of the
deadline date for submitting a written application for participation in
the Program. The State agency must require that all applicant sponsors
submit written applications for Program participation to the State
agency by June 15. However, the State agency may establish an earlier
deadline for the Program application submission. Sponsors applying for
participation in the Program due to an unanticipated school closure
shall be exempt from the application submission deadline.
(2) Each State agency shall inform potential sponsors of the
procedure for applying for advance operating and administrative costs
payments as provided for in Sec. 225.9(c). Where applicable, each State
agency shall inform sponsors of the procedure for applying for start-up
payments provided for in Sec. 225.9(a).
(3) Within 30 days of receiving a complete and correct application,
the State agency shall notify the applicant of its approval or
disapproval. If an incomplete application is received, the State agency
shall so notify the applicant within 15 days and shall provide technical
assistance for the purpose of completing the application. Any
disapproved applicant shall be notified of its right to appeal under
Sec. 225.13.
(4) The State agency shall determine the eligibility of sponsors
applying for participation in the Program in accordance with the
applicant sponsor eligibility criteria outlined in Sec. 225.14.
However, State agencies may approve the application of an otherwise
eligible applicant sponsor which does not provide a year-round service
to the community which it proposes to serve under the Program only if it
meets one or more of the following criteria: It is a residential camp;
it proposes to provide a food service for the children of migrant
workers; a failure to do so would deny the Program to an area in which
poor economic conditions exist; a significant number of needy children
will not otherwise have reasonable access to the Program; or it proposes
to serve an area affected by an unanticipated school closure. In
addition, the State agency may approve a sponsor for participation
during an unanticipated school closure without a prior application if
the sponsor participated in the program at any time during the current
year or in either of the prior two calendar years.
(5) The State agency must use the following priority system in
approving applicants to operate sites that propose to serve the same
area or the same enrolled children:
(i) Public or nonprofit private school food authorities;
(ii) Public agencies and private nonprofit organizations that have
demonstrated successful program performance in a prior year;
(iii) New public agencies; and
(iv) New private nonprofit organizations.
(v) If two or more sponsors that qualify under paragraph (b)(5)(ii)
of this section apply to serve the same area, the State agency must
determine on a case-by-case basis which sponsor or sponsors it will
select to serve the needy children in the area. The State agency should
consider the resources and capabilities of each applicant.
(6) The State agency must not approve any sponsor to operate more
than 200 sites or to serve more than an
[[Page 142]]
average of 50,000 children per day. However, the State agency may
approve exceptions if:
(i) The applicant demonstrates that it has the capability of
managing a program larger than the limits in this paragraph (b)(6); and
(ii) The State agency has the capacity to conduct reviews of at
least 10 percent of the sponsor's sites, as described in Sec.
225.7(e)(4)(v).
(7) The State agency shall review each applicant's administrative
budget as a part of the application approval process in order to assess
the applicant's ability to operate in compliance with these regulations
within its projected reimbursement. In approving the applicant's
administrative budget, the State agency shall take into consideration
the number of sites and children to be served, as well as any other
relevant factors. A sponsor's administrative budget shall be subject to
review for adjustments by the State agency if the sponsor's level of
site participation or the number of meals served to children changes
significantly. State agencies may exempt school food authorities
applying to operate the SFSP from submitting a separate budget to the
State agency, if the school food authority submits an annual budget for
the National School Lunch Program and the submitted budget includes the
operation of SFSP.
(8) Applicants which qualify as camps and sponsors of conditional
non-congregate sites must be approved for reimbursement only for meals
served free to enrolled children who meet the Program's income
standards.
(9) The State agency shall not approve the application of any
applicant sponsor identifiable through its organization or principals as
a sponsor which has been determined to be seriously deficient as
described in Sec. 225.11(c). However, the State agency may approve the
application of a sponsor which has been disapproved or terminated in
prior years in accordance with this paragraph if the applicant
demonstrates to the satisfaction of the State agency that it has taken
appropriate corrective actions to prevent recurrence of the
deficiencies.
(10) If the sponsor's application to participate is denied, the
official making the determination of denial must notify the applicant
sponsor in writing stating all of the grounds on which the State agency
based the denial. Pending the outcome of a review of a denial, the State
agency shall proceed to approve other applicants in accordance with its
responsibilities under paragraph (b)(5) of this section, without regard
to the application under review.
(11) The State agency shall not approve the application of any
applicant sponsor which submits fraudulent information or documentation
when applying for Program participation or which knowingly withholds
information that may lead to the disapproval of its application.
Complete information regarding such disapproval of an applicant shall be
submitted by the State agency through FNSRO to OIG.
(12) The State agency must not deny a sponsor's application based
solely on the sponsor's intent to provide a non-congregate meal service.
(c) Content of sponsor application--(1) Application form. (i) The
sponsor must submit a written application to the State agency for
participation in the Program. The State agency may use the application
form developed by FNS, or develop its own application form, provided
that the form requests the full legal name, any previously used names,
mailing address; date of birth of the sponsor's responsible principals,
which include the executive director and board chair; and the sponsor's
Federal Employer Identification Number (FEIN) or Unique Entity
Identifier (UEI). Application to sponsor the Program must be made on a
timely basis within the deadlines established under paragraph (b)(1) of
this section.
(ii) At the discretion of the State agency, sponsors proposing to
serve an area affected by an unanticipated school closure may be exempt
from submitting a new application if they have participated in the
Program at any time during the current year or in either of the prior
two calendar years.
(iii) Requirements for new sponsors and sponsors that have
experienced significant operational problems in the prior year, as
determined by the State agency, are found under paragraph (c)(2) of this
section.
[[Page 143]]
(iv) Requirements for experienced sponsors are found under paragraph
(c)(3) of this section.
(2) Application requirements for new sponsors and sponsors that have
experienced significant operational problems in the prior year. New
sponsors and sponsors that have experienced significant operational
problems in the prior year, as determined by the State agency, must
include the following information in their applications:
(i) A full management plan, as described in paragraph (e) of this
section;
(ii) A free meal policy statement, as described in paragraph (f) of
this section;
(iii) A site information sheet for each site where a food service
operation is proposed, as described in paragraph (g)(1) of this section;
(iv) Information in sufficient detail to enable the State agency to
determine that the sponsor meets the criteria for participation in the
Program, as described in Sec. 225.14;
(v) Information on the extent of Program payments needed, including
a request for advance payments and start-up payments, if applicable;
(vi) A staffing and monitoring plan;
(vii) A complete administrative budget for State agency review and
approval, which includes:
(A) The projected administrative expenses that the sponsor expects
to incur during the operation of the Program, and
(B) Information in sufficient detail to enable the State agency to
assess the sponsor's ability to operate the Program within its estimated
reimbursement;
(viii) A summary of how meals will be obtained at each site (e.g.,
self-prepared at each site, self-prepared and distributed from a central
kitchen, purchased from a school food authority, competitively procured
from a food service management company);
(ix) If an invitation for bid is required under Sec. 225.15(m), a
schedule for bid dates and a copy of the invitation for bid;
(x) For each sponsor which seeks approval as a unit of local,
municipal, county or State government under Sec. 225.14(b)(3) or as a
private nonprofit organization under Sec. 225.14(b)(5), certification
that the sponsor has administrative oversight, as required under Sec.
225.14(d)(3); and
(xi) Procedures that document meals are only distributed, to a
reasonable extent, to eligible children and that duplicate meals are not
distributed to any child, if the applicant sponsor is electing to use
the non-congregate meal service options described in Sec. 225.16(i)(1)
and (2).
(3) Application requirements for experienced sponsors. The following
information must be included in the applications of experienced
sponsors:
(i) A simplified or full management plan, as described in paragraph
(e) of this section;
(ii) A site information sheet for each site where a food service
operation is proposed, as described under paragraph (g)(2) of this
section;
(iii) Information on the extent of Program payments needed,
including a request for advance payments and start-up payments, if it is
applicable;
(iv) A staffing and monitoring plan;
(v) A complete administrative budget for State agency review and
approval, which includes:
(A) The projected administrative expenses which a sponsor expects to
incur during the operation of the Program; and
(B) Information in sufficient detail to enable the State agency to
assess the sponsor's ability to operate the Program within its estimated
reimbursement.
(vi) If the method of obtaining meals is changed, a summary of how
meals will be obtained at each site (e.g., self-prepared at each site,
self-prepared and distributed from a central kitchen, purchased from a
school food authority, competitively procured from a food service
management company);
(vii) If an invitation for bid is required under Sec. 225.15(m), a
schedule for bid dates, and a copy of the invitation for bid, if it is
changed from the previous year; and
(viii) Procedures that document meals are only distributed, to a
reasonable extent, to eligible children and
[[Page 144]]
that duplicate meals are not distributed to any child, if the applicant
sponsor is electing to use the non-congregate meal service options
described in Sec. 225.16(i)(1) and (2).
(4) Applications for school food authorities and Child and Adult
Care Food Program institutions. At the discretion of the State agency,
school food authorities in good standing in the National School Lunch
Program or School Breakfast Program, as applicable, and institutions in
good standing in the Child and Adult Care Food Program may apply to
operate the Summer Food Service Program at the same sites where they
provide meals through the aforementioned Programs by following the
procedures for experienced sponsors outlined in paragraph (c)(3) of this
section.
(d) Performance standards. The State agency may only approve the
applications of those sponsors that meet the three performance standards
outlined in this section: financial viability, administrative
capability, and Program accountability. The State agency must deny
applications that do not meet all of these standards. The State agency
must consider past performance in the SFSP or another Child Nutrition
Program, and any other factors it deems relevant when determining
whether the sponsor's application meets the following standards:
(1) Performance standard 1. The sponsor must be financially viable.
The sponsor must expend and account for Program funds, consistent with
this part; FNS Instruction 796-4, Financial Management in the Summer
Food Service Program; 2 CFR part 200, subpart D; and USDA regulations 2
CFR parts 400 and 415. To demonstrate financial viability and financial
management, the sponsor's management plan must:
(i) Describe the community's need for summer meals and the sponsor's
recruitment strategy:
(A) Explain how the sponsor's participation will help ensure the
delivery of Program benefits to otherwise unserved sites or children;
and
(B) Describe how the sponsor will recruit sites, consistent with any
State agency requirements.
(ii) Describe the sponsor's financial resources and financial
history:
(A) Show that the sponsor has adequate sources of funds available to
operate the Program, pay employees and suppliers during periods of
temporary interruptions in Program payments, and pay debts if fiscal
claims are assessed against the sponsor; and
(B) Provide audit documents, financial statements, and other
documentation that demonstrate financial viability.
(iii) Ensure that all costs in the sponsor's budget are necessary,
reasonable, allowable, and appropriately documented.
(2) Performance standard 2. The sponsor must be administratively
capable. Appropriate and effective management practices must be in
effect to ensure that Program operations meet the requirements of this
part. To demonstrate administrative capability, the sponsor must:
(i) Have an adequate number and type of qualified staff to ensure
the operation of the Program, consistent with this part; and
(ii) Have written policies and procedures that assign Program
responsibilities and duties and ensure compliance with civil rights
requirements.
(3) Performance standard 3. The sponsor must have internal controls
and other management systems in place to ensure fiscal accountability
and operation of the Program, consistent with this part. To demonstrate
Program accountability, the sponsor must:
(i) Demonstrate that the sponsor has a financial system with
management controls specified in written operational policies that will
ensure that:
(A) All funds and property received are handled with fiscal
integrity and accountability;
(B) All expenses are incurred with integrity and accountability;
(C) Claims will be processed accurately, and in a timely manner;
(D) Funds and property are properly safeguarded and used, and
expenses incurred, for authorized Program purposes; and
(E) A system of safeguards and controls is in place to prevent and
detect improper financial activities by employees.
[[Page 145]]
(ii) Maintain appropriate records to document compliance with
Program requirements, including budgets, approved budget amendments,
accounting records, management plans, and site operations.
(e) Management plan--(1) Compliance. The State agency must require
the submission of a management plan to determine compliance with
performance standards established under paragraph (d) of this section.
(i) Requirements for new sponsors and sponsors that have experienced
significant operational problems in the prior year, as determined by the
State agency, are found under paragraph (e)(2) of this section.
(ii) Requirements for experienced sponsors are found under paragraph
(e)(3) of this section.
(iii) Requirements for school food authorities in good standing in
the National School Lunch Program or School Breakfast Program, as
applicable, or institutions in good standing in the Child and Adult Care
Food Program are found under paragraph (e)(4) of this section.
(2) Requirements for new sponsors and sponsors that have experienced
significant operational problems in the prior year. Sponsors must submit
a complete management plan that includes:
(i) Detailed information on the sponsor's management and
administrative structure, including information that demonstrates the
sponsor's financial viability and financial management described under
paragraph (d)(1) of this section;
(ii) Information that demonstrates compliance with each of the
performance standards outlined under paragraph (d) of this section;
(iii) A list or description of the staff assigned to perform Program
monitoring required under Sec. 225.15(d)(2) and (3); and
(iv) For each sponsor which submits an application under paragraph
(c)(1) of this section, information in sufficient detail to demonstrate
that the sponsor will:
(A) Provide adequate and not less than annual training of sponsor's
staff and sponsored sites, as required under Sec. 225.15(d)(1);
(B) Perform monitoring consistent with Sec. 225.15(d)(2) and (3),
to ensure that all site operations are accountable and appropriate;
(C) Accurately classify sites consistent with paragraphs (g)(1) and
(2) of this section;
(D) Demonstrate the sponsor's compliance with meal service,
recordkeeping, and other operational requirements of this part;
(E) Provide meals that meet the meal patterns set forth in Sec.
225.16;
(F) Have a food service that complies with applicable State and
local health and sanitation requirements;
(G) Comply with civil rights requirements;
(H) Maintain complete and appropriate records on file; and
(I) Claim reimbursement only for eligible meals.
(3) Requirements for experienced sponsors. Experienced sponsors must
submit a management plan. At the discretion of the State agency,
experienced sponsors may submit a full management plan or a simplified
management plan. A full management plan must be submitted at least once
every 3 years. The simplified management plan must include a
certification that any information previously submitted to the State to
satisfy the eligibility requirements, set forth in paragraph (d) of this
section, for the sponsor, its sites, and all of its current principals
is current, or that the sponsor has submitted any changes or updates to
the State. This certification must address all required elements of each
performance standard.
(4) Requirements for school food authorities in good standing in the
National School Lunch Program or School Breakfast Program, as
applicable, or institutions in good standing in the Child and Adult Care
Food Program. These sponsors are not required to submit a management
plan unless requested by the State agency. The State agency may request
additional evidence of financial and administrative capability
sufficient to ensure that the school food authority or institution has
the ability and resources to operate the Program if the State agency has
reason to believe that this would pose significant challenges for the
applicant.
[[Page 146]]
(f) Free meal policy statement--(1) Nondiscrimination statement. (i)
Each sponsor must submit a nondiscrimination statement of its policy for
serving meals to children. The statement must consist of:
(A) An assurance that all children are served the same meals and
that there is no discrimination in the course of the food service; and
(B) Except for camps and conditional non-congregate sites, a
statement that the meals served are free at all sites.
(ii) A school sponsor must submit the policy statement only once,
with the initial application to participate as a sponsor. However, if
there is a substantive change in the school's free and reduced price
policy, a revised policy statement must be provided at the State
agency's request.
(iii) In addition to the information described in paragraph (i) of
this section, the policy statement of all camps and conditional non-
congregate sites that charge separately for meals must also include:
(A) A statement that the eligibility standards conform to the
Secretary's family size and income standards for reduced price school
meals;
(B) A description of the method to be used in accepting applications
from families for Program meals that ensures that households are
permitted to apply on behalf of children who are members of households
receiving SNAP, FDPIR, or TANF benefits using the categorical
eligibility procedures described in Sec. 225.15(f);
(C) A description of the method to be used for collecting payments
from children who pay the full price of the meal while preventing the
overt identification of children receiving a free meal;
(D) An assurance that the sponsor will establish hearing procedures
for families requesting to appeal a denial of an application for free
meals. These procedures must meet the requirements set forth in
paragraph (f)(2) of this section;
(E) An assurance that, if a family requests a hearing, the child
will continue to receive free meals until a decision is rendered; and
(F) An assurance that there will be no overt identification of free
meal recipients and no discrimination against any child on the basis of
race, color, national origin, sex (including gender identity and sexual
orientation), age, or disability.
(2) Hearing procedures statement. Each camp or sponsor of a
conditional non-congregate site must submit a copy of its hearing
procedures with its application. At a minimum, the procedures must
provide that:
(i) A simple, publicly announced method will be used for a family to
make an oral or written request for a hearing;
(ii) The family will have the opportunity to be assisted or
represented by an attorney or other person (designated representative);
(iii) The family or designated representative will have an
opportunity to examine the documents and records supporting the decision
being appealed, both before and during the hearing;
(iv) The hearing will be reasonably prompt and convenient for the
family or designated representative;
(v) Adequate notice will be given to the family or designated
representative of the time and place of the hearing;
(vi) The family or designated representative will have an
opportunity to present oral or documented evidence and arguments
supporting its position;
(vii) The family or designated representative will have an
opportunity to question or refute any testimony or other evidence and to
confront and cross-examine any adverse witnesses;
(viii) The hearing will be conducted and the decision made by a
hearing official who did not participate in the action being appealed;
(ix) The decision will be based on the oral and documentary evidence
presented at the hearing and made a part of the record;
(x) The family or designated representative will be notified in
writing of the decision;
(xi) A written record will be prepared for each hearing, which
includes the action being appealed, any documentary evidence and a
summary of oral testimony presented at the hearing, the decision and the
reasons for the decision, and a copy of the notice sent to the family or
designated representative; and
[[Page 147]]
(xii) The written record will be maintained for a period of three
years following the conclusion of the hearing and will be available for
examination by the family or designated representative at any reasonable
time and place.
(g) Site information sheet. The State agency must develop a site
information sheet for sponsors.
(1) New sites. The application submitted by sponsors must include a
site information sheet for each site where a food service operation is
proposed. Where a non-congregate meal service operation is proposed for
the first time, the sponsor must follow the requirements of this
paragraph (g)(1). At a minimum, the site information sheet must
demonstrate or describe the following:
(i) An organized and supervised system for serving meals to
children;
(ii) The estimated number of meals to be served, types of meals to
be served, and meal service times;
(iii) Whether the site is rural, as defined in Sec. 225.2, or non-
rural. Documentation supporting the rural designation is required. New
documentation is required every 5 years, or earlier, if the State agency
determines that an area's rural status has changed significantly since
the last designation;
(iv) Whether the meal service is congregate or non-congregate;
(v) Whether the site is a self-preparation site or a vended site, as
defined in Sec. 225.2;
(vi) Arrangements for delivery and holding of meals until meal
service times and storing and refrigerating any leftover meals until the
next day, within standards prescribed by State or local health
authorities;
(vii) Access to a means of communication to make necessary
adjustments in the number of meals delivered, based on changes in the
number of children in attendance at each site;
(viii) Arrangements for food service during periods of inclement
weather;
(ix) For open sites and restricted open sites:
(A) Documentation supporting the eligibility of each site as serving
an area in which poor economic conditions exist;
(B) When school data are used, new documentation is required every 5
years;
(C) When census data are used, new documentation is required every 5
years, or earlier, if the State agency determines that an area's
socioeconomic status has changed significantly since the last census;
and
(D) At the discretion of the State agency, sponsors proposing to
serve an area affected by an unanticipated school closure may be exempt
from submitting new site documentation if the sponsor has participated
in the Program at any time during the current year or in either of the
prior 2 calendar years;
(x) For closed enrolled sites:
(A) The projected number of children enrolled and the projected
number of children eligible for free and reduced price school meals for
each of these sites; or documentation supporting the eligibility of each
site as serving an area in which poor economic conditions exist;
(B) When school data are used, new documentation is required every 5
years; and
(C) When census data are used, new documentation is required every 5
years, or earlier, if the State agency determines that an area's
socioeconomic status has changed significantly since the last census;
(xi) For NYSP sites, certification from the sponsor that all of the
children who will receive Program meals are enrolled participants in the
NYSP;
(xii) For camps, the number of children enrolled in each session who
meet the Program's income standards. If such information is not
available at the time of application, this information must be submitted
as soon as possible thereafter, and in no case later than the filing of
the camp's claim for reimbursement for each session;
(xiii) For sites that will serve children of migrant workers:
(A) Certification from a migrant organization, which attests that
the site serves children of migrant workers; and
(B) Certification from the sponsor that the site primarily serves
children of migrant workers, if non-migrant children are also served;
and
[[Page 148]]
(xiv) For conditional non-congregate sites, the number of children
enrolled who meet the Program's income standards. If such information is
not available at the time of application, this information must be
submitted as soon as possible thereafter, and in no case later than the
filing of the sponsor's claim for reimbursement.
(2) Experienced sites. The application submitted by sponsors must
include a site information sheet for each site where a food service
operation is proposed. The State agency may require sponsors of
experienced sites to provide information described in paragraph (g)(1)
of this section. At a minimum, the site information sheet must
demonstrate or describe the following:
(i) The estimated number of meals, types of meals to be served, and
meal service times;
(ii) Whether the site is rural, as defined in Sec. 225.2, or non-
rural. Documentation supporting the rural designation is required. New
documentation is required every 5 years, or earlier, if the State agency
determines that an area's rural status has changed significantly since
the last designation;
(iii) Whether the meal service is congregate or non-congregate;
(iv) For open sites and restricted open sites:
(A) Documentation supporting the eligibility of each site as serving
an area in which poor economic conditions exist;
(B) When school data are used, new documentation is required every 5
years;
(C) When census data are used, new documentation is required every 5
years, or earlier, if the State agency determines that an area's
socioeconomic status has changed significantly since the last census;
and
(D) Any site that a sponsor proposes to serve during an
unanticipated school closure, which has participated in the Program at
any time during the current year or in either of the prior 2 calendar
years, is considered eligible without new documentation;
(v) For closed enrolled sites:
(A) The projected number of children enrolled and the projected
number of children eligible for free and reduced price school meals for
each of these sites; or documentation supporting the eligibility of each
site as serving an area in which poor economic conditions exist;
(B) When school data are used, new documentation is required every 5
years; and
(C) When census data are used, new documentation is required every 5
years, or earlier, if the State agency determines that an area's
socioeconomic status has changed significantly since the last census;
(vi) For NYSP sites, certification from the sponsor that all of the
children who will receive Program meals are enrolled participants in the
NYSP;
(vii) For camps, the number of children enrolled in each session who
meet the Program's income standards. If such information is not
available at the time of application, this information must be submitted
as soon as possible thereafter, and in no case later than the filing of
the camp's claim for reimbursement for each session; and
(viii) For conditional non-congregate sites, the number of children
enrolled who meet the Program's income standards. If such information is
not available at the time of application, this information must be
submitted as soon as possible thereafter, and in no case later than the
filing of the sponsor's claim for reimbursement.
(h) Approval of sites. (1) When evaluating a proposed food service
site, the State agency must ensure that:
(i) If not a camp or a conditional non-congregate site, the proposed
site serves an area in which poor economic conditions exist, as defined
by Sec. 225.2;
(ii) The area which the site proposes to serve is not or will not be
served in whole or in part by another site, unless it can be
demonstrated to the satisfaction of the State agency that each site will
serve children not served by any other site in the same area for the
same meal;
(iii) The site is approved to serve no more than the number of
children for which its facilities are adequate; and
(iv) If it is a site proposed to operate during an unanticipated
school closure, it is a non-school site.
(2) When approving the application of a site which will serve meals
prepared
[[Page 149]]
by a food service management company, the State agency must establish
for each meal service an approved level for the maximum number of
children's meals which may be served under the Program. These approved
levels must be established in accordance with the following provisions:
(i) The initial maximum approved level must be based upon the
historical record of the number of meals served at the site if such a
record has been established in prior years and the State agency
determines that it is accurate. The State agency must develop a
procedure for establishing initial maximum approved levels for sites
when no accurate record from prior years is available. The State agency
may consider participation at other similar sites located in the area,
documentation of programming taking place at the site, statistics on the
number of children residing in the area, and other relevant information.
(ii) The maximum approved level must be adjusted, if warranted,
based upon information collected during site reviews. If the number of
meals served at the site on the day of the review is significantly below
the site's approved level, the State agency should consider making a
downward adjustment in the approved level with the objective of
providing only one meal per child.
(iii) The sponsor may seek an upward adjustment in the approved
level for its sites by requesting a site review or by providing the
State agency with evidence that the number of meals served exceeds the
sites' approved levels. The sponsor may request an upward adjustment at
any point prior to submitting the claim for the impacted reimbursement
period.
(iv) Whenever the State agency establishes or adjusts approved
levels of meal service for a site, it must document the action in its
files, and it shall provide the sponsor with immediate written
confirmation of the approved level.
(v) Upon approval of its application or any adjustment to its
maximum approved levels, the sponsor must inform the food service
management company with which it contracts of the approved level for
each meal service at each site served by the food service management
company. This notification of any adjustments in approved levels must
take place within the time frames set forth in the contract for
adjusting meal orders. Whenever the sponsor notifies the food service
management company of the approved levels or any adjustments to these
levels for any of its sites, the sponsor must clearly inform the food
service management company that an approved level of meal service
represents the maximum number of meals which may be served at a site and
is not a standing order for a specific number of meals at that site.
When the number of children being served meals is below the site's
approved level, the sponsor must adjust meal orders with the objective
of serving only one meal per child as required under Sec. 225.15(b)(3).
(3) When approving the application of a site that will provide a
non-congregate meal service, the State agency must ensure that the
proposed site:
(i) Meets the requirements described in paragraphs (h)(1) and (2) of
this section.
(ii) Is rural, as defined in Sec. 225.2.
(iii) Will not serve an area where children would receive the same
meal at an approved congregate meal site, unless it can be demonstrated
to the satisfaction of the State agency that the site will serve a
different group of children who may not be otherwise served.
(iv) Serves an area in which poor economic conditions exist or is
approved for reimbursement only for meals served free to enrolled
children who meet the Program's income standards.
(v) Distributes up to the allowable number of reimbursable meals
that would be provided over a 10-calendar day period. The State agency
may establish a shorter calendar day period on a case-by-case basis and
without regard to sponsor type.
(4) When approving the application of a site which will provide both
congregate and non-congregate meal services, the State agency must
ensure that:
(i) The proposed site meets the requirements in paragraphs (h)(1)
through (3) of this section.
(ii) The proposed site will only conduct a non-congregate meal
service
[[Page 150]]
when the site is not providing a congregate meal service.
(iii) The sponsor proposes an organized and supervised system which
prevents overlap between meal services and reasonably ensures children
are not receiving more than the daily maximum allowance of meals as
required in Sec. 225.16(b)(3).
(i) State-sponsor agreement. A sponsor approved for participation in
the Program must enter into a permanent written agreement with the State
agency. The existence of a valid permanent agreement does not limit the
State agency's ability to terminate the agreement, as provided under
Sec. 225.11(c). The State agency must terminate the sponsor's agreement
whenever a sponsor's participation in the Program ends. The State agency
or sponsor may terminate the agreement at its convenience, upon mutual
agreement, due to considerations unrelated to either party's performance
of Program responsibilities under the agreement. However, any action
initiated by the State agency to terminate an agreement for its
convenience requires prior consultation with FNS. All sponsors must
agree in writing to:
(1) Operate a nonprofit food service during the period specified, as
follows:
(i) From May through September for children on school vacation;
(ii) At any time of the year, in the case of sponsors administering
the Program under a continuous school calendar system; or
(iii) During the period from October through April, if it serves an
area affected by an unanticipated school closure due to a natural
disaster, major building repairs, court orders relating to school safety
or other issues, labor-management disputes, or, when approved by the
State agency, a similar cause.
(2) For school food authorities, offer meals which meet the
requirements and provisions set forth in Sec. 225.16 during times
designated as meal service periods by the sponsor and offer the same
meals to all children.
(3) For all other sponsors, serve meals which meet the requirements
and provisions set forth in Sec. 225.16 during times designated as meal
service periods by the sponsor and serve the same meals to all children.
(4) Serve meals without cost to all children, except that camps and
conditional non-congregate sites may charge for meals served to children
who are not served meals under the Program.
(5) Issue a free meal policy statement in accordance with paragraph
(c) of this section.
(6) Meet the training requirement for its administrative and site
personnel, as required under Sec. 225.15(d)(1).
(7) Claim reimbursement only for the types of meals specified in the
agreement that are served:
(i) Without charge to children at approved sites, except camps and
conditional non-congregate sites, during the approved meal service time;
(ii) Without charge to children who meet the Program's income
standards in camps and conditional non-congregate sites;
(iii) Within the approved level for the maximum number of children's
meals that may be served, if a maximum approved level is required under
paragraph (h)(2) of this section;
(iv) At the approved meal service time, unless a change is approved
by the State agency, as required under Sec. 225.16(c); and
(v) At the approved site, unless the requirements in Sec. 225.16(g)
are met.
(8) Submit claims for reimbursement in accordance with procedures
established by the State agency, and those stated in Sec. 225.9.
(9) In the storage, preparation and service of food, maintain proper
sanitation and health standards in conformance with all applicable State
and local laws and regulations.
(10) Accept and use, in quantities that may be efficiently utilized
in the Program, such foods as may be offered as a donation by the
Department.
(11) Have access to facilities necessary for storing, preparing, and
serving food.
(12) Maintain a financial management system as prescribed by the
State agency.
(13) Maintain on file documentation of site visits and reviews in
accordance with Sec. 225.15(d) (2) and (3).
(14) Upon request, make all accounts and records pertaining to the
Program
[[Page 151]]
available to State, Federal, or other authorized officials for audit or
administrative review, at a reasonable time and place. The records shall
be retained for a period of 3 years after the end of the fiscal year to
which they pertain, unless audit or investigative findings have not been
resolved, in which case the records shall be retained until all issues
raised by the audit or investigation have been resolved.
(15) For approved congregate meal service, maintain children on site
while meals are consumed. Sponsors may allow a child to take one fruit,
vegetable, or grain item off-site for later consumption if the
requirements in Sec. 225.16(h) are met.
(16) Retain final financial and administrative responsibility for
its program.
(j) Special Account. In addition, the State agency may require any
vended sponsor to enter into a special account agreement with the State
agency. The special account agreement shall stipulate that the sponsor
shall establish a special account with a State agency or Federally
insured bank for operating costs payable to the sponsor by the State.
The agreement shall also stipulate that any disbursement of monies from
the account must be authorized by both the sponsor and the food service
management company. The special account agreement may contain such other
terms, agreed to by both the sponsor and the food service management
company, which are consistent with the terms of the contract between the
sponsor and the food service management company. A copy of the special
account agreement shall be submitted to the State agency and another
copy maintained on file by the sponsor. Any charges made by the bank for
the account described in this section shall be considered an allowable
sponsor administrative cost.
(k) Food service management company registration. A State agency may
require each food service management company, operating within the
State, to register based on State procedures. A State agency may further
require the food service management company to certify that the
information submitted on its application for registration is true and
correct and that the food service management company is aware that
misrepresentation may result in prosecution under applicable State and
Federal statutes.
(l) Monitoring of food service management company procurements. (1)
The State agency shall ensure that sponsors' food service management
company procurements are carried out in accordance with Sec. Sec.
225.15(m) and 225.17.
(2) Each State agency shall develop a standard form of contract for
use by sponsors in contracting with food service management companies.
Sponsors that are public entities, sponsors with exclusive year-round
contracts with a food service management company, and sponsors that have
no food service management company contracts exceeding the simplified
acquisition threshold in 2 CFR part 200, as applicable, may use their
existing or usual form of contract, provided that such form of contract
has been submitted to and approved by the State agency. The standard
contract developed by the State agency shall expressly and without
exception provide that:
(i) All meals prepared by a food service management company shall be
unitized, with or without milk or juice, unless the State agency has
approved, pursuant to paragraph (l)(3) of this section, a request for
exceptions to the unitizing requirement for certain components of a
meal;
(ii) A food service management company entering into a contract with
a sponsor under the Program shall not subcontract for the total meal,
with or without milk, or for the assembly of the meal;
(iii) The sponsor shall provide to the food service management
company a list of State agency approved food service sites, along with
the approved level for the number of meals which may be claimed for
reimbursement for each site, established under Sec. 225.6(h)(2), and
shall notify the food service management company of all sites which have
been approved, cancelled, or terminated subsequent to the submission of
the initial approved site list and of any changes in the approved level
of meal service for a site. Such notification shall be provided within
the time limits mutually agreed upon in the contract;
[[Page 152]]
(iv) The food service management company shall maintain such records
(supported by invoices, receipts, or other evidence) as the sponsor will
need to meet its responsibilities under this part, and shall submit all
required reports to the sponsor promptly at the end of each month,
unless more frequent reports are required by the sponsor;
(v) The food service management company must have State or local
health certification for the facility in which it proposes to prepare
meals for use in the Program. It must ensure that health and sanitation
requirements are met at all times. In addition, the food service
management company must ensure that meals are inspected periodically to
determine bacteria levels present in the meals and that the bacteria
levels found to be present in the meals conform with the standards set
by local health authorities. The results of the inspections must be
submitted promptly to the sponsor and to the State agency.
(vi) The meals served under the contract shall conform to the cycle
menus and meal quality standards and food specifications approved by the
State agency and upon which the bid was based;
(vii) The books and records of the food service management company
pertaining to the sponsor's food service operation shall be available
for inspection and audit by representatives of the State agency, the
Department and the U.S. Government Accountability Office at any
reasonable time and place for a period of 3 years from the date of
receipt of final payment under the contract, except that, if audit or
investigation findings have not been resolved, such records shall be
retained until all issues raised by the audit or investigation have been
resolved;
(viii) The sponsor and the food service management company shall
operate in accordance with current Program regulations;
(ix) The food service management company shall be paid by the
sponsor for all meals delivered in accordance with the contract and this
part. However, neither the Department nor the State agency assumes any
liability for payment of differences between the number of meals
delivered by the food service management company and the number of meals
served by the sponsor that are eligible for reimbursement;
(x) Meals shall be delivered in accordance with a delivery schedule
prescribed in the contract;
(xi) Increases and decreases in the number of meals ordered shall be
made by the sponsor, as needed, within a prior notice period mutually
agreed upon;
(xii) All meals served under the Program shall meet the requirements
of Sec. 225.16;
(xiii) In cases of nonperformance or noncompliance on the part of
the food service management company, the company shall pay the sponsor
for any excess costs which the sponsor may incur by obtaining meals from
another source;
(xiv) If the State agency requires the sponsor to establish a
special account for the deposit of operating costs payments in
accordance with the conditions set forth in Sec. 225.6(j), the contract
shall so specify;
(xv) The food service management company shall submit records of all
costs incurred in the sponsor's food service operation in sufficient
time to allow the sponsor to prepare and submit the claim for
reimbursement to meet the 60-day submission deadline; and
(xvi) The food service management company shall comply with the
appropriate bonding requirements, as set forth in Sec. 225.15(m)(5)
through (7).
(3) All meals prepared by a food service management company shall be
unitized, with or without milk or juice, unless the sponsor submits to
the State agency a request for exceptions to the unitizing requirement
for certain components of a meal. These requests shall be submitted to
the State agency in writing in sufficient time for the State agency to
respond prior to the sponsor's advertising for bids. The State agency
shall notify the sponsor in writing of its determination in a timely
manner.
(4) Each State agency shall have a representative present at all
food service management company procurement
[[Page 153]]
bid openings when sponsors are expected to receive more than $100,000 in
Program payments.
(5) Copies of all contracts between sponsors and food service
management companies, along with a certification of independent price
determination, shall be submitted to the State agency prior to the
beginning of Program operations. Sponsors shall also submit to the State
agency copies of all bids received and their reason for selecting the
food service management company chosen.
(6) All bids in an amount which exceeds the lowest bid shall be
submitted to the State agency for approval before acceptance. All bids
totaling $100,000 or more shall be submitted to the State agency for
approval before acceptance. State agencies shall respond to a request
for approval of such bids within 5 working days of receipt.
(7) The contract between a sponsor and food service management
company shall be no longer than 1 year; and options for the yearly
renewal of a contract may not exceed 4 additional years. All contracts
shall include a termination clause whereby either party may cancel for
cause or for convenience with up to 60-day notification.
(8) Failure by a sponsor to comply with the provisions of this
paragraph or Sec. 225.15(m) shall be sufficient grounds for the State
agency to terminate participation by the sponsor in accordance with
Sec. 225.18(b).
(m) Meal pattern exceptions. The State agency shall review and act
upon requests for exceptions to the meal pattern in accordance with the
guidelines and limitations set forth in Sec. 225.16.
[54 FR 18208, Apr. 27, 1989, as amended at 55 FR 13467, Apr. 10, 1990; ;
64 FR 72484, Dec. 28, 1999; 64 FR 72896, Dec. 29, 1999; 72 FR 10895,
Mar. 12, 2007; 76 FR 22798, Apr. 25, 2011; 78 FR 13450, Feb. 28, 2013;
83 FR 25357, June 1, 2018; 84 FR 15501, Apr. 16, 2019; 87 FR 57356,
Sept. 19, 2022; 88 FR 57849, Aug. 23, 2023; 88 FR 90349, Dec. 29, 2023]
Sec. 225.7 Program monitoring and assistance.
(a) Training. Prior to the beginning of Program operations, each
State agency shall make available training in all necessary areas of
Program administration to sponsor personnel, food service management
company representatives, auditors, and health inspectors who will
participate in the Program in that State. Prior to Program operations,
the State agency shall ensure that the sponsor's supervisory personnel
responsible for the food service receive training in all necessary areas
of Program administration and operations. This training shall reflect
the fact that individual sponsors or groups of sponsors require
different levels and areas of Program training. State agencies are
encouraged to utilize in such training, and in the training of site
personnel, sponsor personnel who have previously participated in the
Program. Training should be made available at convenient locations or
via the internet. State agencies are not required to conduct this
training for sponsors operating the Program during unanticipated school
closures.
(b) Program materials. Each State agency shall develop and make
available all necessary Program materials in sufficient time to enable
applicant sponsors to prepare adequately for the Program.
(c) Food specifications and meal quality standards. With the
assistance of the Department, each State agency shall develop and make
available to all sponsors minimum food specifications and model meal
quality standards which shall become part of all contracts between
vended sponsors and food service management companies.
(d) Pre-approval visits. The State agency must conduct pre-approval
visits of sponsors and sites, as specified in paragraph (d)(1) through
(4) of this section, to assess the applicant sponsor's or site's
potential for successful Program operations and to verify information
provided in the application.
(1) The State agency must visit, prior to approval:
(i) All applicant sponsors that did not participate in the program
in the prior year;
(ii) All applicant sponsors that had operational problems noted in
the prior year; and
(iii) All sites that the State agency has determined need a pre-
approval visit.
(2) If a sponsor is a school food authority or Child and Adult Care
Food Program institution and was reviewed
[[Page 154]]
by the State agency under their respective programs during the preceding
12 months, and had no significant deficiencies noted in that review, a
pre-approval visit may be conducted at the discretion of the State
agency.
(3) Pre-approval visits of sponsors proposing to operate the Program
during unanticipated school closures may be conducted at the discretion
of the State agency.
(4) Each State agency must establish a process to determine which
sites need pre-approval visits. Characteristics that must be considered
include, but are not limited to:
(i) Sites that did not participate in the program in the prior year;
(ii) Existing sites that are new to non-congregate meal service; and
(iii) Existing sites that exhibited operational problems in the
prior year.
(e) Sponsor and site reviews--(1) Purpose. The State agency must
review sponsors and sites to ensure compliance with Program regulations,
the Department's non-discrimination regulations (7 CFR part 15), and any
other applicable instructions issued by the Department.
(2) Sample selection. In determining which sponsors and sites to
review, the State agency must, at a minimum, consider the sponsors and
sites' previous participation in the Program, their current and previous
Program performance, whether they operate as congregate or non-
congregate sites, and the results of previous reviews.
(3) School food authorities. When the same school food authority
personnel administer this Program as well as the National School Lunch
Program (7 CFR part 210), the State agency is not required to conduct a
sponsor or site review in the same year in which the National School
Lunch Program operations have been reviewed and determined to be
satisfactory.
(4) Frequency and number of required reviews. State agencies must:
(i) Conduct a review of every new sponsor at least once during the
first year of operation;
(ii) Annually review every sponsor that experienced significant
operational problems in the prior year;
(iii) Review each sponsor at least once every 3 years;
(iv) Review more frequently those sponsors that, in the
determination of the State agency, require additional technical
assistance; and
(v) As part of each sponsor review, conduct reviews of at least 10
percent of each reviewed sponsor's sites, or one site, whichever number
is greater. The review sample must include sites representative of all
meal service models operated by the sponsor.
(5) Site selection criteria. (i) State agencies must develop
criteria for site selection when selecting sites to meet the minimum
number of sites required under paragraph (e)(4)(v) of this section.
State agencies should, to the maximum extent possible, select sites that
reflect the sponsor's entire population of sites. Characteristics that
should be reflected in the sites selected for review include:
(A) The maximum number of meals approved to serve under Sec.
225.6(h)(1) and (2);
(B) Method of obtaining meals (i.e., self-preparation or vended meal
service);
(C) Time since last site review by State agency;
(D) Type of site (e.g., open, closed enrolled, camp);
(E) Type of physical location (e.g., school, outdoor area, community
center);
(F) Rural designation (i.e., rural, as defined in Sec. 225.2, or
non-rural);
(G) Type of meal service (i.e., congregate or non-congregate);
(H) If non-congregate, meal distribution method (e.g., meal pick-up,
delivery); and
(I) Affiliation with the sponsor, as defined in Sec. 225.2.
(ii) The State agency may use additional criteria to select sites
including, but not limited to: recommendations from the sponsor;
findings from other audits or reviews; or any indicators of potential
error in daily meal counts (e.g., identical or very similar claiming
patterns, large changes in free meal counts).
(6) Meal claim validation. As part of every sponsor review under
paragraph (e)(4) of this section, the State agency must validate the
sponsor's meal claim utilizing a record review process.
[[Page 155]]
(i) The State agency must develop a record review process. This
process must include, at a minimum, reconciliation of delivery receipts,
daily meal counts from sites, and the comparison of the sponsor's claim
consolidation spreadsheet with the meals claimed for reimbursement by
the sponsor for the period under review.
(ii) For the purposes of this paragraph (e)(6), the percent error
includes both overclaims and underclaims. Claims against sponsors as a
result of meal claim validation should be assessed after the conclusion
of the meal claim validation process in accordance with Sec. 225.12.
(iii) In determining the sample size for each step of this process,
fractions must be rounded up (=0.5) or down (<0.5) to the
nearest whole number.
(iv) State agencies must at a minimum follow the process to conduct
the meal claim validation as described in table 1.
[GRAPHIC] [TIFF OMITTED] TR19SE22.012
[[Page 156]]
[GRAPHIC] [TIFF OMITTED] TR19SE22.013
(v) In determining the percentage of error, under paragraphs
(e)(6)(i) through (iv) of this section, fractions must be rounded up
(=0.5) or down (<0.5) to the nearest whole number. Percentage
of error is calculated for each step as follows:
(A) Determining the meal counting and claiming discrepancy for each
site validated. Subtract the total meals validated from the total meals
claimed by the sponsor for each validated site. Take the absolute value
of each discrepancy. By applying the absolute value, the numbers will be
expressed as positive valued numbers.
(B) Calculating total discrepancy. Add together all discrepancies
from each site as determined in paragraph (e)(6)(v)(A) of this section
to calculate the total discrepancies for sites validated in the given
step.
(C) Calculating percent error. Divide the total discrepancies as
determined in paragraph (e)(6)(v)(B) of this section by the total meals
claimed by the sponsor for all reviewed sites within the validation
sample for the given step. Multiply by 100 to calculate the percentage
of error.
(vi) The State agency may expand the validation of meal claims
beyond the review period or to include additional sites if the State
agency has reason to believe that the sponsor has engaged in unlawful
acts in connection with Program operations.
(vii) In lieu of the meal claim validation process described in
table 1 to paragraph (e)(6)(iv) of this section, the State agency may
complete a validation which includes all meals served on all operating
days for all sites under a sponsor for the review period.
[[Page 157]]
(7) Review of sponsor operations. State agencies should determine
if:
(i) Expenditures are allowable and consistent with FNS Instructions
and guidance and all funds accruing to the food service are properly
identified and recorded as food service revenue;
(ii) Expenditures are consistent with budgeted costs, and the
previous year's expenditures taking into consideration any changes in
circumstances;
(iii) Reimbursements have not resulted in accumulation of net cash
resources as defined in paragraph (m) of this section; and
(iv) The level of administrative spending is reasonable and does not
affect the sponsor's ability to operate a nonprofit food service and
provide a quality meal service.
(f) Follow-up reviews. The State agency must conduct follow-up
reviews of sponsors and sites as necessary.
(g) Monitoring system. Each State agency must develop and implement
a monitoring system to ensure that sponsors, including site personnel,
and the sponsor's food service management company, if applicable,
immediately receive a copy of any review reports which indicate Program
violations and which could result in a Program disallowance.
(h) Records. Documentation of Program assistance and the results of
such assistance must be maintained on file by the State agency 3 years
after submission in accordance with Sec. 225.8(a).
(i) Meal preparation facility reviews. As part of the review of any
vended sponsor that purchases unitized meals, with or without milk, to
be served at a SFSP site, the State agency must review the meal
production facility and meal production documentation of any food
service management company from which the sponsor purchases meals for
compliance with program requirements. If the sponsor does not purchase
meals but does purchase management services within the restrictions
specified in Sec. 225.15, the State agency is not required to conduct a
meal preparation facility review.
(1) Each State agency must establish an order of priority for
visiting facilities at which food is prepared for the Program. The
facility review must be conducted at least one time within the
appropriate review cycle for each vended sponsor. If multiple vended
sponsors use the same food service management company and are being
reviewed in the same review cycle, a single facility review will fulfill
the review requirements for those vended sponsors.
(2) The State agency must respond promptly to complaints concerning
facilities. If the food service management company fails to correct
violations noted by the State agency during a review, the State agency
must notify the sponsor and the food service management company that
reimbursement must not be paid for meals prepared by the food service
management company after a date specified in the notification.
(3) Funds provided in Sec. 225.5(f) may be used for conducting meal
preparation facility reviews.
(j) Forms for reviews by sponsors. Each State agency must develop
and provide monitor review forms to all approved sponsors. These forms
must be completed by sponsor monitors. The monitor review form must
include, but not be limited to:
(1) The time of the reviewer's arrival and departure;
(2) The site supervisor's printed name and signature;
(3) A certification statement to be signed by the monitor;
(4) The number of meals prepared or delivered;
(5) Whether the meal service is congregate or non-congregate;
(6) The number of meals served to children;
(7) The deficiencies noted;
(8) The corrective actions taken by the sponsor; and
(9) The date of such actions.
(k) Corrective actions. Corrective actions which the State agency
may take when Program violations are observed during the conduct of a
review are discussed in Sec. 225.11. The State agency must conduct
follow-up reviews as appropriate when corrective actions are required.
(l) Other facility inspections and meal quality tests. In addition
to those inspections required by paragraph (i) of this section, the
State agency may also conduct, or arrange to have conducted:
[[Page 158]]
inspections of self-preparation and vended sponsors' food preparation
facilities; inspections of food service sites; and meal quality tests.
The procedures for carrying out these inspections and tests must be
consistent with procedures used by local health authorities. For
inspections of food service management companies' facilities not
conducted by State agency personnel, copies of the results must be
provided to the State agency. The company and the sponsor must also
immediately receive a copy of the results of these inspections when
corrective action is required. If a food service management company
fails to correct violations noted by the State agency during a review,
the State agency must notify the sponsor and the food service management
company that reimbursement must not be paid for meals prepared by the
food service management company after a date specified in the
notification. Funds provided for in Sec. 225.5(f) may be used for
conducting these inspections and tests.
(m) Financial management. Each State agency must establish a
financial management system, in accordance with 2 CFR part 200, subparts
D and E, and USDA implementing regulations 2 CFR parts 400 and 415, as
applicable, and FNS guidance, to identify allowable Program costs and to
establish standards for sponsor recordkeeping and reporting. The State
agency must provide guidance on these financial management standards to
each sponsor. Additionally, each State agency must establish a system
for monitoring and reviewing sponsors' nonprofit food service to ensure
that all Program reimbursement funds are used solely for the conduct of
the food service operation. State agencies must review the net cash
resources of the nonprofit food service of each sponsor participating in
the Program and ensure that the net cash resources do not exceed one
months' average expenditures for sponsors operating only during the
summer months and three months' average expenditure for sponsors
operating Child Nutrition Programs throughout the year. State agency
approval must be required for net cash resources in excess of
requirements set forth in this paragraph (m). Based on this monitoring,
the State agency may provide technical assistance to the sponsor to
improve meal service quality or take other action designed to improve
the nonprofit meal service quality under the following conditions,
including but not limited to:
(1) The sponsor's net cash resources exceed the limits included in
this paragraph (m) for the sponsor's nonprofit food service or such
other amount as may be approved in accordance with this paragraph;
(2) The ratio of administrative to operating costs (as defined in
Sec. 225.2) is high;
(3) There is significant use of alternative funding for food and/or
other costs; or
(4) A significant portion of the food served is privately donated or
purchased at a very low price.
(n) Nondiscrimination. (1) Each State agency must comply with all
requirements of title VI of the Civil Rights Act of 1964, title IX of
the Education Amendments of 1972, section 504 of the Rehabilitation Act
of 1973, the Age Discrimination Act of 1975, and the Department's
regulations concerning nondiscrimination (7 CFR parts 15, 15a, and 15b),
including requirements for racial and ethnic participation data
collection, public notification of the nondiscrimination policy, and
reviews to assure compliance with such policy, to the end that no person
must, on the grounds of race, color, national origin, sex (including
gender identity and sexual orientation), age, or disability, be excluded
from participation in, be denied the benefits of, or be otherwise
subjected to discrimination under the Program.
(2) Complaints of discrimination filed by applicants or participants
must be referred to FNS or the Secretary of Agriculture, Washington, DC
20250. A State agency which has an established grievance or complaint
handling procedure may resolve sex and disability discrimination
complaints before referring a report to FNS.
(o) Sponsor site visit. Each State agency must establish criteria
that sponsors will use to determine which sites with operational
problems in the prior year are required to receive a site visit during
the first two weeks of program
[[Page 159]]
operations in accordance with Sec. 225.15(d)(2).
[54 FR 18208, Apr. 27, 1989, as amended at 55 FR 13468, Apr. 10, 1990;
64 FR 72485, Dec. 28, 1999; 64 FR 72898, Dec. 29, 1999; 71 FR 39518,
July 13, 2006; 76 FR 22798, Apr. 25, 2011; 81 FR 66492, Sept. 28, 2016;
83 FR 25358, June 1, 2018; 87 FR 57360, Sept. 19, 2022; 88 FR 90352,
Dec. 29, 2023]
Sec. 225.8 Records and reports.
(a) Each State agency shall maintain complete and accurate current
accounting records of its Program operations which will adequately
identify funds authorizations, obligations, unobligated balances,
assets, liabilities, income, claims against sponsors and efforts to
recover overpayments, and expenditures for administrative and operating
costs. These records shall be retained for a period of three years after
the date of the submission of the final Program Operations and Financial
Status Report (FNS-777), except that, if audit findings have not been
resolved, the affected records shall be retained beyond the three year
period until such time as any issues raised by the audit findings have
been resolved. The State agency shall also retain a complete record of
each review or appeal conducted, as required under Sec. 225.13, for a
period of three years following the date of the final determination on
the review or appeal. Records may be kept in their original form or on
microfilm.
(b) Each State agency shall submit to FNS a final report on the
Summer Food Service Program Operations (FNS-418) for each month no more
than 90 days following the last day of the month covered by the report.
States shall not receive Program funds for any month for which the final
report is not postmarked and/or submitted within this time limit unless
FNS grants an exception. Upward adjustments to a State's report shall
not be made after 90 days from the month covered by the report unless
authorized by FNS. Downward adjustments shall always be made without FNS
authorization, regardless of when it is determined that such adjustments
need to be made. Adjustments to a State's report shall be reported to
FNS in accordance with procedures established by FNS. Each State agency
shall also submit to FNS a quarterly Financial Status Report (FNS-777)
on the use of Program funds. Such reports shall be submitted no later
than 30 days after the end of each fiscal year quarter. Obligations
shall be reported only for the fiscal year in which they occur. Action
may be taken against the State agency, in accordance with Sec.
225.5(a)(1), for failure to submit accurate and timely reports.
(c) The State agency must submit to FNS a final Financial Status
Report no later than 120 days after the end of the fiscal year, on a
form (FNS-777) provided by FNS. Any requested increase in reimbursement
levels for a fiscal year resulting from corrective action taken after
submission of the final Program Operations and Financial Status Reports
shall be submitted to FNS for approval. The request shall be accompanied
by a written explanation of the basis for the adjustment and the actions
taken to minimize the need for such adjustments in the future. If FNS
approves such an increase, it will make payment, subject to availability
of funds. Any reduction in reimbursement for that fiscal year resulting
from corrective action taken after submission of the final fiscal year
Program Operations and Financial Status Reports shall be handled in
accordance with the provisions of Sec. 225.12(d), except that amounts
recovered may not be used to make Program payments.
(d)(1) By May 1 of each year, State agencies must submit to the
appropriate FNSRO a list of potential private nonprofit organization
sponsors. The list must include the following information for each
applicant sponsor:
(i) Name and address;
(ii) Geographical area(s) proposed to be served;
(iii) Proposed number of sites; and
(iv) Any available details of each proposed site including address,
dates of operation, and estimated daily attendance.
(2) State agencies must also notify the appropriate FNSRO within 5
working days after they approve each private nonprofit organization to
participate as a SFSP sponsor. When State agencies notify the FNSRO of
sponsor approval, they must provide the following information:
[[Page 160]]
(i) Any changes to site locations, dates of operation, and estimated
daily attendance that was previously provided;
(ii) The hours and type(s) of approved meal service at each site;
(iii) The type of site approval--open, restricted open, closed
enrolled, conditional non-congregate, or camp; and
(iv) Any other important details about each site that would help the
FNSRO plan reviews, including whether the site is rural or urban,
congregate or non-congregate, or vended or self-preparation.
(e) By June 30 of each year, or a later date approved by the
appropriate FNSRO, the State agency must submit to FNS a list of open
site locations and their operational details and provide a minimum of
two updates during the summer operational period. State agencies are
encouraged to submit updates weekly if there are any changes to their
data.
[54 FR 18208, Apr. 27, 1989, as amended at 55 FR 13469, Apr. 10, 1990;
64 FR 72485, Dec. 28, 1999; 65 FR 82251, Dec. 28, 2000; 81 FR 66492,
Sept. 28, 2016; 88 FR 90353, Dec. 29, 2023]
Sec. 225.9 Program assistance to sponsors.
(a) Start-up payments. At their discretion, State agencies may make
start-up payments to sponsors which have executed Program agreements.
Start-up payments shall not be made more than two months before the
sponsor is scheduled to begin food service operations and shall not
exceed 20 percent of the sponsor's approved administrative budget. The
amount of the start-up payment shall be deducted from the first advance
payment or, if the sponsor does not receive advance payments, from the
first reimbursement.
(b) Commodity assistance. (1) Sponsors eligible to receive
commodities under the Program include: Self-preparation sponsors;
sponsors which have entered into an agreement with a school or school
food authority for the preparation of meals; and sponsors which are
school food authorities and have competitively procured Program meals
from the same food service management company from which they
competitively procured meals for the National School Lunch Program
during the last period in which school was in session. The State agency
shall make available to these sponsors information on available
commodities. Sponsors shall use in the Program food donated by the
Department and accepted by sponsors.
(2) Not later than June 1 of each year, State agencies shall prepare
a list of the sponsors which are eligible to receive commodities and the
average daily number of eligible meals to be served by each of these
sponsors. If the State agency does not handle the distribution of
commodities donated by the Department, this list shall be forwarded to
the agency of the State responsible for the distribution of commodities.
The State agency shall be responsible for promptly revising the list to
reflect additions or terminations of sponsors and for adjusting the
average daily participation data as it deems necessary.
(c) Advance payments. At the sponsor's request, State agencies shall
make advance payments to sponsors that have executed Program agreements
in order to assist these sponsors in meeting expenses. For sponsors
operating under a continuous school calendar, all advance payments shall
be forwarded on the first day of each month of operation. Advance
payments shall be made by the dates specified in paragraph (c)(1)(i) of
this section for all other sponsors whose requests are received at least
30 days prior to those dates. Requests received less than 30 days prior
to those dates shall be acted upon within 30 days of receipt. When
making advance payments, State agencies shall observe the following
criteria:
(1) Payments. (i) State agencies shall make advance payments by June
1, July 15, and August 15. To be eligible for the second and third
advance payments, the sponsor must certify that it is operating the
number of sites for which the budget was approved and that its projected
costs do not differ significantly from the approved budget. Except for
school food authorities, sponsors must conduct training sessions before
receiving the second advance payment. Training sessions must cover
Program duties and responsibilities for the sponsor's staff and for site
[[Page 161]]
personnel. A sponsor shall not receive advance payments for any month in
which it will participate in the Program for less than 10 days. However,
if a sponsor operates for less than 10 days in June but for at least 10
days in August, the second advance payment shall be made by August 15.
(ii) To determine the amount of the advance payment to any sponsor,
the State agency shall employ whichever of the following methods will
result in the larger payment:
(A) The total reimbursement paid to the sponsor for the same
calendar month in the preceding year; or
(B) For vended sponsors, 50 percent of the amount determined by the
State agency to be needed that month for meals, or, for self-preparation
sponsors, 65 percent of the amount determined by the State agency to be
needed that month for meals.
(2) Advance payment estimates. When determining the amount of
advance payments payable to the sponsor, the State agency shall make the
best possible estimate based on the sponsor's request and any other
available data. Under no circumstances may the amount of the advance
payment exceed the amount estimated by the State agency to be needed by
the sponsor to meet Program costs.
(3) Limit. The sum of the advance payments to a sponsor for any one
month shall not exceed $40,000 unless the State agency determines that a
larger payment is necessary for the effective operation of the Program
and the sponsor demonstrates sufficient administrative and managerial
capability to justify a larger payment.
(4) Deductions from advance payments. The State agency shall deduct
from advance payments the amount of any previous payment which is under
dispute or which is part of a demand for recovery under Sec. 225.12.
(5) Withholding of advance payments. If the State agency has reason
to believe that a sponsor will not be able to submit a valid claim for
reimbursement covering the month for which advance payments have already
been made, the subsequent month's advance payment shall be withheld
until a valid claim is received.
(6) Repayment of excess advance payments. Upon demand of the State
agency, sponsors shall repay any advance Program payments in excess of
the amount cited on a valid claim for reimbursement.
(d) Reimbursements. Sponsors shall not be eligible for meal
reimbursements unless they have executed an agreement with the State
agency. All reimbursements shall be in accordance with the terms of this
agreement. Reimbursements shall not be paid for meals served at a site
before the sponsor has received written notification that the site has
been approved for participation in the Program. Income accruing to a
sponsor's program shall be deducted from costs. The State agency may
make full or partial reimbursement upon receipt of a claim for
reimbursement, but shall first make any necessary adjustments in the
amount to be paid. The following requirements shall be observed in
submitting and paying claims:
(1) School food authorities that operate the Program, and operate
more than one child nutrition program under a single State agency, must
use a common claim form (as provided by the State agency) for claiming
reimbursement for meals served under those programs.
(2) No reimbursement may be issued until the sponsor certifies that
it operated all sites for which it is approved and that there has been
no significant change in its projected expenses since its preceding
claim and, for a sponsor receiving an advance payment for only one
month, that there has been no significant change in its projected
expenses since its initial advance payment.
(3) Sponsors must submit a monthly claim or a combined claim within
60 days of the last day of operation. Sponsors may not submit a combined
claim for meal reimbursements that crosses fiscal years. In addition,
State agencies must ensure that the correct reimbursement rates are
applied for meals claimed for months when different reimbursement rates
are in effect. With approval from the State agency, sponsors have the
flexibility to combine the claim for reimbursement in the following
ways:
[[Page 162]]
(i) For 10 operating days or less in their initial month of
operations with the claim for the subsequent month;
(ii) For 10 operating days or less in their final month of
operations with the claim for the preceding month; or
(iii) For 3 consecutive months, as long as this combined claim only
includes 10 operating days or less from each of the first and last
months of program operations.
(4) The State agency must forward reimbursements within 45 calendar
days of receiving valid claims. If a claim is incomplete, invalid, or
potentially unlawful per paragraph (d)(10) of this section, the State
agency must return the claim to the sponsor within 30 calendar days with
an explanation of the reason for disapproval and how such claim must be
revised for payment. If the sponsor submits a revised claim, final
action must be completed within 45 calendar days of receipt unless the
State agency has reason to believe the claim is unlawful per paragraph
(d)(10) in this section. If the State agency disallows partial or full
payment for a claim for reimbursement, it must notify the sponsor which
submitted the claim of its right to appeal under Sec. 225.13(a).
(5) Claims for reimbursement shall report information in accordance
with the financial management system established by the State agency,
and in sufficient detail to justify the reimbursement claimed and to
enable the State agency to provide the Reports of Summer Food Service
Program Operations required under Sec. 225.8(b). In submitting a claim
for reimbursement, each sponsor shall certify that the claim is correct
and that records are available to support this claim. Failure to
maintain such records may be grounds for denial of reimbursement for
meals claimed during the period covered by the records in question. The
costs of meals to adults performing necessary food service labor may be
included in the claim. Under no circumstances may a sponsor claim the
cost of any disallowed meals as operating costs.
(6) A final Claim for Reimbursement shall be postmarked or submitted
to the State agency not later than 60 days after the last day of the
month covered by the claim. State agencies may establish shorter
deadlines at their discretion. Claims not filed within the 60 day
deadline shall not be paid with Program funds unless FNS determines that
an exception should be granted. The State agency shall promptly take
corrective action with respect to any Claim for Reimbursement as
determined necessary through its claim review process or otherwise. In
taking such corrective action, State agencies may make upward
adjustments in Program funds claimed on claims filed within the 60 day
deadline if such adjustments are completed within 90 days of the last
day of the month covered by the claim and are reflected in the final
Program Operations Report (FNS-418). Upward adjustments in Program funds
claimed which are not reflected in the final FNS-418 for the month
covered by the claim cannot be made unless authorized by FNS. Downward
adjustments in Program funds claimed shall always be made without FNS
authorization, regardless of when it is determined that such adjustments
are necessary.
(7) Payments to a sponsor must equal the amount derived by
multiplying the number of eligible meals, by type, actually served under
the sponsor's program to eligible children by the current applicable
reimbursement rate for each meal type. Sponsors must be eligible to
receive additional reimbursement for each meal served to participating
children at rural or self-preparation sites.
(8) On each January 1, or as soon thereafter or as practicable, FNS
will publish a notice in the Federal Register announcing any adjustment
to the reimbursement rates described in paragraph (d)(7) of this
section. Adjustments will be based upon changes in the series for food
away from home of the Consumer Price Index (CPI) for all urban consumers
since the establishment of the rates. Higher rates will be established
for Alaska and Hawaii, based on the CPI for those States.
(9) Sponsors of camps are reimbursed only for meals served to
children in camps whose eligibility for Program meals is documented.
[[Page 163]]
(10) Sponsors of NYSP sites are reimbursed only for meals served to
children enrolled in the NYSP.
(11) Sponsors of conditional non-congregate sites are reimbursed
only for meals served to children whose eligibility for Program meals is
documented.
(12) If a State agency has reason to believe that a sponsor or food
service management company has engaged in unlawful acts in connection
with Program operations, evidence found in audits, reviews, or
investigations must be a basis for nonpayment of the applicable
sponsor's claims for reimbursement. The State agency may be exempt from
the requirement stated in paragraph (d)(4) of this section that final
action on a claim must be complete within 45 calendar days of receipt of
a revised claim if the State agency determines that a thorough
examination of potentially unlawful acts would not be possible in the
required timeframe. The State agency must notify the appropriate FNSRO
of its election to take the exemption from the requirement stated in
paragraph (d)(4) of this section by submitting to the FNSRO a copy of
the claim disapproval at the same time as it is provided to the sponsor.
(e) The sponsor may claim reimbursement for any meals which are
examined for meal quality by the State agency, auditors, or local health
authorities and found to meet the meal pattern requirements.
(f) Meal claiming. The sponsor must not claim reimbursement for
meals served to children at any site in excess of the site's approved
level of meal service, if one has been established under Sec.
225.6(h)(2). However, the total number of meals for which operating
costs are claimed may exceed the approved level of meal service if the
meals exceeding this level were served to adults performing necessary
food service labor in accordance with paragraph (d)(5) of this section.
In reviewing a sponsor's claim for congregate meals served, the State
agency must ensure that reimbursements for second meals are limited to
the percentage tolerance established in Sec. 225.15(b)(4).
(g) Unused reimbursement. If a sponsor receives more reimbursement
than expended on allowable costs, the sponsor should use this unused
reimbursement to improve the meal service or management of the Program.
Unused reimbursement remaining at the end of the Program year must be
used to pay allowable costs of other Child Nutrition Programs or for
SFSP operations the following Program year.
(1) If a sponsor does not return to participate in the Program the
following year and does not operate any other Child Nutrition Programs,
the sponsor is not required to return the unused reimbursement to the
State agency.
(2) [Reserved]
[54 FR 18208, Apr. 27, 1989, as amended at 55 FR 13469, Apr. 10, 1990;
64 FR 72485, Dec. 28, 1999; 83 FR 25358, June 1, 2018; 84 FR 15501, Apr.
16, 2019; 87 FR 57364, Sept. 19, 2022; 88 FR 90353, Dec. 29, 2023]
Sec. 225.10 Audits and management evaluations.
(a) Audits. State agencies shall arrange for audits of their own
operations to be conducted in accordance with 2 CFR part 200, subpart F
and USDA implementing regulations 2 CFR part 400 and part 415. Unless
otherwise exempt, sponsors shall arrange for audits to be conducted in
accordance with 2 CFR part 200, subpart F and USDA implementing
regulations 2 CFR part 400 and part 415. State agencies shall provide
OIG with full opportunity to audit the State agency and sponsors. Unless
otherwise exempt, audits at the State and sponsor levels shall be
conducted in accordance with 2 CFR part 200, subpart F and Appendix XI,
Compliance Supplement and USDA implementing regulations 2 CFR part 400
and part 415. While OIG shall rely to the fullest extent feasible upon
State-sponsored audits of sponsors, it shall, when considered necessary,
(1) make audits on a State-wide basis, (2) perform on-site test audits,
and (3) review audit reports and related working papers of audits
performed by or for State agencies.
(b) Management evaluations. (1) State agencies shall provide FNS
with full opportunity to conduct management evaluations (including
visits to sponsors) of all operations of the State agency. Each State
agency shall make available its records, including records
[[Page 164]]
of the receipts and expenditures of funds, upon a reasonable request by
FNS.
(2) The State agency shall fully respond to any recommendations made
by FNSRO pursuant to the management evaluation.
(3) FNSRO may require the State agency to submit on 20 days notice a
corrective action plan regarding serious problems observed during any
phase of the management evaluation.
(c) Disregards. In conducting management evaluations or audits for
any fiscal year, the State agency, FNS or OIG may disregard overpayment
which does not exceed $100 or, in the case of State agency administered
programs, does not exceed the amount established by State law,
regulations or procedures as a minimum for which claims will be made for
State losses generally. No overpayment shall be disregarded, however,
when there are unpaid claims for the same fiscal year from which the
overpayment can be deducted or when there is substantial evidence of
violation of criminal law or civil fraud statutes.
[54 FR 18208, Apr. 27, 1989, as amended at 71 FR 39518, July 13, 2006;
81 FR 66492, Sept. 28, 2016]
Sec. 225.11 Corrective action procedures.
(a) Purpose. The provisions in this section shall be used by the
State agency to improve Program performance.
(b) Investigations. Each State agency shall promptly investigate
complaints received or irregularities noted in connection with the
operation of the Program, and shall take appropriate action to correct
any irregularities. The State agency shall maintain on file all evidence
relating to such investigations and actions. The State agency shall
inform the appropriate FNSRO of any suspected fraud or criminal abuse in
the Program which would result in a loss or misuse of Federal funds. The
Department may make investigations at the request of the State agency,
or where the Department determines investigations are appropriate.
(c) Denial of applications and termination of sponsors. Except as
specified below, the State agency shall not enter into an agreement with
any applicant sponsor identifiable through its corporate organization,
officers, employees, or otherwise, as an institution which participated
in any Federal child nutrition program and was seriously deficient in
its operation of any such program. The State agency shall terminate the
Program agreement with any sponsor which it determines to be seriously
deficient. However, the State agency shall afford a sponsor reasonable
opportunity to correct problems before terminating the sponsor for being
seriously deficient. The State agency may approve the application of a
sponsor which has been disapproved or terminated in prior years in
accordance with this paragraph if the sponsor demonstrates to the
satisfaction of the State agency that the sponsor has taken appropriate
corrective actions to prevent recurrence of the deficiencies. Serious
deficiencies which are grounds for disapproval of applications and for
termination include, but are not limited to, any of the following:
(1) Noncompliance with the applicable bid procedures and contract
requirements of Federal child nutrition program regulations;
(2) The submission of false information to the State agency;
(3) Failure to return to the State agency any start-up or advance
payments which exceeded the amount earned for serving meals in
accordance with this part, or failure to submit all claims for
reimbursement in any prior year, provided that failure to return any
advance payments for months for which claims for reimbursement are under
dispute from any prior year shall not be grounds for disapproval in
accordance with this paragraph; and
(4) Program violations at a significant proportion of the sponsor's
sites. Such violations include, but are not limited to, the following:
(i) Noncompliance with the meal service time restrictions set forth
at Sec. 225.16(c), as applicable;
(ii) Failure to maintain adequate records;
(iii) Failure to adjust meal orders to conform to variations in the
number of participating children;
(iv) For congregate meal service operations, the simultaneous
service of more than one meal to any child;
[[Page 165]]
(v) The claiming of Program payments for meals not served to
participating children;
(vi) For non-congregate meal service operations, distributing more
than the daily meal limit when multi-day service is used;
(vii) Service of a significant number of meals which did not include
required quantities of all meal components;
(viii) For congregate meal service operations, excessive instances
of off-site meal consumption;
(ix) Continued use of food service management companies that are in
violation of health codes.
(d) Meal service restriction. (1) With the exception for residential
camps and non-congregate meal service set forth at Sec.
225.16(b)(1)(ii) and (b)(5)(iii), respectively, the State agency must
restrict to one meal service per day:
(i) Any food service site which is determined to be in violation of
the time restrictions for meal service set forth at Sec. 225.16(c) when
corrective action is not taken within a reasonable time as determined by
the State agency; and
(ii) All sites under a sponsor if more than 20 percent of the
sponsor's sites are determined to be in violation of the time
restrictions set forth at Sec. 225.16(c).
(2) If this action results in children not receiving meals under the
Program, the State agency must make reasonable effort to locate another
source of meal service for these children.
(e) Meal disallowances. (1) If the State agency determines that a
sponsor has failed to plan, prepare, or order meals with the objective
of providing only one meal per child at each meal service at a site, the
State agency shall disallow the number of children's meals prepared or
ordered in excess of the number of children served.
(2) If the State agency observes meal service violations during the
conduct of a site review, the State agency shall disallow as meals
served to children all of the meals observed to be in violation.
(3) The State agency shall also disallow children's meals which are
in excess of a site's approved level established under Sec.
225.6(h)(2).
(f) Corrective action and termination of sites. (1) Whenever the
State agency observes violations during the course of a site review, it
shall require the sponsor to take corrective action. If the State agency
finds a high level of meal service violations, the State agency shall
require a specific immediate corrective action plan to be followed by
the sponsor and shall either conduct a follow-up visit or in some other
manner verify that the specified corrective action has been taken.
(2) The State agency shall terminate the participation of a
sponsor's site if the sponsor fails to take action to correct the
Program violations noted in a State agency review report within the
timeframes established by the corrective action plan.
(3) The State agency shall immediately terminate the participation
of a sponsor's site if during a review it determines that the health or
safety of the participating children is imminently threatened.
(4) If the site is vended, the State agency shall within 48 hours
notify the food service management company providing meals to the site
of the site's termination.
(g) Technical assistance for improved meal service. If the State
agency finds that a sponsor is operating a program with poor quality
meal service and is operating below the reimbursement level, the State
agency should provide technical assistance to the sponsor to improve the
meal service.
[54 FR 18208, Apr. 27, 1989, as amended at 55 FR 13469, Apr. 10, 1990;
83 FR 25360, June 1, 2018; 87 FR 57364, Sept. 19, 2022; 88 FR 90353,
Dec. 29, 2023]
Sec. 225.12 Claims against sponsors.
(a) The State agency shall disallow any portion of a claim for
reimbursement and recover any payment to a sponsor not properly payable
under this part, except as provided for in Sec. 225.10(c). State
agencies shall consider claims for reimbursement not properly payable if
a sponsor's records do not support all meals claimed and include all
costs associated with the Program sufficient to justify that
reimbursements were spent only on allowable Child Nutrition Program
costs. However, the State agency shall notify the sponsor of the reasons
for any disallowance or demand for repayment.
[[Page 166]]
(b) Minimum State agency collection procedures for unearned payments
shall include:
(1) Written demand to the sponsor for the return of improper
payments;
(2) If after 30 calendar days the sponsor fails to remit full
payment or agree to a satisfactory repayment schedule, a second written
demand for the return of improper payments, sent by certified mail,
return receipt requested;
(3) If after 60 calendar days following the original written demand,
the sponsor fails to remit full payment or agree to a satisfactory
repayment schedule, a third written demand for the return of improper
payments, sent by certified mail, return receipt requested;
(4) If after 90 calendar days following the original written demand,
the sponsor fails to remit full payment or agree to a satisfactory
repayment schedule, the State agency shall refer the claim against the
sponsor to the appropriate State or Federal authorities for pursuit of
legal remedies.
(c) If FNS does not concur with the State agency's action in paying
a sponsor or in failing to collect an overpayment, FNS shall notify the
State agency of its intention to assert a claim against the State
agency. In all such cases, the State agency shall have full opportunity
to submit evidence concerning the action taken. The State agency shall
be liable to FNS for failure to collect an overpayment unless FNS
determines that the State agency has conformed with this part in issuing
the payment and has exerted reasonable efforts in accordance with
paragraph (b) of this section to recover the improper payment.
(d) The amounts recovered by the State agency from sponsors may be
utilized to make Program payments to sponsors for the period for which
the funds were initially available and/or to repay the State for any of
its own funds used to make payments on claims for reimbursement. Any
amounts recovered which are not so utilized shall be returned to FNS in
accordance with the requirements of this part.
[54 FR 18208, Apr. 27, 1989, as amended at 83 FR 25360, June 1, 2018]
Sec. 225.13 Appeal procedures.
(a) Each State agency shall establish a procedure to be followed by
an applicant appealing: A denial of an application for participation; a
denial of a sponsor's request for an advance payment; a denial of a
sponsor's claim for reimbursement (except for late submission under
Sec. 225.9(d)(6)); a State agency's refusal to forward to FNS an
exception request by the sponsor for payment of a late claim or a
request for an upward adjustment to a claim; a claim against a sponsor
for remittance of a payment; the termination of the sponsor or a site; a
denial of a sponsor's application for a site; a denial of a food service
management company's application for registration, if applicable; or the
revocation of a food service management company's registration, if
applicable. Appeals shall not be allowed on decisions made by FNS with
respect to late claims or upward adjustments under Sec. 225.9(d)(6).
(b) At a minimum, appeal procedures shall provide that:
(1) The sponsor or food service management company be advised in
writing of the grounds upon which the State agency based the action. The
notice of action shall also state that the sponsor or food service
management company has the right to appeal the State's action. The
notice is considered to be received by the sponsor or food service
management company when it is delivered by certified mail, return
receipt (or the equivalent private delivery service), by facsimile, or
by email. If the notice is undeliverable, it is considered to be
received by the sponsor or food service management company five days
after being sent to the addressee's last known mailing address,
facsimile number, or email address;
(2) The sponsor or food service management company be advised in
writing that the appeal must be made within a specified time and must
meet the requirements of paragraph (b)(4) of this section. The State
agency shall establish this period of time at not less than one week nor
more than two weeks from the date on which the notice of action is
received;
(3) The appellant be allowed the opportunity to review any
information upon which the action was based;
[[Page 167]]
(4) The appellant be allowed to refute the charges contained in the
notice of action either in person or by filing written documentation
with the review official. To be considered, written documentation must
be submitted by the appellant within seven days of submitting the
appeal, must clearly identify the State agency action being appealed,
and must include a photocopy of the notice of action issued by the State
agency;
(5) A hearing be held by the review official in addition to, or in
lieu of, a review of written information submitted by the appellant only
if the appellant so specifies in the letter appealing the action. The
appellant may retain legal counsel or may be represented by another
person. Failure of the appellant's representative to appear at a
scheduled hearing shall constitute the appellant's waiver of the right
to a personal appearance before the review official, unless the review
official agrees to reschedule the hearing. A representative of the State
agency shall be allowed to attend the hearing to respond to the
appellant's testimony and written information and to answer questions
from the review official;
(6) If the appellant has requested a hearing, the appellant and the
State agency shall be provided with at least 5 days advance written
notice, sent by certified mail, return receipt requested, of the time
and place of the hearing;
(7) The hearing be held within 14 days of the date of the receipt of
the request for review, but, where applicable, not before the
appellant's written documentation is received in accordance with
paragraphs (b) (4) and (5) of this section;
(8) The review official be independent of the original decision-
making process;
(9) The review official make a determination based on information
provided by the State agency and the appellant, and on Program
regulations;
(10) Within 5 working days after the appellant's hearing, or within
5 working days after receipt of written documentation if no hearing is
held, the reviewing official make a determination based on a full review
of the administrative record and inform the appellant of the
determination of the review by certified mail, return receipt requested;
(11) The State agency's action remain in effect during the appeal
process. However, participating sponsors and sites may continue to
operate the Program during an appeal of termination, and if the appeal
results in overturning the State agency's decision, reimbursement shall
be paid for meals served during the appeal process. However, such
continued Program operation shall not be allowed if the State agency's
action is based on imminent dangers to the health or welfare of
children. If the sponsor or site has been terminated for this reason,
the State agency shall so specify in its notice of action; and
(12) The determination by the State review official is the final
administrative determination to be afforded to the appellant.
(c) The State agency shall send written notification of the complete
appeal procedures and of the actions which are appealable, as specified
in paragraph (a) of this section, to each potential sponsor applying to
participate and to each food service management company applying to
register in accordance with Sec. 225.6(k).
(d) A record regarding each review shall be kept by the State
agency, as required under Sec. 225.8(a). The record shall document the
State agency's compliance with these regulations and shall include the
basis for its decision.
[54 FR 18208, Apr. 27, 1989, as amended at 64 FR 72486, Dec. 28, 1999;
78 FR 13450, Feb. 28, 2013; 83 FR 25360, June 1, 2018; 87 FR 57364,
Sept. 19, 2022]
Subpart C_Sponsor and Site Provisions
Sec. 225.14 Requirements for sponsor participation.
(a) Applications. Sponsors must make written application to the
State agency to participate in the Program which must include all
content required under Sec. 225.6(c). Such application must be made on
a timely basis in accordance with the requirements of Sec. 225.6(b)(1).
Sponsors proposing to operate a site during an unanticipated
[[Page 168]]
school closure may be exempt, at the discretion of the State agency,
from submitting a new application if they have participated in the
program at any time during the current year or in either of the prior 2
calendar years.
(b) Sponsor eligibility. Applicants eligible to sponsor the Program
include:
(1) Public or nonprofit private school food authorities;
(2) Public or nonprofit private residential summer camps;
(3) Units of local, municipal, county, or State governments;
(4) Public or private nonprofit colleges or universities which are
currently participating in the National Youth Sports Program; and
(5) Private nonprofit organizations as defined in Sec. 225.2, as
determined annually.
(c) General requirements. No applicant sponsor shall be eligible to
participate in the Program unless it:
(1) Demonstrates financial and administrative capability for Program
operations and accepts final financial and administrative responsibility
for total Program operations at all sites at which it proposes to
conduct a food service in accordance with the performance standards
described under Sec. 225.6(d) of this part.
(i) In general, an applicant sponsor which is a school food
authority in good standing in the National School Lunch Program or an
institution in good standing in the Child and Adult Care Food Program
applying to operate the Program at the same sites where they provide
meals through the aforementioned Programs, is not required to submit a
management plan as described under Sec. 225.6(e) or further demonstrate
financial and administrative capability for Program operations.
(ii) If the State agency has reason to believe that financial or
administrative capability would pose significant challenges for an
applicant sponsor which is a school food authority in the National
School Lunch Program or School Breakfast Program, as applicable, or an
institution in the Child and Adult Care Food Program, the State agency
may request a Management plan or additional evidence of financial and
administrative capability sufficient to ensure that the school food
authority or institution has the ability and resources to operate the
Program.
(iii) If the State agency approving the application for the Program
is not responsible for the administration of the National School Lunch
Program or the Child and Adult Care Food Program, the State agency must
develop a process for sharing information with the agency responsible
for approving these programs in order to receive documentation of the
applicant sponsor's financial and administrative capability.
(2) Has not been seriously deficient in operating the Program;
(3) Will conduct a regularly scheduled food service for children
from areas in which poor economic conditions exist, or qualifies as a
camp or a conditional non-congregate site;
(4) Has adequate supervisory and operational personnel for overall
monitoring and management of each site, including a site supervisor, and
adequate personnel to conduct the visits and reviews required in Sec.
225.15(d)(2) and (3), as demonstrated in the management plan submitted
with the program application described under Sec. 225.6(e);
(5) Provides an ongoing year-round service to the community which it
proposes to serve under the Program, except as provided for in Sec.
225.6(b)(4);
(6) Certifies that all sites have been visited and have the
capability and the facilities to provide the meal service planned for
the number of children anticipated to be served; and
(7) Enters into a written agreement with the State agency upon
approval of its application, as required in Sec. 225.6(i).
(d) Requirements specific to sponsor types. (1) If the sponsor is a
camp, it must certify that it will collect information on participants'
eligibility to support its claim for reimbursement.
(2) If the sponsor administers the Program at sites that provide
summer school sessions, it must ensure that these sites are open to
children enrolled in summer school and to all children residing in the
area served by the site.
(3) Sponsors which are units of local, municipal, county, or State
government, and sponsors which are private nonprofit organizations, will
only be
[[Page 169]]
approved to administer the Program at sites where they have
administrative oversight. Administrative oversight means that the
sponsor shall be responsible for:
(i) Maintaining contact with meal service staff, ensuring that there
is adequately trained meal service staff on site, monitoring the meal
service throughout the period of Program participation, and terminating
meal service at a site if staff fail to comply with Program regulations;
and
(ii) Exercising management control over Program operations at sites
throughout the period of Program participation by performing the
functions specified in Sec. 225.15.
(4) If the sponsor administers NYSP sites, it must ensure that all
children at these sites are enrolled participants in the NYSP.
(5) If the sponsor is a private nonprofit organization, it must
certify that it:
(i) Exercises full control and authority over the operation of the
Program at all sites under the sponsorship of the organization;
(ii) Provides ongoing year-round activities for children or
families;
(iii) Demonstrates that the organization has adequate management and
the fiscal capacity to operate the Program;
(iv) Is an organization described in section 501(c) of the Internal
Revenue Code of 1986 and exempt from taxation under 501(a) of that Code;
and
(v) Meets applicable State and local health, safety, and sanitation
standards.
(6) If the sponsor operates a non-congregate meal service that will
deliver meals directly to a child's residence, it must obtain written
parental consent prior to providing meals to children in that household.
(7) If the sponsor operates a conditional non-congregate site, it
must certify that it will collect information to determine children's
Program eligibility to support its claim for reimbursement.
(8) If the sponsor is not a school food authority, it must enter
into a written agreement or Memorandum of Understanding (MOU) with the
State agency or school food authority if it chooses to receive school
data for the purposes of identifying eligible children and determining
children's Program eligibility, as required under Sec. 225.15(k).
[54 FR 18208, Apr. 27, 1989, as amended at 55 FR 13469, Apr. 10, 1990;
64 FR 72486, Dec. 28, 1999; 64 FR 72898, Dec. 29, 1999; 65 FR 50128,
Aug. 17, 2000; 78 FR 13450, Feb. 28, 2013; 83 FR 25360, June 1, 2018; 87
FR 57364, Sept. 19, 2022; 88 FR 90353, Dec. 29, 2023]
Sec. 225.15 Management responsibilities of sponsors.
(a) General. (1) Sponsors shall operate the food service in
accordance with: the provisions of this part; any instructions and
handbooks issued by FNS under this part; and any instructions and
handbooks issued by the State agency which are not inconsistent with the
provisions of this part.
(2) Sponsors shall not claim reimbursement under parts 210, 215,
220, or 226 of this chapter. In addition, the sponsor must ensure that
records of any site serving homeless children accurately reflect
commodity allotments received as a ``charitable institution'', as
defined in Sec. Sec. 250.3 and 250.41 of this chapter. Commodities
received for Program meals must be based only on the number of eligible
children's meals served. Sponsors may use funds from other Federally-
funded programs to supplement their meal service but must, in
calculating their claim for reimbursement, deduct such funds from total
operating and administrative costs in accordance with the definition of
``income accruing to the Program'' at Sec. 225.2 and with the
regulations at Sec. 225.9(d). Sponsors which are school food
authorities may use facilities, equipment and personnel supported by
funds provided under this part to support a nonprofit nutrition program
for the elderly, including a program funded under the Older Americans
Act of 1965 (42 U.S.C. 3001 et seq.).
(3) No sponsor may contract out for the management responsibilities
of the Program described in this section.
(4) Sponsors must maintain documentation of a nonprofit food service
including copies of all revenues received and expenses paid from the
nonprofit food service account. Program reimbursements and expenditures
may be included in a single nonprofit food service account with funds
from any
[[Page 170]]
other Child Nutrition Programs authorized under the Richard B. Russell
National School Lunch Act or the Child Nutrition Act of 1966, except the
Special Supplemental Nutrition Program for Women, Infants, and Children.
All Program reimbursement funds must be used solely for the conduct of
the nonprofit food service operation. The net cash resources of the
nonprofit food service of each sponsor participating in the Program may
not exceed one month's average expenditures for sponsors operating only
during the summer months and three months' average expenditures for
sponsors operating Child Nutrition Programs throughout the year. State
agency approval shall be required for net cash resources in excess of
the requirements set forth in this paragraph (a)(4). Sponsors shall
monitor Program costs and, in the event that net cash resources exceed
the requirements outlined, take action to improve the meal service or
other aspects of the Program.
(b) Meal Ordering. (1) Each sponsor shall, to the maximum extent
feasible, utilize either its own food service facilities or obtain meals
from a school food service facility. If the sponsor obtains meals from a
school food service facility, the applicable requirements of this part
shall be embodied in a written agreement between the sponsor and the
school.
(2) Upon approval of its application or any adjustment in the
approved levels of meal service for its sites established under Sec.
225.6(h)(2), vended sponsors shall inform their food service management
company of the approved level at each site for which the food service
management company will provide meals.
(3) All sponsors must plan for and prepare or order meals on the
basis of participation trends with the objective of providing only one
meal per child at each meal service.
(i) The sponsor must make the adjustments necessary to achieve this
objective using the results from its monitoring of sites.
(ii) The sponsor must adjust the number of meals ordered or prepared
whenever the number of children receiving meals is below the maximum
approved level of meal service.
(iii) The sponsor must not order or prepare meals for children at
any site in excess of the site's approved level, but may order or
prepare meals above the approved level if the meals are to be served to
adults performing necessary food service labor in accordance with Sec.
225.9(d)(5).
(iv) Records of participation and of preparation or ordering of
meals must be maintained to demonstrate positive action toward meeting
the objective of this paragraph (b)(3).
(4) In recognition of the fluctuation in participation levels which
makes it difficult to estimate precisely the number of meals needed and
to reduce the resultant waste, sponsors may claim reimbursement for a
number of second meals which does not exceed 2 percent of the number of
first meals served to children for each meal type (i.e., breakfasts,
lunches, supplements, or suppers) during the claiming period for
congregate meals served. The State agency must disallow all claims for
second meals if it determines that the sponsor failed to plan and
prepare or order meals with the objective of providing only one meal per
child at each meal service. Second meals must be served only after all
participating children at the site's congregate meal service have been
served a meal. Second meals may not be served as part of a non-
congregate meal service.
(c) Records and claims. (1) Sponsors shall maintain accurate records
justifying all meals claimed and documenting that all Program funds were
spent only on allowable Child Nutrition Program costs. Failure to
maintain such records may be grounds for denial of reimbursement for
meals served and/or administrative costs claimed during the period
covered by the records in question. The sponsor's records shall be
available at all times for inspection and audit by representatives of
the Secretary, the Comptroller General of the United States, and the
State agency for a period of three years following the date of
submission of the final claim for reimbursement for the fiscal year.
(2) Sponsors shall submit claims for reimbursement in accordance
with this part. All final claims must be submitted to the State agency
within 60
[[Page 171]]
days following the last day of the month covered by the claim.
(d) Training and monitoring. (1) Each sponsor must hold Program
training sessions for its administrative and site personnel and must not
allow a site to operate until personnel have attended at least one of
these training sessions. The State agency may waive these training
requirements for operation of the Program during unanticipated school
closures.
(i) Training of site personnel must, at a minimum, include: the
purpose of the Program; site eligibility; recordkeeping; site
operations, including both congregate and non-congregate meal services;
meal pattern requirements; and the duties of a monitor.
(ii) Each sponsor must ensure that its administrative personnel
attend State agency training provided to sponsors, and sponsors must
provide training throughout the summer to ensure that administrative
personnel are thoroughly knowledgeable in all required areas of Program
administration and operation and are provided with sufficient
information to enable them to carry out their Program responsibilities.
(iii) Each site must have present at each meal service at least one
person who has received this training.
(2) Sponsors must conduct pre-operational visits for new sites,
sites that experienced operational problems the previous year, and
existing sites that are new to non-congregate meal service, to determine
that the sites have the capacity to provide meal service for the
anticipated number of children in attendance and the capability to
conduct the proposed meal service.
(3) Sponsors must visit each of their sites, as specified in
paragraphs (d)(3)(i) through (iv) of this section, at least once during
the first two weeks of program operations and must promptly take such
actions as are necessary to correct any deficiencies. In cases where the
site operates for seven calendar days or fewer, the visit must be
conducted during the period of operation. Sponsors must conduct these
visits for:
(i) All new sites;
(ii) All existing sites that are new to providing non-congregate
meal service;
(iii) All sites that have been determined by the sponsor to need a
visit based on criteria established by the State agency pertaining to
operational problems noted in the prior year, as set forth in Sec.
225.7(o); and
(iv) Any other sites that the State agency has determined need a
visit.
(4) Sponsors must conduct a full review of food service operations
at each site at least once during the first four weeks of Program
operations, and thereafter must maintain a reasonable level of site
monitoring. Sponsors must complete a monitoring form developed by the
State agency during the conduct of these reviews. Sponsors may conduct a
full review of food service operations at the same time they are
conducting a site visit required under paragraph (d)(3) of this section.
(e) Notification to the community. Each sponsor must annually
announce in the media serving the area from which it draws its
attendance the availability of free meals. Sponsors of camps, closed
enrolled sites, and conditional non-congregate sites must notify
participants of the availability of free meals and if a free meal
application is needed, as outlined in paragraph (f) of this section. For
sites that use free meal applications to determine individual
eligibility, notification to enrolled children must include: the
Secretary's family-size and income standards for reduced price school
meals labeled ``SFSP Income Eligibility Standards;'' a statement that a
foster child and children who are members of households receiving SNAP,
FDPIR, or TANF benefits are automatically eligible to receive free meal
benefits at eligible program sites; and a statement that meals are
available without regard to race, color, national origin, sex (including
gender identity and sexual orientation), age, or disability. State
agencies may issue a media release for all sponsors operating SFSP sites
in the State as long as the notification meets the requirements in this
section.
(f) Application for free Program meals--(1) Purpose of application
form. The application is used to determine the eligibility of children
attending camps and the eligibility of sites that do not meet the
requirements in paragraphs (1) through (3) of the definition
[[Page 172]]
of ``areas in which poor economic conditions exist'' in Sec. 225.2.
(2) Application procedures based on household income. The household
member completing the application on behalf of the child enrolled in the
Program must provide the following information:
(i) The names of all children for whom application is made;
(ii) The names of all other household members;
(iii) The last four digits of the social security number of the
adult household member who signs the application or an indication that
the household member does not have a social security number;
(iv) The income received by each household member identified by
source of income;
(v) The signature of an adult household member;
(vi) The date the application is completed and signed.
(3) Application based on the household's receipt of SNAP, FDPIR, or
TANF benefits. Households may apply on the basis of receipt of SNAP,
FDPIR, or TANF benefits by providing the following information:
(i) The name(s) and SNAP, FDPIR, or TANF case number(s) of the
child(ren) who are enrolled in the Program; and
(ii) The signature of an adult household member.
(4) Information or notices required on application forms.
Application forms or descriptive materials given to households about
applying for free meals must contain the following information:
(i) The family-size and income levels for reduced price school meal
eligibility with an explanation that households with incomes less than
or equal to these values are eligible for free Program meals (Note: The
income levels for free school meal eligibility must not be included on
the application or in other materials given to the household).
(ii) A statement that a foster child who is a member of a household
that receives SNAP, FDPIR, or TANF benefits is automatically eligible to
receive free meals in the Program;
(iii) A statement informing households of how information provided
on the application will be used. Each application for free meals must
include substantially the following statement:
(A) ``The Richard B. Russell National School Lunch Act requires the
information on this application. You do not have to give the
information, but if you do not, we cannot approve your child for free or
reduced-price meals. You must include the last four digits of the social
security number of the adult household member who signs the application.
The last four digits of the social security number are not required when
you apply on behalf of a foster child or you list a Supplemental
Nutrition Assistance Program (SNAP), Temporary Assistance for Needy
Families (TANF) Program or Food Distribution Program on Indian
Reservations (FDPIR) case number or other FDPIR identifier for your
child or when you indicate that the adult household member signing the
application does not have a social security number. We MAY share your
eligibility information with education, health, and nutrition programs
to help them evaluate, fund, or determine benefits for their programs,
and with auditors for program reviews and law enforcement officials to
help them look into violations of program rules.''
(B) When the State agency or sponsor, as appropriate, plans to use
or disclose children's eligibility information for non-program purposes,
additional information, as specified in paragraph (i) of this section,
must be added to the statement. State agencies and sponsors are
responsible for drafting the appropriate notice.
(iv) The statement used to inform the household about the use of
social security numbers must comply with the Privacy Act of 1974 (Pub.
L. 93-579). If a State or local agency plans to use the social security
numbers for uses not described in paragraph (f)(4)(iv) of this section,
the notice must be revised to explain those uses.
(v) Examples of income that should be provided on the application,
including: Earnings, wages, welfare benefits, pensions, support
payments, unemployment compensation, social security, and other cash
income;
(vi) A notice placed immediately above the signature block stating
that
[[Page 173]]
the person signing the application certifies that all information
provided is correct, that the household is applying for Federal benefits
in the form of free Program meals, that Program officials may verify the
information on the application, and that purposely providing untrue or
misleading statements may result in prosecution under State or Federal
criminal laws; and
(vii) A statement that if SNAP, FDPIR, or TANF case numbers are
provided, they may be used to verify the current SNAP, FDPIR, or TANF
certification for the children for whom free meals benefits are claimed.
(5) Verifying information on Program applications. Households
selected to verify information on their Program applications must be
notified in writing that:
(i) They will lose Program benefits or be terminated from
participation if they do not cooperate with the verification process;
(ii) They will be given the name and phone number of an official who
can assist in the verification process;
(iii) Verification may occur during program reviews, audits, and
investigations;
(iv) Verification may include contacting employers, SNAP or welfare
offices, or State employment offices to determine the accuracy of
statements on the application about income, receipt of SNAP, FDPIR,
TANF, or unemployment benefits; and
(v) They may lose benefits or face claims or legal action if
incorrect information is reported on the application.
(g) Disclosure of children's free and reduced price meal eligibility
information to certain programs and individuals without parental
consent. The State agency or sponsor, as appropriate, may disclose
aggregate information about children eligible for free and reduced price
meals to any party without parental notification and consent when
children cannot be identified through release of the aggregate data or
by means of deduction. Additionally, the State agency or sponsor may
disclose information that identifies children eligible for free and
reduced price meals to the programs and the individuals specified in
this paragraph (g) without parent/guardian consent. The State agency or
sponsor that makes the free and reduced price meal eligibility
determination is responsible for deciding whether to disclose program
eligibility information.
(1) Persons authorized to receive eligibility information. Only
persons directly connected with the administration or enforcement of a
program or activity listed in paragraphs (g)(2) or (g)(3) of this
section may have access to children's free and reduced price meal
eligibility information, without parental consent. Persons considered
directly connected with administration or enforcement of a program or
activity listed in paragraphs (g)(2) or (g)(3) of this section are
Federal, State, or local program operators responsible for the ongoing
operation of the program or activity or persons responsible for program
compliance. Program operators may include persons responsible for
carrying out program requirements and monitoring, reviewing, auditing,
or investigating the program. Program operators may include contractors,
to the extent those persons have a need to know the information for
program administration or enforcement. Contractors may include
evaluators, auditors, and others with whom Federal or State agencies and
program operators contract with to assist in the administration or
enforcement of their program in their behalf.
(2) Disclosure of children's names and free or reduced price meal
eligibility status. The State agency or sponsor, as appropriate, may
disclose, without parental consent, only children's names and
eligibility status (whether they are eligible for free meals or reduced
price meals) to persons directly connected with the administration or
enforcement of:
(i) A Federal education program;
(ii) A State health program or State education program administered
by the State or local education agency;
(iii) A Federal, State, or local means-tested nutrition program with
eligibility standards comparable to the National School Lunch Program
(i.e., food assistance programs for households with incomes at or below
185 percent of the Federal poverty level); or
[[Page 174]]
(3) Disclosure of all eligibility information. In addition to
children's names and eligibility status, the State agency or sponsor, as
appropriate, may disclose, without parental consent, all eligibility
information obtained through the free and reduced price meal eligibility
process (including all information on the application or obtained
through direct certification) to:
(i) Persons directly connected with the administration or
enforcement of programs authorized under the Richard B. Russell National
School Lunch Act or the Child Nutrition Act of 1966. This means that all
eligibility information obtained for the Summer Food Service Program may
be disclosed to persons directly connected with administering or
enforcing regulations under the National School Lunch Program, Special
Milk Program, School Breakfast Program, Child and Adult Care Food
Program, and the Special Supplemental Nutrition Program for Women,
Infants and Children (WIC) (parts 210, 215, 220, 226 and 246,
respectively, of this chapter);
(ii) The Comptroller General of the United States for purposes of
audit and examination; and
(iii) Federal, State, and local law enforcement officials for the
purpose of investigating any alleged violation of the programs listed in
paragraphs (g)(2) and (g)(3) of this section.
(4) Use of free and reduced price meals eligibility information by
programs other than Medicaid or the Children's Health Insurance Program
(CHIP). State agencies and sponsors may use children's free and reduced
price meal eligibility information for administering or enforcing the
Summer Food Service Program. Additionally, any other Federal, State, or
local agency charged with administering or enforcing the Summer Food
Service Program may use the information for that purpose. Individuals
and programs to which children's free or reduced price meal eligibility
information has been disclosed under this section may use the
information only in the administration or enforcement of the receiving
program. No further disclosure of the information may be made.
(h) Disclosure of children's free or reduced price meal eligibility
information to Medicaid and/or CHIP, unless parents decline. Children's
free or reduced price meal eligibility information only may be disclosed
to Medicaid or CHIP when both the State agency and the sponsor so elect,
the parental/guardian does not decline to have their eligibility
information disclosed and the other provisions described in paragraph
(h)(1) of this section are met. The State agency or sponsor, as
appropriate, may disclose children's names, eligibility status (whether
they are eligible for free or reduced price meals), and any other
eligibility information obtained through the free and reduced price meal
applications or obtained through direct certification to persons
directly connected with the administration of Medicaid or CHIP. Persons
directly connected to the administration of Medicaid and CHIP are State
employees and persons authorized under Federal and State Medicaid and
CHIP requirements to carry out initial processing of Medicaid or CHIP
applications or to make eligibility determinations for Medicaid or CHIP.
(1) The State agency must ensure that:
(i) The sponsors and health insurance program officials have a
written agreement that requires the health insurance program agency to
use the eligibility information to seek to enroll children in Medicaid
and CHIP; and
(ii) Parents/guardians are notified that their eligibility
information may be disclosed to Medicaid or CHIP and given an
opportunity to decline to have their children's eligibility information
disclosed, prior to any disclosure.
(2) Use of children's free and reduced price meal eligibility
information by Medicaid/CHIP. Medicaid and CHIP agencies and health
insurance program operators receiving children's free and reduced price
meal eligibility information must use the information to seek to enroll
children in Medicaid or CHIP. The Medicaid and CHIP enrollment process
may include targeting and identifying children from low-income
households who are potentially eligible for Medicaid or CHIP for the
purpose of seeking to enroll them in Medicaid or CHIP. No further
disclosure of the information may be made. Medicaid and CHIP agencies
and health insurance
[[Page 175]]
program operators also may verify children's eligibility in a program
under the Child Nutrition Act of 1966 or the Richard B. Russell National
School Lunch Act.
(i) Notifying households of potential uses and disclosures of
children's free and reduced price meal eligibility information.
Households must be informed that the information they provide on the
free and reduced price meal application will be used to determine
eligibility for free or reduced price meals and that their eligibility
information may be disclosed to other programs.
(1) For disclosures to programs, other than Medicaid or the
Children's Health Insurance Program (CHIP), that are permitted access to
children's eligibility information, without parental/guardian consent,
the State agency or sponsor, as appropriate, must notify parents/
guardians at the time of application that their children's free or
reduced price meal eligibility information may be disclosed. The State
agency or sponsor, as appropriate, must add substantially the following
statement to the statement required under paragraph (f)(4)(iv) of this
section, ``We may share your eligibility information with education,
health, and nutrition programs to help them evaluate, fund, or determine
benefits for their programs; auditors for program reviews; and law
enforcement officials to help them look into violations of program
rules.'' For children determined eligible for free meals through the
direct certification, the notice of potential disclosure may be included
in the document informing parents/guardians of their children's
eligibility for free meals through direct certification.
(2) For disclosure to Medicaid or CHIP, the State agency or sponsor,
as appropriate, must notify parents/guardians that their children's free
or reduced price meal eligibility information will be disclosed to
Medicaid and/or CHIP unless the parent/guardian elects not to have their
information disclosed and notifies the State agency or sponsor, as
appropriate, by a date specified by the State agency or sponsor, as
appropriate. Only the parent or guardian who is a member of the
household or family for purposes of the free and reduced price meal
application may decline the disclosure of eligibility information to
Medicaid or CHIP. The notification must inform parents/guardians that
they are not required to consent to the disclosure, that the
information, if disclosed, will be used to identify eligible children
and seek to enroll them in Medicaid or CHIP, and that their decision
will not affect their children's eligibility for free or reduced price
meals. The notification may be included in the letter/notice to parents/
guardians that accompanies the free and reduced price meal application,
on the application itself or in a separate notice provided to parents/
guardians. The notice must give parents/guardians adequate time to
respond if they do not want their information disclosed. The State
agency or sponsor, as appropriate, must add substantially the following
statement to the statement required under paragraph (f) of this section,
``We may share your information with Medicaid or the Children's Health
Insurance Program, unless you tell us not to. The information, if
disclosed, will be used to identify eligible children and seek to enroll
them in Medicaid or CHIP.'' For children determined eligible for free
meals through direct certification, the notice of potential disclosure
and opportunity to decline the disclosure may be included in the
document informing parents/guardians of their children's eligibility for
free meals through direct certification process.
(j) Other disclosures. State agencies and sponsors that plan to use
or disclose information about children eligible for free and reduced
price meals in ways not specified in this section must obtain written
consent from children's parents or guardians prior to the use or
disclosure.
(1) The consent must identify the information that will be shared
and how the information will be used.
(2) There must be a statement informing parents and guardians that
failing to sign the consent will not affect the child's eligibility for
free meals and that the individuals or programs receiving the
information will not share the information with any other entity or
program.
(3) Parents/guardians must be permitted to limit the consent only to
[[Page 176]]
those programs with which they wish to share information.
(4) The consent statement must be signed and dated by the child's
parent or guardian who is a member of the household for purposes of the
free and reduced price meal application.
(k) Agreements with programs/individuals receiving children's free
or reduced price meal eligibility information. Agreements or Memoranda
of Understanding (MOU) are recommended or required as follows:
(1) The State agency or sponsor, as appropriate, should have a
written agreement or MOU with programs or individuals receiving
eligibility information, prior to disclosing children's free and reduced
price meal eligibility information. The agreement or MOU should include
information similar to that required for disclosures to Medicaid and
CHIP specified in paragraph (k)(2) of this section.
(2) For disclosures to Medicaid or CHIP, the State agency or
sponsor, as appropriate, must have a written agreement with the State or
local agency or agencies administering Medicaid or CHIP prior to
disclosing children's free or reduced price meal eligibility information
to those agencies. At a minimum, the agreement must:
(i) Identify the health insurance program or health agency receiving
children's eligibility information;
(ii) Describe the information that will be disclosed;
(iii) Require that the Medicaid or CHIP agency use the information
obtained and specify that the information must be used to seek to enroll
children in Medicaid or CHIP;
(iv) Require that the Medicaid or CHIP agency describe how they will
use the information obtained;
(v) Describe how the information will be protected from unauthorized
uses and disclosures;
(vi) Describe the penalties for unauthorized disclosure; and
(vii) Be signed by both the Medicaid or CHIP program or agency and
the State agency or sponsor, as appropriate.
(l) Penalties for unauthorized disclosure or misuse of children's
free and reduced price meal eligibility information. In accordance with
section 9(b)(6)(C) of the Richard B. Russell National School Lunch Act
(42 U.S.C. 1758(b)(6)(C)), any individual who publishes, divulges,
discloses or makes known in any manner, or to any extent not authorized
by statute or this section, any information obtained under this section
will be fined not more than $1,000 or imprisoned for up to 1 year, or
both.
(m) Food service management companies. (1) Failure by a sponsor to
comply with the provisions of this section shall be sufficient grounds
for the State agency to terminate that sponsor's participation in
accordance with Sec. 225.18.
(2) Any sponsor may contract with a food service management company
to manage the sponsor's food service operations and/or for the
preparation of unitized meals with or without milk or juice. Exceptions
to the unitizing requirement may only be made in accordance with the
provisions set forth at Sec. 225.6(l)(3).
(3) Any vended sponsor shall be responsible for ensuring that its
food service operation is in conformity with its agreement with the
State agency and with all the applicable provisions of this part.
(4) In addition to any applicable State or local laws governing bid
procedures, and with the exceptions identified in this paragraph, each
sponsor which contracts with a food service management company shall
comply with the competitive bid procedures described in this paragraph.
Sponsors that are schools or school food authorities and have an
exclusive contract with a food service management company for year-round
service, and sponsors whose total contracts with food service management
companies will not exceed the simplified acquisition threshold in 2 CFR
part 200, as applicable, shall not be required to comply with these
procedures. These exceptions do not relieve the sponsor of the
responsibility to ensure that competitive procurement procedures are
followed in contracting with any food service management company. Each
sponsor whose proposed contract is subject to the specific bid
procedures set forth in this paragraph shall ensure, at a minimum, that:
[[Page 177]]
(i) All proposed contracts are publicly announced at least once, not
less than 14 calendar days prior to the opening of bids, and the
announcement includes the time and place of the bid opening;
(ii) The bids are publicly opened;
(iii) The State agency is notified, at least 14 calendar days prior
to the opening of the bids, of the time and place of the bid opening;
(iv) The invitation to bid does not specify a minimum price;
(v) The invitation to bid contains a cycle menu approved by the
State agency upon which the bid is based;
(vi) The invitation to bid contains food specifications and meal
quality standards approved by the State agency upon which the bid is
based;
(vii) The invitation to bid does not specify special meal
requirements to meet ethnic or religious needs unless such special
requirements are necessary to meet the needs of the children to be
served;
(viii) Neither the invitation to bid nor the contract provides for
loans or any other monetary benefit or term or condition to be made to
sponsors by food service management companies;
(ix) Nonfood items are excluded from the invitation to bid, except
where such items are essential to the conduct of the food service;
(x) Copies of all contracts between sponsors and food service
management companies, along with a certification of independent price
determination, are submitted to the State agency prior to the beginning
of Program operations;
(xi) Copies of all bids received are submitted to the State agency,
along with the sponsor's reason for choosing the successful bidder; and
(xii) All bids in an amount which exceeds the lowest bid and all
bids totaling the amount specified in the small purchase threshold in 2
CFR part 200, as applicable, or more are submitted to the State agency
for approval before acceptance. State agencies shall respond to a
request for approval of such bids within 5 working days of receipt.
(5) Each food service management company which submits a bid
exceeding the simplified acquisition threshold in 2 CFR part 200, as
applicable, shall obtain a bid bond in an amount not less than 5 percent
nor more than 10 percent, as determined by the sponsor, of the value of
the contract for which the bid is made. A copy of the bid bond shall
accompany each bid.
(6) Each food service management company which enters into a food
service contract exceeding the small purchase threshold in 2 CFR part
200, as applicable, with a sponsor shall obtain a performance bond in an
amount not less than 10 percent nor more than 25 percent of the value of
the contract for which the bid is made, as determined by the State
agency. Any food service management company which enters into more than
one contract with any one sponsor shall obtain a performance bond
covering all contracts if the aggregate amount of the contracts exceeds
the simplified acquisition threshold in 2 CFR part 200, as applicable.
Sponsors shall require the food service management company to furnish a
copy of the performance bond within ten days of the awarding of the
contract.
(7) Food service management companies shall obtain bid bonds and
performance bonds only from surety companies listed in the current
Department of the Treasury Circular 570. No sponsor or State agency
shall allow food service management companies to post any
``alternative'' forms of bid or performance bonds, including but not
limited to cash, certified checks, letters of credit, or escrow
accounts.
(n) Other responsibilities. Sponsors shall comply with all of the
meal service requirements set forth in Sec. 225.16.
[54 FR 18208, Apr. 27, 1989, as amended at 55 FR 13470, Apr. 10, 1990;
61 FR 25553, May 22, 1996; 64 FR 72486, Dec. 28, 1999; 64 FR 72898, Dec.
29, 1999; 65 FR 82251, Dec. 28, 2000; 66 FR 2202, Jan. 11, 2001; 72 FR
10895, Mar. 12, 2007; 76 FR 22798, Apr. 25, 2011; 78 FR 13450, Feb. 28,
2013; 83 FR 25360, June 1, 2018; 84 FR 15501, Apr. 16, 2019; 87 FR
57355, 57364, Sept. 19, 2022; 88 FR 90354, Dec. 29, 2023]
Sec. 225.16 Meal service requirements.
(a) Sanitation. Sponsors shall ensure that in storing, preparing,
and serving food, proper sanitation and health standards are met which
conform with all applicable State and local laws and regulations.
Sponsors shall ensure that adequate facilities are available to
[[Page 178]]
store food or hold meals. Within two weeks of receiving notification of
their approval, but in any case prior to commencement of Program
operation, sponsors shall submit to the State agency a copy of their
letter advising the appropriate health department of their intention to
provide a food service during a specific period at specific sites.
(b) Meal services. The meals which may be served under the Program
are breakfast, lunch, supper, and supplements, referred to from this
point as ``snacks.'' No sponsor may be approved to provide more than two
snacks per day. A sponsor may claim reimbursement only for the types of
meals for which it is approved under its agreement with the State
agency. A sponsor may only be reimbursed for meals served in accordance
with this section.
(1) Camps. Sponsors of camps shall only be reimbursed for meals
served in camps to children from families which meet the eligibility
standards for this Program. The sponsor shall maintain a copy of the
documentation establishing the eligibility of each child receiving meals
under the Program. Meal service at camps shall be subject to the
following provisions:
(i) Each day a camp may serve up to three meals or two meals and one
snack;
(ii) Residential camps are not subject to the time restrictions for
meal service set forth at paragraphs (c) (1) and (2) of this section;
and
(iii) A camp shall be approved to serve these meals only if it has
the administrative capability to do so; if the service period of the
different meals does not coincide or overlap; and, where applicable, if
it has adequate food preparation and holding facilities.
(2) NYSP Sites. Sponsors of NYSP sites shall only be reimbursed for
meals served to enrolled NYSP participants at these sites.
(3) Restrictions on the number and type of meals served. Food
service sites other than camps and sites that primarily serve migrant
children may serve either:
(i) One meal each day, a breakfast, a lunch, or snack; or
(ii) Two meals each day, if one is a lunch and the other is a
breakfast or a snack.
(4) Sites which serve children of migrant families. Food service
sites that primarily serve children from migrant families may be
approved to serve each day up to three meals or two meals and one snack.
These sites shall serve children in areas where poor economic conditions
exist as defined in Sec. 225.2. A sponsor which operates in accordance
with this part shall receive reimbursement for all meals served to
children at these sites. A site which primarily serves children from
migrant families shall only be approved to serve more than one meal each
day if it has the administrative capability to do so; if the service
period of the different meals does not coincide or overlap; and, where
applicable, if it has adequate food preparation and holding facilities.
(5) Non-congregate meal service. A sponsor of a site must have the
administrative capability; the capacity to meet State and local health,
safety, and sanitation requirements; and, where applicable, have
adequate food preparation and holding facilities to be approved to serve
non-congregate meals. Sponsors of sites that are approved to provide
non-congregate meals in rural areas with no congregate meal service
must:
(i) Obtain prior written parental consent, if meals are to be
delivered to a child's home, as described in Sec. 225.14(d)(6).
(ii) Serve meals as described in paragraph (b)(3) of this section.
(iii) Comply with meal service time requirements described in
paragraphs (c)(1), (4), and (5) of this section.
(iv) Claim reimbursement for all eligible meals served to children
at sites in areas in which poor economic conditions exist, as defined in
Sec. 225.2. At all other sites, only the non-congregate meals served to
children who meet the eligibility standards for this Program may be
reimbursed.
(c) Meal service times. (1) Meal service times must be:
(i) Established by sponsors for each site;
(ii) Included in the sponsor's application; and
[[Page 179]]
(iii) Approved by the State agency. Approval of meal service times
must be in accordance with the State agency or sponsor's capacity to
monitor the full meal service during a review.
(2) Except for non-congregate meal service, breakfast meals must be
served at or close to the beginning of a child's day. Three component
meals served after a lunch or supper meal service are not eligible for
reimbursement as a breakfast.
(3) At all sites except residential camps and non-congregate meal
service, meal services must start at least one hour after the end of the
previous meal or snack.
(4) Meals served outside the approved meal service time:
(i) Are not eligible for reimbursement; and
(ii) May be approved for reimbursement by the State agency only if
an unanticipated event, outside of the sponsor's control, occurs. The
State agency may request documentation to support approval of meals
claimed when an unanticipated event occurs.
(5) The State agency must approve any permanent or planned changes
in meal service time.
(6) If congregate meals are not prepared on site:
(i) Meal deliveries must arrive before the approved meal service
time; and
(ii) Meals must be delivered within one hour of the start of the
meal service if the site does not have adequate storage to hold hot or
cold meals at the temperatures required by State or local health
regulations.
(d) Meal patterns. The meal requirements for the Program are
designed to provide nutritious and well-balanced meals to each child.
Sponsors must ensure that meals served meet all of the requirements.
Except as otherwise provided in this section, the following tables
present the minimum requirements for meals served to children in the
Program. Children age 12 and up may be served larger portions based on
the greater food needs of older children.
(1) Breakfast. The minimum amount of meal components to be served as
breakfast are as follows:
Table 1 to Paragraph (d)(1)--Breakfast Meal Pattern
------------------------------------------------------------------------
Meal components Minimum amount
------------------------------------------------------------------------
Vegetables and Fruits
------------------------------------------------------------------------
Vegetable(s) and/or fruit(s)............ \1/2\ cup.\1\
Full-strength vegetable or fruit juice \1/2\ cup (4 fluid ounces).
or an equivalent quantity of any
combination of vegetable(s), fruit(s),
and juice.
------------------------------------------------------------------------
Bread and Bread Alternates \2\
------------------------------------------------------------------------
Bread or................................ 1 slice.
Cornbread, biscuits, rolls, muffins, 1 serving.\3\
etc. or.
Cold dry cereal or...................... \3/4\ cup or 1 ounce.\4\
Cooked cereal or cereal grains or....... \1/2\ cup.
Cooked pasta or noodle products or an \1/2\ cup.
equivalent quantity of any combination
of bread/bread alternate.
------------------------------------------------------------------------
Milk \5\
------------------------------------------------------------------------
Milk, fluid............................. 1 cup (\1/2\ pint, 8 fluid
ounces).
------------------------------------------------------------------------
Meats/Meat Alternates (Optional)
------------------------------------------------------------------------
Lean meat or poultry or fish or......... 1 ounce.
Alternate protein product \6\ or........ 1 ounce.
Cheese or............................... 1 ounce.
Egg (large) or.......................... \1/2\.
Cooked dry beans, peas, or lentils or... \1/4\ cup.
Peanut butter or........................ 2 tablespoons.
Yogurt, plain or flavored, unsweetened 4 ounces or \1/2\ cup.
or sweetened or an equivalent quantity
of any combination of meats/meat
alternates.
------------------------------------------------------------------------
\1\ For the purposes of the requirement outlined in the table, a cup
means the standard measuring cup.
\2\ Bread, pasta or noodle products, and cereal grains (such as rice,
bulger, or corn grits) must be whole grain or enriched; cornbread,
biscuits, rolls, muffins, etc. must be made with whole grain or
enriched meal or flour; cereal must be whole grain, enriched, or
fortified.
\3\ Information on food crediting, including serving sizes and
equivalents, may be found in FNS guidance.
[[Page 180]]
\4\ Either volume (cup) or weight (ounces), whichever is less.
\5\ Milk must be served as a beverage or on cereal or used in part for
each purpose.
\6\ Must meet the requirements in appendix A of this part.
(2) Lunch or supper. The minimum amounts of meal components to be
served as lunch or supper are as follows:
Table 2 to Paragraph (d)(2)--Lunch or Supper Meal Pattern
------------------------------------------------------------------------
Meal components Minimum amount
------------------------------------------------------------------------
Meats/Meat Alternates
------------------------------------------------------------------------
Lean meat or poultry or fish or......... 2 ounces.
Alternate protein products \1\ or....... 2 ounces.
Cheese or............................... 2 ounces.
Egg (large) or.......................... 1.
Cooked dry beans, peas, or lentils or... \1/2\ cup.\2\
Peanut butter or soynut butter or other 4 tablespoons.
nut or seed butters or.
Peanuts or soynuts or tree nuts or seeds 2 ounces.
\3\ or.
Yogurt, plain or flavored, unsweetened 8 ounces or 1 cup.
or sweetened or an equivalent quantity
of any combination of the above meats/
meat alternates.
------------------------------------------------------------------------
Vegetables and Fruits
------------------------------------------------------------------------
Vegetables and/or fruits \4\............ \3/4\ cup total.
------------------------------------------------------------------------
Bread and Bread Alternatives \5\
------------------------------------------------------------------------
Bread or................................ 1 slice.
Cornbread, biscuits, rolls, muffins, 1 serving.\6\
etc. or.
Cooked pasta or noodle products or...... \1/2\ cup.
Cooked cereal grains or an equivalent \1/2\ cup.
quantity of any combination of bread or
bread alternate.
------------------------------------------------------------------------
Milk
------------------------------------------------------------------------
Milk, fluid, served as a beverage....... 1 cup (\1/2\ pint, 8 fluid
ounces).
------------------------------------------------------------------------
\1\ Must meet the requirements of appendix A of this part.
\2\ For the purposes of the requirement outlined in this table, a cup
means a standard measuring cup.
\3\ Information on crediting meats/meat alternates, including nuts and
seeds, may be found in FNS guidance.
\4\ Serve 2 or more kinds of vegetable(s) and/or fruits or a combination
of both. Full-strength vegetable or fruit juice may be offered to meet
not more than one-half of this requirement.
\5\ Bread, pasta or noodle products, and cereal grains (such as rice,
bulgur, or corn grits) must be whole grain or enriched; cornbread,
biscuits, rolls, muffins, etc., must be made with whole grain or
enriched meal or flour; cereal must be whole grain, enriched or
fortified.
\6\ Information on food crediting, including serving sizes and
equivalents, may be found in FNS guidance.
(3) Snacks. The minimum amounts of meal components to be served as
snacks are as follows. Select two of the following four components.
(Juice may not be served when milk is served as the only other
component.)
Table 3 to Paragraph (d)(3)--Snack Meal Pattern
------------------------------------------------------------------------
Meal components Minimum amount
------------------------------------------------------------------------
Meats/Meat Alternates
------------------------------------------------------------------------
Lean meat or poultry or fish or......... 1 ounce.
Alternate protein products \1\ or....... 1 ounce.
Cheese or............................... 1 ounce.
Egg (large) or.......................... \1/2\.
Cooked dry beans, peas, or lentils or... \1/4\ cup.\2\
Peanut butter or soynut butter or other 2 tablespoons.
nut or seed butters or.
Peanuts or soynuts or tree nuts or seeds 1 ounce.
\3\ or.
Yogurt, plain or flavored, unsweetened 4 ounces or \1/2\ cup.
or sweetened or an equivalent quantity
of any combination of the above meats/
meat alternates.
------------------------------------------------------------------------
Vegetables and Fruits
------------------------------------------------------------------------
Vegetable(s) and/or fruit(s) or......... \3/4\ cup.
[[Page 181]]
Full-strength vegetable or fruit juice \3/4\ cup (6 fluid ounces).
or an equivalent quantity or any
combination of vegetable(s), fruit(s),
and juice.
------------------------------------------------------------------------
Bread and Bread Alternates \4\
------------------------------------------------------------------------
Bread or................................ 1 slice.
Cornbread, biscuits, rolls, muffins, 1 serving.\5\
etc. or.
Cold dry cereal or...................... \3/4\ cup or 1 ounce.\6\
Cooked cereal or........................ \1/2\ cup.
Cooked cereal grains or an equivalent \1/2\ cup.
quantity of any combination of bread/
bread alternate.
------------------------------------------------------------------------
Milk \7\
------------------------------------------------------------------------
Milk, fluid............................. 1 cup (\1/2\ pint, 8 fluid
ounces).
------------------------------------------------------------------------
\1\ Must meet the requirements in appendix A of this part.
\2\ For the purposes of the requirement outlined in this table, a cup
means a standard measuring cup.
\3\ Information on crediting meats/meat alternates, including nuts and
seeds, may be found in FNS guidance.
\4\ Bread, pasta or noodle products, and cereal grains (such as rice,
bulgur, or corn grits) must be whole grain or enriched; cornbread,
biscuits, rolls, muffins, etc., must be made with whole grain or
enriched meal or flour; cereal must be whole grain, enriched, or
fortified.
\5\ Information on food crediting, including serving sizes and
equivalents, may be found in FNS guidance.
\6\ Either volume (cup) or weight (ounces), whichever is less.
\7\ Milk should be served as a beverage or on cereal, or used in part
for each purpose.
(e) Meat or meat alternate. Meat or meat alternates served under the
Program are subject to the following requirements and recommendations.
(1) The required quantity of meat or meat alternate shall be the
quantity of the edible portion as served. These foods must be served in
a main dish, or in a main dish and one other menu item.
(2) Cooked dry beans, peas, and lentils may be used as a meat
alternate or as a vegetable, but they may not be used to meet both
component requirements in a meal.
(3) Enriched macaroni with fortified protein may be used to meet
part but not all of the meat/meat alternate requirement. The Department
will provide guidance to State agencies on the part of the meat/meat
alternate requirement which these foods may be used to meet. If enriched
macaroni with fortified protein is served as a meat alternate it shall
not be counted toward the bread requirement.
(4) If the sponsor determines that the recommended portion size of
any meat or meat alternate is too large to be appealing to children, the
sponsor may reduce the portion size of that meat or meat alternate and
supplement it with another meat or meat alternate to meet the full
requirement.
(5) Nuts and seeds and their butters are allowed as meats/meat
alternates. Acorns, chestnuts, and coconuts do not credit as meat
alternates due to their low protein content. Nut and seed meals or
flours may credit only if they meet the requirements for alternate
protein products established in appendix A to this part.
(f) Exceptions to and variations from the meal pattern--(1) Meals
provided by school food authorities--(i) Meal pattern substitution.
School food authorities that are Program sponsors and that participate
in the National School Lunch or School Breakfast Program during any time
of the year may substitute the meal pattern requirements of the
regulations governing those programs (Parts 210 and 220 of this chapter,
respectively) for the meal pattern requirements in this section.
(ii) Offer versus serve. School food authorities that are Program
sponsors may permit a child to refuse one or more items that the child
does not intend to eat. The reimbursements to school food authorities
for Program meals served under this ``offer versus serve'' option must
not be reduced because children choose not to take all components of the
meals that are offered. The school food authority may elect to use the
following options:
(A) Provide meal service consistent with the National School Lunch
Program, as described in part 210 of this chapter.
[[Page 182]]
(B) Provide breakfast meals by offering four items from all three
components specified in the meal pattern in paragraph (d)(1) of this
section. Children may be permitted to decline one item.
(C) Provide lunch or supper meals by offering five food items from
all four components specified in the meal pattern in paragraph (d)(2) of
this section. Children may be permitted to decline two components.
(2) Children under 6. The State agency may authorize the sponsor to
serve food in smaller quantities than are indicated in paragraph (d) of
this section to children under six years of age if the sponsor has the
capability to ensure that variations in portion size are in accordance
with the age levels of the children served. Sponsors wishing to serve
children under one year of age shall first receive approval to do so
from the State agency. In both cases, the sponsor shall follow the age-
appropriate meal pattern requirements contained in the Child and Adult
Care Food Program regulations (7 CFR part 226).
(3) Bread and bread alternative substitutions. In American Samoa,
Guam, Hawaii, Puerto Rico, and the U.S. Virgin Islands, and for sponsors
in any State that serve primarily American Indian or Alaska Native
children, any vegetable, including vegetables such as breadfruit,
prairie turnips, plantains, sweet potatoes, and yams, may be served to
meet the bread and bread alternatives requirement.
(4) Individual substitutions. Substitutions may be made by sponsors
in food listed in paragraph (d) of this section if individual
participating children are unable, because of medical or other special
dietary needs, to consume such foods. Such substitutions shall be made
only when supported by a statement from a recognized medical authority
which includes recommended alternate foods. Such statement shall be kept
on file by the sponsor.
(5) Special variations. FNS may approve variations in the food
components of the meals on an experimental or a continuing basis for any
sponsor where there is evidence that such variations are nutritionally
sound and are necessary to meet ethnic, religious, economic, or physical
needs.
(6) Temporary unavailability of milk. If emergency conditions
prevent a sponsor normally having a supply of milk from temporarily
obtaining milk deliveries, the State agency may approve the service of
breakfasts, lunches or suppers without milk during the emergency period.
(7) Continuing unavailability of milk. The inability of a sponsor to
obtain a supply of milk on a continuing basis shall not bar it from
participation in the Program. In such cases, the State agency may
approve service of meals without milk, provided that an equivalent
amount of canned, whole dry or nonfat dry milk is used in the
preparation of the milk components set forth in paragraph (d) of this
section. In addition, the State agency may approve the use of nonfat dry
milk in meals served to children participating in activities which make
the service of fluid milk impracticable, and in locations which are
unable to obtain fluid milk. Such authorization shall stipulate that
nonfat dry milk be reconstituted at normal dilution and under sanitary
conditions consistent with State and local health regulations.
(8) Additional foods. To improve the nutrition of participating
children, additional foods may be served with each meal.
(g) Meals served away from approved locations. (1) Sponsors may be
reimbursed for meals served away from the approved site location when
the following conditions are met:
(i) The sponsor notifies the State agency in advance that meals will
be served away from the approved site;
(ii) The State agency has determined that all Program requirements
in this part will be met, including applicable State and local health,
safety, and sanitation standards;
(iii) The meals are served at the approved meal service time, unless
a change is approved by the State agency, as required under paragraph
(c) of this section; and
(iv) Sponsors of open sites continue operating at the approved
location. If not possible, the State agency may permit an open site to
close, in which case
[[Page 183]]
the sponsor must notify the community of the change in meal service and
provide information about alternative open sites.
(2) The State agency may determine that meals served away from the
approved site location are not reimbursable if the sponsor did not
provide notification in advance of the meal service. The State agency
may establish guidelines for the amount of advance notice needed.
(h) Off-site consumption of food items. For congregate meal
services, sponsors may allow a child to take one fruit, vegetable, or
grain item off-site for later consumption without prior State agency
approval provided that all applicable State and local health, safety,
and sanitation standards will be met. Sponsors should only allow an item
to be taken off-site if the site has adequate staffing to properly
administer and monitor the site. A State agency may prohibit individual
sponsors on a case-by-case basis from using this option if the State
agency determines that the sponsor's ability to provide adequate
oversight is in question. The State agency's decision to prohibit a
sponsor from utilizing this option is not an appealable action.
(i) Non-congregate meal service options. The options described in
this paragraph (i) are available to all types of sponsors in good
standing, as defined in Sec. 225.2, that are approved to operate non-
congregate meal service sites. The State agency may limit the use of
these options on a case-by-case basis, if it determines that a sponsor
does not have the capability to operate or oversee non-congregate meal
services at their sites. The State agency may not limit the use of
options to only certain types of sponsors. The State agency's decision
to prohibit a sponsor from using the options described in this paragraph
(i) is not an appealable action. Sponsors in good standing may elect to
use any of the following options:
(1) Multi-day meal issuance. Approved sponsors may distribute up to
the allowable number of reimbursable meals that would be provided over a
10-calendar day period. The State agency may establish a shorter time
period, on a case-by-case basis. Sponsors electing this option must have
documented procedures, submitted with their application, in place to
ensure that the proper number of meals are distributed to each eligible
child.
(2) Parent or guardian pick-up of meals. Approved sponsors may
distribute meals to parents or guardians to take home to their children.
Sponsors electing this option must have documented procedures, submitted
with their application, in place to ensure that meals are only
distributed to parents or guardians of eligible children and that
duplicate meals are not distributed to any child.
(3) Bulk meal components. Approved self-preparation sponsors may
provide bulk food items that meet the minimum amounts of each food
component of a reimbursable meal breakfast, lunch, supper, or snack, as
described in paragraph (d) of this section. Sponsors electing this
option must ensure that:
(i) Required food components for each reimbursable meal are served,
as described in paragraph (d) of this section.
(ii) All food items that contribute to a reimbursable meal are
clearly identifiable.
(ii) Menus are provided and clearly indicate the food items and
portion sizes for each reimbursable meal.
(iv) Food preparation, such as heating or warming, is minimal.
Sponsors may offer food items that require further preparation only with
State agency and FNSRO approval.
(v) The maximum number of reimbursable meals provided to a child
does not exceed the number of meals that could be provided over a 5-
calendar day period. The State agency may establish a shorter or longer
time period, which may not exceed the time period for which the sponsor
is approved for multi-day meal issuance, on a case-by-case basis.
[54 FR 18208, Apr. 27, 1989, as amended at 54 FR 27153, June 28, 1989;
Amdt. 2, 55 FR 1377, Jan. 14, 1990; 55 FR 13470, Apr. 10, 1990; 61 FR
37672, July 19, 1996; 62 FR 10191, Mar. 6, 1997; 64 FR 72487, Dec. 28,
1999; 64 FR 72487, Dec. 28, 1999; 65 FR 12437, Mar. 9, 2000; 65 FR
82251, Dec. 28, 2000; 87 FR 57365, Sept. 19, 2022; 87 FR 79213, Dec. 27,
2022; 88 FR 90354, Dec. 29, 2023; 89 FR 32085, Apr. 25, 2024]
[[Page 184]]
Subpart D_General Administrative Provisions
Sec. 225.17 Procurement standards.
(a) State agencies and sponsors shall comply with the requirements
of 2 CFR part 200, subpart D and USDA implementing regulations 2 CFR
part 400 and part 415, as applicable, concerning the procurement of
supplies, food, equipment and other services with Program funds. These
requirements ensure that such materials and services are obtained for
the program efficiently and economically and in compliance with
applicable laws and executive orders. Sponsors may use their own
procedures for procurement with Program funds to the extent that:
(1) Procurements by public sponsors comply with applicable State or
local laws and the standards set forth in 2 CFR part 200, subpart F and
USDA implementing regulations 2 CFR part 400 and part 415; and
(2) Procurements by private nonprofit sponsors comply with standards
set forth in 2 CFR part 200, subpart F and USDA implementing regulations
2 CFR part 400 and part 415.
(b) The State agency shall make available to sponsors information on
2 CFR part 200, subpart D and USDA implementing regulations 2 CFR part
400 and part 415, as applicable.
(c) Sponsors may use their own procurement procedures which reflect
applicable State and local laws and regulations, provided that
procurements made with Program funds conform with provisions of this
section, as well as with procurement requirements which may be
established by the State agency, with approval of FNS, to prevent fraud,
waste, and Program abuse.
(d) The State agency shall ensure that each sponsor is aware of the
following practices specified in 2 CFR part 200, subpart D and USDA
implementing regulations 2 CFR part 400 and part 415, as applicable,
with respect to minority business enterprises:
(1) Including qualified minority business enterprises on
solicitation lists,
(2) Soliciting minority business enterprises whenever they are
potential sources,
(3) When economically feasible, dividing total requirements into
smaller tasks or quantities so as to permit maximum participation by
minority business enterprises,
(4) Establishing delivery schedules which will assist minority
business enterprises to meet deadlines, and
(5) Using the services and assistance of the Small Business
Administration, and the Office of Minority Business Enterprise of the
Department of Commerce as required.
(e) Geographic preference. (1) Sponsors participating in the Program
may apply a geographic preference when procuring unprocessed locally
grown or locally raised agricultural products, including the use of
``locally grown'', ``locally raised'', or ``locally caught'' as
procurement specifications or selection criteria for unprocessed or
minimally processed food items. When utilizing the geographic preference
to procure such products, the sponsor making the purchase has the
discretion to determine the local area to which the geographic
preference option will be applied, so long as there are an appropriate
number of qualified firms able to compete;
(2) For the purpose of applying the optional geographic preference
in paragraph (e)(1) of this section, ``unprocessed locally grown or
locally raised agricultural products'' means only those agricultural
products that retain their inherent character. The effects of the
following food handling and preservation techniques shall not be
considered as changing an agricultural product into a product of a
different kind or character: Cooling; refrigerating; freezing; size
adjustment made by peeling, slicing, dicing, cutting, chopping,
shucking, and grinding; forming ground products into patties without any
additives or fillers; drying/dehydration; washing; packaging (such as
placing eggs in cartons), vacuum packing and bagging (such as placing
vegetables in bags or combining two or more types of vegetables or
fruits in a single package); addition of ascorbic acid or other
preservatives to prevent oxidation of produce; butchering livestock and
poultry; cleaning fish; and the pasteurization of milk.
(f) All contracts in excess of $10,000 must contain a clause
allowing termination for cause or for convenience by
[[Page 185]]
the sponsor including the manner by which it will be effected and the
basis for settlement.
[54 FR 18208, Apr. 27, 1989, as amended at 71 FR 39518, July 13, 2006;
76 FR 22607, Apr. 22, 2011; 81 FR 66492, Sept. 28, 2016; 83 FR 25361,
June 1, 2018; 87 FR 57365, Sept. 19, 2022; 89 FR 32087, Apr. 25, 2024]
Sec. 225.18 Miscellaneous administrative provisions.
(a) Grant closeout procedures. Grant closeout procedures for the
Program shall be in accordance with 2 CFR part 200, subpart D and USDA
implementing regulations 2 CFR part 400 and part 415, as applicable.
(b) Termination for cause. (1) FNS may terminate a State agency's
participation in the Program in whole, or in part, whenever it is
determined that the State agency has failed to comply with the
conditions of the Program. FNS shall promptly notify the State agency in
writing of the termination and reason for the termination, together with
the effective date, and shall allow the State 30 calendar days to
respond. In instances where the State does respond, FNS shall inform the
State of its final determination no later than 30 calendar days after
the State responds.
(2) A State agency shall terminate a sponsor's participation in the
Program by written notice whenever it is determined by the State agency
that the sponsor has failed to comply with the conditions of the
Program.
(3) When participation in the Program has been terminated for cause,
any funds paid to the State agency or a sponsor or any recoveries by FNS
from the State agency or by the State agency from a sponsor shall be in
accordance with the legal rights and liabilities of the parties.
(c) Termination for convenience. FNS and the State agency may agree
to terminate the State agency's participation in the Program in whole,
or in part, when both parties agree that the continuation of the Program
would not produce beneficial results commensurate with the further
expenditure of funds. The two parties shall agree upon the termination
conditions, including the effective date, and in the case of partial
termination, the portion to be terminated. The State agency shall not
incur new obligations for the terminated portion after the effective
date, and shall cancel as many outstanding obligations as possible. The
Department shall allow full credit to the State agency for the Federal
share of the noncancellable obligation properly incurred by the State
agency prior to termination. A State agency may terminate a sponsor's
participation in the manner provided for in this paragraph.
(d) Maintenance of effort. Expenditure of funds from State and local
sources for the maintenance of food programs for children shall not be
diminished as a result of funds received under the Act and a
certification to this effect shall become part of the agreement provided
for in Sec. 225.3(c).
(e) Program benefits. The value of benefits and assistance available
under the Program shall not be considered as income or resources of
recipients and 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.
(f) State requirements. Nothing contained in this part shall prevent
a State agency from imposing additional operating requirements which are
not inconsistent with the provisions of this part, provided that such
additional requirements shall not deny the Program to an area in which
poor economic conditions exist, and shall not result in a significant
number of needy children not having access to the Program. Prior to
imposing any additional requirements, the State agency must receive
approval from FNSRO.
(g) Fraud penalty. Whoever embezzles, willfully misapplies, steals,
or obtains by fraud any funds, assets, or property that are the subject
of a grant or other form of assistance under this part, whether received
directly or indirectly from the Department, or whoever receives,
conceals, or retains such funds, assets, or property to his use or gain,
knowing such funds, assets, or property have been embezzled, willfully
misapplied, stolen or obtained by fraud shall, if such funds, assets, or
property are of the value of $100 or more, be fined not more than
$25,000 or imprisoned not more than five years, or both,
[[Page 186]]
or if such funds, assets, or property are of a value of less than $100,
shall be fined not more than $1,000 or imprisoned for not more than one
year, or both.
(h) Claims adjustment authority. The Secretary shall have the
authority to determine the amount of, to settle, and to adjust any claim
arising under the Program, and to compromise or deny such claim or any
part thereof. The Secretary shall also have the authority to waive such
claims if the Secretary determines that to do so would serve the
purposes of the Program. This provision shall not diminish the authority
of the Attorney General of the United States under section 516 of title
28, U.S. Code, to conduct litigation on behalf of the United States.
(i) Data collection related to sponsors. (1) Each State agency must
collect data related to sponsors that have an agreement with the State
agency to participate in the program for each of Federal fiscal years
2006 through 2009, including those sponsors that participated only for
part of the fiscal year. Such data shall include:
(i) The name of each sponsor;
(ii) The city in which each participating sponsor was headquartered
and the name of the state;
(iii) The amount of funds provided to the participating
organization, i.e., the sum of the amount of federal funds reimbursed
for operating and administrative cost; and
(iv) The type of participating organization, e.g., government
agency, educational institution, non-profit organization/secular, non-
profit organization/faith-based, and ``other.''
(2) On or before August 31, 2007, and each subsequent year through
2010, State agencies must report to FNS data as specified in paragraph
(i)(1) of this section for the prior Federal fiscal year. State agencies
must submit this data in a format designated by FNS.
(j) Program evaluations. States, State agencies, sponsors, sites and
contractors must cooperate in studies and evaluations conducted by or on
behalf of the Department, related to programs authorized under the
Richard B. Russell National School Lunch Act and the Child Nutrition Act
of 1966, as amended.
(k) Fines. (1) A sponsor that is a school food authority may be
subject to fines. The State agency may establish an assessment when it
has determined that the sponsor or its site has:
(i) Failed to correct severe mismanagement of the Program;
(ii) Disregarded a Program requirement of which the sponsor or its
site had been informed; or
(iii) Failed to correct repeated violations of Program requirements.
(2) FNS may direct the State agency to establish a fine against any
sponsor when it has determined that the sponsor or its site has
committed one or more acts under paragraph (k)(1) of this section.
(3) Funds used to pay a fine established under this paragraph must
be derived from non-Federal sources. In calculating an assessment, the
State agency must calculate the fine based on the amount of Program
reimbursement earned by the sponsor or its site for the most recent
fiscal year for which full year data is available, provided that the
fine does not exceed the equivalent of:
(i) For the first fine, 1 percent of the amount of meal
reimbursement earned for the fiscal year;
(ii) For the second fine, 5 percent of the amount of meal
reimbursement earned for the fiscal year; and
(iii) For the third or subsequent fine, 10 percent of the amount of
meal reimbursement earned for the fiscal year.
(4) The State agency must inform FNS at least 30 days prior to
establishing the fine under this paragraph. The State agency must send
the sponsor written notification of the fine established under this
paragraph and provide a copy of the notification to FNS. The
notification must:
(i) Specify the violations or actions which constitute the basis for
the fine and indicate the amount of the fine;
(ii) Inform the institution that it may appeal the fine and advise
the sponsor of the appeal procedures established under Sec. 225.13;
(iii) Indicate the effective date and payment procedures should the
sponsor not exercise its right to appeal within the specified timeframe.
(5) Any sponsor subject to a fine under paragraph (k)(1) of this
section
[[Page 187]]
may appeal the State agency's determination. In appealing a fine, the
sponsor must submit to the State agency any pertinent information,
explanation, or evidence addressing the Program violations identified by
the State agency. Any sponsor seeking to appeal the State agency
determination must follow State agency appeal procedures.
(6) The decision of the State agency review official is final and
not subject to further administrative or judicial review. Failure to pay
a fine established under this paragraph may be grounds for suspension or
termination.
(7) Money received by the State agency as a result of a fine
established under this paragraph against a sponsor and any interest
charged in the collection of these fines must be remitted to FNS, and
then remitted to the United States Treasury.
(l) Updates to data sources. By January 1 each year, or as soon as
is practicable, FNS will issue any necessary updates to approved data
sources listed under the definition of ``rural'' in Sec. 225.2 to be
used for rural site designations in that program year. FNS will make
this information available and referenceable in a simplified format.
[54 FR 18208, Apr. 27, 1989, as amended at 55 FR 13471, Apr. 10, 1990;
64 FR 72488, Dec. 28, 1999; 71 FR 39518, July 13, 2006; 72 FR 24183, May
2, 2007; 76 FR 37982, June 29, 2011; 78 FR 13450, Feb. 28, 2013; 81 FR
66492, Sept. 28, 2016; 88 FR 57850, Aug. 23, 2023; 88 FR 90355, Dec. 29,
2023]
Sec. 225.19 Program information.
Persons seeking information about this Program should contact their
State administering agency or the appropriate FNSRO. The FNS website has
contact information for State agencies at https://www.fns.usda.gov/
contacts and FNSRO at https://www.fns.usda.gov/ fns-regional-offices.
[88 FR 57850, Aug. 23, 2023]
Sec. 225.20 Information collection/recordkeeping--OMB assigned control numbers.
------------------------------------------------------------------------
Current OMB
7 CFR section where requirements are described control No.
------------------------------------------------------------------------
225.3-225.4................................................ 0584-0280
225.6-225.10............................................... 0584-0280
225.12-225.13.............................................. 0584-0280
225.15-225.18.............................................. 0584-0280
------------------------------------------------------------------------
[61 FR 25554, May 22, 1996]
Sec. Appendix A to Part 225--Alternate Foods for Meals
Alternate Protein Products
A. What Are the Criteria for Alternate Protein Products Used in the
Summer Food Service Program?
1. An alternate protein product used in meals planned under the
provisions in Sec. 225.16 must meet all of the criteria in this
section.
2. An alternate protein product whether used alone or in combination
with meat or other meat alternates must meet the following criteria:
a. The alternate protein product must be processed so that some
portion of the non-protein constituents of the food is removed. These
alternate protein products must be safe and suitable edible products
produced from plant or animal sources.
b. The biological quality of the protein in the alternate protein
product must be at least 80 percent that of casein, determined by
performing a Protein Digestibility Corrected Amino Acid Score (PDCAAS).
c. The alternate protein product must contain at least 18 percent
protein by weight when fully hydrated or formulated. (``When hydrated or
formulated'' refers to a dry alternate protein product and the amount of
water, fat, oil, colors, flavors or any other substances which have been
added).
d. Manufacturers supplying an alternate protein product to
participating schools or institutions must provide documentation that
the product meets the criteria in paragraphs A. 2. a through c of this
appendix.
e. Manufacturers should provide information on the percent protein
contained in the dry alternate protein product and on an as prepared
basis.
f. For an alternate protein product mix, manufacturers should
provide information on:
(1) The amount by weight of dry alternate protein product in the
package;
(2) Hydration instructions; and
(3) Instructions on how to combine the mix with meat or other meat
alternates.
B. How Are Alternate Protein Products Used in the Summer Food Service
Program?
1. Schools, institutions, and service institutions may use alternate
protein products to fulfill all or part of the meat/meat alternate
component discussed in Sec. 225.20.
2. The following terms and conditions apply:
[[Page 188]]
a. The alternate protein product may be used alone or in combination
with other food ingredients. Examples of combination items are beef
patties, beef crumbles, pizza topping, meat loaf, meat sauce, taco
filling, burritos, and tuna salad.
b. Alternate protein products may be used in the dry form
(nonhydrated), partially hydrated or fully hydrated form. The moisture
content of the fully hydrated alternate protein product (if prepared
from a dry concentrated form) must be such that the mixture will have a
minimum of 18 percent protein by weight or equivalent amount for the dry
or partially hydrated form (based on the level that would be provided if
the product were fully hydrated).
C. How Are Commercially Prepared Products Used in the Summer Food
Service Program?
Schools, institutions, and service institutions may use a
commercially prepared meat or meat alternate products combined with
alternate protein products or use a commercially prepared product that
contains only alternate protein products.
[65 FR 12439, Mar. 9, 2000]
Sec. Appendix B to Part 225 [Reserved]
Sec. Appendix C to Part 225--Child Nutrition (CN) Labeling Program
1. The Child Nutrition (CN) Labeling Program is a voluntary
technical assistance program administered by the Food and Nutrition
Service (FNS) in conjunction with the Food Safety and Inspection Service
(FSIS) and Agricultural Marketing Service (AMS) of the U.S. Department
of Agriculture (USDA), and National Marine Fisheries Service of the U.S.
Department of Commerce (USDC) for the Child Nutrition Programs. This
program essentially involves the review of a manufacturer's recipe or
product formulation to determine the contribution a serving of a
commercially prepared product makes toward meal pattern requirements and
a review of the CN label statement to ensure its accuracy. CN labeled
products must be produced in accordance with all requirements set forth
in this rule.
2. Products eligible for CN labels are as follows:
(a) Commercially prepared food products that contribute
significantly to the meat/meat alternate component of meal pattern
requirements of 7 CFR 210.10, 225.16, and 226.20 and are served in the
main dish.
(b) Juice drinks and juice drink products that contain a minimum of
50 percent full strength juice by volume.
3. For the purpose of this appendix the following definitions apply:
(a) CN label is a food product label that contains a CN label
statement and CN logo as defined in paragraph 3(b) and (c) below.
(b) The CN logo (as shown below) is a distinct border which is used
around the edges of a ``CN label statement'' as defined in paragraph
3(c).
[GRAPHIC] [TIFF OMITTED] TC17SE91.006
(c) The CN label statement includes the following:
(1) The product identification number (assigned by FNS);
(2) The statement of the product's contribution toward meal pattern
requirements of 7 CFR 210.10, 220.8, 225.16, and 226.20. The statement
shall identify the contribution of a specific portion of a meat/meat
alternate product toward the meat/meat alternate, bread/bread alternate,
and/or vegetable/fruit component of the meal pattern requirements. For
juice drinks and juice drink products the statement shall identify their
contribution toward the vegetable/fruit component of the meal pattern
requirements.
(3) Statement specifying that the use of the CN logo and CN
statement was authorized by FNS, and
(4) The approval date.
For example:
[[Page 189]]
[GRAPHIC] [TIFF OMITTED] TC17SE91.007
(d) Federal inspection means inspection of food products by FSIS,
AMS or USDC.
4. Food processors or manufacturers may use the CN label statement
and CN logo as defined in paragraph 3 (b) and (c) under the following
terms and conditions:
(a) The CN label must be reviewed and approved at the national level
by the Food and Nutrition Service and appropriate USDA or USDC Federal
agency responsible for the inspection of the product.
(b) The CN labeled product must be produced under Federal inspection
by USDA or USDC. The Federal inspection must be performed in accordance
with an approved partial or total quality control program or standards
established by the appropriate Federal inspection service.
(c) The CN label statement must be printed as an integral part of
the product label along with the product name, ingredient listing, the
inspection shield or mark for the appropriate inspection program, the
establishment number where appropriate and the manufacturer's or
distributor's name and address.
(1) The inspection marking for CN labeled non-meat, non-poultry, and
non-seafood products with the exception of juice drinks and juice drink
products is established as follows:
[GRAPHIC] [TIFF OMITTED] TC17SE91.008
(d) Yields for determining the product's contribution toward meal
pattern requirements must be calculated using the Food Buying Guide for
Child Nutrition Programs (Program Aid Number 1331).
5. In the event a company uses the CN logo and CN label statement
inappropriately, the company will be directed to discontinue the use of
the logo and statement and the matter will be referred to the
appropriate agency for action to be taken against the company.
6. Products that bear a CN label statement as set forth in paragraph
3(c) carry a warranty. This means that if a food service authority
participating in the child nutrition programs purchases a CN labeled
product and uses it in accordance with the manufacturer's directions,
the school or institution will not have an audit claim filed against it
for the CN labeled product for noncompliance with the meal pattern
requirements of 7 CFR 210.10, 220.8, 225.16, and 226.20. If a State or
Federal auditor finds that a product that is CN labeled does not
actually meet the meal pattern requirements claimed on the label, the
auditor will report this finding to FNS. FNS will prepare a report on
the findings and send it to the appropriate divisions of FSIS and AMS of
the USDA, National Marine Fisheries Service of the USDC, Food and Drug
Administration, or the Department of Justice for action against the
company. Any or all of the following courses of action may be taken: (a)
The company's CN label may be revoked for a specific period of time; (b)
The appropriate agency may pursue a misbranding or mislabeling action
against the company producing the product; (c) The company's name will
be circulated to regional FNS offices; and (d) FNS will require the food
service program involved to notify the State agency of the labeling
violation.
7. FNS is authorized to issue operational policies, procedures, and
instructions for the CN Labeling Program. To apply for a CN label and to
obtain additional information on CN label application procedures, write
to: CN Labels, U.S. Department of Agriculture, Food and Nutrition
Service, Nutrition and Technical Services Division, 3101 Park Center
Drive, Alexandria, Virginia 22302.
PART 226_CHILD AND ADULT CARE FOOD PROGRAM--Table of Contents
Subpart A_General
Sec.
226.1 General purpose and scope.
226.2 Definitions.
226.3 Administration.
Subpart B_Assistance to States
226.4 Payments to States and use of funds.
226.5 Donation of commodities.
Subpart C_State Agency Provisions
226.6 State agency administrative responsibilities.
226.7 State agency responsibilities for financial management.
[[Page 190]]
226.8 Audits.
Subpart D_Payment Provisions
226.9 Assignment of rates of reimbursement for centers.
226.10 Program payment procedures.
226.11 Program payments for centers.
226.12 Administrative payments to sponsoring organizations for day care
homes.
226.13 Food service payments to sponsoring organizations for day care
homes.
226.14 Claims against institutions.
Subpart E_Operational Provisions
226.15 Institution provisions.
226.16 Sponsoring organization provisions.
226.17 Child care center provisions.
226.17a At-risk afterschool care center provisions.
226.18 Day care home provisions.
226.19 Outside-school-hours care center provisions.
226.19a Adult day care center provisions.
226.20 Requirements for meals.
226.21 Food service management companies.
226.22 Procurement standards.
226.23 Free and reduced-price meals.
Subpart F_Food Service Equipment Provisions
226.24 Property management requirements.
Subpart G_Other Provisions
226.25 Other provisions.
226.26 Program information.
226.27 Information collection/recordkeeping--OMB assigned control
numbers.
Appendix A to Part 226--Alternate Foods for Meals
Appendix B to Part 226 [Reserved]
Appendix C to Part 226--Child Nutrition (CN) Labeling Program
Authority: Secs. 9, 11, 14, 16, and 17, Richard B. Russell National
School Lunch Act, as amended (42 U.S.C. 1758, 1759a, 1762a, 1765 and
1766).
Source: 47 FR 36527, Aug. 20, 1982, unless otherwise noted.
Editorial Note: Nomenclature changes to part 226 appear at 70 FR
43261, July 27, 2005.
Subpart A_General
Sec. 226.1 General purpose and scope.
This part announces the regulations under which the Secretary of
Agriculture will carry out the Child and Adult Care Food Program.
Section 17 of the Richard B. Russell National School Lunch Act, as
amended, authorizes assistance to States through grants-in-aid and other
means to initiate, maintain, and expand nonprofit food service programs
for children and adult participants in non-residential institutions
which provide care. The Program is intended to provide aid to child and
adult participants and family or group day care homes for provision of
nutritious foods that contribute to the wellness, healthy growth, and
development of young children, and the health and wellness of older
adults and chronically impaired persons.
[81 FR 24377, Apr. 25, 2016]
Sec. 226.2 Definitions.
2 CFR part 200, means the Uniform Administrative Requirements, Cost
Principles, and Audit Requirements for Federal Awards published by OMB.
The part reference covers applicable: Acronyms and Definitions (subpart
A), General Provisions (subpart B), Post Federal Award Requirements
(subpart D), Cost Principles (subpart E), and Audit Requirements
(subpart F). (NOTE: Pre-Federal Award Requirements and Contents of
Federal Awards (subpart C) does not apply to the National School Lunch
Program).
Act means the National School Lunch Act, as amended.
Administrative costs means costs incurred by an institution related
to planning, organizing, and managing a food service under the Program,
and allowed by the State agency financial management instruction. These
administrative costs may include administrative expenses associated with
outreach and recruitment of unlicensed family or group day care homes
and the allowable licensing-related expenses of such homes.
Administrative review means the fair hearing provided upon request
to:
(a) An institution that has been given notice by the State agency of
any action or proposed action that will affect their participation or
reimbursement under the Program, in accordance with Sec. 226.6(k);
(b) A principal or individual responsible for an institution's
serious deficiency after the responsible principal or responsible
individual has been given a notice of intent to disqualify them from the
Program; and
[[Page 191]]
(c) A day care home that has been given a notice of proposed
termination for cause.
Administrative review official means the independent and impartial
official who conducts the administrative review held in accordance with
Sec. 226.6(k).
Adult means, for the purposes of the collection of the last four
digits of social security numbers as a condition of eligibility for free
or reduced-price meals, any individual 21 years of age or older.
Adult day care center means any public or private nonprofit
organization or any for-profit center (as defined in this section) which
(a) is licensed or approved by Federal, State or local authorities to
provide nonresidential adult day care services to functionally impaired
adults (as defined in this section) or persons 60 years of age or older
in a group setting outside their homes or a group living arrangement on
a less than 24-hour basis and (b) provides for such care and services
directly or under arrangements made by the agency or organization
whereby the agency or organization maintains professional management
responsibility for all such services. Such centers shall provide a
structured, comprehensive program that provides a variety of health,
social and related support services to enrolled adult participants
through an individual plan of care.
Adult day care facility means a licensed or approved adult day care
center under the auspices of a sponsoring organization.
Adult participant means a person enrolled in an adult day care
center who is functionally impaired (as defined in this section) or 60
years of age or older.
Advanced payments means financial assistance made available to an
institution for its Program costs prior to the month in which such costs
will be incurred.
At-risk afterschool care center means a public or private nonprofit
organization that is participating or is eligible to participate in the
CACFP as an institution or as a sponsored facility and that provides
nonresidential child care to children after school through an approved
afterschool care program located in an eligible area. However, an
Emergency shelter, as defined in this section, may participate as an at-
risk afterschool care center without regard to location.
At-risk afterschool meal means a meal that meets the requirements
described in Sec. 226.20(b)(6) and/or (c)(1), (c)(2), or (c)(3), that
is reimbursed at the appropriate free rate and is served by an At-risk
afterschool care center as defined in this section, which is located in
a State designated by law or selected by the Secretary as directed by
law.
At-risk afterschool snack means a snack that meets the requirements
described in Sec. 226.20(b)(6) and/or (c)(4) that is reimbursed at the
free rate for snacks and is served by an At-risk afterschool care center
as defined in this section.
CACFP child care standards means the Child and Adult Care Food
Program child care standards developed by the Department for alternate
approval of child care centers, and day care homes by the State agency
under the provisions of Sec. 226.6(d)(3) and (4).
Center means a child care center, at-risk afterschool care center,
an adult day care center, an emergency shelter, or an outside-school-
hours care center.
Child care center means any public or private nonprofit institution
or facility (except day care homes), or any for-profit center, as
defined in this section, that is licensed or approved to provide
nonresidential child care services to enrolled children, primarily of
preschool age, including but not limited to day care centers, settlement
houses, neighborhood centers, Head Start centers and organizations
providing day care services for children with disabilities. Child care
centers may participate in the Program as independent centers or under
the auspices of a sponsoring organization.
Child care facility means a licensed or approved child care center,
at-risk afterschool care center, day care home, emergency shelter, or
outside-school-hours care center under the auspices of a sponsoring
organization.
Children means:
(a) Persons age 12 and under;
(b) Persons age 15 and under who are children of migrant workers;
(c) Persons with disabilities as defined in this section;
[[Page 192]]
(d) For emergency shelters, persons age 18 and under; and
(e) For at-risk afterschool care centers, persons age 18 and under
at the start of the school year.
Claiming percentage means the ratio of the number of enrolled
participants in an institution in each reimbursement category (free,
reduced-price or paid) to the total of enrolled participants in the
institution. In the case of an outside-school-hours care center that is
not required to collect enrollment forms from each participating child,
a claiming percentage is the ratio of the number of children in each
reimbursement category (free, reduced-price or paid) to the total number
of children participating in the program in that center.
Current income means income received during the month prior to
application for free or reduced-price meals. If such income does not
accurately reflect the household's annual income, income shall be based
on the projected annual household income. If the prior year's income
provides an accurate reflection of the household's current annual
income, the prior year may be used as a base for the projected annual
income.
Day care home means an organized nonresidential child care program
for children enrolled in a private home, licensed or approved as a
family or group day care home and under the auspices of a sponsoring
organization.
Days means calendar days unless otherwise specified.
Department means the U.S. Department of Agriculture.
Disclosure means reveal or use individual children's program
eligibility information obtained through the free and reduced price meal
eligibility process for a purpose other than for the purpose for which
the information was obtained. The term refers to access, release, or
transfer of personal data about children by means of print, tape,
microfilm, microfiche, electronic communication or any other means.
Disqualified means the status of an institution, a responsible
principal or responsible individual, or a day care home that is
ineligible for participation.
Documentation means:
(a) The completion of the following information on a free and
reduced-price application:
(1) Names of all household members;
(2) Income received by each household member, identified by source
of income (such as earnings, wages, welfare, pensions, support payments,
unemployment compensation, social security and other cash income);
(3) The signature of an adult household member; and
(4) The last four digits of the social security number of the adult
household member who signs the application, or an indication that the
adult does not possess a social security number; or
(b) For a child who is a member of a SNAP or FDPIR household or who
is a TANF recipient, ``documentation'' means the completion of only the
following information on a free and reduced price application:
(1) The name(s) and appropriate SNAP, FDPIR or TANF case number(s)
for the child(ren); and
(2) The signature of an adult member of the household; or
(c) For a child in a tier II day care home who is a member of a
household participating in a Federally or State supported child care or
other benefit program with an income eligibility limit that does not
exceed the eligibility standard for free or reduced price meals:
(1) The name(s), appropriate case number(s) (if the program utilizes
case numbers), and name(s) of the qualifying program(s) for the
child(ren), and the signature of an adult member of the household; or
(2) If the sponsoring organization or day care home possesses it,
official evidence of the household's participation in a qualifying
program (submission of a free and reduced price application by the
household is not required in this case); or
(d) For an adult participant who is a member of a SNAP or FDPIR
household or is an SSI or Medicaid participant, as defined in this
section, ``documentation'' means the completion of only the following
information on a free and reduced price application:
(1) The name(s) and appropriate SNAP or FDPIR case number(s) for the
[[Page 193]]
participant(s) or the adult participant's SSI or Medicaid identification
number, as defined in this section; and
(2) The signature of an adult member of the household; or
(e) For a child who is a Head Start participant, the Head Start
statement of income eligibility issued upon initial enrollment in the
Head Start Program or, if such statement is unavailable, other
documentation from Head Start officials that the child's family meets
the Head Start Program's low-income criteria.
Eligible area means:
(a) For the purpose of determining the eligibility of at-risk
afterschool care centers, the attendance area of a school in which at
least 50 percent of the enrolled children are certified eligible for
free or reduced-price school meals; or
(b) For the purpose of determining the tiering status of day care
homes, the attendance area of a school in which at least 50 percent of
the enrolled children are certified eligible for free or reduced-price
meals, or the area based on the most recent census data in which at
least 50 percent of the children residing in the area are members of
households that meet the income standards for free or reduced-price
meals.
Emergency shelter means a public or private nonprofit organization
or its site that provides temporary shelter and food services to
homeless children, including a residential child care institution (RCCI)
that serves a distinct group of homeless children who are not enrolled
in the RCCI's regular program.
Enrolled child means a child whose parent or guardian has submitted
to an institution a signed document which indicates that the child is
enrolled for child care. In addition, for the purposes of calculations
made by sponsoring organizations of family day care homes in accordance
with Sec. Sec. 226.13(d)(3)(ii) and 226.13(d)(3)(iii), ``enrolled
child'' (or ``child in attendance'') means a child whose parent or
guardian has submitted a signed document which indicates that the child
is enrolled for child care; who is present in the day care home for the
purpose of child care; and who has eaten at least one meal during the
claiming period. For at-risk afterschool care centers, outside-school-
hours care centers, or emergency shelters, the term ``enrolled child''
or ``enrolled participant'' does not apply.
Enrolled participant means an ``Enrolled child'' (as defined in this
section) or ``Adult participant'' (as defined in this section).
Expansion payments means financial assistance made available to a
sponsoring organization for its administrative expenses associated with
expanding a food service program to day care homes located in low-income
or rural areas. These expansion payments may include administrative
expenses associated with outreach and recruitment of unlicensed family
or group day care homes and the allowable licensing-related expenses of
such homes.
Facility means a sponsored center or a day care home.
Family means, in the case of children, a group of related or
nonrelated individuals, who are not residents of an institution or
boarding house, but who are living as one economic unit or, in the case
of adult participants, the adult participant, and if residing with the
adult participant, the spouse and dependent(s) of the adult participant.
FDPIR household means any individual or group of individuals which
is currently certified to receive assistance as a household under the
Food Distribution Program on Indian Reservations.
Fiscal Year means a period of 12 calendar months beginning October 1
of any year and ending with September 30 of the following year.
FNS means the Food and Nutrition Service of the Department.
FNSRO means the appropriate Regional Office of the Food and
Nutrition Service.
Food service equipment assistance means Federal financial assistance
formerly made available to State agencies to assist institutions in the
purchase or rental of equipment to enable institutions to establish,
maintain or expand food service under the Program.
Food service management company means an organization other than a
public or private nonprofit school, with which an institution may
contract for
[[Page 194]]
preparing and, unless otherwise provided for, delivering meals, with or
without milk for use in the Program.
For-profit center means a child care center, outside-school-hours
care center, or adult day care center providing nonresidential care to
adults or children that does not qualify for tax-exempt status under the
Internal Revenue Code of 1986. For-profit centers serving adults must
meet the criteria described in paragraph (a) of this definition. For-
profit centers serving children must meet the criteria described in
paragraphs (b)(1) or (b)(2) of this definition, except that children who
only participate in the at-risk afterschool snack and/or meal component
of the Program must not be considered in determining the percentages
under paragraphs (b)(1) or (b)(2) of this definition.
(a) A for-profit center serving adults must meet the definition of
Adult day care center as defined in this section and, during the
calendar month preceding initial application or reapplication, the
center receives compensation from amounts granted to the States under
title XIX or title XX and twenty-five percent of the adults enrolled in
care are beneficiaries of title XIX, title XX, or a combination of
titles XIX and XX of the Social Security Act.
(b) A for-profit center serving children must meet the definition of
Child care center or Outside-school-hours care center as defined in this
section and one of the following conditions during the calendar month
preceding initial application or reapplication:
(1) Twenty-five percent of the children in care (enrolled or
licensed capacity, whichever is less) are eligible for free or reduced-
price meals; or
(2) Twenty-five percent of the children in care (enrolled or
licensed capacity, whichever is less) receive benefits from title XX of
the Social Security Act and the center receives compensation from
amounts granted to the States under title XX.
Foster child means a child who is formally placed by a court or a
State child welfare agency, as defined in Sec. 245.2 of this chapter.
Free meal means a meal served under the Program to:
(a) A participant from a family which meets the income standards for
free school meals, or
(b) A foster child, or
(c) A child who is automatically eligible for free meals by virtue
of SNAP, FDPIR, or TANF benefits, or
(d) A child who is a Head Start participant, or
(e) A child who is receiving temporary housing and meal services
from an approved emergency shelter, or
(f) A child participating in an approved at-risk afterschool care
program, or
(g) An adult participant who is automatically eligible for free
meals by virtue of SNAP or FDPIR benefits, or
(h) An adult who is an SSI or Medicaid participant.
Functionally impaired adult means chronically impaired disabled
persons 18 years of age or older, including persons with neurological
and organic brain dysfunction, with physical or mental impairments to
the extent that their capacity for independence and their ability to
carry out activities of daily living is markedly limited. Activities of
daily living include, but are not limited to, adaptive activities such
as cleaning, shopping, cooking, taking public transportation,
maintaining a residence, caring appropriately for one's grooming or
hygiene, using a telephone, or using a post office. Marked limitations
refer to the severity of impairment, and not the number of limited
activities, and occur when the degree of limitation is such as to
seriously interfere with the ability to function independently.
Group living arrangement means residential communities which may or
may not be subsidized by federal, State or local funds but which are
private residences housing an individual or a group of individuals who
are primarily responsible for their own care and who maintain a presence
in the community but who may receive on-site monitoring.
Head Start participant means a child currently receiving assistance
under a Federally-funded Head Start Program who is categorically
eligible for free meals in the CACFP by virtue of meeting Head Start's
low-income criteria.
[[Page 195]]
Household means ``family'', as defined in Sec. 226.2 (``Family'').
Household contact means a contact made by a sponsoring organization
or a State agency to an adult member of a household with a child in a
family day care home or a child care center in order to verify the
attendance and enrollment of the child and the specific meal service(s)
which the child routinely receives while in care.
Income standards means the family-size and income standards
prescribed annually by the Secretary for determining eligibility for
free and reduced-price meals under the National School Lunch Program and
the School Breakfast Program.
Income to the program means any funds used in an institution's food
service program, including, but not limited to all monies, other than
Program payments, received from other Federal, State, intermediate, or
local government sources; participant's payments for meals and food
service fees; income from any food sales to adults; and other income,
including cash donations or grants from organizations or individuals.
Independent center means a child care center, at-risk afterschool
care center, emergency shelter, outside-school-hours care center or
adult day care center which enters into an agreement with the State
agency to assume final administrative and financial responsibility for
Program operations.
Independent governing board of directors means, in the case of a
nonprofit organization, or in the case of a for-profit institution
required to have a board of directors, a governing board which meets
regularly and has the authority to hire and fire the institution's
executive director.
Infant cereal means any iron-fortified dry cereal specially
formulated for and generally recognized as cereal for infants that is
routinely mixed with breast milk or iron-fortified infant formula prior
to consumption.
Infant formula means any iron-fortified formula intended for dietary
use solely as a food for normal, healthy infants; excluding those
formulas specifically formulated for infants with inborn errors of
metabolism or digestive or absorptive problems. Infant formula, as
served, must be in liquid state at recommended dilution.
Institution means a sponsoring organization, child care center, at-
risk afterschool care center, outside-school-hours care center,
emergency shelter or adult day care center which enters into an
agreement with the State agency to assume final administrative and
financial responsibility for Program operations.
Internal controls means the policies, procedures, and organizational
structure of an institution designed to reasonably assure that:
(a) The Program achieves its intended result;
(b) Program resources are used in a manner that protects against
fraud, abuse, and mismanagement and in accordance with law, regulations,
and guidance; and
(c) Timely and reliable Program information is obtained, maintained,
reported, and used for decision-making.
Key Element Reporting System (KERS) means a comprehensive national
system for reporting critical key element performance data on the
operation of the program in institutions.
Low-income area means a geographical area in which at least 50
percent of the children are eligible for free or reduced price school
meals under the National School Lunch Program and the School Breakfast
Program, as determined in accordance with paragraphs (b) and (c),
definition of tier I day care home.
Meal component meals means one of the food groups which comprise
reimbursable meals. The meal components are: fruits, vegetables, grains,
meats/meat alternates, and fluid milk.
Meals means food which is served to enrolled participants at an
institution, child care facility or adult day care facility and which
meets the nutritional requirements set forth in this part. However,
children participating in at-risk afterschool care centers, emergency
shelters, or outside-schools-hours care centers do not have to be
enrolled.
Medicaid means Title XIX of the Social Security Act.
Medicaid participant means an adult participant who receives
assistance under title XIX of the Social Security
[[Page 196]]
Act, the Grant to States for Medical Assistance Programs--Medicaid.
Milk means pasteurized fluid types of unflavored or flavored whole
milk, lowfat milk, skim milk, or cultured buttermilk which meet State
and local standards for such milk, except that, in the meal pattern for
infants (0 to 1 year of age), milk means breast milk or iron-fortified
infant formula. In Alaska, Hawaii, American Samoa, Guam, Puerto Rico,
the Trust Territory of the Pacific Islands, the Northern Mariana
Islands, and the Virgin Islands if a sufficient supply of such types of
fluid milk cannot be obtained, ``milk'' shall include reconstituted or
recombined milk. All milk should contain vitamins A and D at levels
specified by the Food and Drug Administration and be consistent with
State and local standards for such milk.
National disqualified list means the list, maintained by the
Department, of institutions, responsible principals and responsible
individuals, and day care homes disqualified from participation in the
Program.
New institution means a sponsoring organization or an independent
center making an application to participate in the Program or applying
to participate in the Program after a lapse in participation.
Nonpricing program means an institution, child care facility, or
adult day care facility in which there is no separate identifiable
charge made for meals served to participants.
Nonprofit food service means all food service operations conducted
by the institution principally for the benefit of enrolled participants,
from which all of the Program reimbursement funds are used solely for
the operations or improvement of such food service.
Nonresidential means that the same participants are not maintained
in care for more than 24 hours on a regular basis.
Notice means a letter sent by certified mail, return receipt (or the
equivalent private delivery service), by facsimile, or by email, that
describes an action proposed or taken by a State agency or FNS with
regard to an institution's Program reimbursement or participation.
Notice also means a letter sent by certified mail, return receipt (or
the equivalent private delivery service), by facsimile, or by email,
that describes an action proposed or taken by a sponsoring organization
with regard to a day care home's participation. The notice must specify
the action being proposed or taken and the basis for the action, and is
considered to be received by the institution or day care home when it is
delivered, sent by facsimile, or sent by email. If the notice is
undeliverable, it is considered to be received by the institution,
responsible principal or responsible individual, or day care home five
days after being sent to the addressee's last known mailing address,
facsimile number, or email address.
OIG means the Office of the Inspector General of the Department.
Operating costs means expenses incurred by an institution in serving
meals to participants under the Program, and allowed by the State agency
financial management instruction.
Outside-school-hours care center means a public or private nonprofit
institution or facility (except day care homes), or a For-profit center
as defined in this section, that is licensed or approved in accordance
with Sec. 226.6(d)(1) to provide organized nonresidential child care
services to children during hours outside of school. Outside-school-
hours care centers may participate in the Program as independent centers
or under the auspices of a sponsoring organization.
Participants means ``Children'' or ``Adult participants'' as defined
in this section.
Participating institution means a sponsoring organization or an
independent center, including a renewing institution, that holds a
current agreement with the State agency to operate the Program.
Personal property means property of any kind except real property.
It may be tangible--having physical existence--or intangible--having no
physical existence such as patents, inventions, and copyrights.
Persons with disabilities means persons of any age who have a
physical or mental impairment that substantially limits one or more
major life activities, have a record of such an impairment, or have been
regarded as having such
[[Page 197]]
an impairment, and who are enrolled in an institution or child care
facility serving a majority of persons who are age 18 and under.
Pricing program means an institution, child care facility, or adult
day care facility in which a separate identifiable charge is made for
meals served to participants.
Principal means any individual who holds a management position
within, or is an officer of, an institution or a sponsored center,
including all members of the institution's board of directors or the
sponsored center's board of directors.
Program means the Child and Adult Care Food Program authorized by
section 17 of the National School Lunch Act, as amended.
Program payments means financial assistance in the form of start-up
payments, expansion payments, advance payments, or reimbursement paid or
payable to institutions for operating costs and administrative costs.
Reduced-price meal means a meal served under the Program to a
participant from a family that meets the income standards for reduced-
price school meals. Any separate charge imposed must be less than the
full price of the meal, but in no case more than 40 cents for a lunch or
supper, 30 cents for a breakfast, and 15 cents for a snack. Neither the
participant nor any member of his family may be required to work in the
food service program for a reduced-price meal.
Reimbursement means Federal financial assistance paid or payable to
institutions for Program costs within the rates assigned by the State
agency.
Renewing institution means a sponsoring organization or an
independent center that is participating in the Program at the time it
submits annual renewal information.
Responsible principal or responsible individual means:
(a) A principal, whether compensated or uncompensated, who the State
agency or FNS determines to be responsible for an institution's serious
deficiency;
(b) Any other individual employed by, or under contract with, an
institution or sponsored center, who the State agency or FNS determines
to be responsible for an institution's serious deficiency; or
(c) An uncompensated individual who the State agency or FNS
determines to be responsible for an institution's serious deficiency.
Rural area means any geographical area in a county which is not a
part of a Metropolitan Statistical Area or any ``pocket'' within a
Metropolitan Statistical Area which, at the option of the State agency
and with FNSRO concurrence, is determined to be geographically isolated
from urban areas.
SSI participant means an adult participant who receives assistance
under title XVI of the Social Security Act, the Supplemental Security
Income (SSI) for the Aged, Blind and Disabled Program.
School year means a period of 12 calendar months beginning July 1 of
any year and ending June 30 of the following year.
Seriously deficient means the status of an institution or a day care
home that has been determined to be non-compliant in one or more aspects
of its operation of the Program.
Snack means a meal supplement that meets the meal pattern
requirements specified in Sec. 226.20(b)(6) or (c)(4).
SNAP household means any individual or group of individuals which is
currently certified to receive assistances as a household from SNAP, the
Supplemental Nutrition Assistance Program, as defined in Sec. 245.2 of
this chapter.
Sponsored center means a child care center, an at-risk afterschool
care center, an adult day care center, an emergency shelter, or an
outside-school-hours care center that operates the Program under the
auspices of a sponsoring organization. The two types of sponsored
centers are as follows:
(1) An affiliated center is a part of the same legal entity as the
CACFP sponsoring organization; or
(2) An unaffiliated center is legally distinct from the sponsoring
organization.
Sponsoring organization means a public or nonprofit private
organization that is entirely responsible for the administration of the
food program in:
(1) One or more day care homes;
(2) A child care center, emergency shelter, at-risk afterschool care
center,
[[Page 198]]
outside-school-hours care center, or adult day care center which is a
legally distinct entity from the sponsoring organization;
(3) Two or more child care centers, emergency shelters, at-risk
afterschool care centers, outside-school-hours care center, or adult day
care centers; or
(4) Any combination of child care centers, emergency shelters, at-
risk afterschool care centers, outside-school-hours care centers, adult
day care centers, and day care homes.
The term ``sponsoring organization'' also includes an organization
that is entirely responsible for administration of the Program in any
combination of two or more child care centers, at-risk afterschool care
centers, adult day care centers or outside-school-hours care centers,
which meet the definition of For-profit center in this section and are
part of the same legal entity as the sponsoring organization.
Start-up payments means financial assistance made available to a
sponsoring organization for its administrative expenses associated with
developing or expanding a food service program in day care homes and
initiating successful Program operations. These start-up payments may
include administrative expenses associated with outreach and recruitment
of unlicensed family or group day care homes and the allowable
licensing-related expenses of such homes.
State means any of the 50 States, the District of Columbia, the
Commonwealth of Puerto Rico, the Virgin Islands, Guam, American Samoa,
the Trust Territory of the Pacific Islands, and the Northern Mariana
Islands.
State agency means the State educational agency or any other State
agency that has been designated by the Governor or other appropriate
executive, or by the legislative authority of the State, and has been
approved by the Department to administer the Program within the State or
in States in which FNS administers the Program, FNSRO. This also may
include a State agency other than the existing CACFP State Agency, when
such agency is designated by the Governor of the State to administer
only the adult day care component of the CACFP.
State agency list means an actual paper or electronic list, or the
retrievable paper records, maintained by the State agency, that includes
a synopsis of information concerning seriously deficient institutions
and providers terminated for cause in that State. The list must be made
available to FNS upon request, and must include the following
information:
(a) Institutions determined to be seriously deficient by the State
agency, including the names and mailing addresses of the institutions,
the basis for each serious deficiency determination, and the status of
the institutions as they move through the possible subsequent stages of
corrective action, proposed termination, suspension, agreement
termination, and/or disqualification, as applicable;
(b) Responsible principals and responsible individuals who have been
disqualified from participation by the State agency, including their
names, mailing addresses, and dates of birth; and
(c) Day care home providers whose agreements have been terminated
for cause by a sponsoring organization in the State, including their
names, mailing addresses, and dates of birth.
State Children's Health Insurance Program (SCHIP) means the State
medical assistance program under title XXI of the Social Security Act
(42 U.S.C. 1397aa et seq.).
State licensed healthcare professional means an individual who is
authorized to write medical prescriptions under State law. This may
include, but is not limited to, a licensed physician, nurse
practitioner, or physician's assistant, depending on State law.
Suspended means the status of an institution or day care home that
is temporarily ineligible for participation (including Program
payments).
Suspension review means the review provided, upon the institution's
request, to an institution that has been given a notice of intent to
suspend participation (including Program payments), based on a
determination that the institution has knowingly submitted a false or
fraudulent claim.
Suspension review official means the independent and impartial
official who conducts the suspension review.
[[Page 199]]
Termination for cause means the termination of a day care home's
Program agreement by the sponsoring organization due to the day care
home's violation of the agreement.
TANF recipient means an individual or household receiving assistance
(as defined in 45 CFR 260.31) under a State-administered Temporary
Assistance for Needy Families program.
Termination for convenience means termination of a Program agreement
due to considerations unrelated to either party's performance of Program
responsibilities under the agreement between:
(1) A State agency and the independent center,
(2) A State agency and the sponsoring organization,
(3) A sponsoring organization and the unaffiliated center, or
(4) A sponsoring organization and the day care home.
Tier I day care home means (a) a day care home that is operated by a
provider whose household meets the income standards for free or reduced-
price meals, as determined by the sponsoring organization based on a
completed free and reduced price application, and whose income is
verified by the sponsoring organization of the home in accordance with
Sec. 226.23(h)(6);
(b) A day care home that is located in an area served by a school
enrolling students in which at least 50 percent of the total number of
children enrolled are certified eligible to receive free or reduced
price meals; or
(c) A day care home that is located in a geographic area, as defined
by FNS based on census data, in which at least 50 percent of the
children residing in the area are members of households which meet the
income standards for free or reduced price meals.
Tier II day care home means a day care home that does not meet the
criteria for a Tier I day care home.
Title XVI means Title XVI of the Social Security Act which
authorizes the Supplemental Security Income for the Aged, Blind, and
Disabled Program--SSI.
Title XIX means Title XIX of the Social Security Act which
authorizes the Grants to States for Medical Assistance Programs--
Medicaid.
Title XX means Title XX of the Social Security Act.
Tofu means a commercially prepared soy-bean derived food, made by a
process in which soybeans are soaked, ground, mixed with water, heated,
filtered, coagulated, and formed into cakes. Basic ingredients are whole
soybeans, one or more food-grade coagulates (typically a salt or acid),
and water.
Unannounced review means an on-site review for which no prior
notification is given to the facility or institution.
USDA implementing regulations include the following: 2 CFR part 400,
Uniform Administrative Requirements, Cost Principles, and Audit
Requirements for Federal Awards; 2 CFR part 415, General Program
Administrative Regulations; 2 CFR part 416, General Program
Administrative Regulations for Grants and Cooperative Agreements to
State and Local Governments; and 2 CFR part 418, New Restrictions on
Lobbying.
Verification means a review of the information reported by
institutions to the State agency regarding the eligibility of
participants for free or reduced-price meals, and, in addition, for a
pricing program, confirmation of eligibility for free or reduced-price
benefits under the program. Verification for a pricing program shall
include confirmation of income eligibility and, at State discretion, any
other information required on the application which is defined as
documentation in Sec. 226.2. Such verification may be accomplished by
examining information (e.g., wage stubs, etc.) provided by the household
or other sources of information as specified in Sec. 226.23(h)(2)(iv).
However, if a SNAP, FDPIR or TANF case number is provided for a child,
verification for such child shall include only confirmation that the
child is included in a currently certified SNAP or FDPIR household or is
a TANF recipient. If a Head Start statement of income eligibility is
provided for a child, verification for such child shall include only
confirmation that the child is a Head Start participant. For an adult
participant, if a SNAP or FDPIR case number or SSI or Medicaid
assistance identification number is provided, verification for such
participant shall include only
[[Page 200]]
confirmation that the participant is included in a currently certified
SNAP or FDPIR household or is a current SSI or Medicaid participant.
Whole grain-rich is the term designated by FNS to indicate that the
grain content of a product is between 50 and 100 percent whole grain
with any remaining grains being enriched.
Whole grains means foods that consist of intact, ground, cracked, or
flaked grain seed whose principal anatomical components--the starchy
endosperm, germ, and bran--are present in the same relative proportions
as they exist in the intact grain seed.
Yogurt means commercially coagulated milk products obtained by the
fermentation of specific bacteria, that meet milk fat or milk solid
requirements to which flavoring foods or ingredients may be added. These
products are covered by the Food and Drug Administration's Standard of
Identity for yogurt, lowfat yogurt, and nonfat yogurt, (21 CFR 131.200),
(21 CFR 131.203), (21 CFR 131.206), respectively.
[47 FR 36527, Aug. 20, 1982; 47 FR 46072, Oct. 15, 1982]
Editorial Note: For Federal Register citations affecting Sec.
226.2, see the List of CFR Sections Affected, which appears in the
Finding Aids section of the printed volume and at www.govinfo.gov.
Sec. 226.3 Administration.
(a) Within the Department, FNS shall act on behalf of the Department
in the administration of the Program.
(b) Within the States, responsibility for the administration of the
Program shall be in the State agency, except that if FNS has
continuously administered the Program in any State since October 1,
1980, FNS shall continue to administer the Program in that State. A
State in which FNS administers the Program may, upon request to FNS,
assume administration of the Program.
(c) Each State agency desiring to take part in the Program shall
enter into a written agreement with the Department for the
administration of the Program in the State in accordance with the
provisions of this part. This agreement shall cover the operation of the
Program during the period specified therein and may be extended by
consent of both parties.
(d) FNSRO shall, in each State in which it administers the Program,
have available all funds and assume all responsibilities of a State
agency as set forth in this part.
(e)(1) As authorized under section 12(l) of the Richard B. Russell
National School Lunch Act, FNS may waive provisions of such Act or the
Child Nutrition Act of 1966, as amended, and the provisions of this part
with respect to a State agency or eligible service provider. The
provisions of this part required by other statutes may not be waived
under this authority. FNS may only approve requests for a waiver that
are submitted by a State agency and comply with the requirements at
section 12(l)(1) and the limitations at section 12(l)(4), including that
FNS may not grant a waiver that increases Federal costs.
(2)(i) A State agency may submit a request for a waiver under
paragraph (e)(1) of this section in accordance with section 12(l)(2) and
the provisions of this part.
(ii) A State agency may submit a request to waive specific statutory
or regulatory requirements on behalf of eligible service providers that
operate in the State. Any waiver where the State concurs must be
submitted to the appropriate FNSRO.
(3)(i) An eligible service provider may submit a request for a
waiver under paragraph (e)(1) of this section in accordance with section
12(l) and the provisions of this part. Any waiver request submitted by
an eligible service provider must be submitted to the State agency for
review. A State agency must act promptly on such a waiver request and
must deny or concur with a request submitted by an eligible service
provider.
(ii) If a State agency concurs with a request from an eligible
service provider, the State agency must promptly forward to the
appropriate FNSRO the request and a rationale, consistent with section
12(l)(2), supporting the request. By forwarding the request to the
FNSRO, the State agency affirms:
(A) The request meets all requirements for waiver submissions; and,
(B) The State agency will conduct all monitoring requirements
related to
[[Page 201]]
regular Program operations and the implementation of the waiver.
(iii) If the State agency denies the request, the State agency must
notify the requesting eligible service provider and state the reason for
denying the request in writing within 30 calendar days of the State
agency's receipt of the request. The State agency response is final and
may not be appealed to FNS.
[47 FR 36527, Aug. 20, 1982, as amended at 87 FR 57366, Sept. 19, 2022]
Subpart B_Assistance to States
Sec. 226.4 Payments to States and use of funds.
(a) Availability of funds. For each fiscal year based on funds
provided to the Department, FNS must make funds available to each State
agency to reimburse institutions for their costs in connection with food
service operations, including administrative expenses, under this part.
Funds must be made available in an amount no less than the sum of the
totals obtained under paragraphs (b), (c), (d), (e), (f), (g), and (j)
of this section. However, in any fiscal year, the aggregate amount of
assistance provided to a State under this part must not exceed the sum
of the Federal funds provided by the State to participating institutions
within the State for that fiscal year and any funds used by the State
under paragraphs (j) and (l) of this section.
(b) Center funds. For meals served to participants in child care
centers, adult day care centers and outside-school-hours care centers,
funds shall be made available to each State agency in an amount no less
than the sum of the products obtained by multiplying:
(1) The number of breakfasts served in the Program within the State
to participants from families that do not satisfy the eligibility
standards for free and reduced-price school meals enrolled in
institutions by the national average payment rate for breakfasts for
such participants under section 4 of the Child Nutrition Act of 1966;
(2) The number of breakfasts served in the Program within the State
to participants from families that satisfy the eligibility standards for
free school meals enrolled in institutions by the national average
payment rate for free breakfasts under section 4 of the Child Nutrition
Act of 1966;
(3) The number of breakfasts served to participants from families
that satisfy the eligibility standard for reduced-price school meals
enrolled in institutions by the national average payment rate for
reduced-price school breakfasts under section 4 of the Child Nutrition
Act of 1966;
(4) The number of lunches and suppers served in the Program within
the State by the national average payment rate for lunches under section
4 of the National School Lunch Act. (All lunches and suppers served in
the State are funded under this provision);
(5) The number of lunches and suppers served in the Program within
the State to participants from families that satisfy the eligibility
standard for free school meals enrolled in institutions by the national
average payment rate for free lunches under section 11 of the National
School Lunch Act;
(6) The number of lunches and suppers served in the Program within
the State to participants from families that satisfy the eligibility
standard for reduced-price school meals enrolled in institutions by the
national average payment rate for reduced-price lunches under section 11
of the National School Lunch Act;
(7) The number of snacks served in the Program within the State to
participants from families that do not satisfy the eligibility standards
for free and reduced-price school meals enrolled in institutions by 2.75
cents;
(8) The number of snacks served in the Program within the State to
participants from families that satisfy the eligibility standard for
free school meals enrolled in institutions by 30 cents;
(9) The number of snacks served in the Program within the State to
participants from families that satisfy the eligibility standard for
reduced-price school meals enrolled in institutions by 15 cents.
(c) Emergency shelter funds. For meals and snacks served to children
in emergency shelters, funds will be made available to each State agency
in an amount equal to the total calculated by multiplying the number of
meals
[[Page 202]]
and snacks served in the Program within the State to such children by
the national average payment rate for free meals and free snacks under
section 11 of the National School Lunch Act.
(d) At-risk afterschool care center funds. For snacks served to
children in at-risk afterschool care centers, funds will be made
available to each State agency in an amount equal to the total
calculated by multiplying the number of snacks served in the Program
within the State to such children by the national average payment rate
for free snacks under section 11 of the National School Lunch Act. For
at-risk afterschool meals and at-risk afterschool snacks served to
children, funds will be made available to each eligible State agency in
an amount equal to the total calculated by multiplying the number of at-
risk afterschool meals and the number of at-risk afterschool snacks
served in the Program within the State by the national average payment
rate for free meals and free snacks, respectively, under section 11 of
the Richard B. Russell National School Lunch Act.
(e) Day care home funds. For meals served to children in day care
homes, funds shall be made available to each State agency in an amount
no less than the sum of products obtained by multiplying:
(1) The number of breakfasts served in the Program within the State
to children enrolled in tier I day care homes by the current tier I day
care home rate for breakfasts;
(2) The number of breakfasts served in the Program within the State
to children enrolled in tier II day care homes that have been determined
eligible for free or reduced price meals by the current tier I day care
home rate for breakfasts;
(3) The number of breakfasts served in the Program within the State
to children enrolled in tier II day care homes that do not satisfy the
eligibility standards for free or reduced price meals, or to children
from whose households applications were not collected, by the current
tier II day care home rate for breakfasts;
(4) The number of lunches and suppers served in the Program within
the State to children enrolled in tier I day care homes by the current
tier I day care home rate for lunches/suppers;
(5) The number of lunches and suppers served in the Program within
the State to children enrolled in tier II day care homes that have been
determined eligible for free or reduced price meals by the current tier
I day care home rate for lunches/suppers;
(6) The number of lunches and suppers served in the Program within
the State to children enrolled in tier II day care homes that do not
satisfy the eligibility standards for free or reduced price meals, or to
children from whose households applications were not collected, by the
current tier II day care home rate for lunches/suppers;
(7) The number of snacks served in the Program within the State to
children enrolled in tier I day care homes by the current tier I day
care home rate for snacks;
(8) The number of snacks served in the Program within the State to
children enrolled in tier II day care homes that have been determined
eligible for free or reduced price meals by the current tier I day care
home rate for snacks; and
(9) The number of snacks served in the Program within the State to
children enrolled in tier II day care homes that do not satisfy the
eligibility standards for free or reduced price meals, or to children
from whose households applications were not collected, by the current
tier II day care home rate for snacks.
(f) Administrative funds. For administrative payments to day care
home sponsoring organizations, funds shall be made available to each
State agency in an amount not less than the product obtained each month
by multiplying the number of day care homes participating under each
sponsoring organization within the State by the applicable rates
specified in Sec. 226.12(a)(3).
(g) Start-up and expansion funds. For start-up and expansion
payments to eligible sponsoring organizations, funds shall be made
available to each State agency in an amount equal to the total amount of
start-up and expansion payments made in the most recent period for which
reports are available for that State or on the basis of estimates by
FNS.
[[Page 203]]
(h) Funding assurance. FNS shall ensure that, to the extent funds
are appropriated, each State has sufficient Program funds available for
providing start-up, expansion and advance payments in accordance with
this part.
(i) Rate adjustments. FNS shall publish a notice in the Federal
Register to announce each rate adjustment. FNS shall adjust the
following rates on the specified dates:
(1) The rates for meals, including snacks, served in tier I and tier
II day care homes shall be adjusted annually, on July 1 (beginning July
1, 1997), on the basis of changes in the series for food at home of the
Consumer Price Index for All Urban Consumers published by the Department
of Labor. Such adjustments shall be rounded to the nearest lower cent
based on changes measured over the most recent twelve-month period for
which data are available. The adjustments shall be computed using the
unrounded rate in effect for the preceding school year.
(2) The rates for meals, including snacks, served in child care
centers, emergency shelters, at-risk afterschool care centers, adult day
care centers and outside-school-hours care centers will be adjusted
annually, on July 1, on the basis of changes in the series for food away
from home of the Consumer Price Index for All Urban Consumers published
by the Department of Labor. Such adjustment must be rounded to the
nearest lower cent, based on changes measured over the most recent
twelve-month period for which data are available. The adjustment to the
rates must be computed using the unrounded rate in effect for the
preceding year.
(3) The rate for administrative payments to day care home sponsoring
organizations shall be adjusted annually, on July 1, on the basis of
changes in the series for all items of the Consumer Price Index for All
Urban Consumers published by the Department of Labor. Such adjustments
shall be made to the nearest dollar based on changes measured over the
most recent twelve-month period for which data are available.
(j) Audit funds. (1) Funds are available to each State agency in an
amount equal to 1.5 percent of the Program funds used by the State
during the second fiscal year preceding the fiscal year for which these
funds are to be made available. These funds are for the expense of
conducting audits under Sec. 226.8 and Program monitoring under Sec.
226.6(m).
(2) State agencies may request an increase in the amount of funds
made available under this paragraph.
(i) FNS approval for increased funding will be based on the State
agency's expressed need for an increase in resources to meet audit
requirements, fulfill monitoring requirements, or effectively improve
Program management.
(ii) The total amount of audit funds made available to any State
agency under this paragraph may not exceed 2 percent of Program funds
used by the State during the second fiscal year preceding the fiscal
year for which the funds are made available.
(iii) The amount of assistance provided to a State agency under this
paragraph in any fiscal year may not exceed the State's expenditures
under Sec. Sec. 226.6(m) and 226.8 during the fiscal year in which the
funds are made available.
(k) Method of funding. FNS shall authorize funds for State agencies
in accordance with 2 CFR part 200, subpart D, and USDA implementing
regulations 2 CFR part 400 and part 415, as applicable.
(l) Special developmental projects. The State agency may use in
carrying out special developmental projects an amount not to exceed one
percent of Program funds used in the second prior fiscal year. Special
developmental projects shall conform to FNS guidance and be approved in
writing by FNS.
[47 FR 36527, Aug. 20, 1982, as amended at 52 FR 36906, Oct. 2, 1987; 53
FR 52588, Dec. 28, 1988; 62 FR 902, Jan. 7, 1997; 63 FR 9728, Feb. 26,
1998; 69 FR 53536, Sept. 1, 2004; 71 FR 4, Jan. 3, 2006; 71 FR 39518,
July 13, 2006; 72 FR 41603, 41604, July 31, 2007; 75 FR 16327, Apr. 1,
2010; 76 FR 34569, June 13, 2011; 78 FR 13451, Feb. 28, 2013; 81 FR
66492, Sept. 28, 2016; 88 FR 57851, Aug. 23, 2023]
Sec. 226.5 Donation of commodities.
(a) USDA foods available under section 6 of this Act, section 416 of
the Agricultural Act of 1949 (7 U.S.C. 1431) or purchased under section
32 of the Act
[[Page 204]]
of August 24, 1935 (7 U.S.C. 1431), section 709 of the Food and
Agriculture Act of 1965 (7 U.S.C. 1446a-1), or other authority, and
donated by the Department shall be made available to each State.
(b) The value of such commodities donated to each State for each
school year shall be, at a minimum, the amount obtained by multiplying
the number of reimbursable lunches and suppers served in participating
institutions in that State during the preceding school year by the rate
for commodities established under section 6(e) of the Act for the
current school year. Adjustments shall be made at the end of each school
year to reflect the difference between the number of reimbursable
lunches and suppers served during the preceding year and the number
served during the current year, and subsequent commodity entitlement
shall be based on the adjusted meal counts. At the discretion of FNS,
current-year adjustments may be made for significant variations in the
number of reimbursable meals served. Such current-year adjustments will
not be routine and will only be made for unusual problems encountered in
a State, such as a disaster that necessitates institutional closures for
a prolonged period of time. CACFP State agencies electing to receive
cash-in-lieu of commodities will receive payments based on the number of
reimbursable meals actually served during the current school year.
[47 FR 36527, Aug. 20, 1982, as amended at 62 FR 23618, May 1, 1997]
Subpart C_State Agency Provisions
Sec. 226.6 State agency administrative responsibilities.
(a) State agency personnel. Each State agency must provide
sufficient consultative, technical, and managerial personnel to:
(1) Administer the Program;
(2) Provide sufficient training and technical assistance to
institutions;
(3) Monitor Program performance;
(4) Facilitate expansion of the Program in low-income and rural
areas; and
(5) Ensure effective operation of the Program by participating
institutions.
(b) Program applications and agreements. Each State agency must
establish application review procedures, as described in paragraph
(b)(1) of this section, to determine the eligibility of new institutions
and facilities for which applications are submitted by sponsoring
organizations. Each State agency must establish procedures for the
review of renewal information, as described in paragraph (b)(2) of this
section, to determine the continued eligibility of renewing
institutions. The State agency must enter into written agreements with
institutions, as described in paragraph (b)(4) of this section.
(1) Application procedures for new institutions. Each State agency
must establish application procedures to determine the eligibility of
new institutions under this part. At a minimum, such procedures must
require that institutions submit information to the State agency in
accordance with paragraph (f) of this section. For new private nonprofit
and proprietary child care institutions, such procedures must also
include a pre-approval visit by the State agency to confirm the
information in the institution's application and to further assess its
ability to manage the Program. The State agency must establish factors,
consistent with Sec. 226.16(b)(1), that it will consider in determining
whether a new sponsoring organization has sufficient staff to perform
required monitoring responsibilities at all of its sponsored facilities.
As part of the review of the sponsoring organization's management plan,
the State agency must determine the appropriate level of staffing for
each sponsoring organization, consistent with the staffing range of
monitors set forth at Sec. 226.16(b)(1) and the factors it has
established. The State agency must ensure that each new sponsoring
organization applying for participation after July 29, 2002 meets this
requirement. In addition, the State agency's application review
procedures must ensure that the following information is included in a
new institution's application:
[[Page 205]]
(i) Participant eligibility information. Centers must submit current
information on the number of enrolled participants who are eligible for
free, reduced-price and paid meals;
(ii) Enrollment information. Sponsoring organizations of day care
homes must submit current information on:
(A) The total number of children enrolled in all homes in the
sponsorship;
(B) An assurance that day care home providers' own children whose
meals are claimed for reimbursement in the Program are eligible for free
or reduced-price meals;
(C) The total number of tier I and tier II day care homes that it
sponsors;
(D) The total number of children enrolled in tier I day care homes;
(E) The total number of children enrolled in tier II day care homes;
and
(F) The total number of children in tier II day care homes that have
been identified as eligible for free or reduced-price meals;
(iii) Nondiscrimination statement. Institutions must submit their
nondiscrimination policy statement and a media release, unless the State
agency has issued a Statewide media release on behalf of all
institutions;
(iv) Management plan. Sponsoring organizations must submit a
complete management plan that includes:
(A) Detailed information on the organization's management and
administrative structure;
(B) A list or description of the staff assigned to Program
monitoring, in accordance with the requirements set forth at Sec.
226.16(b)(1);
(C) An administrative budget that includes projected CACFP
administrative earnings and expenses;
(D) The procedures to be used by the organization to administer the
Program in, and disburse payments to, the child care facilities under
its sponsorship; and
(E) For sponsoring organizations of family day care homes, a
description of the system for making tier I day care home
determinations, and a description of the system of notifying tier II day
care homes of their options for reimbursement;
(v) Budget. An institution must submit a budget that the State
agency must review in accordance with Sec. 226.7(g);
(vi) Documentation of licensing/approval. All centers and family day
care homes must document that they meet Program licensing/approval
requirements;
(vii) Documentation of tax-exempt status. All private nonprofit
institutions must document their tax-exempt status;
(viii) At-risk afterschool care centers. Institutions (independent
at-risk afterschool care centers and sponsoring organizations of at-risk
afterschool care centers) must submit documentation sufficient to
determine that each at-risk afterschool care center meets the program
eligibility requirements in Sec. 226.17a(a), and sponsoring
organizations must submit documentation that each sponsored at-risk
afterschool care center meets the area eligibility requirements in Sec.
226.17a(i).
(ix) Documentation of for-profit center eligibility. Institutions
must document that each for-profit center for which application is made
meets the definition of a For-profit center, as set forth at Sec.
226.2;
(x) Preference for commodities/cash-in-lieu of commodities.
Institutions must state their preference to receive commodities or cash-
in-lieu of commodities;
(xi) Providing benefits to unserved facilities or participants--(A)
Criteria. The State agency must develop criteria for determining whether
a new sponsoring organization's participation will help ensure the
delivery of benefits to otherwise unserved facilities or participants,
and must disseminate these criteria to new sponsoring organizations when
they request information about applying to the Program; and
(B) Documentation. The new sponsoring organization must submit
documentation that its participation will help ensure the delivery of
benefits to otherwise unserved facilities or participants in accordance
with the State agency's criteria;
(xii) Presence on the National disqualified list. If an institution
or one of its principals is on the National disqualified list and
submits an application, the State agency may not approve the
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application. If a sponsoring organization submits an application on
behalf of a facility, and either the facility or any of its principals
is on the National disqualified list, the State agency may not approve
the application. In accordance with paragraph (k)(3)(vii) of this
section, in this circumstance, the State agency's refusal to consider
the application is not subject to administrative review.
(xiii) Ineligibility for other publicly funded programs--(A)
General. A State agency is prohibited from approving an institution's
application if, during the past seven years, the institution or any of
its principals have been declared ineligible for any other publicly
funded program by reason of violating that program's requirements.
However, this prohibition does not apply if the institution or the
principal has been fully reinstated in, or determined eligible for, that
program, including the payment of any debts owed;
(B) Certification. Institutions must submit:
(1) A statement listing the publicly funded programs in which the
institution and its principals have participated in the past seven
years; and
(2) A certification that, during the past seven years, neither the
institution nor any of its principals have been declared ineligible to
participate in any other publicly funded program by reason of violating
that program's requirements; or
(3) In lieu of the certification, documentation that the institution
or the principal previously declared ineligible was later fully
reinstated in, or determined eligible for, the program, including the
payment of any debts owed; and
(C) Follow-up. If the State agency has reason to believe that the
institution or its principals were determined ineligible to participate
in another publicly funded program by reason of violating that program's
requirements, the State agency must follow up with the entity
administering the publicly funded program to gather sufficient evidence
to determine whether the institution or its principals were, in fact,
determined ineligible;
(xiv) Information on criminal convictions. (A) A State agency is
prohibited from approving an institution's application if the
institution or any of its principals has been convicted of any activity
that occurred during the past seven years and that indicated a lack of
business integrity. A lack of business integrity includes fraud,
antitrust violations, embezzlement, theft, forgery, bribery,
falsification or destruction of records, making false statements,
receiving stolen property, making false claims, obstruction of justice,
or any other activity indicating a lack of business integrity as defined
by the State agency; and
(B) Institutions must submit a certification that neither the
institution nor any of its principals has been convicted of any activity
that occurred during the past seven years and that indicated a lack of
business integrity. A lack of business integrity includes fraud,
antitrust violations, embezzlement, theft, forgery, bribery,
falsification or destruction of records, making false statements,
receiving stolen property, making false claims, obstruction of justice,
or any other activity indicating a lack of business integrity as defined
by the State agency;
(xv) Certification of truth of applications and submission of names
and addresses. Institutions must submit a certification that all
information on the application is true and correct, along with the
names, mailing addresses, and dates of birth of the institution's
executive director and chair of the board of directors or the owner, in
the case of a for-profit center that does not have an executive director
or is not required to have a board of directors. In addition, the
institution's Federal Employer Identification Number (FEIN) or the
Unique Entity Identifier (UEI) must be provided;
(xvi) Outside employment policy. Sponsoring organizations must
submit an outside employment policy. The policy must restrict other
employment by employees that interferes with an employee's performance
of Program-related duties and responsibilities, including outside
employment that constitutes a real or apparent conflict of interest.
Sponsoring organizations that are participating on July 29, 2002, must
submit an outside employment policy not later than September 27, 2002.
The
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policy will be effective unless disapproved by the State agency;
(xvii) Bond. Sponsoring organizations applying for initial
participation on or after June 20, 2000, must submit a bond, if such
bond is required by State law, regulation, or policy. If the State
agency requires a bond for sponsoring organizations pursuant to State
law, regulation, or policy, the State agency must submit a copy of that
requirement and a list of sponsoring organizations posting a bond to the
appropriate FNSRO on an annual basis; and
(xviii) Compliance with performance standards. Each new institution
must submit information sufficient to document that it is financially
viable, is administratively capable of operating the Program in
accordance with this part, and has internal controls in effect to ensure
accountability. To document this, any new institution must demonstrate
in its application that it is capable of operating in conformance with
the following performance standards. The State agency must only approve
the applications of those new institutions that meet these performance
standards, and must deny the applications of those new institutions that
do not meet the standards. In ensuring compliance with these performance
standards, the State agency should use its discretion in determining
whether the institution's application, in conjunction with its past
performance in CACFP, establishes to the State agency's satisfaction
that the institution meets the performance standards.
(A) Performance Standard 1--Financial viability and financial
management. The new institution must be financially viable. Program
funds must be expended and accounted for in accordance with the
requirements of this part, FNS Instruction 796-2 (``Financial Management
in the Child and Adult Care Food Program''), and 2 CFR part 200, subpart
D and USDA implementing regulations 2 CFR part 400 and part 415. To
demonstrate financial viability, the new institution must document that
it meets the following criteria:
(1) Description of need/recruitment. A new sponsoring organization
must demonstrate in its management plan that its participation will help
ensure the delivery of Program benefits to otherwise unserved facilities
or participants, in accordance with criteria developed by the State
agency pursuant to paragraph (b)(1)(x) of this section. A new sponsoring
organization must demonstrate that it will use appropriate practices for
recruiting facilities, consistent with paragraph (p) of this section and
any State agency requirements;
(2) Fiscal resources and financial history. A new institution must
demonstrate that it has adequate financial resources to operate the
CACFP on a daily basis, has adequate sources of funds to continue to pay
employees and suppliers during periods of temporary interruptions in
Program payments and/or to pay debts when fiscal claims have been
assessed against the institution, and can document financial viability
(for example, through audits, financial statements, etc.); and
(3) Budgets. Costs in the institution's budget must be necessary,
reasonable, allowable, and appropriately documented;
(B) Performance Standard 2--Administrative capability. The new
institution must be administratively capable. Appropriate and effective
management practices must be in effect to ensure that the Program
operates in accordance with this part. To demonstrate administrative
capability, the new institution must document that it meets the
following criteria:
(1) Has an adequate number and type of qualified staff to ensure the
operation of the Program in accordance with this part;
(2) If a sponsoring organization, documents in its management plan
that it employs staff sufficient to meet the ratio of monitors to
facilities, taking into account the factors that the State agency will
consider in determining a sponsoring organization's staffing needs, as
set forth in Sec. 226.16(b)(1); and
(3) If a sponsoring organization, has Program policies and
procedures in writing that assign Program responsibilities and duties,
and ensure compliance with civil rights requirements; and
(C) Performance Standard 3--Program accountability. The new
institution must have internal controls and other
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management systems in effect to ensure fiscal accountability and to
ensure that the Program will operate in accordance with the requirements
of this part. To demonstrate Program accountability, the new institution
must document that it meets the following criteria:
(1) Governing board of directors. Has adequate oversight of the
Program by an independent governing board of directors as defined at
Sec. 226.2;
(2) Fiscal accountability. Has a financial system with management
controls specified in writing. For new sponsoring organizations, these
written operational policies must assure:
(i) Fiscal integrity and accountability for all funds and property
received, held, and disbursed;
(ii) The integrity and accountability of all expenses incurred;
(iii) That claims will be processed accurately, and in a timely
manner;
(iv) That funds and property are properly safeguarded and used, and
expenses incurred, for authorized Program purposes; and
(v) That a system of safeguards and controls is in place to prevent
and detect improper financial activities by employees;
(3) Recordkeeping. Maintains appropriate records to document
compliance with Program requirements, including budgets, accounting
records, approved budget amendments, and, if a sponsoring organization,
management plans and appropriate records on facility operations;
(4) Sponsoring organization operations. If a new sponsoring
organization, documents in its management plan that it will:
(i) Provide adequate and regular training of sponsoring organization
staff and sponsored facilities in accordance with Sec. Sec.
226.15(e)(12) and (e)(14) and 226.16(d)(2) and (d)(3);
(ii) Perform monitoring in accordance with Sec. 226.16(d)(4), to
ensure that sponsored facilities accountably and appropriately operate
the Program;
(iii) If a sponsor of family day care homes, accurately classify day
care homes as tier I or tier II in accordance with Sec. 226.15(f); and
(iv) Have a system in place to ensure that administrative costs
funded from Program reimbursements do not exceed regulatory limits set
forth at Sec. Sec. 226.12(a) and 226.16(b)(1); and
(5) Meal service and other operational requirements. Independent
centers and facilities will follow practices that result in the
operation of the Program in accordance with the meal service,
recordkeeping, and other operational requirements of this part. These
practices must be documented in the independent center's application or
in the sponsoring organization's management plan and must demonstrate
that independent centers or sponsored facilities will:
(i) Provide meals that meet the meal patterns set forth in Sec.
226.20;
(ii) Comply with licensure or approval requirements set forth in
paragraph (d) of this section;
(iii) Have a food service that complies with applicable State and
local health and sanitation requirements;
(iv) Comply with civil rights requirements;
(v) Maintain complete and appropriate records on file; and
(vi) Claim reimbursement only for eligible meals.
(2) Annual information submission requirements for State agency
review of renewing institutions. Each State agency must establish annual
information submission procedures to confirm the continued eligibility
of renewing institutions under this part. Renewing institutions must not
be required to submit a free and reduced-price policy statement or a
nondiscrimination statement unless they make substantive changes to
either statement. In addition, the State agency's review procedures must
ensure that institutions annually submit information or certify that
certain information is still true based on the requirements of this
section. For information that must be certified, any new changes made in
the past year and not previously reported to the State agency must be
updated in the annual renewal information submission. Any additional
information submitted in the renewal must be certified by the
institution to be true.
(i) This paragraph (b)(2) contains the information that must be
certified. The
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State agency must ensure that renewing independent centers certify the
following to be true:
(A) The institution and its principals are not currently on the
National disqualified list, per paragraph (b)(1)(xii) of this section;
(B) A list of any publicly funded programs that the sponsoring
organization and its principals have participated in, in the past 7
years, is current, per paragraph (b)(1)(xiii)(B) of this section;
(C) The institution and its principals have not been determined
ineligible for any other publicly funded programs due to violation of
that program's requirements, in the past 7 years, per paragraphs
(b)(1)(xiii)(B) and (C) of this section;
(D) No principals have been convicted of any activity that occurred
during the past 7 years and that indicated a lack of business integrity,
per paragraph (b)(1)(xiv)(B) of this section;
(E) The names, mailing addresses, and dates of birth of all current
principals have been submitted to the State agency, per paragraph
(b)(1)(xv) of this section;
(F) The institution is currently compliant with the required
performance standards of financial viability and management,
administrative capability, and program accountability, per paragraph
(b)(1)(xviii) of this section; and
(G) Licensing or approval status of each child care center or adult
day care center is up-to-date.
(ii) The State agency must ensure that renewing sponsoring
organizations certify the following to be true:
(A) All of the requirements under paragraph (b)(2)(i) of this
section are certified to be true;
(B) The management plan on file with the State agency is complete
and up to date, per paragraph (b)(1)(iv) of this section;
(C) No sponsored facility or principal of a sponsored facility is
currently on the National disqualified list, per paragraph (b)(1)(xii)
of this section;
(D) The outside employment policy most recently submitted to the
State agency remains current and in effect, per paragraph (b)(1)(xvi) of
this section;
(E) Licensing or approval status of each sponsored child care
center, adult day care center, or day care home is up-to-date;
(F) The list of the sponsoring organization's facilities on file
with the State agency is up-to-date; and
(G) All facilities under the sponsoring organization's oversight
have adhered to Program training requirements.
(iii) State agency review of institution information. The State
agency's review of information that must be submitted, certified or
updated annually is as follows:
(A) Management plan. The State agency must ensure that renewing
sponsoring organizations certify that the sponsoring organization has
reviewed the current management plan on file with the State agency and
that it is complete and up to date. If the management plan has changed,
the sponsoring organization must submit updates to the management plan
that meet the requirements of Sec. 226.16(b)(1). The State agency must
establish factors, consistent with Sec. 226.16(b)(1), that it will
consider in determining whether a renewing sponsoring organization has
sufficient staff to perform required monitoring responsibilities at all
of its sponsored facilities. As part of its management plan review, the
State agency must determine the appropriate level of staffing for the
sponsoring organization, consistent with the staffing range of monitors
set forth at Sec. 226.6(b)(1) and the factors the State agency has
established.
(B) Administrative budget submission. The State agency must ensure
that renewing sponsoring organizations submit an administrative budget
for the upcoming year with sufficiently detailed information concerning
projected CACFP administrative earnings and expenses, as well as other
non-Program funds to be used in Program administration. The State agency
must be able to determine the allowability, necessity, and
reasonableness of all proposed expenditures, and to assess the
sponsoring organization's capability to manage Program funds. The
administrative budget must demonstrate that the sponsoring organization
will expend and account for funds
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in accordance with regulatory requirements, FNS Instruction 796-2
(Financial Management in the Child and Adult Care Food Program), 2 CFR
part 200, subpart D and USDA implementing regulations 2 CFR part 400 and
part 415, and applicable Office of Management and Budget circulars. The
administrative budget submitted by a sponsoring organization of centers
must demonstrate that the administrative costs to be charged to the
Program do not exceed 15 percent of the meal reimbursements estimated or
actually earned during the budget year, unless the State agency grants a
waiver, as described in Sec. 226.7(g). For sponsoring organizations of
day care homes seeking to carry over administrative funds, as described
in Sec. 226.12(a)(3), the budget must include an estimate of requested
administrative fund carryover amounts and a description of proposed
purpose for which those funds would be obligated or expended.
(C) Presence on the National disqualified list. The State agency
must ensure that renewing institutions certify that neither the
institution nor its principals are on the National disqualified list.
The State agency must also ensure that renewing sponsoring organizations
certify that no sponsored facility or facility principal is on the
National disqualified list.
(D) Ineligibility for other publicly funded programs. A State agency
is prohibited from approving a renewing institution or facility's
application if, during the past 7 years, the institution, facility,
responsible principals, or responsible individuals have been declared
ineligible for any other publicly funded program by reason of violating
that program's requirements. However, this prohibition does not apply if
the institution, facility, responsible principals, or responsible
individuals have been fully reinstated in or determined eligible for
that program, including the payment of any debts owed. The State agency
must follow up with the entity administering the publicly funded program
to gather sufficient evidence to determine whether the institution or
its principals were, in fact, determined ineligible.
(E) Information on criminal convictions. The State agency must
ensure that renewing institutions certify that the institution's
principals have not been convicted of any activity that occurred during
the past 7 years and that indicates a lack of business integrity, as
defined in paragraph (c)(1)(ii)(A) of this section.
(F) Submission of names and addresses. The State agency must ensure
that renewing institutions submit a certification attesting to the
validity of the following information: full legal name and any names
previously used, mailing address, and dates of birth of the
institution's executive director and chair of the board of directors or
the owner, in the case of a for-profit center that does not have an
executive director or is not required to have a board of directors. In
addition, the institution's Federal Employer Identification Number
(FEIN) or the Unique Entity Identifier (UEI) must be provided.
(G) Outside employment policy. The State agency must ensure that
renewing sponsoring organizations certify that the outside employment
policy most recently submitted to the State agency remains current and
in effect or the sponsoring organization must submit an updated outside
employment policy at the time of renewal. The policy must restrict other
employment by employees that interferes with an employee's performance
of Program-related duties and responsibilities, including outside
employment that constitutes a real or apparent conflict of interest.
(H) Compliance with performance standards. The State agency must
ensure that each renewing institution certifies that it is still in
compliance with the performance standards described in paragraph
(b)(1)(xviii) of this section, meaning it is financially viable, is
administratively capable of operating the Program in accordance with
this part, and has internal controls in effect to ensure accountability.
(I) Licensing. The State agency must ensure that each independent
center certifies that its licensing or approval status is up-to-date and
that it continues to meet the licensing requirements described in
paragraphs (d) and (e) of this section. Sponsoring organizations must
certify that the licensing or approval status of their facilities is
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up-to-date and that they continue to meet the licensing requirements
described in paragraphs (d) and (e) of this section. If the independent
center or facility has a new license not previously on file with the
State agency, a copy must be submitted, unless the State agency has
other means of confirming the licensing or approval status of any
independent center or facility providing care.
(J) Facility lists. The State agency must ensure that each
sponsoring organization certifies that the list of all of their
applicant day care homes, child care centers, outside-school-hours-care
centers, at-risk afterschool care centers, emergency shelters, and adult
day care centers on file with the State agency is up-to-date.
(K) Facility training. The State agency must ensure that renewing
sponsoring organizations certify that all facilities under their
oversight have adhered to the training requirements set forth in Program
regulations.
(iv) Additional Information collection. Institutions must provide
information to the State agency as specified in paragraphs (f)(3),
(f)(4), and (f)(7) of this section.
(3) State agency notification requirements. (i) Any new institution
applying for participation in the Program must be notified in writing of
approval or disapproval by the State agency, within 30 calendar days of
the State agency's receipt of a complete application. Whenever possible,
State agencies should provide assistance to institutions that have
submitted an incomplete application. Any disapproved applicant
institution must be notified of the reasons for its disapproval and its
right to appeal, as described in paragraph (k) of this section. Any
disapproved applicant day care home or unaffiliated center must be
notified of the reasons for its disapproval and its right to appeal, as
described in paragraph (l) of this section.
(ii) Any renewing institution must be provided written notification
indicating whether it has completely and sufficiently met all renewal
information requirements within 30 days of the submission of renewal
information. Whenever possible, State agencies should provide assistance
to institutions whose information is incomplete.
(4) Program agreements. (i) The State agency must require each
institution that has been approved for participation in the Program to
enter into a permanent agreement governing the rights and
responsibilities of each party. The existence of a valid permanent
agreement, however, does not eliminate the need for an institution to
comply with the annual information submission requirements and related
provisions at paragraphs (b) and (f) of this section.
(ii) The existence of a valid permanent agreement does not limit the
State agency's ability to terminate the agreement, as provided under
paragraph (c)(3) of this section. The State agency must terminate the
institution's agreement whenever an institution's participation in the
Program ends. The State agency must terminate the agreement for cause
based on violations by the institution, facility, responsible
principals, or responsible individuals, as described in paragraph (c) of
this section. The State agency or institution may terminate the
agreement at its convenience for considerations unrelated to the
institution's performance of Program responsibilities under the
agreement. However, any action initiated by the State agency to
terminate an agreement for its convenience requires prior consultation
with FNS. Termination for convenience does not result in ineligibility
for any program authorized under this part or parts 210, 215, 220, or
225 of this chapter.
(iii) The Program agreement must include the following requirements:
(A) The responsibility of the institution to accept final financial
and administrative management of a proper, efficient, and effective food
service, and comply with all requirements under this part.
(B) The responsibility of the institution to comply with all
requirements of title VI of the Civil Rights Act of 1964, title IX of
the Education Amendments of 1972, section 504 of the Rehabilitation Act
of 1973, the Age Discrimination Act of 1975, and the Department's
regulations concerning nondiscrimination (parts 15, 15a and 15b of this
title), including requirements for racial and
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ethnic participation data collection, public notification of the
nondiscrimination policy, and reviews to assure compliance with the
nondiscrimination policy, to the end that no person may, on the grounds
of race, color, national origin, sex, age, or disability, be excluded
from participation in, be denied the benefits of, or be otherwise
subjected to discrimination under, the Program.
(C) The right of the State agency, the Department, and other State
or Federal officials to make announced or unannounced reviews of their
operations during the institution's normal hours of child or adult care
operations, and that anyone making such reviews must show photo
identification that demonstrates that they are employees of one of these
entities.
(c) Denial of applications and termination of agreements--(1) Denial
of a new institution's application--(i) General. If a new institution's
application does not meet all of the requirements in paragraph (b) of
this section and in Sec. Sec. 226.15(b) and 226.16(b), the State agency
must deny the application. If, in reviewing a new institution's
application, the State agency determines that the institution has
committed one or more serious deficiency listed in paragraph (c)(1)(ii)
of this section, the State agency must initiate action to:
(A) Deny the new institution's application; and
(B) Disqualify the new institution and the responsible principals
and responsible individuals (e.g., the person who signs the
application).
(ii) List of serious deficiencies for new institutions. The list of
serious deficiencies is not identical for each category of institution
(new, renewing, participating) because the type of information likely to
be available to the State agency is different, depending on whether the
State agency is reviewing a new or renewing institution's application or
is conducting a review of a participating institution. Serious
deficiencies for new institutions are:
(A) Submission of false information on the institution's
application, including but not limited to a determination that the
institution has concealed a conviction for any activity that occurred
during the past seven years and that indicates a lack of business
integrity. A lack of business integrity includes fraud, antitrust
violations, embezzlement, theft, forgery, bribery, falsification or
destruction of records, making false statements, receiving stolen
property, making false claims, obstruction of justice, or any other
activity indicating a lack of business integrity as defined by the State
agency; or
(B) Any other action affecting the institution's ability to
administer the Program in accordance with Program requirements.
(iii) Serious deficiency notification procedures for new
institutions. If the State agency determines that a new institution has
committed one or more serious deficiency listed in paragraph (c)(1)(ii)
of this section, the State agency must use the following procedures to
provide the institution and the responsible principals and responsible
individuals with notice of the serious deficiency(ies) and an
opportunity to take corrective action.
(A) Notice of serious deficiency. The State agency must notify the
institution's executive director and chairman of the board of directors
that the institution has been determined to be seriously deficient. The
notice must identify the responsible principals and responsible
individuals (e.g., for new institutions, the person who signed the
application) and must be sent to those persons as well. The State agency
may specify in the notice different corrective action, and time periods
for completing the corrective action, for the institution and the
responsible principals and responsible individuals. At the same time the
notice is issued, the State agency must add the institution to the State
agency list, along with the basis for the serious deficiency
determination, and provide a copy of the notice to the appropriate
FNSRO. The notice must also specify:
(1) The serious deficiency(ies);
(2) The actions to be taken to correct the serious deficiency(ies);
(3) The time allotted to correct the serious deficiency(ies) in
accordance with paragraph (c)(4) of this section.
(4) That the serious deficiency determination is not subject to
administrative review;
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(5) That failure to fully and permanently correct the serious
deficiency(ies) within the allotted time will result in denial of the
institution's application and the disqualification of the institution
and the responsible principals and responsible individuals;
(6) That the State agency will not pay any claims for reimbursement
for eligible meals served or allowable administrative expenses incurred
until the State agency has approved the institution's application and
the institution has signed a Program agreement; and
(7) That the institution's withdrawal of its application, after
having been notified that it is seriously deficient, will still result
in the institution's formal termination by the State agency and
placement of the institution and its responsible principals and
individuals on the National disqualified list; and
(8) That, if the State agency does not possess the date of birth for
any individual named as a ``responsible principal or individual'' in the
serious deficiency notice, the submission of that person's date of birth
is a condition of corrective action for the institution and/or
individual.
(B) Successful corrective action. (1) If corrective action has been
taken to fully and permanently correct the serious deficiency(ies)
within the allotted time and to the State agency's satisfaction, the
State agency must:
(i) Notify the institution's executive director and chairman of the
board of directors, and the responsible principals and responsible
individuals, that the State agency has temporarily defer its serious
deficiency determination; and
(ii) Offer the new institution the opportunity to resubmit its
application. If the new institution resubmits its application, the State
agency must complete its review of the application within 30 days after
receiving a complete and correct application.
(2) If corrective action is complete for the institution but not for
all of the responsible principals and responsible individuals (or vice
versa), the State agency must:
(i) Continue with the actions (as set forth in paragraph
(c)(1)(iii)(C) of this section) against the remaining parties;
(ii) At the same time the notice is issued, the State agency must
also update the State agency list to indicate that the serious
deficiency(ies) has(ve) been corrected and provide a copy of the notice
to the appropriate FNSRO; and
(iii) If the new institution has corrected the serious
deficiency(ies), offer it the opportunity to resubmit its application.
If the new institution resubmits its application, the State agency must
complete its review of the application within 30 days after receiving a
complete and correct application.
(3) If the State agency initially determines that the institution's
corrective action is complete, but later determines that the serious
deficiency(ies) has recurred, the State agency must move immediately to
issue a notice of intent to terminate and disqualify the institution, in
accordance with paragraph (c)(1)(iii)(C) of this section.
(C) Application denial and proposed disqualification. If timely
corrective action is not taken to fully and permanently correct the
serious deficiency(ies), the State agency must notify the institution's
executive director and chairman of the board of directors, and the
responsible principals and responsible individuals, that the
institution's application has been denied. At the same time the notice
is issued, the State agency must also update the State agency list and
provide a copy of the notice to the appropriate FNSRO. The notice must
also specify:
(1) That the institution's application has been denied and the State
agency is proposing to disqualify the institution and the responsible
principals and responsible individuals;
(2) The basis for the actions; and
(3) The procedures for seeking an administrative review (in
accordance with paragraph (k) of this section) of the application denial
and proposed disqualifications.
(D) Program payments. The State agency is prohibited from paying any
claims for reimbursement from a new institution for eligible meals
served or allowable administrative expenses incurred until the State
agency has approved its application and the institution and State agency
have signed a Program agreement.
[[Page 214]]
(E) Disqualification. When the time for requesting an administrative
review expires or when the administrative review official upholds the
State agency's denial and proposed disqualifications, the State agency
must notify the institution's executive director and chairman of the
board of directors, and the responsible principals and responsible
individuals that the institution and the responsible principal and
responsible individuals have been disqualified. At the same time the
notice is issued, the State agency must also update the State agency
list and provide a copy of the notice and the mailing address and date
of birth for each responsible principal and responsible individual to
the appropriate FNSRO.
(2) Denial of a renewing institution's application--(i) General. If
a renewing institution's application does not meet all of the
requirements in paragraph (b) of this section and in Sec. Sec.
226.15(b) and 226.16(b), the State agency must deny the application. If,
in reviewing a renewing institution's application, the State agency
determines that the institution has committed one or more serious
deficiency listed in paragraph (c)(2)(ii) of this section, the State
agency must initiate action to deny the renewing institution's
application and initiate action to disqualify the renewing institution
and the responsible principals and responsible individuals.
(ii) List of serious deficiencies for renewing institutions. The
list of serious deficiencies is not identical for each category of
institution (new, renewing, participating) because the type of
information likely to be available to the State agency is different,
depending on whether the State agency is reviewing a new or renewing
institution's application or is conducting a review of a participating
institution. Serious deficiencies for renewing institutions are:
(A) Submission of false information on the institution's
application, including but not limited to a determination that the
institution has concealed a conviction for any activity that occurred
during the past seven years and that indicates a lack of business
integrity. A lack of business integrity includes fraud, antitrust
violations, embezzlement, theft, forgery, bribery, falsification or
destruction of records, making false statements, receiving stolen
property, making false claims, obstruction of justice, or any other
activity indicating a lack of business integrity as defined by the State
agency;
(B) Failure to operate the Program in conformance with the
performance standards set forth in paragraphs (b)(1)(xviii) and
(b)(2)(vii) of this section;
(C) Failure to comply with the bid procedures and contract
requirements of applicable Federal procurement regulations;
(D) Use of a food service management company that is in violation of
health codes;
(E) Failure by a sponsoring organization of day care homes to
properly classify day care homes as tier I or tier II in accordance with
Sec. 226.15(f);
(F) Failure by a sponsoring organization to properly train or
monitor sponsored facilities in accordance with Sec. 226.16(d);
(G) Failure to perform any of the other financial and administrative
responsibilities required by this part;
(H) Failure to properly implement and administer the day care home
termination and administrative review provisions set forth at paragraph
(l) of this section and Sec. 226.16(l); or
(I) Any other action affecting the institution's ability to
administer the Program in accordance with Program requirements.
(iii) Serious deficiency notification procedures for renewing
institutions. If the State agency determines that a renewing institution
has committed one or more serious deficiency listed in paragraph
(c)(2)(ii) of this section, the State agency must use the following
procedures to provide the institution and the responsible principals and
responsible individuals notice of the serious deficiency(ies) and an
opportunity to take corrective action.
(A) Notice of serious deficiency. The State agency must notify the
institution's executive director and chairman of the board of directors
that the institution has been determined to be seriously deficient. The
notice must identify the responsible principals and responsible
individuals and must be sent to those persons as well. The State
[[Page 215]]
agency may specify in the notice different corrective action, and time
periods for completing the corrective action, for the institution and
the responsible principals and responsible individuals. At the same time
the notice is issued, the State agency must add the institution to the
State agency list, along with the basis for the serious deficiency
determination, and provide a copy of the notice to the appropriate
FNSRO. The notice must also specify:
(1) The serious deficiency(ies);
(2) The actions to be taken to correct the serious deficiency(ies);
(3) The time allotted to correct the serious deficiency(ies) in
accordance with paragraph (c)(4) of this section;
(4) That the serious deficiency determination is not subject to
administrative review.
(5) That failure to fully and permanently correct the serious
deficiency(ies) within the allotted time will result in the State
agency's denial of the institution's application, the proposed
termination of the institution's agreement and the proposed
disqualification of the institution and the responsible principals and
responsible individuals;
(6) That the institution's voluntary termination of its agreement
with the State agency after having been notified that it is seriously
deficient will still result in the institution's formal termination by
the State agency and placement of the institution and its responsible
principals and responsible individuals on the National disqualified
list; and
(7) That, if the State agency does not possess the date of birth for
any individual named as a ``responsible principal or individual'' in the
serious deficiency notice, the submission of that person's date of birth
is a condition of corrective action for the institution and/or
individual.
(B) Successful corrective action. (1) If corrective action has been
taken to fully and permanently correct the serious deficiency(ies)
within the allotted time and to the State agency's satisfaction, the
State agency must:
(i) Notify the institution's executive director and chairman of the
board of directors, and the responsible principals and responsible
individuals, that the State agency has temporarily defer its serious
deficiency determination; and
(ii) Offer the renewing institution the opportunity to resubmit its
application. If the renewing institution resubmits its application, the
State agency must complete its review of the application within 30 days
after receiving a complete and correct application.
(2) If corrective action is complete for the institution but not for
all of the responsible principals and responsible individuals (or vice
versa), the State agency must:
(i) Continue with the actions (as set forth in paragraph
(c)(2)(iii)(C) of this section) against the remaining parties;
(ii) At the same time the notice is issued, the State agency must
also update the State agency list to indicate that the serious
deficiency(ies) has(ve) been corrected and provide a copy of the notice
to the appropriate FNSRO; and
(iii) If the renewing institution has corrected the serious
deficiency(ies), offer it the opportunity to resubmit its application.
If the renewing institution resubmits its application, the State agency
must complete its review of the application within 30 days after
receiving a complete and correct application.
(3) If the State agency initially determines that the institution's
corrective action is complete, but later determines that the serious
deficiency(ies) have recurred, the state agency must move immediately to
issue a notice of intent to terminate and disqualify the institution, in
accordance with paragraph (c)(2)(iii)(C) of this section.
(C) Application denial and proposed disqualification. If timely
corrective action is not taken to fully and permanently correct the
serious deficiency(ies), the State agency must notify the institution's
executive director and chairman of the board of directors, and the
responsible principals and responsible individuals, that the
institution's application has been denied. At the same time the notice
is issued, the State agency must update the State agency list and
provide a copy of the notice to the appropriate FNSRO. The notice must
also specify:
[[Page 216]]
(1) That the institution's application has been denied and the State
agency is proposing to terminate the institution's agreement and to
disqualify the institution and the responsible principals and
responsible individuals;
(2) The basis for the actions;
(3) That, if the institution voluntarily terminates its agreement
after receiving the notice of the proposed termination, the institution
and the responsible principals and responsible individuals will be
disqualified;
(4) The procedures for seeking an administrative review (in
accordance with paragraph (k) of this section) of the application denial
and proposed disqualifications; and
(5) That the institution may continue to participate in the Program
and receive Program reimbursement for eligible meals served and
allowable administrative costs incurred until its administrative review
is completed.
(D) Agreement termination and disqualification. When the time for
requesting an administrative review expires or when the administrative
review official upholds the State agency's denial of the institution's
application, the proposed termination, and the proposed
disqualifications, the State agency must:
(1) Notify the institution's executive director and chairman of the
board of directors, and the responsible principals and responsible
individuals, that the agreement has been terminated and that the
institution and the responsible principals and responsible individuals
have been disqualified;
(2) Update the State agency list at the time such notice is issued;
and
(3) Provide a copy of the notice and the mailing address and date of
birth for each responsible principal and responsible individual to the
appropriate FNSRO.
(3) Termination of a participating institution's agreement. (i)
General. If the State agency holds an agreement with an institution
operating in more than one State that has been disqualified from the
Program by another State agency and placed on the National disqualified
list, the State agency must terminate the institution's agreement
effective no later than 45 days of the date of the institution's
disqualification by the other State agency. At the same time the notice
of termination is issued, the State agency must add the institution to
the State agency list and indicate that the institution's agreement has
been terminated and provide a copy of the notice to the appropriate
FNSRO. If the State agency determines that a participating institution
has committed one or more serious deficiency listed in paragraph
(c)(3)(ii) of this section, the State agency must initiate action to
terminate the agreement of a participating institution and initiate
action to disqualify the institution and any responsible principals and
responsible individuals.
(ii) List of serious deficiencies for participating institutions.
The list of serious deficiencies is not identical for each category of
institution (new, renewing, participating) because the type of
information likely to be available to the State agency is different,
depending on whether the State agency is reviewing a new or renewing
institution's application or is conducting a review of a participating
institution. Serious deficiencies for participating institutions are:
(A) Submission of false information on the institution's
application, including but not limited to a determination that the
institution has concealed a conviction for any activity that occurred
during the past seven years and that indicates a lack of business
integrity. A lack of business integrity includes fraud, antitrust
violations, embezzlement, theft, forgery, bribery, falsification or
destruction of records, making false statements, receiving stolen
property, making false claims, obstruction of justice, or any other
activity indicating a lack of business integrity as defined by the State
agency;
(B) Permitting an individual who is on the National disqualified
list to serve in a principal capacity with the institution or, if a
sponsoring organization, permitting such an individual to serve as a
principal in a sponsored center or as a day care home;
(C) Failure to operate the Program in conformance with the
performance standards set forth in paragraphs (b)(1)(xviii) and
(b)(2)(vii) of this section;
[[Page 217]]
(D) Failure to comply with the bid procedures and contract
requirements of applicable Federal procurement regulations;
(E) Failure to return to the State agency any advance payments that
exceeded the amount earned for serving eligible meals, or failure to
return disallowed start-up or expansion payments;
(F) Failure to maintain adequate records;
(G) Failure to adjust meal orders to conform to variations in the
number of participants;
(H) Claiming reimbursement for meals not served to participants;
(I) Claiming reimbursement for a significant number of meals that do
not meet Program requirements;
(J) Use of a food service management company that is in violation of
health codes;
(K) Failure of a sponsoring organization to disburse payments to its
facilities in accordance with the regulations at Sec. 226.16(g) and (h)
or in accordance with its management plan;
(L) Claiming reimbursement for meals served by a for-profit child
care center or a for-profit outside-school-hours care center during a
calendar month in which less than 25 percent of the children in care
(enrolled or licensed capacity, whichever is less) were eligible for
free or reduced-price meals or were title XX beneficiaries;
(M) Claiming reimbursement for meals served by a for-profit adult
day care center during a calendar month in which less than 25 percent of
its enrolled adult participants were title XIX or title XX
beneficiaries;
(N) Failure by a sponsoring organization of day care homes to
properly classify day care homes as tier I or tier II in accordance with
Sec. 226.15(f);
(O) Failure by a sponsoring organization to properly train or
monitor sponsored facilities in accordance with Sec. 226.16(d);
(P) Use of day care home funds by a sponsoring organization to pay
for the sponsoring organization's administrative expenses;
(Q) Failure to perform any of the other financial and administrative
responsibilities required by this part;
(R) Failure to properly implement and administer the day care home
termination and administrative review provisions set forth at paragraph
(l) of this section and Sec. 226.16(l);
(S) The fact the institution or any of the institution's principals
have been declared ineligible for any other publicly funded program by
reason of violating that program's requirements. However, this
prohibition does not apply if the institution or the principal has been
fully reinstated in, or is now eligible to participate in, that program,
including the payment of any debts owed;
(T) Conviction of the institution or any of its principals for any
activity that occurred during the past seven years and that indicates a
lack of business integrity. A lack of business integrity includes fraud,
antitrust violations, embezzlement, theft, forgery, bribery,
falsification or destruction of records, making false statements,
receiving stolen property, making false claims, obstruction of justice,
or any other activity indicating a lack of business integrity as defined
by the State agency; or
(U) Any other action affecting the institution's ability to
administer the Program in accordance with Program requirements.
(iii) Serious deficiency notification procedures for participating
institutions. If the State agency determines that a participating
institution has committed one or more serious deficiency listed in
paragraph (c)(3)(ii) of this section, the State agency must use the
following procedures to provide the institution and the responsible
principals and responsible individuals notice of the serious
deficiency(ies) and an opportunity to take corrective action. However,
if the serious deficiency(ies) constitutes an imminent threat to the
health or safety of participants, or the institution has engaged in
activities that threaten the public health or safety, the State agency
must follow the procedures in paragraph (c)(5)(i) of this section
instead of the procedures below. Further, if the serious deficiency is
the submission of a false or fraudulent claim, in addition to the
procedures below, the State agency
[[Page 218]]
may suspend the institution's participation in accordance with paragraph
(c)(5)(ii) of this section.
(A) Notice of serious deficiency. The State agency must notify the
institution's executive director and chairman of the board of directors
that the institution has been determined seriously deficient. The notice
must identify the responsible principals and responsible individuals and
must be sent to those persons as well. The State agency may specify in
the notice different corrective action and time periods for completing
the corrective action for the institution and the responsible principals
and responsible individuals. At the same time the notice is issued, the
State agency must add the institution to the State agency list, along
with the basis for the serious deficiency determination, and provide a
copy of the notice to the appropriate FNSRO. The notice must also
specify:
(1) The serious deficiency(ies);
(2) The actions to be taken to correct the serious deficiency(ies);
(3) The time allotted to correct the serious deficiency(ies) in
accordance with paragraph (c)(4) of this section;
(4) That the serious deficiency determination is not subject to
administrative review.
(5) That failure to fully and permanently correct the serious
deficiency(ies) within the allotted time will result in the State
agency's proposed termination of the institution's agreement and the
proposed disqualification of the institution and the responsible
principals and responsible individuals;
(6) That the institution's voluntary termination of its agreement
with the State agency after having been notified that it is seriously
deficient will still result in the instituion's formal termination by
the State agency and placement of the institution and its responsible
principals and responsible individuals on the National disqualified
list; and
(7) That, if the State agency does not possess the date of birth for
any individual named as a ``responsible principal or individual'' in the
serious deficiency notice, the submission of that person's date of birth
is a condition of corrective action for the institution and/or
individual.
(B) Successful corrective action. (1) If corrective action has been
taken to fully and permanently correct the serious deficiency(ies)
within the allotted time and to the State agency's satisfaction, the
State agency must:
(i) Notify the institution's executive director and chairman of the
board of directors, and the responsible principals and responsible
individuals, that the State agency has temporarily defer its serious
deficiency determination; and
(ii) Offer the participating institution the opportunity to resubmit
its application. If the participating institution resubmits its
application, the State agency must complete its review of the
application within 30 days after receiving a complete and correct
application.
(2) If corrective action is complete for the institution but not for
all of the responsible principals and responsible individuals (or vice
versa), the State agency must:
(i) Continue with the actions (as set forth in paragraph
(c)(3)(iii)(C) of this section) against the remaining parties;
(ii) At the same time the notice is issued, the State agency must
also update the State agency list to indicate that the serious
deficiency(ies) has(ve) been corrected and provide a copy of the notice
to the appropriate FNSRO; and
(iii) If the participating institution has corrected the serious
deficiency(ies), offer it the opportunity to resubmit its application.
If the participating institution resubmits its application, the State
agency must complete its review of the application within 30 days after
receiving a complete and correct application.
(3) If the State agency initially determines that the institution's
corrective action is complete, but later determines that the serious
deficiency(ies) has recurred, the State agency must move immediately to
issue a notice of intent to terminate and disqualify the institution, in
accordance with paragraph (c)(1)(iii)(C) of this section.
[[Page 219]]
(C) Proposed termination and proposed disqualification. If timely
corrective action is not taken to fully and permanently correct the
serious deficiency(ies), the State agency must notify the institution's
executive director and chairman of the board of directors, and the
responsible principals and responsible individuals, that the State
agency is proposing to terminate the institution's agreement and to
disqualify the institution and the responsible principals and
responsible individuals. At the same time the notice is issued, the
State agency must also update the State agency list and provide a copy
of the notice to the appropriate FNSRO. The notice must also specify:
(1) That the State agency is proposing to terminate the
institution's agreement and to disqualify the institution and the
responsible principals and responsible individuals;
(2) The basis for the actions;
(3) That, if the institution voluntarily terminates its agreement
after receiving the notice of proposed termination, the institution and
the responsible principals and responsible individuals will be
disqualified.
(4) The procedures for seeking an administrative review (in
accordance with paragraph (k) of this section) of the application denial
and proposed disqualifications; and
(5) That, unless participation has been suspended, the institution
may continue to participate and receive Program reimbursement for
eligible meals served and allowable administrative costs incurred until
its administrative review is completed.
(D) Program payments and extended agreement. If the participating
institution must renew its application, or its agreement expires, before
the end of the time allotted for corrective action and/or the conclusion
of any administrative review requested by the participating institution:
(1) The State agency must temporarily extend its current agreement
with the participating institution and continue to pay any valid unpaid
claims for reimbursement for eligible meals served and allowable
administrative expenses incurred; and
(2) During this period, the State agency may base administrative
payments to the institution on the institution's previous approved
budget, or may base administrative payments to the institution on the
budget submitted by the institution as part of its renewal application;
and
(3) The actions set forth in paragraphs (c)(3)(iii)(D)(1) and
(c)(3)(iii)(D)(2) of this section must be taken either until the serious
deficiency(ies) is corrected or until the institution's agreement is
terminated, including the period of any administrative review;
(E) Agreement termination and disqualification. When the time for
requesting an administrative review expires or when the administrative
review official upholds the State agency's proposed termination and
disqualifications, the State agency must:
(1) Notify the institution's executive director and chairman of the
board of directors, and the responsible principals and responsible
individuals, that the institution's agreement has been terminated and
that the institution and the responsible principals and responsible
individuals have been disqualified;
(2) Update the State agency list at the time such notice is issued;
and
(3) Provide a copy of the notice and the mailing address and date of
birth for each responsible principal and responsible individual to the
appropriate FNSRO.
(4) Corrective action timeframes--(i) General. Except as noted in
this paragraph (c)(4), the State agency is prohibited from allowing more
than 90 days for corrective action from the date the institution
receives the serious deficiency notice.
(ii) Unlawful practices. If the State agency determines that the
institution has engaged in unlawful practices, submitted false or
fraudulent claims or other information to the State agency, or been
convicted of or concealed a criminal background, the State agency is
prohibited from allowing more than 30 days for corrective action.
(iii) Long-term changes. For serious deficiencies requiring the
long-term revision of management systems or processes, the State agency
may permit more than 90 days to complete the corrective action as long
as a corrective
[[Page 220]]
action plan is submitted to and approved by the State agency within 90
days (or such shorter deadline as the State agency may establish). The
corrective action must include milestones and a definite completion date
that the State agency will monitor. The determination of serious
deficiency will remain in effect until the State agency determines that
the serious deficiency(ies) has(ve) been fully and permanently corrected
within the allotted time.
(5) Suspension of an institution's participation. A State agency is
prohibited from suspending an institution's participation (including all
Program payments) except for the reasons set forth in this paragraph
(c)(5).
(i) Public health or safety--(A) General. If State or local health
or licensing officials have cited an institution for serious health or
safety violations, the State agency must immediately suspend the
institution's Program participation, initiate action to terminate the
institution's agreement, and initiate action to disqualify the
institution and the responsible principals and responsible individuals
prior to any formal action to revoke the institution's licensure or
approval. If the State agency determines that there is an imminent
threat to the health or safety of participants at an institution, or
that the institution has engaged in activities that threaten the public
health or safety, the State agency must immediately notify the
appropriate State or local licensing and health authorities and take
action that is consistent with the recommendations and requirements of
those authorities. An imminent threat to the health or safety of
participants and engaging in activities that threaten the public health
or safety constitute serious deficiencies; however, the State agency
must use the procedures in this paragraph (c)(5)(i) (instead of the
procedures in paragraph (c)(3) of this section) to provide the
institution notice of the suspension of participation, serious
deficiency, proposed termination of the institution's agreement, and
proposed disqualification of the responsible principals and responsible
individuals.
(B) Notice of suspension, serious deficiency, proposed termination,
and proposed disqualification. The State agency must notify the
institution's executive director and chairman of the board of directors
that the institution's participation (including Program payments) has
been suspended, that the institution has been determined to be seriously
deficient, and that the State agency proposes to terminate the
institution's agreement and to disqualify the institution and the
responsible principals and responsible individuals. The notice must also
identify the responsible principals and responsible individuals and must
be sent to those persons as well. At the same time this notice is sent,
the State agency must add the institution and the responsible principals
and responsible individuals to the State agency list, along with the
basis for the serious deficiency determination and provide a copy of the
notice to the appropriate FNSRO. The notice must also specify:
(1) That the State agency is suspending the institution's
participation (including Program payments), proposing to terminate the
institution's agreement, and proposing to disqualify the institution and
the responsible principals and responsible individuals;
(2) The serious deficiency(ies);
(3) That, if the institution voluntary terminates its agreement with
the State agency after having been notified of the proposed termination,
the institution and the responsible principals and responsible
individuals will be disqualified;
(4) That the serious deficiency determination is not subject to
administrative review;
(5) The procedures for seeking an administrative review (consistent
with paragraph (k) of this section) of the suspension, proposed
termination, and proposed disqualifications; and
(6) That, if the administrative review official overturns the
suspension, the institution may claim reimbursement for eligible meals
served and allowable administrative costs incurred during the suspension
period.
(C) Agreement termination and disqualification. When the time for
requesting an administrative review expires or when the administrative
review official upholds the State agency's proposed
[[Page 221]]
termination and disqualifications, the State agency must:
(1) Notify the institution's executive director and chairman of the
board of directors, and the responsible principals and responsible
individuals, that the institution's agreement has been terminated and
that the institution and the responsible principals and responsible
individuals have been disqualified;
(2) Update the State agency list at the time such notice is issued;
and
(3) Provide a copy of the notice and the mailing address and date of
birth for each responsible principal and responsible individual to the
appropriate FNSRO.
(D) Program payments. The State agency is prohibited from paying any
claims for reimbursement from a suspended institution. However, if the
suspended institution prevails in the administrative review of the
proposed termination, the State agency must pay any claims for
reimbursement for eligible meals served and allowable administrative
costs incurred during the suspension period.
(ii) False or fraudulent claims--(A) General. If the State agency
determines that an institution has knowingly submitted a false or
fraudulent claim, the State agency may initiate action to suspend the
institution's participation and must initiate action to terminate the
institution's agreement and initiate action to disqualify the
institution and the responsible principals and responsible individuals
(in accordance with paragraph (c)(3) of this section). The submission of
a false or fraudulent claim constitutes a serious deficiency as set
forth in paragraph (c)(3)(ii) of this section, which lists serious
deficiencies for participating institutions. If the State agency wishes
to suspend the institution's participation, it must use the following
procedures to issue the notice of proposed suspension of participation
at the same time it issues the serious deficiency notice, which must
include the information described in paragraph (c)(3)(iii)(A) of this
section.
(B) Proposed suspension of participation. If the State agency
decides to propose to suspend an institution's participation due to the
institution's submission of a false or fraudulent claim, it must notify
the institution's executive director and chairman of the board of
directors that the State agency intends to suspend the institution's
participation (including all Program payments) unless the institution
requests a review of the proposed suspension. At the same time the
notice is issued, the State agency must also update the State agency
list and provide a copy of the notice to the appropriate FNSRO. The
notice must identify the responsible principals and responsible
individuals and must be sent to those persons as well. The notice must
also specify:
(1) That the State agency is proposing to suspend the institution's
participation;
(2) That the proposed suspension is based on the institution's
submission of a false or fraudulent claim, as described in the serious
deficiency notice;
(3) The effective date of the suspension (which may be no earlier
than 10 days after the institution receives the suspension notice);
(4) The name, address and telephone number of the suspension review
official who will conduct the suspension review; and
(5) That if the institution wishes to have a suspension review, it
must request a review and submit to the suspension review official
written documentation opposing the proposed suspension within 10 days of
the institution's receipt of the notice.
(C) Suspension review. If the institution requests a review of the
State agency's proposed suspension of participation, the suspension
review must be heard by a suspension review official who must:
(1) Be an independent and impartial person other than, and not
accountable to, any person involved in the decision to initiate
suspension proceedings;
(2) Immediately notify the State agency that the institution has
contested the proposed suspension and must obtain from the State agency
its notice of proposed suspension of participation, along with all
supporting documentation; and
(3) Render a decision on suspension of participation within 10 days
of the deadline for receiving the institution's
[[Page 222]]
documentation opposing the proposed suspension.
(D) Suspension review decision. If the suspension review official
determines that the State agency's proposed suspension is not
appropriate, the State agency is prohibited from suspending
participation. If the suspension review official determines, based on a
preponderance of the evidence, that the State agency's action was
appropriate, the State agency must suspend the institution's
participation (including all Program payments), effective on the date of
the suspension review decision. The State agency must notify the
institution's executive director and chairman of the board of directors,
and the responsible principals and responsible individuals, that the
institution's participation has been suspended. At the same time the
notice is issued, the State agency must also update the State agency
list and provide a copy of the notice to the appropriate FNSRO. The
notice must also specify:
(1) That the State agency is suspending the institution's
participation (including Program payments);
(2) The effective date of the suspension (the date of the suspension
review decision);
(3) The procedures for seeking an administrative review (in
accordance with paragraph (k) of this section) of the suspension; and
(4) That if the administrative review official overturns the
suspension, the institution may claim reimbursement for eligible meals
served and allowable administrative costs incurred during the suspension
period.
(E) Program payments. A State agency is prohibited from paying any
claims for reimbursement submitted by a suspended institution. However,
if the institution suspended for the submission of false or fraudulent
claims is a sponsoring organization, the State agency must ensure that
sponsored facilities continue to receive reimbursement for eligible
meals served during the suspension period. If the suspended institution
prevails in the administrative review of the proposed termination, the
State agency must pay any valid unpaid claims for reimbursement for
eligible meals served and allowable administrative costs incurred during
the suspension period.
(F) Maximum time for suspension. Under no circumstances may the
suspension of participation remain in effect for more than 120 days
following the suspension review decision.
(6) FNS determination of serious deficiency--(i) General. FNS may
determine independently that a participating institution has committed
one or more serious deficiency listed in paragraph (c)(3)(ii) of this
section, which lists serious deficiencies for participating
institutions.
(ii) Serious deficiency notification procedures. If FNS determines
that an institution has committed one or more serious deficiency listed
in paragraph (c)(3)(ii) of this section (the list of serious
deficiencies for participating institutions), FNS will use the following
procedures to provide the institution and the responsible principals and
responsible individuals with notice of the serious deficiency(ies) and
an opportunity to take corrective action.
(A) Notice of serious deficiency. FNS will notify the institution's
executive director and chairman of the board of directors that the
institution has been found to be seriously deficient. The notice will
identify the responsible principals and responsible individuals and will
be sent to them as well. FNS may specify in the notice different
corrective action and time periods for completing the corrective action,
for the institution and the responsible principals and responsible
individuals. The notice will also specify:
(1) The serious deficiency(ies);
(2) The actions to be taken to correct the serious deficiency(ies);
(3) The time allotted to correct the serious deficiency(ies) in
accordance with paragraph (c)(4) of this section;
(4) That failure to fully and permanently correct the serious
deficiency(ies) within the allotted time, or the institution's voluntary
termination of its agreement(s) with any State agency after having been
notified that it is seriously deficient, will result in the proposed
disqualification of the institution and the responsible principals and
responsible individuals and the termination of its agreement(s) with all
State agencies; and
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(5) That the serious deficiency determination is not subject to
administrative review.
(B) Suspension of participation. If FNS determines that there is an
imminent threat to the health or safety of participants at an
institution, or that the institution has engaged in activities that
threaten the public health or safety, any State agency that holds an
agreement with the institution must suspend the participation of the
institution. If FNS determines that the institution has submitted a
false or fraudulent claim, it may require any State agency that holds an
agreement with the institution to initiate action to suspend the
institution's participation for false or fraudulent claims in accordance
with paragraph (c)(5)(ii) of this section (which deals with an
institution's suspension by a State agency for submission of false or
fraudulent claims). In both cases, FNS will provide the State agency the
information necessary to support these actions and, in the case of a
false and fraudulent claim, will provide an individual to serve as the
suspension review official if requested by the State agency.
(C) Successful corrective action. (1) If corrective action has been
taken to fully and permanently correct the serious deficiency(ies)
within the allotted time and to FNS's satisfaction, FNS will notify the
institution's executive director and chairman of the board of directors,
and the responsible principals and responsible individuals, that it has
temporarily defer its serious deficiency determination; and
(2) If corrective action is complete for the institution but not for
all of the responsible principals and responsible individuals (or vice
versa), FNS will continue with the actions (as set forth in paragraph
(c)(6)(ii)(D) of this section) against the remaining parties.
(3) If FNS initially determines that the institution's corrective
action is complete, but later determines that the serious
deficiency(ies) has recurred, FNS will move immediately to issue a
notice of intent to terminate and disqualify the institution, in
accordance with paragraph (c)(6)(ii)(D) of this section.
(D) Proposed disqualification. If timely corrective action is not
taken to fully and permanently correct the serious deficiency(ies), FNS
will notify the institution's executive director and chairman of the
board of directors, and the responsible principals and responsible
individuals, that FNS is proposing to disqualify them. The notice will
also specify:
(1) That FNS is proposing to disqualify the institution and the
responsible principals and responsible individuals;
(2) The basis for the actions;
(3) That, if the institution seeks to voluntarily terminate its
agreement after receiving the notice of proposed disqualification, the
institution and the responsible principals and responsible individuals
will be disqualified;
(4) The procedures for seeking an administrative review (in
accordance with paragraph (k) of this section) of the proposed
disqualifications;
(5) That unless participation has been suspended, the institution
may continue to participate and receive Program reimbursement for
eligible meals served and allowable administrative costs incurred until
its administrative review is completed; and
(6) That if the institution does not prevail in the administrative
review, any State agency holding an agreement with the institution will
be required to terminate that agreement and the institution is
prohibited from seeking an administrative review of the termination of
the agreement by the State agency(ies).
(E) Disqualification. When the time for requesting an administrative
review expires or when the administrative review official upholds FNS's
proposed disqualifications, FNS will notify the institution's executive
director and chairman of the board of directors, and the responsible
principals and responsible individuals, that the institution and the
responsible principal or responsible individual have been disqualified.
(F) Program payments. If the State agency holds an agreement with an
institution that FNS has determined to be seriously deficient, the State
agency must continue to pay any valid unpaid claims for reimbursement
for eligible meals served and allowable administrative expenses incurred
until the serious
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deficiency(ies) is corrected or the State agency terminates the
institution's agreement, including the period of any administrative
review, unless participation has been suspended.
(G) Required State agency action. (1) Disqualified institutions. If
the State agency holds an agreement with an institution that FNS
determines to be seriously deficient and subsequently disqualifies, the
State agency must terminate the institution's agreement effective no
later than 45 days after the date of the institution's disqualification
by FNS. As noted in paragraph (k)(3)(iv) of this section, the
termination is not subject to administrative review. At the same time
the notice of termination is issued, the State agency must add the
institution to the State agency list and provide a copy of the notice to
the appropriate FNSRO.
(2) Disqualified principals. If the State agency holds an agreement
with an institution whose principal FNS determines to be seriously
deficient and subsequently disqualifies, the State agency must determine
the institution to be seriously deficient and initiate action to
terminate and disqualify the institution in accordance with the
procedures in paragraph (c)(3) of this section. The State agency must
initiate these actions no later than 45 days after the date of the
principal's disqualification by FNS.
(7) National disqualified list--(i) Maintenance and availability of
list. FNS will maintain the National disqualified list and make it
available to all State agencies and all sponsoring organizations.
(ii) Effect on institutions. No organization on the National
disqualified list may participate in the Program as an institution. As
noted in paragraphs (b)(1)(xii) and (b)(2)(ii) of this section, the
State agency must must not approve the application of a new or renewing
institution if the institution is on the National disqualified list. In
addition, as noted in paragraphs (c)(3)(i) and (c)(6)(ii)(G)(1) of this
section, the State agency must terminate the agreement of any
participating institution that is disqualified by another State agency
or by FNS.
(iii) Effect on sponsored centers. No organization on the National
disqualified list may participate in the Program as a sponsored center.
As noted in Sec. 226.16(b) and paragraphs (b)(1)(xii) and (b)(2)(ii) of
this section, a sponsoring organization is prohibited from submitting an
application on behalf of a sponsored facility (and a State agency is
prohibited from approving such an application) if the facility is on the
National disqualified list.
(iv) Effect on individuals. No individual on the National
disqualified list may serve as a principal in any institution or
facility or as a day care home provider.
(A) Principal for an institution or a sponsored facility. As noted
in paragraphs (b)(1)(xii) and (b)(2)(ii) of this section, the State
agency must must not approve the application of a new or renewing
institution if any of the institution's principals is on the National
disqualified list. As noted in paragraphs (c)(3)(ii)(B) and
(c)(6)(ii)(G)(2) of this section, the State agency must declare an
institution seriously deficient and initiate action to terminate the
institution's agreement and disqualify the institution if the
institution permits an individual who is on the National disqualified
list to serve in a principal capacity for the institution or one of its
facilities.
(B) Principal for a sponsored facility. As noted in Sec. 226.16(b)
and paragraphs (b)(1)(xii) and (b)(2)(ii) of this section, a sponsoring
organization is prohibited from submitting an application on behalf of a
sponsored facility (or a State agency from approving such an
application) if any of the facility's principals are on the National
disqualified list.
(C) Serving as a day care home. As noted in Sec. 226.16(b) and
paragraphs (b)(1)(xii) and (b)(2)(ii) of this section, a sponsoring
organization is prohibited from submitting an application on behalf of a
sponsored facility (and a State agency is prohibited from approving such
an application) if the facility is on the National disqualified list.
(v) Removal of institutions, principals, and individuals from the
list. Once included on the National disqualified list, an institution
and responsible principals and responsible individuals remain on the
list until such time as FNS, in consultation with the appropriate State
agency, determines that
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the serious deficiency(ies) that led to their placement on the list
has(ve) been corrected, or until seven years have elapsed since they
were disqualified from participation. However, if the institution,
principal or individual has failed to repay debts owed under the
Program, they will remain on the list until the debt has been repaid.
(vi) Removal of day care homes from the list. Once included on the
National disqualified list, a day care home will remain on the list
until such time as the State agency determines that the serious
deficiency(ies) that led to its placement on the list has(ve) been
corrected, or until seven years have elapsed since its agreement was
terminated for cause. However, if the day care home has failed to repay
debts owed under the Program, it will remain on the list until the debt
has been repaid.
(8) State agency list--(i) Maintenance of the State agency list. The
State agency must maintain a State agency list (in the form of an actual
paper or electronic list or retrievable paper records). The list must be
made available to FNS upon request, and must include the following
information:
(A) Institutions determined to be seriously deficient by the State
agency, including the names and mailing addresses of the institutions
and the status of the institutions as they move through the possible
subsequent stages of corrective action, proposed termination,
suspension, agreement termination, and/or disqualification, as
applicable;
(B) Responsible principals and individuals who have been
disqualified from participation by the State agency, including their
names, mailing addresses, and dates of birth; and
(C) Day care home providers whose agreements have been terminated
for cause by a sponsoring organization in the State, including their
names, mailing addresses, and dates of birth.
(ii) Referral of disqualified day care homes to FNS. Within 10 days
of receiving a notice of termination and disqualification from a
sponsoring organization, the State agency must provide the appropriate
FNSRO the name, mailing address, and date of birth of each day care home
provider whose agreement is terminated for cause on or after July 29,
2002.
(iii) Prior lists of disqualified day care homes. If on July 29,
2002 the State agency maintains a list of day care homes that have been
disqualified from participation, the State agency may continue to
prohibit participation by those day care homes. However, the State
agency must remove a day care home from its prior list no later than the
time at which the State agency determines that the serious
deficiency(ies) that led to the day care home's placement on the list
has(ve) been corrected or July 29, 2009 (unless the day care home has
failed to repay debts owed under the Program). If the day care home has
failed to repay its debt, the State agency may keep the day care home on
its prior list until the debt has been repaid.
(d) Licensing/approval for institutions or facilities providing
child care. This section prescribes State agency responsibilities to
ensure that child care centers, at-risk afterschool care centers,
outside-school-hours care centers, and day care homes meet the
licensing/approval criteria set forth in this part. Emergency shelters
are exempt from licensing/approval requirements contained in this
section but must meet the requirements of paragraph (d)(2) to be
eligible to participate in the Program. Independent centers shall submit
such documentation to the State agency on their own behalf.
(1) General. Each State agency must establish procedures to annually
review information submitted by institutions to ensure that all
participating child care centers, at-risk afterschool care centers,
outside-school hours care centers, and day care homes:
(i) Are licensed or approved by Federal, State, or local
authorities, provided that institutions that are approved for Federal
programs on the basis of State or local licensing are not eligible for
the Program if their licenses lapse or are terminated; or
(ii) Are complying with applicable procedures to renew licensing or
approval in situations where the State agency has no information that
licensing or approval will be denied; or
(iii) Demonstrate compliance with applicable State or local child
care
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standards to the State agency, if licensing is not available; or
(iv) Demonstrate compliance with CACFP child care standards to the
State agency, if licensing or approval is not available; or
(v) If Federal, State or local licensing or approval is not
otherwise required, at-risk afterschool care centers and outside-school-
hours care centers must meet State or local health and safety standards.
When State or local health and safety standards have not been
established, State agencies are encouraged to work with appropriate
State and local officials to create such standards. Meeting these
standards will remain a precondition for any afterschool center's
eligibility for CACFP nutrition benefits.
(2) Health and safety requirements for emergency shelters. To be
eligible to participate in the Program, emergency shelters must meet
applicable State or local health and safety standards.
(3) CACFP child care standards. When licensing or approval is not
available, independent child care centers, and sponsoring organizations
on behalf of their child care centers or day care homes, may elect to
demonstrate compliance, annually, with the following CACFP child care
standards or other standards specified in paragraph (d)(4) of this
section:
(i) Staff/child ratios. (A) Day care homes provide care for no more
than 12 children at any one time. One home caregiver is responsible for
no more than 6 children ages 3 and above, or no more than 5 children
ages 0 and above. No more than 2 children under the age of 3 are in the
care of 1 caregiver. The home provider's own children who are in care
and under the age of 14 are counted in the maximum ratios of caregivers
to children.
(B) Child care centers do not fall below the following staff/child
ratios:
(1) For children under 6 weeks of age--1:1;
(2) For children ages 6 weeks up to 3 years--1:4;
(3) For children ages 3 years up to 6 years--1:6;
(4) For children ages 6 years up to 10 years--1:15; and
(5) For children ages 10 and above--1:20.
(ii) Nondiscrimination. Day care services are available without
discrimination on the basis of race, color, national origin, sex, age,
or handicap.
(iii) Safety and sanitation. (A) A current health/sanitation permit
or satisfactory report of an inspection conducted by local authorities
within the past 12 months shall be submitted.
(B) A current fire/building safety permit or satisfactory report of
an inspection conducted by local authorities within the past 12 months
shall be submitted.
(C) Fire drills are held in accordance with local fire/building
safety requirements.
(iv) Suitability of facilities. (A) Ventilation, temperature, and
lighting are adequate for children's safety and comfort.
(B) Floors and walls are cleaned and maintained in a condition safe
for children.
(C) Space and equipment, including rest arrangements for preschool
age children, are adequate for the number of age ranges of participating
children.
(v) Social services. Independent centers, and sponsoring
organizations in coordination with their facilities, have procedures for
referring families of children in care to appropriate local health and
social service agencies.
(vi) Health services. (A) Each child is observed daily for
indications of difficulties in social adjustment, illness, neglect, and
abuse, and appropriate action is initiated.
(B) A procedure is established to ensure prompt notification of the
parent or guardian in the event of a child's illness or injury, and to
ensure prompt medical treatment in case of emergency.
(C) Health records, including records of medical examinations and
immunizations, are maintained for each enrolled child. (Not applicable
to day care homes.)
(D) At least one full-time staff member is currently qualified in
first aid, including artificial respiration techniques. (Not applicable
to day care homes.)
(E) First aid supplies are available.
(F) Staff members undergo initial and periodic health assessments.
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(vii) Staff training. The institution provides for orientation and
ongoing training in child care for all caregivers.
(viii) Parental involvement. Parents are afforded the opportunity to
observe their children in day care.
(ix) Self-evaluation. The institution has established a procedure
for periodic self-evaluation on the basis of CACFP child care standards.
(4) Alternate approval procedures. Each State agency shall establish
procedures to review information submitted by institutions for centers
or homes for which licensing or approval is not available in order to
establish eligibility for the Program. Licensing or approval is not
available when (i) no Federal, State, or local licensing/approval
standards have been established for child care centers, or day care
homes; or (ii) no mechanism exists to determine compliance with
licensing/approval standards. In these situations, independent centers,
and sponsoring organizations on behalf of their facilities, may choose
to demonstrate compliance with either CACFP child care standards,
applicable State child care standards, or applicable local child care
standards. State agencies shall provide information about applicable
State child care standards and CACFP child care standards to
institutions, but may require institutions electing to demonstrate
compliance with applicable local child care standards to identify and
submit these standards. The State agency may permit independent centers,
and sponsoring organizations on behalf of their facilities, to submit
self-certification forms, and may grant approval without first
conducting a compliance review at the center or facility. But the State
agency shall require submission of health/sanitation and fire/safety
permits or certificates for all independent centers and facilities
seeking alternate child care standards approval. Compliance with
applicable child care standards are subject to review in accordance with
Sec. 226.6(o).
(e) Licensing/approval for adult day care centers. This paragraph
prescribes State agency responsibilities to ensure that adult day care
centers meet the licensing/approval criteria set forth in this part.
Sponsoring organizations shall submit to the State agency documentation
that facilities under their jurisdiction are in compliance with
licensing/approval requirements. Independent adult day care centers
shall submit such documentation to the State agency on their own behalf.
Each State agency shall establish procedures to annually review
information submitted by institutions to ensure that all participating
adult day care centers either:
(1) Are licensed or approved by Federal, State or local authorities,
provided that institutions which are approved for Federal programs on
the basis of State or local licensing shall not be eligible for the
Program if their licenses lapse or are terminated; or
(2) Are complying with applicable procedures to renew licensing or
approval in situations where the State agency has no information that
licensing or approval will be denied.
(f) Miscellaneous responsibilities. State agencies must require
institutions to comply with the applicable provisions of this part and
must provide or collect the information specified in this paragraph (f).
(1) Annual responsibilities. In addition to its other
responsibilities under this part, each State agency must annually:
(i) Inform institutions that are pricing programs of their
responsibility to ensure that free and reduced-price meals are served to
participants unable to pay the full price;
(ii) Provide to all institutions a copy of the income standards to
be used by institutions for determining the eligibility of participants
for free and reduced-price meals under the Program;
(iii) Require centers to submit current eligibility information on
enrolled participants, in order to calculate a blended rate or claiming
percentage in accordance with Sec. 226.9(b);
(iv) Require each sponsoring organization to submit an
administrative budget with sufficiently detailed information concerning
projected CACFP administrative earnings and expenses, as well as other
non-Program funds to be used in Program administration, for the State
agency to determine the allowability, necessity, and reasonableness of
all proposed expenditures, and to assess the sponsoring organization's
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capability to manage Program funds. The administrative budget must
demonstrate that the sponsoring organization will expend and account for
funds in accordance with regulatory requirements, FNS Instruction 796-2
(Financial Management--Child and Adult Care Food Program), 2 CFR part
200, subpart D, and USDA implementing regulations 2 CFR part 400 and
part 415, and applicable Office of Management and Budget circulars. The
administrative budget submitted by a sponsoring organization of centers
must demonstrate that the administrative costs to be charged to the
Program do not exceed 15 percent of the meal reimbursements estimated or
actually earned during the budget year, unless the State agency grants a
waiver, as described in Sec. 226.7(g). For sponsoring organizations of
day care homes seeking to carry over administrative funds, as described
in Sec. 226.12(a)(3), the budget must include an estimate of requested
administrative fund carryover amounts and a description of proposed
purpose for which those funds would be obligated or expended.
(v) Require each institution to issue a media release, unless the
State agency has issued a Statewide media release on behalf of all its
institutions;
(vi) Require each independent center to provide information
concerning its licensing/approval status, and require each sponsoring
organization to provide information concerning the licensing/approval
status of its facilities, unless the State agency has other means of
confirming the licensing/approval status of any independent center or
facility providing care;
(vii) Require each sponsoring organization to submit verification
that all facilities under its sponsorship have adhered to the training
requirements set forth in Program regulations; and
(viii) Comply with the following requirements for tiering of day
care homes:
(A) Coordinate with the State agency that administers the National
School Lunch Program (the NSLP State agency) to ensure the receipt of a
list of schools in the State in which at least one-half of the children
enrolled are certified eligible to receive free or reduced-price meals.
The State agency must provide the list of schools to sponsoring
organizations of day care homes by February 15 each year unless the NSLP
State agency has elected to base data for the list on a month other than
October. In that case, the State agency must provide the list to
sponsoring organizations of day care homes within 15 calendar days of
its receipt from the NSLP State agency.
(B) For tiering determinations of day care homes that are based on
school or census data, the State agency must ensure that sponsoring
organizations of day care homes use the most recent available data, as
described in Sec. 226.15(f).
(C) For tiering determinations of day care homes that are based on
the provider's household income, the State agency must ensure that
sponsoring organizations annually determine the eligibility of each day
care home, as described in Sec. 226.15(f).
(D) The State agency must provide all sponsoring organizations of
day care homes in the State with a listing of State-funded programs,
participation in which by a parent or child will qualify a meal served
to a child in a tier II home for the tier I rate of reimbursement.
(E) The State agency must require each sponsoring organization of
family day care homes to submit to the State agency a list of family day
care home providers receiving tier I benefits on the basis of their
participation in the SNAP. Within 30 days of receiving this list, the
State agency will provide this list to the State agency responsible for
the administration of the SNAP.
(ix) Comply with the following requirements for determining the
eligibility of at-risk afterschool care centers:
(A) Coordinate with the NSLP State agency to ensure the receipt of a
list of schools in the State in which at least one-half of the children
enrolled are certified eligible to receive free or reduced-price meals.
The State agency must provide the list of schools to independent at-risk
afterschool care centers and sponsoring organizations of at-risk
afterschool care centers upon request. The list must represent data from
the preceding October, unless the NSLP State agency has elected to base
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data for the list on a month other than October. If the NSLP State
agency chooses a month other than October, it must do so for the entire
State.
(B) The State agency must determine the area eligibility for each
independent at-risk afterschool care center. The State agency must use
the most recent data available, as described in Sec.
226.6(f)(1)(ix)(A). The State agency must use attendance area
information that it has obtained, or verified with the appropriate
school officials to be current, within the last school year.
(C) The State agency must determine the area eligibility of each
sponsored at-risk afterschool care center based on the documentation
submitted by the sponsoring organization in accordance with Sec.
226.15(g).
(D) The State agency must determine whether the afterschool care
programs of at-risk afterschool care centers meet the requirements of
Sec. 226.17a(b) before the centers begin participating in the Program.
(2) Responsibilities at other time intervals--(i) Day care home
tiering redeterminations based on school data. As described in Sec.
226.15(f), tiering determinations are valid for five years if based on
school data. The State agency must ensure that the most recent available
data is used if the determination of a day care home's eligibility as a
tier I day care home is made using school data. The State agency must
not routinely require annual redeterminations of the tiering status of
tier I day care homes based on updated school data. However, a
sponsoring organization, the State agency, or FNS may change the
determination if information becomes available indicating that a day
care home is no longer in a qualified area.
(ii) Area eligibility redeterminations for at-risk afterschool care
centers. Area eligibility determinations are valid for five years for
at-risk afterschool care centers that are already participating in the
Program. The State agency may determine the date in the fifth year when
the next five-year cycle of area eligibility will begin. The State
agency must redetermine the area eligibility for each independent at-
risk afterschool care center in accordance with Sec.
226.6(f)(1)(ix)(B). The State agency must redetermine the area
eligibility of each sponsored at-risk afterschool care center based on
the documentation submitted by the sponsoring organization in accordance
with Sec. 226.15(g). The State agency must not routinely require annual
redeterminations of area eligibility based on updated school data during
the five-year period, except in cases where the State agency has
determined it is most efficient to incorporate area eligibility
decisions into the three-year application cycle. However, a sponsoring
organization, the State agency, or FNS may change the determination if
information becomes available indicating that an at-risk afterschool
care center is no longer area eligible.
(iii) State agency transmittal of census data. Upon receipt of
census data from FNS (on a decennial basis), the State agency must
provide each sponsoring organization of day care homes with census data
showing areas in the State in which at least 50 percent of the children
are from households meeting the income standards for free or reduced-
price meals.
(iv) Additional institution requirements. At intervals and in a
manner specified by the State agency, but not more frequently than
annually, the State agency may:
(A) Require independent centers to submit a budget with sufficiently
detailed information and documentation to enable the State agency to
make an assessment of the independent center's qualifications to manage
Program funds. Such budget must demonstrate that the independent center
will expend and account for funds in accordance with regulatory
requirements, FNS Instruction 796-2 (``Financial Management in the Child
and Adult Care Food Program''), and 2 CFR part 200, subpart D and USDA
implementing regulations 2 CFR part 400 and part 415 and applicable
Office of Management and Budget circulars;
(B) Request institutions to report their commodity preference;
(C) Require a private nonprofit institution to submit evidence of
tax exempt status in accordance with Sec. 226.15(a);
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(D) Require for-profit institutions to submit documentation on
behalf of their centers of:
(1) Eligibility of at least 25 percent of children in care (enrolled
or licensed capacity, whichever is less) for free or reduced-price
meals; or
(2) Compensation received under title XX of the Social Security Act
of nonresidential day care services and certification that at least 25
percent of children in care (enrolled or licensed capacity, whichever is
less) were title XX beneficiaries during the most recent calendar month.
(E) Require for-profit adult care centers to submit documentation
that they are currently providing nonresidential day care services for
which they receive compensation under title XIX or title XX of the
Social Security Act, and certification that not less than 25 percent of
enrolled participants in each such center during the most recent
calendar month were title XIX or title XX beneficiaries;
(F) Request each institution to indicate its choice to receive all,
part or none of advance payments, if the State agency chooses to make
advance payments available; and
(G) Perform verification in accordance with Sec. 226.23(h) and
paragraph (m)(4) of this section. State agencies verifying the
information on free and reduced-price applications must ensure that
verification activities are conducted without regard to the
participant's race, color, national origin, sex, age, or disability.
(g) Program expansion. Each State agency must take action to expand
the availability of benefits under this Program, and must conduct
outreach to potential sponsoring organizations of family day care homes
that might administer the Program in low-income or rural areas.
(h) Commodity distribution. The State agency must require new
institutions to state their preference to receive commodities or cash-
in-lieu of commodities when they apply, and may periodically inquire as
to participating institutions' preference to receive commodities or
cash-in-lieu of commodities. State agencies must annually provide
institutions with information on foods available in plentiful supply,
based on information provided by the Department. Each institution
electing cash-in-lieu of commodities shall receive such payments. Each
institution which elects to receive commodities shall have commodities
provided to it unless the State agency, after consultation with the
State commodity distribution agency, demonstrates to FNS that
distribution of commodities to the number of such institutions would be
impracticable. The State agency may then, with the concurrence of FNS,
provide cash-in-lieu of commodities for all institutions. A State agency
request for cash-in-lieu of all commodities shall be submitted to FNS
not later than May 1 of the school year preceding the school year for
which the request is made. The State agency shall, by June 1 of each
year, submit a list of institutions which have elected to receive
commodities to the State commodity distribution agency, unless FNS has
approved a request for cash-in-lieu of commodities for all institutions.
The list shall be accompanied by information on the average daily number
of lunches and suppers to be served to participants by each such
institution.
(i) Standard contract. Each State agency shall develop a standard
contract in accordance with Sec. 226.21 and provide for its use between
institutions and food service management companies. The contract shall
expressly and without exception stipulate:
(1) The institution shall provide the food service management
company with a list of the State agency approved child care centers, day
care homes, adult day care centers, and outside-school-hours care
centers to be furnished meals by the food service management company,
and the number of meals, by type, to be delivered to each location;
(2) The food service management company shall maintain such records
(supported by invoices, receipts or other evidence) as the institution
will need to meet its responsibilities under this part, and shall
promptly submit invoices and delivery reports to the institution no less
frequently than monthly;
(3) The food service management company shall have Federal, State or
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local health certification for the plant in which it proposes to prepare
meals for use in the Program, and it shall ensure that health and
sanitation requirements are met at all times. In addition, the State
agency may require the food service management company to provide for
meals which it prepares to be periodically inspected by the local health
department or an independent agency to determine bacteria levels in the
meals being prepared. These bacteria levels shall conform to the
standards which are applied by the local health authority with respect
to the level of bacteria which may be present in meals prepared or
served by other establishments in the locality. Results of these
inspections shall be submitted to the institution and to the State
agency;
(4) The meals served under the contract shall conform to the cycle
menus upon which the bid was based, and to menu changes agreed upon by
the institution and food service management company;
(5) The books and records of the food service management company
pertaining to the institution's food service operation shall be
available for inspection and audit by representatives of the State
agency, of the Department, and of the U.S. General Accounting Office at
any reasonable time and place, for a period of 3 years from the date of
receipt of final payment under the contract, or in cases where an audit
requested by the State agency or the Department remains unresolved,
until such time as the audit is resolved;
(6) The food service management company shall operate in accordance
with current Program regulations;
(7) The food service management company shall not be paid for meals
which are delivered outside of the agreed upon delivery time, are
spoiled or unwholesome at the time of delivery, or do not otherwise meet
the meal requirements contained in the contract;
(8) Meals shall be delivered in accordance with a delivery schedule
prescribed in the contract;
(9) Increases and decreases in the number of meal orders may be made
by the institution, as needed, within a prior notice period mutually
agreed upon in the contract;
(10) All meals served under the Program shall meet the requirements
of Sec. 226.20;
(11) All breakfasts, lunches, and suppers delivered for service in
outside-school-hours care centers shall be unitized, with or without
milk, unless the State agency determines that unitization would impair
the effectiveness of food service operations. For meals delivered to
child care centers and day care homes, the State agency may require
unitization, with or without milk, of all breakfasts, lunches, and
suppers only if the State agency has evidence which indicates that this
requirement is necessary to ensure compliance with Sec. 226.20.
(j) Procurement provisions. State agencies must require institutions
to adhere to the procurement provisions set forth in Sec. 226.22 and
must determine that all meal procurements with food service management
companies are in conformance with bid and contractual requirements of
Sec. 226.22.
(k) Administrative reviews for institutions and responsible
principals and responsible individuals--(1) General. The State agency
must develop procedures for offering administrative reviews to
institutions and responsible principals and responsible individuals. The
procedures must be consistent with paragraph (k) of this section.
(2) Actions subject to administrative review. Except as provided in
Sec. 226.8(g), the State agency must offer an administrative review for
the following actions:
(i) Application denial. Denial of a new or renewing institution's
application for participation (see paragraph (b) of this section, on
State agency review of an institution's application; and paragraphs
(c)(1) and (c)(2) of this section, on State agency denial of a new or
renewing institution's application);
(ii) Denial of sponsored facility application. Denial of an
application submitted by a sponsoring organization on behalf of a
facility;
(iii) Notice of proposed termination. Proposed termination of an
institution's agreement (see paragraphs (c)(2)(iii)(C), (c)(3)(iii)(C),
and (c)(5)(i)(B) of this section, dealing with
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proposed termination of agreements with renewing institutions,
participating institutions, and participating institutions suspended for
health or safety violations);
(iv) Notice of proposed disqualification of a responsible principal
or responsible individual. Proposed disqualification of a responsible
principal or responsible individual (see paragraphs (c)(1)(iii)(C),
(c)(2)(iii)(C), (c)(3)(iii)(C), and (c)(5)(i)(B) of this section,
dealing with proposed disqualification of responsible principals or
responsible individuals in new, renewing, and participating
institutions, and participating institutions suspended for health or
safety violations);
(v) Suspension of participation. Suspension of an institution's
participation (see paragraphs (c)(5)(i)(B) and (c)(5)(ii)(D) of this
section, dealing with suspension for health or safety reasons or
submission of a false or fraudulent claim);
(vi) Start-up or expansion funds denial. Denial of an institution's
application for start-up or expansion payments (see Sec. 226.7(h));
(vii) Advance denial. Denial of a request for an advance payment
(see Sec. 226.10(b));
(viii) Recovery of advances. Recovery of all or part of an advance
in excess of the claim for the applicable period. The recovery may be
through a demand for full repayment or an adjustment of subsequent
payments (see Sec. 226.10(b)(3));
(ix) Claim denial. Denial of all or a part of an institution's claim
for reimbursement (except for a denial based on a late submission under
Sec. 226.10(e)) (see Sec. Sec. 226.10(f) and 226.14(a));
(x) Claim deadline exceptions and requests for upward adjustments to
a claim. Decision by the State agency not to forward to FNS an exception
request by an institution for payment of a late claim, or a request for
an upward adjustment to a claim (see Sec. 226.10(e));
(xi) Overpayment demand. Demand for the remittance of an overpayment
(see Sec. 226.14(a)); and
(xii) Other actions. Any other action of the State agency affecting
an institution's participation or its claim for reimbursement.
(3) Actions not subject to administrative review. The State agency
is prohibited from offering administrative reviews of the following
actions:
(i) FNS decisions on claim deadline exceptions and requests for
upward adjustments to a claim. A decision by FNS to deny an exception
request by an institution for payment of a late claim, or for an upward
adjustment to a claim (see Sec. 226.10(e));
(ii) Determination of serious deficiency. A determination that an
institution is seriously deficient (see paragraphs (c)(1)(iii)(A),
(c)(2)(iii)(A), (c)(3)(iii)(A), and (c)(5)(i)(B) of this section,
dealing with proposed disqualification of responsible principals or
responsible individuals in new, renewing, and participating
institutions, and participating institutions suspended for health or
safety violations);
(iii) State agency determination that corrective action is
inadequate. A determination by the State agency that the corrective
action taken by an institution or by a responsible principal or
individual does not completely and permanently correct a serious
deficiency;
(iv) Disqualification and placement on State agency list and
National disqualified list. Disqualification of an institution or a
responsible principal or responsible individual, and the subsequent
placement on the State agency list and the National disqualified list
(see paragraphs (c)(1)(iii)(E), (c)(2)(iii)(E), (c)(3)(iii)(E), and
(c)(5)(i)(C) of this section, dealing with proposals to disqualify
related to new, renewing, and participating institutions, and in
institutions suspended for health or safety violations);
(v) Termination. Termination of a participating institution's
agreement, including termination of a participating institution's
agreement based on the disqualification of the institution by another
State agency or FNS (see paragraphs (c)(3)(i) and (c)(7)(ii) of this
section);
(vi) State agency or FNS decision regarding removal from the
National disqualified list. A determination, by either the State agency
or by FNS, that the corrective action taken by an institution or a
responsible principal or individual is not adequate to warrant the
removal of the institution or the responsible principal or individual
from the National disqualified list; or
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(vii) State agency's refusal to consider an application submitted by
an institution or facility on the National disqualified list. The State
agency's refusal to consider an institution's application when either
the institution or one of its principals is on the National disqualified
list, or the State agency's refusal to consider an institution's
submission of an application on behalf of a facility when either the
facility or one of its principals is on the National disqualified list.
(4) Provision of administrative review procedures to institutions
and responsible principals and responsible individuals. The State
agency's administrative review procedures must be provided:
(i) Annually to all institutions;
(ii) To an institution and to each responsible principal and
responsible individual when the State agency takes any action subject to
an administrative review as described in paragraph (k)(2) of this
section; and
(iii) Any other time upon request.
(5) Procedures. Except as described in paragraph (k)(9) of this
section, which sets forth the circumstances under which an abbreviated
administrative review is held, the State agency must follow the
procedures in this paragraph (k)(5) when an institution or a responsible
principal or responsible individual appeals any action subject to
administrative review as described in paragraph (k)(2) of this section.
(i) Notice of action. The institution's executive director and
chairman of the board of directors, and the responsible principals and
responsible individuals, must be given notice of the action being taken
or proposed, the basis for the action, and the procedures under which
the institution and the responsible principals or responsible
individuals may request an administrative review of the action.
(ii) Time to request administrative review. The request for
administrative review must be submitted in writing not later than 15
days after the date the notice of action is received, and the State
agency must acknowledge the receipt of the request for an administrative
review within 10 days of its receipt of the request. The State agency
must provide a copy of the written request for an administrative review,
including the date of receipt of the request to FNS within 10 days of
its receipt of the request.
(iii) Representation. The institution and the responsible principals
and responsible individuals may retain legal counsel, or may be
represented by another person.
(iv) Review of record. Any information on which the State agency's
action was based must be available to the institution and the
responsible principals and responsible individuals for inspection from
the date of receipt of the request for an administrative review.
(v) Opposition. The institution and the responsible principals and
responsible individuals may refute the findings contained in the notice
of action in person or by submitting written documentation to the
administrative review official. In order to be considered, written
documentation must be submitted to the administrative review official
not later than 30 days after receipt of the notice of action.
(vi) Hearing. A hearing must be held by the administrative review
official in addition to, or in lieu of, a review of written information
only if the institution or the responsible principals and responsible
individuals request a hearing in the written request for an
administrative review. If the institution's representative, or the
responsible principals or responsible individuals or their
representative, fail to appear at a scheduled hearing, they waive the
right to a personal appearance before the administrative review
official, unless the administrative review official agrees to reschedule
the hearing. A representative of the State agency must be allowed to
attend the hearing to respond to the testimony of the institution and
the responsible principals and responsible individuals and to answer
questions posed by the administrative review official. If a hearing is
requested, the institution, the responsible principals and responsible
individuals, and the State agency must be provided with at least 10 days
advance notice of the time and place of the hearing.
(vii) Administrative review official. The administrative review
official must be independent and impartial. This means that, although
the administrative review official may be an employee of the
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State agency, he/she must not have been involved in the action that is
the subject of the administrative review, or have a direct personal or
financial interest in the outcome of the administrative review. The
institution and the responsible principals and responsible individuals
must be permitted to contact the administrative review official directly
if they so desire.
(viii) Basis for decision. The administrative review official must
make a determination based solely on the information provided by the
State agency, the institution, and the responsible principals and
responsible individuals, and based on Federal and State laws,
regulations, policies, and procedures governing the Program.
(ix) Time for issuing a decision. Within 60 days of the State
agency's receipt of the request for an administrative review, the
administrative review official must inform the State agency, the
institution's executive director and chairman of the board of directors,
and the responsible principals and responsible individuals, of the
administrative review's outcome. This timeframe is an administrative
requirement for the State agency and may not be used as a basis for
overturning the State agency's action if a decision is not made within
the specified timeframe. State agencies failing to meet the timeframe
set forth in this paragraph are liable for all valid claims for
reimbursement to aggrieved institutions, as specified in paragraph
(k)(11)(i) of this section.
(x) Final decision. The determination made by the administrative
review official is the final administrative determination to be afforded
the institution and the responsible principals and responsible
individuals.
(6) Federal audit findings. FNS may assert a claim against the State
agency, in accordance with the procedures set forth in Sec. 226.14(c),
when an administrative review results in the dismissal of a claim
against an institution asserted by the State agency based upon Federal
audit findings.
(7) Record of result of administrative reviews. The State agency
must maintain searchable records of all administrative reviews and their
disposition.
(8) Combined administrative reviews for responsible principals and
responsible individuals. The State agency must conduct the
administrative review of the proposed disqualification of the
responsible principals and responsible individuals as part of the
administrative review of the application denial, proposed termination,
and/or proposed disqualification of the institution with which the
responsible principals or responsible individuals are associated.
However, at the administrative review official's discretion, separate
administrative reviews may be held if the institution does not request
an administrative review or if either the institution or the responsible
principal or responsible individual demonstrates that their interests
conflict.
(9) Abbreviated administrative review. The State agency must limit
the administrative review to a review of written submissions concerning
the accuracy of the State agency's determination if the application was
denied or the State agency proposes to terminate the institution's
agreement because:
(i) The information submitted on the application was false (see
paragraphs (c)(1)(ii)(A), (c)(2)(ii)(A), and (c)(3)(ii)(A) of this
section);
(ii) The institution, one of its sponsored facilities, or one of the
principals of the institution or its facilities is on the national
disqualified list (see paragraph (b)(12) of this section);
(iii) The institution, one of its sponsored facilities, or one of
the principals of the institution or its facilities is ineligible to
participate in any other publicly funded program by reason of violation
of the requirements of the program (see paragraph (b)(13) and
(c)(3)(ii)(S) of this section); or
(iv) The institution, one of its sponsored facilities, or one of the
principals of the institution or its facilities has been convicted for
any activity that indicates a lack of business integrity (see paragraphs
(b)(14) and (c)(3)(ii)(T) of this section).
(10) Effect of State agency action. The State agency's action must
remain in effect during the administrative review. The effect of this
requirement on particular State agency actions is as follows.
(i) Overpayment demand. During the period of the administrative
review, the State agency is prohibited from
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taking action to collect or offset the overpayment. However, the State
agency must assess interest beginning with the initial demand for
remittance of the overpayment and continuing through the period of
administrative review unless the administrative review official
overturns the State agency's action.
(ii) Recovery of advances. During the administrative review, the
State agency must continue its efforts to recover advances in excess of
the claim for reimbursement for the applicable period. The recovery may
be through a demand for full repayment or an adjustment of subsequent
payments.
(iii) Program payments. The availability of Program payments during
an administrative review of the denial of a new institution's
application, denial of a renewing institution's application, proposed
termination of a participating institution's agreement, and suspension
of an institution are addressed in paragraphs (c)(1)(iii)(D),
(c)(2)(iii)(D), (c)(3)(iii)(D), (c)(5)(i)(D), and (c)(5)(ii)(E),
respectively, of this section.
(11) State liability for payments. (i) A State agency that fails to
meet the 60-day timeframe set forth in paragraph (k)(5)(ix) of this
section must pay, from non-Federal sources, all valid claims for
reimbursement to the institution during the period beginning on the 61st
day and ending on the date on which the hearing determination is made,
unless FNS determines that an exception should be granted.
(ii) FNS will notify the State agency of its liability for
reimbursement at least 30 days before liability is imposed. The
timeframe for written notice from FNS is an administrative requirement
and may not be used to dispute the State's liability for reimbursement.
(iii) The State agency may submit, for FNS review, information
supporting a request for a reduction in the State's liability, a
reconsideration of the State's liability, or an exception to the 60-day
deadline, for exceptional circumstances. After review of this
information, FNS will recover any improperly paid Federal funds.
(l) Administrative reviews for day care homes--(1) General. The
State agency must ensure that, when a sponsoring organization proposes
to terminate its Program agreement with a day care home for cause, the
day care home is provided an opportunity for an administrative review of
the proposed termination. The State agency may do this either by
electing to offer a State-level administrative review, or by electing to
require the sponsoring organization to offer an administrative review.
The State agency must notify the appropriate FNSRO of its election under
this option, or any change it later makes under this option, by
September 25, 2002 or within 30 days of any subsequent change under this
option. The State agency must make the same election with regard to who
offers the administrative review to any day care home in the Program in
that State. The State agency or the sponsoring organization must develop
procedures for offering and providing these administrative reviews, and
these procedures must be consistent with this paragraph (l).
(2) Actions subject to administrative review. The State agency or
sponsoring organization must offer an administrative review to a day
care home that appeals a notice of intent to terminate their agreement
for cause or a suspension of their participation (see Sec. Sec.
226.16(l)(3)(iii) and (l)(4)(ii)).
(3) Actions not subject to administrative review. Neither the State
agency nor the sponsoring organization is required to offer an
administrative review for reasons other than those listed in paragraph
(l)(2) of this section.
(4) Provision of administrative review procedures to day care homes.
The administrative review procedures must be provided:
(i) Annually to all day care homes;
(ii) To a day care home when the sponsoring organization takes any
action subject to an administrative review as described in paragraph
(l)(2) of this section; and
(iii) Any other time upon request.
(5) Procedures. The State agency or sponsoring organization, as
applicable (depending on the State agency's election pursuant to
paragraph (l)(1) of this section) must follow the procedures in this
paragraph (l)(5) when a day care
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home requests an administrative review of any action described in
paragraph (l)(2) of this section.
(i) Uniformity. The same procedures must apply to all day care
homes.
(ii) Representation. The day care home may retain legal counsel, or
may be represented by another person.
(iii) Review of record and opposition. The day care home may review
the record on which the decision was based and refute the action in
writing. The administrative review official is not required to hold a
hearing.
(iv) Administrative review official. The administrative review
official must be independent and impartial. This means that, although
the administrative review official may be an employee of the State
agency or an employee or board member of the sponsoring organization,
he/she must not have been involved in the action that is the subject of
the administrative review or have a direct personal or financial
interest in the outcome of the administrative review;
(v) Basis for decision. The administrative review official must make
a determination based on the information provided by the sponsoring
organization and the day care home and on Federal and State laws,
regulations, polices, and procedures governing the Program.
(vi) Time for issuing a decision. The administrative review official
must inform the sponsoring organization and the day care home of the
administrative review's outcome within the period of time specified in
the State agency's or sponsoring organization's administrative review
procedures. This timeframe is an administrative requirement for the
State agency or sponsoring organization and may not be used as a basis
for overturning the termination if a decision is not made within the
specified timeframe.
(vii) Final decision. The determination made by the administrative
review official is the final administrative determination to be afforded
the day care home.
(m) Program assistance--(1) General. The State agency must provide
technical and supervisory assistance to institutions and facilities to
facilitate effective Program operations, monitor progress toward
achieving Program goals, and ensure compliance with all requirements of
title VI of the Civil Rights Act of 1964, title IX of the Education
amendments of 1972, section 504 of the Rehabilitation Act of 1973, the
Age Discrimination Act of 1975, and the Department's regulations
concerning nondiscrimination (parts 15, 15a, and 15b of this title). The
State agency must maintain documentation of supervisory assistance
activities, including reviews conducted, corrective actions prescribed,
and follow-up efforts.
(2) Review priorities. In choosing institutions for review, in
accordance with paragraph (m)(6) of this section, the State agency must
target for more frequent review institutions whose prior review included
a finding of serious deficiency.
(3) Review content. As part of its conduct of reviews, the State
agency must assess each institution's compliance with the requirements
of this part pertaining to:
(i) Recordkeeping;
(ii) Meal counts;
(iii) Administrative costs;
(iv) Any applicable instructions and handbooks issued by FNS and the
Department to clarify or explain this part, and any instructions and
handbooks issued by the State agency which are not inconsistent with the
provisions of this part;
(v) Facility licensing and approval;
(vi) Compliance with the requirements for annual updating of
enrollment forms;
(vii) Compliance with the requirements for submitting and ensuring
the accuracy of the annual renewal information;
(viii) If an independent center, observation of a meal service;
(ix) If a sponsoring organization, training and monitoring of
facilities, including the timing of reviews, as described in Sec.
226.16(d)(4)(iii);
(x) If a sponsoring organization, implementation of the household
contact system established by the State agency pursuant to paragraph
(m)(5) of this section;
(xi) If a sponsoring organization of day care homes, the
requirements for classification of tier I and tier II day care homes;
and
(xii) All other Program requirements.
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(4) Review of sponsored facilities. As part of each required review
of a sponsoring organization, the State agency must select a sample of
facilities, in accordance with paragraph (m)(6) of this section. As part
of such reviews, the State agency must conduct verification of Program
applications in accordance with Sec. 226.23(h) and must compare
enrollment and attendance records (except in those outside-school-hours
care centers, at-risk afterschool care centers, and emergency shelters
where enrollment records are not required and the sponsoring
organization's review results for that facility to meal counts submitted
by those facilities for five days.
(5) Household contacts. As part of their monitoring of institutions,
State agencies must establish systems for making household contacts to
verify the enrollment and attendance of participating children. Such
systems must specify the circumstances under which household contacts
will be made, as well as the procedures for conducting household
contacts. In addition, State agencies must establish a system for
sponsoring organizations to use in making household contacts as part of
their review and oversight of participating facilities. Such systems
must specify the circumstances under which household contacts will be
made, as well as the procedures for conducting household contacts. State
agencies must submit to FNSROs, no later than April 1, 2005, the
policies and procedures they have developed governing household contacts
conducted by both the State agency, as part of institution and facility
reviews conducted in accordance with this paragraph (m), and by
sponsoring organizations as part of the facility review process
described in Sec. 226.16(d)(5).
(6) Frequency and number of required institution reviews. The State
agency must annually review at least 33.3 percent of all institutions.
At least 15 percent of the total number of facility reviews required
must be unannounced. The State agency must review institutions according
to the following schedule:
(i) At least once every 3 years, independent centers and sponsoring
organizations that operate 1 to 100 facilities must be reviewed. A
sponsoring organization review must include reviews of 10 percent of the
sponsoring organization's facilities.
(ii) At least once every 2 years, sponsoring organizations that
operate more than 100 facilities, that conduct activities other than
CACFP, that have been identified during a recent review as having
serious management problems, or that are at risk of having serious
management problems must be reviewed. These reviews must include reviews
of 5 percent of the sponsoring organization's first 1,000 facilities and
2.5 percent of the sponsoring organization's facilities in excess of
1,000.
(iii) At least once every 2 years, independent centers that conduct
activities other than CACFP, that have been identified during a recent
review as having serious management problems, or that are at risk of
having serious management problems must be reviewed.
(iv) New sponsoring organizations that operate five or more
facilities must be reviewed within the first 90 days of Program
operations.
(n) Program irregularities. Each State agency shall promptly
investigate complaints received or irregularities noted in connection
with the operation of the Program, and shall take appropriate action to
correct any irregularities. State agencies shall maintain on file
evidence of such investigations and actions. FNS and OIG may make
investigations at the request of the State agency, or whenever FNS or
OIG determines that investigations are appropriate.
(o) Child care standards compliance. The State agency shall, when
conducting administrative reviews of child care centers, and day care
homes approved by the State agency under paragraph (d)(3) of this
section, determine compliance with the child care standards used to
establish eligibility, and the institution shall ensure that all
violations are corrected and the State shall ensure that the institution
has corrected all violations. If violations are not corrected within the
specified timeframe for corrective action, the State agency must issue a
notice of serious deficiency in accordance with paragraph (c) of this
section or
[[Page 238]]
Sec. 226.16(l), as appropriate. However, if the health or safety of the
children is imminently threatened, the State agency or sponsoring
organization must follow the procedures set forth at paragraph (c)(5)(i)
of this section, or Sec. 226.16(l)(4), as appropriate. The State agency
may deny reimbursement for meals served to attending children in excess
of authorized capacity.
(p) Sponsoring organization agreement. (1) Each State agency must
develop and provide for the use of a standard form of written permanent
agreement between each sponsoring organization and the day care homes or
unaffiliated child care centers, outside-school-hours-care centers, at-
risk afterschool care centers, emergency shelters, or adult day care
centers for which it has responsibility for Program operations. The
agreement must specify the rights and responsibilities of both parties.
The State agency may, at the request of the sponsoring organization,
approve an agreement developed by the sponsoring organization. Nothing
in this paragraph limits the ability of the sponsoring organization to
suspend or terminate the permanent agreement, as described in Sec.
226.16(l).
(2) At a minimum, the standard agreement must require day care homes
and centers to:
(i) Allow visits by sponsoring organizations or State agencies to
review meal service and records;
(ii) Promptly inform the sponsoring organization about any change in
its licensing or approval status;
(iii) Meet any State agency approved time limit for submission of
meal records; and
(iv) Distribute to parents a copy of the sponsoring organization's
notice to parents if directed to do so by the sponsoring organization.
(3) The agreement must include the right of day care homes and
centers to receive timely reimbursement. The sponsoring organization
must pay program funds to day care homes and centers within 5 working
days of receipt from the State agency.
(4) The State agency must include in this agreement its policy to
restrict transfers of day care homes among sponsoring organizations. The
policy must restrict the transfers to no more frequently than once per
year, except under extenuating circumstances, such as termination of the
sponsoring organization's agreement or other circumstances defined by
the State agency.
(5) The State agency may, at the request of the sponsoring
organization, approve an agreement developed by the sponsoring
organization.
(q) Following its reviews of institutions and facilities under
Sec. Sec. 226.6(m) and 226.23(h) conducted prior to July 1, 1988, the
State agency shall report data on key elements of program operations on
a form designated by FNS. These key elements include but are not limited
to the program areas of meal requirements, determination of eligibility
for free and reduced price meals, and the accuracy of reimbursement
claims. These forms shall be submitted within 90 days of the completion
of the data collection for the institutions except that, if the State
has elected to conduct reviews of verification separate from its
administrative reviews, the State shall retain data until all key
elements have been reviewed and shall report all data for each
institution on one form within 90 days of the completion of the data
collection for all key elements for that institution. States shall
ensure that all key element data for an institution is collected during
a 12-month period.
(r) WIC program information. State agencies must provide information
on the importance and benefits of the Special Supplemental Nutrition
Program for Women, Infants, and Children (WIC) and WIC income
eligibility guidelines, to participating institutions. In addition, the
State agency must ensure that:
(1) Participating family day care homes and sponsored child care
centers receive this information, and periodic updates of this
information, from their sponsoring organizations or the State agency;
and
(2) The parents of enrolled children also receive this information.
[47 FR 36527, Aug. 20, 1982]
Editorial Note: For Federal Register citations affecting Sec.
226.6, see the List of CFR Sections Affected, which appears in the
Finding Aids section of the printed volume and at www.govinfo.gov.
[[Page 239]]
Sec. 226.7 State agency responsibilities for financial management.
(a) This section prescribes standards of financial management
systems in administering Program funds by the State agency and
institutions.
(b) Financial management system. Each State agency must establish
and maintain an acceptable financial management system, adhere to
financial management standards and otherwise carry out financial
management policies in accordance with 2 CFR parts 200, 400, 415, 416,
417, 418, and 421, and FNS Instruction 796-2, as applicable, and related
FNS guidance to identify allowable Program costs and establish standards
for institutional recordkeeping and reporting. The State agency must
provide guidance on financial management requirements to each
institution.
(1) State agencies must also have a system in place for:
(i) Annually reviewing at least 1 month's bank account activity of
all sponsoring organizations against documents adequate to support that
the financial transactions meet Program requirements. The State agency
may expand the review to examine additional months of bank account
activity if discrepancies are found. If the State agency identifies and
is unable to verify any expenditures that have the appearance of
violating Program requirements, or if the discrepancy is significant,
the State agency must refer the sponsoring organization's bank account
activity to the appropriate State authorities.
(ii) Annually reviewing actual expenditures reported of Program
funds and the amount of meal reimbursement funds retained from centers,
if any, for administrative costs for all sponsoring organizations of
unaffiliated centers. State agencies must reconcile reported
expenditures with Program payments to ensure that funds are fully
accounted for, and use the reported actual expenditures as the basis for
selecting a sample of expenditures for validation. If the State agency
identifies and is unable to verify any expenditures that have the
appearance of violating Program requirements, the State agency must
refer the sponsoring organization's bank account activity to the
appropriate State authorities.
(iii) Monitoring and reviewing the institutions' documentation of
their nonprofit status to ensure that all Program reimbursement funds
are used solely for the conduct of the food service operation or to
improve food service operations, principally for the benefit of children
or adult participants.
(2) The financial management system standards for institutional
recordkeeping and reporting must:
(i) Prohibit claiming reimbursement for meals provided by a child or
an adult participant's family, except as authorized at Sec. Sec.
226.18(e) and 226.20(b)(2), (g)(1)(ii), and (g)(2)(ii); and
(ii) Allow the cost of meals served to adults who perform necessary
food service labor under the Program, except in day care homes.
(c) Management evaluations and audits. State agencies shall provide
FNS with full opportunity to conduct management evaluations (including
visits to institutions and facilities) of all operations of the State
agency under the Program and shall provide OIG with full opportunity to
conduct audits (including visits to institutions and facilities) of all
operations of the State agency under the Program. Within 60 calendar
days of receipt of each management evaluation report, the State agency
shall submit to FNSRO a written plan for correcting serious
deficiencies, including specific timeframes for accomplishing corrective
actions and initiating follow-up efforts. If a State agency makes a
showing of good cause, however, FNS may allow more than 60 days in which
to submit a plan. Each State agency shall make available its records,
including records of the receipt and expenditure of funds, upon request
by FNS or OIG. OIG shall also have the right to make audits of the
records and operation of any institution.
(d) Reports. Each State agency shall submit to FNS the final Report
of the Child and Adult Care Food Program (FNS 44) for each month which
shall be limited to claims submitted in accordance with Sec. 226.10(e)
and which shall be postmarked and/or submitted no later than 90 days
following the last day of the month covered by the report.
[[Page 240]]
States shall not receive Program funds for any month for which the final
report is not submitted within this time limit unless FNS grants an
exception. Upward adjustments to a State agency's report shall not be
made after 90 days from the month covered by the report unless
authorized by FNS. Downward adjustments shall always be made, without
FNS authorization, regardless of when it is determined that such
adjustments are necessary. Adjustments shall be reported to FNS in
accordance with procedures established by FNS. Each State agency shall
also submit to FNS a quarterly Financial Status Report (FNS-777) on the
use of Program funds. Such reports shall be postmarked and/or submitted
no later than 30 days after the end of each fiscal year quarter.
Obligations shall be reported only for the fiscal year in which they
occur. A final Financial Status Report for each fiscal year shall be
postmarked and/or submitted to FNS within 120 days after the end of the
fiscal year. FNS shall not be responsible for reimbursing unpaid Program
obligations reported later than 120 days after the close of the fiscal
year in which they were incurred.
(e) Annual plan. Each State shall submit to the Secretary for
approval by August 15 of each year an annual plan for the use of State
administrative expense funds, including a staff formula for State
personnel.
(f) Rate assignment. Each State agency must require institutions
(other than emergency shelters, at-risk afterschool care centers, and
sponsoring organizations of emergency shelters, at-risk afterschool care
centers, or day care homes) to submit, not less frequently than
annually, information necessary to assign rates of reimbursement as
outlined in Sec. 226.9.
(g) Budget approval. The State agency must review institution
budgets and must limit allowable administrative claims by each
sponsoring organization to the administrative costs approved in its
budget, except as provided in this section. The budget must demonstrate
the institution's ability to manage Program funds in accordance with
this part, FNS Instruction 796-2, 2 CFR part 200, subpart D and USDA
implementing regulations 2 CFR part 400 and part 415, and applicable
Office of Management and Budget circulars. Sponsoring organizations must
submit an administrative budget to the State agency annually, and
independent centers must submit budgets as frequently as required by the
State agency. Budget levels may be adjusted to reflect changes in
Program activities. If the institution does not intend to use non-CACFP
funds to support any required CACFP functions, the institution's budget
must identify a source of non-Program funds that could be used to pay
overclaims or other unallowable costs. If the institution intends to use
any non-Program resources to meet CACFP requirements, these non-Program
funds should be accounted for in the institution's budget, and the
institution's budget must identify a source of non-Program funds that
could be used to pay overclaims or other unallowable costs.
(1) For sponsoring organizations of centers, the State agency is
prohibited from approving the sponsoring organization's administrative
budget, or any amendments to the budget, if the administrative budget
shows the Program will be charged for administrative costs in excess of
15 percent of the meal reimbursements estimated to be earned during the
budget year. However, the State agency may waive this limit if the
sponsoring organization provides justification that it requires Program
funds in excess of 15 percent to pay its administrative costs and if the
State agency is convinced that the institution will have adequate
funding to provide meals meeting the requirements of Sec. 226.20. The
State agency must document all waiver approvals and denials in writing
and provide a copy of all such letters to the appropriate FNSRO.
(2) For sponsoring organizations of day care homes seeking to carry
over administrative funds, as described in Sec. 226.12(a)(3), the State
agency must require the budget to include an estimate of the requested
administrative fund carryover amount and a description of the purpose
for which those funds would be obligated or expended by the end of the
fiscal year following the fiscal year in which they were received. In
approving a carryover request, State
[[Page 241]]
agencies must take into consideration whether the sponsoring
organization has a financial management system that meets Program
requirements and is capable of controlling the custody, documentation,
and disbursement of carryover funds. As soon as possible after fiscal
year close-out, the State agency must require sponsoring organizations
carrying over administrative funds to submit an amended budget for State
agency review and approval. The amended budget must identify the amount
of administrative funds actually carried over and describe the purpose
for which the carry-over funds have been or will be used.
(h) Start-up and expansion payments. Each State agency shall
establish procedures for evaluating requests for start-up and expansion
payments, issuing these payments to eligible sponsoring organizations,
and monitoring the use of these payments.
(i) Advance payments. Each State agency shall establish procedures
for issuing advance payments by the first day of each month and
comparing these payments with earned reimbursement on a monthly basis.
The State agency shall maintain on file a statement of the State's law
and policy governing the use of interest earned on advanced funds by
sponsors, institutions, child care facilities and adult day care
facilities.
(j) Recovery of overpayments. Each State agency must establish
procedures to recover outstanding start-up, expansion, and advance
payments from institutions which, in the opinion of the State agency,
will not be able to earn these payments. In addition, each State agency
must establish procedures to recover administrative funds from
sponsoring organizations of day care homes that are not properly payable
under FNS Instruction 796-2, administrative funds that are in excess of
the 10 percent maximum carryover amount, and carryover amounts that are
not expended or obligated by the end of the fiscal year following the
fiscal year in which they were received.
(k) Claims processing. Each State agency shall establish procedures
for institutions to properly submit claims for reimbursement. Such
procedures must include State agency edit checks, including but not
limited to ensuring that payments are made only for approved meal types
and that the number of meals for which reimbursement is provided does
not exceed the product of the total enrollment times operating days
times approved meal types. All valid claims shall be paid within 45
calendar days of receipt. Within 15 calendar days of receipt of any
incomplete or incorrect claim which must be revised for payment, the
State agency shall notify the institution as to why and how such claim
must be revised. If the State agency disallows partial or full payment
for a claim for reimbursement, it shall notify the institution which
submitted the claim of its right to appeal under Sec. 226.6(k). State
agencies may permit disallowances to be appealed separately from claims
for reimbursement.
(l) Participation controls. The State agency may establish control
procedures to ensure that payment is not made for meals served to
participants attending in excess of the authorized capacity of each
independent center, adult day care facility or child care facility.
[47 FR 36527, Aug. 20, 1982]
Editorial Note: For Federal Register citations affecting Sec.
226.7, see the List of CFR Sections Affected, which appears in the
Finding Aids section of the printed volume and at www.govinfo.gov.
Sec. 226.8 Audits.
(a) Unless otherwise exempt, audits at the State and institution
levels must be conducted in accordance with 2 CFR part 200, subpart F,
Appendices X and XI, Data Collection Form and Compliance Supplement,
respectively and USDA implementing regulations 2 CFR parts 400, 415 and
416. State agencies must establish audit policy for for-profit
institutions. However, the audit policy established by the State agency
must not conflict with the authority of the State agency or the
Department to perform, or cause to be performed, audits, reviews,
agreed-upon procedures engagements, or other monitoring activities.
(b) The funds provided to the State agency under Sec. 226.4(j) may
be made available to institutions to fund a portion of organization-wide
audits made
[[Page 242]]
in accordance with 2 CFR part 200, subpart F and USDA implementing
regulations 2 CFR part 400 and part 415. The funds provided to an
institution for an organization-wide audit must be determined in
accordance with 2 CFR part 200, subpart F and USDA implementing
regulations 2 CFR part 400 and part 415.
(c) Funds provided under Sec. 226.4(j) may be used by the State
agency to conduct program-specific audits of institutions not subject to
organization-wide audits, or for which the State agency considers
program specific audits to be needed. The State agency may use any funds
remaining after all required program-specific audits have been performed
to conduct administrative reviews or agreed-upon procedures engagements
of institutions.
(d) Funds provided under Sec. 226.4(j) may only be obligated during
the fiscal year for which those funds are allocated. If funds provided
under Sec. 226.4(i) are not sufficient to meet the requirements of this
section, the State agency may then use available State administrative
expense funds to conduct audits, provided that the State agency is
arranging for the audits and has not passed the responsibility down to
the institution.
(e) Full use of Federal funds. States and State agencies must
support the full use of Federal funds provided to State agencies under
226.4(j) of this part to support State audit activities, and exclude
such funds from State budget restrictions or limitations, including
hiring freezes, work furloughs, and travel restrictions.
(f) In conducting management evaluations, reviews, or audits in a
fiscal year, the State agency, FNS, or OIG may disregard an overpayment
if the overpayment does not exceed $600. A State agency may establish,
through State law, regulation or procedure, an alternate disregard
threshold that does not exceed $600. This disregard may be made once per
each management evaluation, review, or audit per Program within a fiscal
year. However, no overpayment is to be disregarded where there is
substantial evidence of violations of criminal law or civil fraud
statutes.
(g) While OIG shall rely to the fullest extent feasible upon State
sponsored audits, OIG may, whenever it considers necessary:
(1) Make audits on a statewide basis;
(2) Perform on-site test audits;
(3) Review audit reports and related working papers of audits
performed by or for State agencies.
(h) State agencies are not required to provide a hearing to an
institution for State actions taken on the basis of a Federal audit
determination. If a State agency does not provide a hearing in such
situations, FNS will provide a hearing, upon request, in accordance with
procedures set forth in Sec. 226.6(k).
[47 FR 36527, Aug. 20, 1982, as amended at 50 FR 8580, Mar. 4, 1985; 51
FR 4295, Feb. 4, 1986; 52 FR 5526, Feb. 25, 1987; 53 FR 52590, Dec. 28,
1988; Amdt. 22, 55 FR 1378, Jan. 14, 1990; 67 FR 43490, June 27, 2002;
69 FR 53543, Sept. 1, 2004; 70 FR 43261, July 27, 2005; 71 FR 5, Jan. 3,
2006; 71 FR 30563, May 30, 2006; 72 FR 41607, July 31, 2007; 76 FR
37982, June 29, 2011; 81 FR 66493, Sept. 28, 2016]
Subpart D_Payment Provisions
Sec. 226.9 Assignment of rates of reimbursement for centers.
(a) The State agency shall assign rates of reimbursement, not less
frequently than annually, on the basis of family-size and income
information reported by each institution. However, no rates should be
assigned for emergency shelters and at-risk afterschool care centers.
Assigned rates of reimbursement may be changed more frequently than
annually if warranted by changes in family-size and income information.
Assigned rates of reimbursement shall be adjusted annually to reflect
changes in the national average payment rates.
(b) Except for emergency shelters and at-risk afterschool care
centers, the State agency must either:
(1) Require that institutions submit each month's figures for meals
served daily to participants from families meeting the eligibility
standards for free meals, to participants from families meeting the
eligibility standards for reduced-price meals, and to participants from
families not meeting such guidelines; or
(2) Establish claiming percentages, not less frequently than
annually, for each institution on the basis of the
[[Page 243]]
number of enrolled participants eligible for free, reduced-price, and
paid meals, except that children who only participate in emergency
shelters or the at-risk afterschool care component of the Program must
not be considered to be enrolled participants for the purpose of
establishing claiming percentages; or
(3) Determine a blended per-meal rate of reimbursement, not less
frequently than annually, by adding the products obtained by multiplying
the applicable national average payment rate of reimbursement for each
category (free, reduced-price, paid) by the claiming percentage for that
category.
(c) States have two methods of reimbursing institutions. The method
chosen by the State agency must be applied to all institutions
participating in the Program in that State. These methods are:
(1) Meals times rates payment, which involves reimbursing an
institution for meals served at the assigned rate for each meal. This
method entails no comparison to the costs incurred by the institution
for the meal service; and,
(2) Meals times rates or actual costs, whichever is the lesser,
which involves reimbursing an institution for meals served at the
assigned rate for each meal or at the level of the costs actually
incurred by the institution for the meal service. This method does
entail a comparison of the costs incurred to the meal rates, with the
costs being a limiting factor on the level of reimbursement an
institution may receive.
(d) In those States where the State agency has chosen the option to
implement a meals times rates payment system State-wide, the State
agency may elect to pay an institution's final claim for reimbursement
for the fiscal year at higher reassigned rates of reimbursement for
lunches and suppers; however, the reassigned rates may not exceed the
applicable maximum rates of reimbursement established under Sec.
210.11(b) of the National School Lunch Program regulations. In those
States which use the method of comparing meals times rates or actual
costs, whichever is lesser, the total payments made to an institution
shall not exceed the total net costs incurred for the fiscal year.
[47 FR 36527, Aug. 20, 1982, as amended at 48 FR 21530, May 13, 1983; 53
FR 52590, Dec. 28, 1988; Amdt. 22, 55 FR 1378, Jan. 14, 1990; 71 FR 5,
Jan. 3, 2006; 72 FR 41607, July 31, 2007; 75 FR 16327, Apr. 1, 2010]
Sec. 226.10 Program payment procedures.
(a) If a State agency elects to issue advance payments to all or
some of the participating institutions in the State, it must provide
such advances no later than the first day of each month to those
eligible institutions electing to receive advances in accordance with
Sec. 226.6 (f)(3)(iv)(F). Advance payments shall equal the full level
of claims estimated by the State agency to be submitted in accordance
with paragraph (c) of this section, considering prior reimbursement
claims and other information such as fluctuations in enrollment. The
institution may decline to receive all or any part of the advance.
(b) For each fiscal year, the amount of payment made, including
funds advanced to an institution, shall not exceed the amount of valid
reimbursement claimed by that institution. To ensure that institutions
do not receive excessive advance payments, the State agency shall
observe the following procedures:
(1) After three advance payments have been made to an institution,
the State agency shall ensure that no subsequent advance is made until
the State agency has validated the institution's claim for reimbursement
for the third month prior to the month for which the next advance is to
be paid.
(2) If the State agency has audit or monitoring evidence of
extensive program deficiencies or other reasons to believe that an
institution will not be able to submit a valid claim for reimbursement,
advance payments shall be withheld until the claim is received or the
deficiencies are corrected.
(3) Each month the State agency shall compare incoming claims
against advances to ensure that the level of funds authorized under
paragraph (a) of this section does not exceed the claims for
reimbursement received from the institution. Whenever this process
indicates that excessive advances have been authorized, the State agency
shall
[[Page 244]]
either demand full repayment or adjust subsequent payments, including
advances.
(4) If, as a result of year end reconciliation as required by 2 CFR
part 200, subpart D and USDA implementing regulations 2 CFR part 400 and
part 415, as applicable, the State agency determines that reimbursement
earned by an institution during a fiscal year is less than the amount
paid, including funds advanced to that institution, the State agency
shall demand repayment of the outstanding balance or adjust subsequent
payments.
(c) Claims for Reimbursement must report information in accordance
with the financial management system established by the State agency,
and in sufficient detail to justify the reimbursement claimed and to
enable the State agency to provide the final Report of the Child and
Adult Care Food Program (FNS 44) required under Sec. 226.7(d). In
submitting a Claim for Reimbursement, each institution must certify that
the claim is correct and that records are available to support that
claim.
(1) Prior to submitting its consolidated monthly claim to the State
agency, each sponsoring organization must perform edit checks on each
facility's meal claim. At a minimum, the sponsoring organization's edit
checks must:
(i) Verify that each facility has been approved to serve the types
of meals claimed; and
(ii) Compare the number of children or eligible adult participants
enrolled for care at each facility, multiplied by the number of days on
which the facility is approved to serve meals, to the total number of
meals claimed by the facility for that month. Discrepancies between the
facility's meal claim and its enrollment must be subjected to more
thorough review to determine if the claim is accurate.
(2) Sponsoring organizations of unaffiliated centers must make
available to the State agency an annual report detailing actual
expenditures of Program funds and the amount of meal reimbursement funds
retained from centers, if any, for administrative costs for the year to
which the claims apply. The report must use the same cost categories as
the approved annual budget submitted by the sponsoring organization.
(3) Sponsoring organizations of for-profit child care centers or
for-profit outside-school-hours care centers must submit the number and
percentage of children in care--enrolled or licensed capacity, whichever
is less--that documents that at least 25 percent are eligible for free
or reduced-price meals or are title XX beneficiaries. Sponsoring
organizations must not submit a claim for any for-profit center in which
less than 25 percent of the children in care--enrolled or licensed
capacity, whichever is less--during the claim month were eligible for
free or reduced-price meals or were title XX beneficiaries.
(4) For each month they claim reimbursement, independent for-profit
child care centers and independent for-profit outside-school-hours care
centers must submit the number and percentage of children in care--
enrolled or licensed capacity, whichever is less--that documents at
least 25 percent are eligible for free or reduced-price meals or are
title XX beneficiaries. However, children who only receive at-risk
afterschool meals or snacks must not be considered in determining this
eligibility.
(5) For each month they claim reimbursement, independent for-profit
adult day care centers must submit the percentages of enrolled adult
participants receiving title XIX or title XX benefits for months in
which not less than 25 percent of enrolled adult participants were title
XIX or title XX beneficiaries. For the claim, sponsoring organizations
of adult day care centers must submit the percentage of enrolled adult
participants receiving title XIX or title XX benefits for each center.
Sponsoring organizations must not submit claims for adult day care
centers for months in which less than 25 percent of enrolled adult
participants were title XIX or title XX beneficiaries.
(d) All records to support the claim shall be retained for a period
of three years after the date of submission of the final claim for the
fiscal year to which they pertain, except that if audit findings have
not been resolved, the records shall be retained beyond the
[[Page 245]]
end of the three year period as long as may be required for the
resolution of the issues raised by the audit. All accounts and records
pertaining to the Program shall be made available, upon request, to
representatives of the State agency, of the Department, and of the U.S.
Government Accountability Office for audit or review, at a reasonable
time and place.
(e) Unless otherwise approved by FNS, the Claim for Reimbursement
for any month shall cover only Program operations for that month except
if the first or last month of Program operations in any fiscal year
contains 10 operating days or less, such month may be added to the Claim
for Reimbursement for the appropriate adjacent month; however, Claims
for Reimbursement may not combine operations occurring in two fiscal
years. A final Claim for Reimbursement shall be postmarked and/or
submitted to the State agency not later than 60 days following the last
day of the full month covered by the claim. State agencies may establish
shorter deadlines at their discretion. Claims not postmarked and/or
submitted within 60 days shall not be paid with Program funds unless FNS
determines that an exception should be granted. The State agency shall
promptly take corrective action with respect to any Claim for
Reimbursement as determined necessary through its claim review process
or otherwise. In taking such corrective action, State agencies may make
upward adjustments in Program funds claimed on claims filed within the
60 day deadline if such adjustments are completed within 90 days of the
last day of the claim month and are reflected in the final Report of the
Child and Adult Care Food Programs (FNS-44) for the claim month which is
required under 226.7(d). Upward adjustments in Program funds claimed
which are not reflected in the final FNS-44 for the claim month shall
not be made unless authorized by FNS. Downward adjustments in Program
funds claimed shall always be made without FNS authorization regardless
of when it is determined that such adjustments are necessary.
(f) If, based on the results of audits, investigations, or other
reviews, a State agency has reason to believe that an institution, child
or adult care facility, or food service management company has engaged
in unlawful acts with respect to Program operations, the evidence found
in audits, investigations, or other reviews is a basis for non-payment
of claims for reimbursement.
[47 FR 36527, Aug. 20, 1982, as amended by Amdt. 5, 49 FR 18988, May 4,
1984; 50 FR 26975, July 1, 1985; 53 FR 52590, Dec. 28, 1988; Amdt. 22,
55 FR 1378, Jan. 14, 1990; 62 FR 23618, May 1, 1997; 69 FR 53543, Sept.
1, 2004; 70 FR 43261, July 27, 2005; 71 FR 39519, July 13, 2006; 72 FR
41607, July 31, 2007; 75 FR 16327, Apr. 1, 2010; 76 FR 22798, Apr. 25,
2011; 76 FR 34571, June 13, 2011; 81 FR 66492, Sept. 28, 2016; 88 FR
57855, Aug. 23, 2023]
Sec. 226.11 Program payments for centers.
(a) Requirement for agreements. Payments must be made only to
institutions operating under an agreement with the State agency for the
meal types specified in the agreement served at approved child care
centers, at-risk afterschool care centers, adult day care centers,
emergency shelters, and outside-school-hours care centers. A State
agency may develop a policy under which centers are reimbursed for meals
served in accordance with provisions of the Program in the calendar
month preceding the calendar month in which the agreement is executed,
or the State agency may develop a policy under which centers receive
reimbursement only for meals served in approved centers on and after the
effective date of the Program agreement. If the State agency's policy
permits centers to earn reimbursement for meals served prior to the
execution of a Program agreement, program reimbursement must not be
received by the center until the agreement is executed.
(b) Institutions--(1) Edit checks of sponsored centers. Prior to
submitting its consolidated monthly claim to the State agency, each
sponsoring organization must conduct reasonable edit checks on the
sponsored centers' meal claims, which at a minimum, must include those
edit checks specified at Sec. 226.10(c).
(2) Child and adult care institutions. Each child care institution
and each adult day care institution must report each month to the State
agency the
[[Page 246]]
total number of Program meals, by type (breakfasts, lunches, suppers,
and snacks), served to children or adult participants, respectively,
except as provided in paragraph (b)(3) of this section.
(3) For-profit center exception. For-profit child care centers,
including for-profit at-risk afterschool care centers and outside-
school-hours care centers, must provide the reports required in
paragraph (b)(2) of this section only for calendar months during which
at least 25 percent of the children in care (enrolled or licensed
capacity, whichever is less) were eligible for free or reduced-price
meals or were title XX beneficiaries. However, children who only receive
at-risk afterschool snacks and/or at-risk afterschool meals must not be
considered in determining this eligibility. For-profit adult day care
centers must provide the reports required in paragraph (b)(2) of this
section only for calendar months during which at least 25 percent of
enrolled adult participants were beneficiaries of title XIX, title XX,
or a combination of titles XIX and XX.
(c) Reimbursement--(1) Child and adult care institutions. Each State
agency must base reimbursement to each approved child care center and
adult day care center on actual time of service meal counts of meals, by
type, served to children or adult participants multiplied by the
assigned rates of reimbursement, except as provided in paragraph (c)(4)
of this section. In the case of a sponsoring organization of family day
care homes, each State agency must base reimbursement to each approved
family day care home on daily meal counts recorded by the provider.
(2) At-risk afterschool care institutions. Except as provided in
paragraph (c)(4) of this section, State agencies must base reimbursement
to each at-risk afterschool care center on the number of at-risk
afterschool snacks and/or at-risk afterschool meals that are served to
children.
(3) Emergency shelters. Each State agency must base reimbursement to
each emergency shelter on the number of meals served to children
multiplied by the free rates for meals and snacks.
(4) For-profit center exception. For-profit child care centers,
including for-profit at-risk and outside-school-hours care centers, must
be reimbursed only for the calendar months during which at least 25
percent of the children in care (enrolled or licensed capacity,
whichever is less) were eligible for free or reduced-price meals or were
title XX beneficiaries. However, children who only receive at-risk
afterschool snacks and/or at-risk afterschool meals must not be
considered in determining this eligibility. For-profit adult day care
centers must be reimbursed only for the calendar months during which at
least 25 percent of enrolled adult participants were beneficiaries of
title XIX, title XX, or a combination of titles XIX and XX.
(5) Computation of reimbursement. Except for at-risk afterschool
care centers and emergency shelters, the State agency must compute
reimbursement by either:
(i) Actual counts. Base reimbursement to institutions on actual time
of service counts of meals served, and multiply the number of meals, by
type, served to participants that are eligible to receive free meals,
participants eligible to receive reduced-price meals, and participants
not eligible for free or reduced-price meals by the applicable national
average payment rate; or
(ii) Claiming percentages. Apply the applicable claiming percentage
or percentages to the total number of meals, by type, served to
participants and multiply the product or products by the assigned rate
of reimbursement for each meal type; or
(iii) Blended rates. Multiply the assigned blended per meal rate of
reimbursement by the total number of meals, by type, served to
participants.
(d) Limits on reimbursement. If the State agency elects to reimburse
its institutions according to the lesser of rates or actual costs, total
Program payments to an institution during any fiscal year, including any
cash payments in lieu of commodities, shall not exceed allowable Program
operating and administrative costs, less income to the Program. The
State agency may limit payments for administrative costs to the amount
approved in the
[[Page 247]]
annual administrative budget of the institution. The State agency may
prohibit an institution from using payments for operating costs to pay
for administrative expenses.
(e) Institution recordkeeping. Each institution shall maintain
records as prescribed by the State agency's financial management system.
[47 FR 36527, Aug. 20, 1982, as amended at 48 FR 21530, May 13, 1983; 52
FR 36907, Oct. 2, 1987; 53 FR 52590, Dec. 28, 1988; 62 FR 23618, May 1,
1997; 69 FR 53543, Sept. 1, 2004; 70 FR 43262, July 27, 2005; 71 FR 5,
Jan. 3, 2006; 72 FR 41607, July 31, 2007; 75 FR 16327, Apr. 1, 2010; 76
FR 34571, June 13, 2011]
Sec. 226.12 Administrative payments to sponsoring organizations
for day care homes.
(a) General. Sponsoring organizations of day care homes receive
payments for administrative costs, subject to the following conditions:
(1) Sponsoring organizations will receive reimbursement for the
administrative costs of the sponsoring organization in an amount that is
not less than the product obtained each month by multiplying:
(i) The number of day care homes of the sponsoring organization
submitting a claim for reimbursement during the month, by
(ii) The appropriate administrative rates announced annually in the
Federal Register.
(2) FNS determines administrative reimbursement by annually
adjusting the following base administrative rates, as set forth in Sec.
226.4(i):
(i) Initial 50 day care homes, 42 dollars;
(ii) Next 150 day care homes, 32 dollars;
(iii) Next 800 day care homes, 25 dollars;
(iv) Additional day care homes, 22 dollars.
(3) With State agency approval, a sponsoring organization may carry
over a maximum of 10 percent of administrative funds received under
paragraph (a)(1) of this section for use in the following fiscal year.
If any carryover funds are not obligated or expended in the following
fiscal year, they must be returned to the State agency, as described in
Sec. 226.7(j).
(4) State agencies must recover any administrative funds not
properly payable, as described in FNS Instruction 796-2.
(b) Start-up and expansion payments. (1) Prospective sponsoring
organizations of day care homes, participating sponsoring organizations
of child care centers or outside-school-hours care centers, independent
centers, and participating sponsoring organizations of less than 50
homes which meet the criteria in paragraph (b)(2) of this section shall
be entitled to receive start-up payments to develop or expand successful
Program operations in day care homes. Participating sponsoring
organizations of day care homes which meet the criteria in paragraph
(b)(2) of this section shall be entitled to receive expansion payments
to initiate or expand Program operations in day care homes in low-income
or rural areas. The State agency shall approve start-up payments only
once for any eligible sponsoring organization, but may approve expansion
payments for any eligible sponsoring organization more than once,
provided that: the request must be for expansion into an area(s) other
than that specified in their initial or prior request; and 12 months has
elapsed since the sponsoring organization has satisfied all obligations
under its initial or prior expansion agreement. Eligible sponsoring
organizations which have received start-up payments shall be eligible to
apply for expansion payments at a date no earlier than 12 months after
it has satisfied all its obligations under its start-up agreement with
the State agency.
(2) Sponsoring organizations which apply for start-up or expansion
payments shall evidence:
(i) Public status or tax exempt status under the Internal Revenue
Code of 1986;
(ii) An organizational history of managing funds and ongoing
activities (i.e., administering public or private programs);
(iii) An acceptable and realistic plan for recruiting day care homes
to participate in the Program (such as the method of contacting
providers), which may be based on estimates of the number of day care
homes to be recruited
[[Page 248]]
and information supporting their existence, and in the case of
sponsoring organizations applying for expansion payments, documentation
that the day care homes to be recruited are located in low-income or
rural areas; and
(iv) An acceptable preliminary sponsoring organization management
plan including, but not limited to, plans for preoperational visits and
training.
(3) The State agency shall deny start-up and expansion payments to
applicant sponsoring organizations which fail to meet the criteria of
paragraph (b)(2) of this section or which have not been financially
responsible in the operation of other programs funded by Federal, State,
or local governments. The State agency shall notify the sponsoring
organization of the reasons for denial and allow the sponsoring
organization full opportunity to submit evidence on appeal as provided
for in Sec. 226.6(k). Any sponsoring organization applying for start-up
or expansion funds shall be notified of approval or disapproval by the
State agency in writing within 30 calendar days of filing a complete and
correct application. If a sponsoring organization submits an incomplete
application, the State agency shall notify the sponsoring organization
within 15 calendar days of receipt of the application and shall provide
technical assistance, if necessary, to the sponsoring organization for
the purpose of completing its application.
(4) Sponsoring organizations which apply for and meet the criteria
for start-up or expansion payments shall enter into an agreement with
the State agency. The agreement shall specify:
(i) Activities which the sponsoring organization will undertake to
initiate or expand Program operations in day care homes;
(ii) The amount of start-up or expansion payments to be issued to
the sponsoring organization, together with an administrative budget
detailing the costs which the sponsoring organization shall incur,
document, and claim;
(iii) The time allotted to the sponsoring organization for the
initiation or expansion of Program operations in family day care homes;
(iv) The responsibility of the applicant sponsoring organization to
repay, upon demand by the State agency, start-up or expansion payments
not expended in accordance with the agreement.
(5) Upon execution of the agreement, the State agency shall issue a
start-up or expansion payment to the sponsoring organization in an
amount equal to not less than one, but not more than two month's
anticipated administrative reimbursement to the sponsoring organization
as determined by the State agency. However, no sponsoring organization
may receive start-up or expansion payments for more than 50 day care
homes. Eligible sponsoring organizations with fewer than 50 homes under
their jurisdiction at the time of application for start-up payments may
receive such payments for up to 50 homes, less the number of homes under
their jurisdiction. Eligible sponsoring organizations applying for
expansion funds may receive at a maximum such payments for up to 50
homes at the currently assigned administrative payment for the first 50
homes. In determining the amount of start-up or expansion payments to be
made to a sponsoring organization, the State agency shall consider the
anticipated level of start-up or expansion costs to be incurred by the
sponsoring organization and alternate sources of funds available to the
sponsoring organization.
(6) Upon expiration of the time allotted to the sponsoring
organization for initiating or expanding Program operations in day care
homes, the State agency shall obtain and review documentation of
activities performed and costs incurred by the sponsoring organization
under the terms of the start-up or expansion agreement. If the
sponsoring organization has not made every reasonable effort to carry
out the activities specified in the agreement, the State agency shall
demand repayment of all or part of the payment. The sponsoring
organization may retain start-up or expansion payments for all day
[[Page 249]]
care homes which initiate Program operations. However, no sponsoring
organization may retain any start-up or expansion payments in excess of
its actual costs for the expenditures specified in the agreement.
[47 FR 36527, Aug. 20, 1982; 47 FR 46072, Oct. 15, 1982, as amended at
53 FR 52590, Dec. 28, 1988; 63 FR 9728, Feb. 26, 1998; 67 FR 43490, June
27, 2002; 88 FR 57856, Aug. 23, 2023]
Sec. 226.13 Food service payments to sponsoring organizations
for day care homes.
(a) Payments will be made only to sponsoring organizations operating
under an agreement with the State agency for the meal types specified in
the agreement served to enrolled nonresident children and eligible
enrolled children of day care home providers, at approved day care
homes. Each State agency must base reimbursement to each approved day
care home on daily meal counts recorded by the provider.
(b) Each sponsoring organization shall report each month to the
State agency the total number of meals, by type (breakfasts, lunches,
suppers, and snacks) and by category (tier I and tier II), served to
children enrolled in approved day care homes. Prior to submitting its
consolidated monthly claim to the State agency, each sponsoring
organization must conduct reasonable edit checks on the day care homes'
meal claims which, at a minimum, include those edit checks specified at
Sec. 226.10(c).
(c) Each sponsoring organization shall receive payment for meals
served to children enrolled in approved day care homes at the tier I and
tier II reimbursement rates, as applicable based on daily meal counts
taken in the home, and as established by law and adjusted in accordance
with Sec. 226.4. However, the rates for lunches and suppers shall be
reduced by the value of commodities established under Sec. 226.5(b) for
all sponsoring organizations for day care homes which have elected to
receive commodities. For tier I day care homes, the full amount of food
service payments shall be disbursed to each day care home on the basis
of the number of meals served, by type, to enrolled children. For tier
II day care homes, the full amount of food service payments shall be
disbursed to each day care home on the basis of the number of meals
served to enrolled children by type, and by category (tier I and tier
II) as determined in accordance with paragraphs (d)(2) and (d)(3) of
this section. However, the sponsoring organization may withhold from
Program payments to each home an amount equal to costs incurred for the
provision of Program foodstuffs or meals by the sponsoring organization
on behalf of the home and with the home provider's written consent.
(d) As applicable, each sponsoring organization for day care homes
shall:
(1) Require that tier I day care homes submit the number of meals
served, by type, to enrolled children.
(2) Require that tier II day care homes in which the provider elects
not to have the sponsoring organization identify enrolled children who
are eligible for free or reduced price meals submit the number of meals
served, by type, to enrolled children.
(3) Not more frequently than annually, select one of the methods
described in paragraphs (d)(3) (i)-(iii) of this section for all tier II
day care homes in which the provider elects to have the sponsoring
organization identify enrolled children who are eligible for free or
reduced price meals. In such homes, the sponsoring organization shall
either:
(i) Require that such day care homes submit the number and types of
meals served each day to each enrolled child by name. The sponsoring
organization shall use the information submitted by the homes to produce
an actual count, by type and by category (tier I and tier II), of meals
served in the homes; or
(ii) Establish claiming percentages, not less frequently than
semiannually, for each such day care home on the basis of one month's
data concerning the number of enrolled children determined eligible for
free or reduced-price meals. Sponsoring organizations shall obtain one
month's data by collecting either enrollment lists (which show the name
of each enrolled child in the day care home), or attendance lists (which
show, by days or meals, the rate of participation of each enrolled child
in the day care home). The State agency may require a sponsoring
organization to
[[Page 250]]
recalculate the claiming percentage for any of its day care homes before
the required semiannual calculation if the State agency has reason to
believe that a home's percentage of income-eligible children has changed
significantly or was incorrectly established in the previous
calculation. Under this system, day care homes shall be required to
submit the number of meals served, by type, to enrolled children; or
(iii) Determine a blended per-meal rate of reimbursement, not less
frequently than semiannually, for each such day care home by adding the
products obtained by multiplying the applicable rates of reimbursement
for each category (tier I and tier II) by the claiming percentage for
that category, as established in accordance with paragraph (d)(3)(ii) of
this section. The State agency may require a sponsoring organization to
recalculate the blended rate for any of its day care homes before the
required semiannual calculation if the State agency has reason to
believe that a home's percentage of income-eligible children has changed
significantly or was incorrectly established in the previous
calculation. Under this system, day care homes shall be required to
submit the number of meals served, by type, to enrolled children.
[47 FR 36527, Aug. 20, 1982, as amended at 62 FR 903, Jan. 7, 1997; 62
FR 5519, Feb. 6, 1997; 63 FR 9105, Feb. 24, 1998; 69 FR 53544, Sept. 1,
2004; 72 FR 41603, July 31, 2007; 88 FR 57856, Aug. 23, 2023]
Sec. 226.14 Claims against institutions.
(a) State agencies shall disallow any portion of a claim for
reimbursement and recover any payment to an institution not properly
payable under this part. State agencies may consider claims for
reimbursement not properly payable if an institution does not comply
with the recordkeeping requirements contained in this part. The State
agency may permit institutions to pay overclaims over a period of one or
more years. However, the State agency must assess interest beginning
with the date stipulated in the State agency's demand letter, or 30 days
after the date of the demand letter, whichever date is later. Further,
when an institution requests and is granted an administrative review of
the State agency's overpayment demand, the State agency is prohibited
from taking action to collect or offset the overpayment until the
administrative review is concluded. The State agency must maintain
searchable records of funds recovery activities. If the State agency
determines that a sponsoring organization of centers has spent more than
15 percent of its meal reimbursements for a budget year for
administrative costs (or more than any higher limit established pursuant
to a waiver granted under Sec. 226.7(g)), the State agency must take
appropriate fiscal action. In addition, except with approval from the
appropriate FNSRO, State agencies shall consider claims for
reimbursement not payable when an institution fails to comply with the
recordkeeping requirements that pertain to records directly supporting
claims for reimbursement. Records that directly support claims for
reimbursement include, but are not limited to, daily meal counts, menu
records, and enrollment and attendance records, as required by Sec.
226.15(e). State agencies shall assert overclaims against any sponsoring
organization of day care homes which misclassifies a day care home as a
tier I day care home unless the misclassification is determined to be
inadvertent under guidance issued by FNS. However, the State agency
shall notify the institution of the reasons for any disallowance or
demand for repayment, and allow the institution full opportunity to
submit evidence on appeal as provided for in Sec. 226.6(k). Miminum
State agency collection procedures for unearned payments shall include:
(1) Written demand to the institution for the return of improper
payments; (2) if, after 30 calendar days, the institution fails to remit
full payment or agree to a satisfactory repayment schedule, a second
written demand for the return of improper payments sent by certified
mail return receipt requested; and (3) if, after 60 calendar days, the
institution fails to remit full payment or agree to a satisfactory
repayment schedule, the State agency shall refer the claim against the
institution to appropriate State or Federal authorities for pursuit of
legal remedies.
[[Page 251]]
(b) In the event that the State agency finds that an institution
which prepares its own meals is failing to meet the meal requirements of
Sec. 226.20, the State agency need not disallow payment or collect an
overpayment arising out of such failure if the institution takes such
other action as, in the opinion of the State agency, will have a
corrective effect. However, the State agency shall not disregard any
overpayments or waive collection action arising from the findings of
Federal audits.
(c) If FNS does not concur with the State agency's action in paying
an institution or in failing to collect an overpayment, FNS shall notify
the State agency of its intention to assert a claim against the State
agency. In all such cases, the State agency shall have full opportunity
to submit evidence concerning the action taken. The State agency shall
be liable to FNS for failure to collect an overpayment, unless FNS
determines that the State agency has conformed with this part in issuing
the payment and has exerted reasonable efforts to recover the improper
payment.
[47 FR 36527, Aug. 20, 1982; 47 FR 46072, Oct. 15, 1982, as amended at
50 FR 8580, Mar. 4, 1985; 53 FR 52590, Dec. 28, 1988; 62 FR 903, Jan. 7,
1997; 64 FR 72260, Dec. 27, 1999; 67 FR 43490, June 27, 2002; 69 FR
53544, Sept. 1, 2004; 76 FR 34571, June 13, 2011]
Subpart E_Operational Provisions
Sec. 226.15 Institution provisions.
(a) Tax exempt status. Except for for-profit centers and sponsoring
organizations of such centers, institutions must be public, or have tax
exempt status under the Internal Revenue Code of 1986.
(b) New applications and renewals. Each new institution must submit
to the State agency an application with all information required for its
approval, as set forth in Sec. Sec. 226.6(b)(1) and 226.6(f). This
information must demonstrate that a new institution has the
administrative and financial capability to operate the Program, as
described in the performance standards set forth in Sec.
226.6(b)(1)(xviii). Renewing institutions must annually certify that
they are capable of operating the Program, as set forth in Sec.
226.6(b)(2).
(c) Responsibility. Each institution shall accept final
administrative and financial responsibility for Program operations. No
institution may contract out for management of the Program.
(d) Staffing. Each institution shall provide adequate supervisory
and operational personnel for management and monitoring of the Program.
(e) Recordkeeping. Each institution shall establish procedures to
collect and maintain all program records required under this part, as
well as any records required by the State agency. Failure to maintain
such records shall be grounds for the denial of reimbursement for meals
served during the period covered by the records in question and for the
denial of reimbursement for costs associated with such records. At a
minimum, the following records shall be collected and maintained:
(1) Copies of all applications and supporting documents submitted to
the State agency;
(2) Documentation of the enrollment of each participant at centers
(except for outside-school-hours care centers, emergency shelters, and
at-risk afterschool care centers). All types of centers, except for
emergency shelters and at-risk afterschool care centers, must maintain
information used to determine eligibility for free or reduced-price
meals in accordance with Sec. 226.23(e)(1). For child care centers,
such documentation of enrollment must be updated annually, signed by a
parent or legal guardian, and include information on each child's normal
days and hours of care and the meals normally received while in care.
(3) Documentation of: The enrollment of each child at day care
homes; information used to determine the eligibility of enrolled
providers' children for free or reduced price meals; information used to
classify day care homes as tier I day care homes, including official
source documentation obtained from school officials when the
classification is based on school data; and information used to
determine the eligibility of enrolled children in tier II day care homes
that have been identified as eligible for free or reduced price meals
[[Page 252]]
in accordance with Sec. 226.23(e)(1). Such documentation of enrollment
must be updated annually, signed by a parent or legal guardian, and
include information on each child's normal days and hours of care and
the meals normally received while in care.
(4) Daily records indicating the number of participants in
attendance and the daily meal counts, by type (breakfast, lunch, supper,
and snacks), served to family day care home participants, or the time of
service meal counts, by type (breakfast, lunch, supper, and snacks),
served to center participants. State agencies may require family day
care homes to record meal counts at the time of meal service only in day
care homes providing care for more than 12 children in a single day, or
in day care homes that have been found seriously deficient due to
problems with their meal counts and claims.
(5) Except at day care homes, daily records indicating the number of
meals, by type, served to adults performing labor necessary to the food
service;
(6) Copies of invoices, receipts, or other records required by the
State agency financial management instruction to document:
(i) Administrative costs claimed by the institution;
(ii) Operating costs claimed by the institution except sponsoring
organizations of day care homes; and
(iii) Income to the Program.
(7) Copies of all claims for reimbursement submitted to the State
agency;
(8) Receipts for all Program payments received from the State
agency;
(9) If applicable, information concerning the dates and amounts of
disbursement to each child care facility or adult day care facility
under its auspices;
(10) Copies of menus, and any other food service records required by
the State agency;
(11) If applicable, information concerning the location and dates of
each child care or adult day care facility review, any problems noted,
and the corrective action prescribed and effected;
(12) Information on training session date(s) and location(s), as
well as topics presented and names of participants; and
(13) Documentation of nonprofit food service to ensure that all
Program reimbursement funds are used: (i) Solely for the conduct of the
food service operation; or (ii) to improve such food service operations,
principally for the benefit of the enrolled participants.
(14) For sponsoring organizations, records documenting the
attendance at annual training of each staff member with monitoring
responsibilities. Training must include instruction, appropriate to the
level of staff experience and duties, on the Program's meal patterns,
meal counts, claims submission and claim review procedures,
recordkeeping requirements, and an explanation of the Program's
reimbursement system.
(f) Day care home classifications. Each sponsoring organization of
day care homes shall determine which of the day care homes under its
sponsorship are eligible as tier I day care homes. A sponsoring
organization may use current school or census data provided by the State
agency or free and reduced price applications collected from day care
home providers in making a determination for each day care home. When
using school or census data for making tier I day care home
determinations, a sponsoring organization shall first consult school
data, except in cases in which busing or other bases of attendance, such
as magnet or charter schools, result in school data not being
representative of an attendance area's household income levels. In these
cases, census data should generally be consulted instead of school data.
A sponsoring organization may also use census data if, after reasonable
efforts are made, as defined by the State agency, the sponsoring
organization is unable to obtain local school attendance area
information. A sponsoring organization may also consult census data
after having consulted school data which fails to support a tier I day
care home determination for rural areas with geographically large school
attendance areas, for other areas in which a school's free and reduced
price enrollment is above 40 percent, or in other cases with State
agency approval. However, if a sponsoring organization believes that a
segment of an otherwise eligible school attendance
[[Page 253]]
area is above the criteria for free or reduced price meals, then the
sponsoring organization shall consult census data to determine whether
the homes in that area qualify as tier I day care homes based on census
data. If census data does not support a tier I classification, then the
sponsoring organization shall reclassify homes in segments of such areas
as tier II day care homes unless the individual providers can document
tier I eligibility on the basis of their household income. When making
tier I day care home determinations based on school data, a sponsoring
organization shall use attendance area information that it has obtained,
or verified with appropriate school officials to be current, within the
last school year. Determinations of a day care home's eligibility as a
tier I day care home shall be valid for one year if based on a
provider's household income, five years if based on school data, or
until more current data are available if based on census data. However,
a sponsoring organization, State agency, or FNS may change the
determination if information becomes available indicating that a home is
no longer in a qualified area. The State agency shall not routinely
require annual redeterminations of the tiering status of tier I day care
homes based on updated school data.
(g) Area eligibility determinations for at-risk afterschool care
centers. Sponsoring organizations of at-risk afterschool care centers
must provide information, as required by the State agency, which permits
the State agency to determine whether the centers they sponsor are
located in eligible areas. Such information may include the most recent
free and reduced-price school data available pursuant to Sec.
226.6(f)(1)(ix) and attendance area information that it has obtained, or
verified with the appropriate school officials to be current, within the
last school year.
(h) Payment to employees. No institution that is a sponsoring
organization of family day care homes and that employs more than one
person is permitted to base payment (including bonuses or gratuities) to
its employees, contractors, or family day care home providers solely on
the number of new family day care homes recruited for the sponsoring
organization's Program.
(i) Claims submission. Each institution shall submit claims for
reimbursement to the State agency in accordance with Sec. 226.10.
(j) Program agreement. Each institution shall enter into a Program
agreement with the State agency in accordance with Sec. 226.6(b)(4).
(k) Commodities. Each institution receiving commodities shall ensure
proper commodity utilization.
(l) Special Milk Program. No institution may participate in both the
Child and Adult Care Food Program and the Special Milk Program at the
same time.
(m) Elderly feeding programs. Institutions which are school food
authorities (as defined in part 210 of this chapter) may use facilities,
equipment and personnel supported by funds provided under this part to
support a nonprofit nutrition program for the elderly, including a
program funded under the Older Americans Act of 1965 (42 U.S.C. 3001 et
seq.).
(n) Regulations and guidance. Each institution must comply with all
regulations issued by FNS and the Department, all instructions and
handbooks issued by FNS and the Department to clarify or explain
existing regulations, and all regulations, instructions and handbooks
issued by the State agency that are consistent with the provisions
established in Program regulations.
(o) Information on WIC. Each institution (other than outside-school-
hours care centers, at-risk afterschool care centers, emergency
shelters, and adult day care centers) must ensure that parents of
enrolled children are provided with current information on the benefits
and importance of the Special Supplemental Nutrition Program for Women,
Infants, and Children (WIC) and the eligibility requirements for WIC
participation.
[47 FR 36527, Aug. 20, 1982]
Editorial Note: For Federal Register citations affecting Sec.
226.15, see the List of CFR Sections Affected, which appears in the
Finding Aids section of the printed volume and at www.govinfo.gov.
[[Page 254]]
Sec. 226.16 Sponsoring organization provisions.
(a) Each sponsoring organization shall comply with all provisions of
Sec. 226.15.
(b) Each sponsoring organization must submit to the State agency
with its application all information required for its approval, and the
approval of the facilities under its jurisdiction, as set forth in
Sec. Sec. 226.6(b) and 226.6(f). The application must demonstrate that
the institution has the administrative and financial capability to
operate the Program in accordance with the Program regulations. In
addition to the information required in Sec. Sec. 226.6(b) and
226.6(f), the application must include:
(1) A sponsoring organization management plan and administrative
budget, in accordance with Sec. Sec. 226.6(b)(1)(iv), 226.6(b)(1)(v),
226.6(b)(2)(i), 226.6(f)(2)(i), and 226.7(g), which includes information
sufficient to document the sponsoring organization's compliance with the
performance standards set forth at Sec. 226.6(b)(1)(xviii) and
226.6(b)(2)(vii). As part of its management plan, a sponsoring
organization of day care homes must document that, to perform
monitoring, it will employ the equivalent of one full-time staff person
for each 50 to 150 day care homes it sponsors. As part of its management
plan, a sponsoring organization of centers must document that, to
perform monitoring, it will employ the equivalent of one full-time staff
person for each 25 to 150 centers it sponsors. It is the State agency's
responsibility to determine the appropriate level of staffing for
monitoring for each sponsoring organization, consistent with these
specified ranges and factors that the State agency will use to determine
the appropriate level of monitoring staff for each sponsor. The
monitoring staff equivalent may include the employee's time spent on
scheduling, travel time, review time, follow-up activity, report
writing, and activities related to the annual updating of children's
enrollment forms. Sponsoring organizations that were participating in
the Program on July 29, 2002, were to have submitted, no later than July
29, 2003, a management plan or plan amendment that meets the monitoring
staffing requirement. For sponsoring organizations of centers, the
portion of the administrative costs to be charged to the Program may not
exceed 15 percent of the meal reimbursements estimated or actually
earned during the budget year, unless the State agency grants a waiver
in accordance with Sec. 226.7(g). A sponsoring organization of centers
must include in the administrative budget all administrative costs,
whether incurred by the sponsoring organization or its sponsored
centers. If at any point a sponsoring organization determines that the
meal reimbursements estimated to be earned during the budget year will
be lower than that estimated in its administrative budget, the
sponsoring organization must amend its administrative budget to stay
within the 15 percent limitation (or any higher limit established
pursuant to a waiver granted under Sec. 226.7(g)) or seek a waiver.
Failure to do so will result in appropriate fiscal action in accordance
with Sec. 226.14(a).
(2) An application for participation, or renewal materials, for each
facility accompanied by all necessary supporting documentation;
(3) Timely information concerning the eligibility status of
facilities (such as licensing/approval actions);
(4) For sponsoring organizations applying for initial participation,
if required by State law, regulation, or policy, a bond in the form
prescribed by such law, regulation, or policy;
(5) A copy of the sponsoring organization's notice to parents, in a
form and, to the maximum extent practicable, language easily
understandable by the participant's parents or guardians. The notice
must inform them of their facility's participation in CACFP, the
Program's benefits, the name and telephone number of the sponsoring
organization, and the name and telephone number of the State agency
responsible for administration of CACFP;
(6) If the sponsoring organization chooses to establish procedures
for determining a day care home seriously deficient that supplement the
procedures in paragraph (l) of this section, a copy of those
supplemental procedures. If the State agency has made the sponsoring
organization responsible for the administrative review of a proposed
termination of a day care home's
[[Page 255]]
agreement for cause, pursuant to Sec. 226.6(l)(1), a copy of the
sponsoring organization's administrative review procedures. The
sponsoring organization's supplemental serious deficiency and
administrative review procedures must comply with paragraph (l) of this
section and Sec. 226.6(l);
(7) A copy of their outside employment policy. The policy must
restrict other employment by employees that interferes with an
employee's performance of Program-related duties and responsibilities,
including outside employment that constitutes a real or apparent
conflict of interest;
(8) For sponsoring organizations of day care homes, the name,
mailing address, and date of birth of each provider; and
(9) For sponsoring organizations of unaffiliated centers, the name
and mailing address of each center.
(c) Each sponsoring organization shall accept final administrative
and financial responsibility for food service operations in all
facilities under its jurisdiction.
(d) Each sponsoring organization must provide adequate supervisory
and operational personnel for the effective management and monitoring of
the program at all facilities it sponsors. Each sponsoring organization
must employ monitoring staff sufficient to meet the requirements of
paragraph (b)(1) of this section. At a minimum, Program assistance must
include:
(1) Pre-approval visits to each facility for which application is
made to discuss Program benefits and verify that the proposed food
service does not exceed the capability of the child care facility;
(2) Training on Program duties and responsibilities to key staff
from all sponsored facilities prior to the beginning of Program
operations. At a minimum, such training must include instruction,
appropriate to the level of staff experience and duties, on the
Program's meal patterns, meal counts, claims submission and review
procedures, recordkeeping requirements, and reimbursement system.
Attendance by key staff, as defined by the State agency, is mandatory;
(3) Additional mandatory training sessions, as defined by the State
agency, for key staff from all sponsored facilities not less frequently
than annually. At a minimum, this training must include instruction,
appropriate to the level of staff experience and duties, on the
Program's meal patterns, meal counts, claims submission and review
procedures, recordkeeping requirements, and reimbursement system.
(4)(i) Review elements. Reviews that assess whether the facility has
corrected problems noted on the previous review(s), a reconciliation of
the facility's meal counts with enrollment and attendance records for a
five-day period, as specified in paragraph (d)(4)(ii) of this section,
and an assessment of the facility's compliance with the Program
requirements pertaining to:
(A) The meal pattern;
(B) Licensing or approval;
(C) Attendance at training;
(D) Meal counts;
(E) Menu and meal records; and
(F) The annual updating and content of enrollment forms (if the
facility is required to have enrollment forms on file, as specified in
Sec. Sec. 226.15(e)(2) and 226.15(e)(3)).
(ii) Reconciliation of meal counts. Reviews must examine the meal
counts recorded by the facility for five consecutive days during the
current and/or prior claiming period. For each day examined, reviewers
must use enrollment and attendance records (except in those outside-
school-hours care centers, at-risk afterschool care centers, and
emergency shelters where enrollment records are not required) to
determine the number of participants in care during each meal service
and attempt to reconcile those numbers to the numbers of breakfasts,
lunches, suppers, and/or snacks recorded in the facility's meal count
for that day. Based on that comparison, reviewers must determine whether
the meal counts were accurate. If there is a discrepancy between the
number of participants enrolled or in attendance on the day of review
and prior meal counting patterns, the reviewer must attempt to reconcile
the difference and determine whether the establishment of an overclaim
is necessary.
(iii) Frequency and type of required facility reviews. Sponsoring
organizations must review each facility three times
[[Page 256]]
each year, except as described in paragraph (d)(4)(iv) of this section.
In addition:
(A) At least two of the three reviews must be unannounced;
(B) At least one unannounced review must include observation of a
meal service;
(C) At least one review must be made during each new facility's
first four weeks of Program operations; and
(D) Not more than six months may elapse between reviews.
(E) The timing of unannounced reviews must be varied so that they
are unpredictable to the facility; and
(F) All types of meal service must be subject to review and
sponsoring organizations must vary the meal service reviewed.
(iv) Averaging of required reviews. If a sponsoring organization
conducts one unannounced review of a facility in a year and finds no
serious deficiencies (as described in paragraph (l)(2) of this section,
regardless of the type of facility), the sponsoring organization may
choose not to conduct a third review of the facility that year, and may
make its second review announced, provided that the sponsoring
organization conducts an average of three reviews of all of its
facilities that year, and that it conducts an average of two unannounced
reviews of all of its facilities that year. When the sponsoring
organization uses this averaging provision, and a specific facility
receives two reviews in one review year, its first review in the next
review year must occur no more than nine months after the previous
review.
(v) Follow-up reviews. If, in conducting a facility review, a
sponsoring organization detects one or more serious deficiency, the next
review of that facility must be unannounced. Serious deficiencies are
those described at paragraph (l)(2) of this section, regardless of the
type of facility.
(vi) Notification of unannounced reviews. Sponsoring organizations
of centers must provide each center with written notification of the
right of the sponsoring organization, the State agency, the Department,
and other State and Federal officials to make announced or unannounced
reviews of its operations during the center's normal hours of operation,
and must also notify sponsored centers that anyone making such reviews
must show photo identification that demonstrates that they are employees
of one of these entities. For sponsored centers participating on July
29, 2002, the sponsoring organization was to have provided this notice
no later than August 29, 2002. For sponsored centers that are approved
after July 29, 2002, the sponsoring organization must provide the notice
before meal service under the Program begins. Sponsoring organizations
must provide day care homes notification of unannounced visits in
accordance with Sec. 226.18(b)(1).
(vii) Other requirements pertaining to unannounced reviews.
Unannounced reviews must be made only during the facility's normal hours
of operation, and monitors making such reviews must show photo
identification that demonstrates that they are employees of the
sponsoring organization, the State agency, the Department, or other
State and Federal agencies authorized to audit or investigate Program
operations.
(viii) Imminent threat to health or safety. Sponsoring organizations
that discover in a facility conduct or conditions that pose an imminent
threat to the health or safety of participating children or the public,
must immediately notify the appropriate State or local licensing or
health authorities and take action that is consistent with the
recommendations and requirements of those authorities.
(5) For sponsoring organizations, as part of their monitoring of
facilities, compliance with the household contact requirements
established pursuant to Sec. 226.6(m)(5) of this part.
(e) Each sponsoring organization shall comply with the recordkeeping
requirements established in Sec. Sec. 226.10(d) and 226.15(e) and any
recordkeeping requirements established by the State agency in order to
justify the administrative payments made in accordance with Sec.
226.12(a). Failure to maintain such records shall be grounds for the
denial of reimbursement.
(f) The State agency may require a sponsoring organization to enter
into separate agreements for the administration of separate types of
facilities
[[Page 257]]
(child care centers, day care homes, adult day care centers, emergency
shelters, at-risk afterschool care centers, and outside-school-hours
care centers).
(g) Each sponsoring organization electing to receive advance
payments of program funds for day care homes shall disburse the full
amount of such payments within five working days of receipt from the
State agency. If the sponsor requests the full operating advance to
which it is entitled, the advances to day care homes shall be the full
amount which the sponsor expects the home to earn based on the number of
meals projected to be served to enrolled children during the period
covered by the advance multiplied by the applicable payment rate as
specified in Sec. 226.13(c). If a sponsor elects to receive only a part
of the operating advance to which it is entitled, or if the full
operating advance is insufficient to provide a full advance to each
home, the advance shall be disbursed to its homes in a manner and an
amount the sponsor deems appropriate. Each sponsor shall disburse any
reimbursement payments for food service due to each day care home within
five working days of receipt from the State agency. Such payment shall
be based on the number of meals served to enrolled children at each day
care home, less any payments advanced to such home. However, the
sponsoring organization may withhold from Program payments to each home
an amount equal to food service operating costs incurred by the
sponsoring organization in behalf of the home and with the home
provider's written consent. If payments from the State agency are not
sufficient to provide all day care homes under the sponsoring
organization's jurisdiction with advance payments and reimbursement
payments, available monies shall be used to provide all due
reimbursement payments before advances are disbursed.
(h) Sponsoring organizations shall make payments of program funds to
child care centers, adult day care centers, emergency shelters, at-risk
afterschool care centers, or outside-school-hours care centers within
five working days of receipt from the State agency, on the basis of the
management plan approved by the State agency, and may not exceed the
Program costs documented at each facility during any fiscal year; except
in those States where the State agency has chosen the option to
implement a meals times rates payment system. In those States which
implement this optional method of reimbursement, such disbursements may
not exceed the rates times the number of meals documented at each
facility during any fiscal year.
(i) Disbursements of advance payments may be withheld from
facilities which fail to submit reports required by Sec. 226.15(e).
(j) A for-profit organization shall be eligible to serve as a
sponsoring organization for for-profit centers which have the same legal
identity as the organization, but shall not be eligible to sponsor for-
profit centers which are legally distinct from the organization, day
care homes, or public or private nonprofit centers.
(k) Before sponsoring organizations expend administrative funds to
assist family day care homes in becoming licensed, they shall obtain the
following information from each such home: a completed free and reduced
price application which documents that the provider meets the Program's
income standards; evidence of its application for licensing and official
documentation of the defects that are impeding its licensing approval;
and a completed CACFP application. These funding requests are limited to
$300 per home and are only available to each home once.
(l) Termination of agreements for cause--(1) General. The sponsoring
organization must initiate action to terminate the agreement of a day
care home for cause if the sponsoring organization determines the day
care home has committed one or more serious deficiency listed in
paragraph (l)(2) of this section.
(2) List of serious deficiencies for day care homes. Serious
deficiencies for day care homes are:
(i) Submission of false information on the application;
(ii) Submission of false claims for reimbursement;
(iii) Simultaneous participation under more than one sponsoring
organization;
(iv) Non-compliance with the Program meal pattern;
[[Page 258]]
(v) Failure to keep required records;
(vi) Conduct or conditions that threaten the health or safety of a
child(ren) in care, or the public health or safety;
(vii) A determination that the day care home has been convicted of
any activity that occurred during the past seven years and that
indicated a lack of business integrity. A lack of business integrity
includes fraud, antitrust violations, embezzlement, theft, forgery,
bribery, falsification or destruction of records, making false
statements, receiving stolen property, making false claims, obstruction
of justice, or any other activity indicating a lack of business
integrity as defined by the State agency, or the concealment of such a
conviction;
(viii) Failure to participate in training; or
(ix) Any other circumstance related to non-performance under the
sponsoring organization-day care home agreement, as specified by the
sponsoring organization or the State agency.
(3) Serious deficiency notification procedures. If the sponsoring
organization determines that a day care home has committed one or more
serious deficiency listed in paragraph (l)(2) of this section, the
sponsoring organization must use the following procedures to provide the
day care home notice of the serious deficiency(ies) and offer it an
opportunity to take corrective action. However, if the serious
deficiency(ies) constitutes an imminent threat to the health or safety
of participants, or the day care home has engaged in activities that
threaten the public health or safety, the sponsoring organization must
follow the procedures in paragraph (l)(4) of this section instead of
those in this paragraph (l)(3).
(i) Notice of serious deficiency. The sponsoring organization must
notify the day care home that it has been found to be seriously
deficient. The sponsoring organization must provide a copy of the
serious deficiency notice to the State agency. The notice must specify:
(A) The serious deficiency(ies);
(B) The actions to be taken by the day care home to correct the
serious deficiency(ies);
(C) The time allotted to correct the serious deficiency(ies) (as
soon as possible, but not to exceed 30 days);
(D) That the serious deficiency determination is not subject to
administrative review.
(E) That failure to fully and permanently correct the serious
deficiency(ies) within the allotted time will result in the sponsoring
organization proposed termination of the day care home's agreement and
the proposed disqualification of the day care home and its principals;
and
(F) That the day care home's voluntary termination of its agreement
with the sponsoring organization after having been notified that it is
seriously deficient will still result in the day care home's formal
termination by the sponsoring organization and placement of the day care
home and its principals on the National disqualified list.
(ii) Successful corrective action. If the day care home corrects the
serious deficiency(ies) within the allotted time and to the sponsoring
organization's satisfaction, the sponsoring organization must notify the
day care home that it has temporarily defer its determination of serious
deficiency. The sponsoring organization must also provide a copy of the
notice to the State agency. However, if the sponsoring organization
accepts the provider's corrective action, but later determines that the
corrective action was not permanent or complete, the sponsoring
organization must then propose to terminate the provider's Program
agreement and disqualify the provider, as set forth in paragraph
(l)(3)(iii) of this section.
(iii) Proposed termination of agreement and proposed
disqualification. If timely corrective action is not taken to fully and
permanently correct the serious deficiency(ies) cited, the sponsoring
organization must issue a notice proposing to terminate the day care
home's agreement for cause. The notice must explain the day care home's
opportunity for an administrative review of the proposed termination in
accordance with Sec. 226.6(l). The sponsoring organization must provide
a copy of the notice to the State agency. The notice must:
[[Page 259]]
(A) Inform the day care home that it may continue to participate and
receive Program reimbursement for eligible meals served until its
administrative review is concluded;
(B) Inform the day care home that termination of the day care home's
agreement will result in the day care home's termination for cause and
disqualification; and
(C) State that if the day care home seeks to voluntarily terminate
its agreement after receiving the notice of intent to terminate, the day
care home will still be placed on the National disqualified list.
(iv) Program payments. The sponsoring organization must continue to
pay any claims for reimbursement for eligible meals served until the
serious deficiency(ies) is corrected or the day care home's agreement is
terminated, including the period of any administrative review.
(v) Agreement termination and disqualification. The sponsoring
organization must immediately terminate the day care home's agreement
and disqualify the day care home when the administrative review official
upholds the sponsoring organization's proposed termination and proposed
disqualification, or when the day care home's opportunity to request an
administrative review expires. At the same time the notice is issued,
the sponsoring organization must provide a copy of the termination and
disqualification letter to the State agency.
(4) Suspension of participation for day care homes.
(i) General. If State or local health or licensing officials have
cited a day care home for serious health or safety violations, the
sponsoring organization must immediately suspend the home's CACFP
participation prior to any formal action to revoke the home's licensure
or approval. If the sponsoring organization determines that there is an
imminent threat to the health or safety of participants at a day care
home, or that the day care home has engaged in activities that threaten
the public health or safety, and the licensing agency cannot make an
immediate onsite visit, the sponsoring organization must immediately
notify the appropriate State or local licensing and health authorities
and take action that is consistent with the recommendations and
requirements of those authorities. An imminent threat to the health or
safety of participants and engaging in activities that threaten the
public health or safety constitute serious deficiencies; however, the
sponsoring organization must use the procedures in this paragraph (l)(4)
(and not the procedures in paragraph (l)(3) of this section) to provide
the day care home notice of the suspension of participation, serious
deficiency, and proposed termination of the day care home's agreement.
(ii) Notice of suspension, serious deficiency, and proposed
termination. The sponsoring organization must notify the day care home
that its participation has been suspended, that the day care home has
been determined seriously deficient, and that the sponsoring
organization proposes to terminate the day care home's agreement for
cause, and must provide a copy of the notice to the State agency. The
notice must:
(A) Specify the serious deficiency(ies) found and the day care
home's opportunity for an administrative review of the proposed
termination in accordance with Sec. 226.6(l);
(B) State that participation (including all Program payments) will
remain suspended until the administrative review is concluded;
(C) Inform the day care home that if the administrative review
official overturns the suspension, the day care home may claim
reimbursement for eligible meals served during the suspension;
(D) Inform the day care home that termination of the day care home's
agreement will result in the placement of the day care home on the
National disqualified list; and
(E) State that if the day care home seeks to voluntarily terminate
its agreement after receiving the notice of proposed termination, the
day care home will still be terminated for cause and disqualified.
(iii) Agreement termination and disqualification. The sponsoring
organization must immediately terminate the
[[Page 260]]
day care home's agreement and disqualify the day care home when the
administrative review official upholds the sponsoring organization's
proposed termination, or when the day care home's opportunity to request
an administrative review expires.
(iv) Program payments. A sponsoring organization is prohibited from
making any Program payments to a day care home that has been suspended
until any administrative review of the proposed termination is
completed. If the suspended day care home prevails in the administrative
review of the proposed termination, the sponsoring organization must
reimburse the day care home for eligible meals served during the
suspension period.
(m) Sponsoring organizations of day care homes or unaffiliated
centers must not make payments to employees or contractors solely on the
basis of the number of homes or centers recruited. However, employees or
contractors may be paid or evaluated on the basis of recruitment
activities accomplished.
[47 FR 36527, Aug. 20, 1982; 47 FR 46072, Oct. 15, 1982, as amended at
48 FR 21530, May 13, 1983; 50 FR 8580, Mar. 4, 1985; 50 FR 26975, July
1, 1985; 53 FR 52591, Dec. 28, 1988; 63 FR 9729, Feb. 26, 1998; 64 FR
72260, Dec. 27, 1999; 67 FR 43490, June 27, 2002; 69 FR 53544, Sept. 1,
2004; 71 FR 5, Jan. 3, 2006; 72 FR 41608, July 31, 2007; 76 FR 34571,
June 13, 2011; 78 FR 13451, Feb. 28, 2013; 88 FR 57856, Aug. 23, 2023]
Sec. 226.17 Child care center provisions.
(a) Child care centers may participate in the Program either as
independent centers or under the auspices of a sponsoring organization;
provided, however, that public and private nonprofit centers shall not
be eligible to participate in the Program under the auspices of a for-
profit sponsoring organization. Child care centers participating as
independent centers shall comply with the provisions of Sec. 226.15.
(b) All child care centers, independent or sponsored, shall meet the
following requirements
(1) Child care centers must have Federal, State, or local licensing
or approval to provide day care services to children. Child care
centers, which are complying with applicable procedures to renew
licensing or approval, may participate in the Program during the renewal
process, unless the State agency has information that indicates that
renewal will be denied. If licensing or approval is not available, a
child care center may participate if it demonstrates compliance with the
CACFP child care standards or any applicable State or local child care
standards to the State agency.
(2) Except for for-profit centers, child care centers shall be
public, or have tax exempt status under the Internal Revenue Code of
1986.
(3) Each child care center participating in the Program must serve
one or more of the following meal types--breakfast; lunch; supper; and
snack. Reimbursement must not be claimed for more than two meals and one
snack or one meal and two snacks provided daily to each child.
(4) Each child care center participating in the Program shall claim
only the meal types specified in its approved application in accordance
with the meal pattern requirements specified in Sec. 226.20. For-profit
child care centers may not claim reimbursement for meals served to
children in any month in which less than 25 percent of the children in
care (enrolled or licensed capacity, whichever is less) were eligible
for free or reduced price meals or were title XX beneficiaries. However,
children who only receive at-risk afterschool snacks and/or at-risk
afterschool meals must not be included in this percentage. Menus and any
other nutritional records required by the State agency shall be
maintained to document compliance with such requirements.
(5) A child care center with preschool children may also be approved
to serve a breakfast, snack, and supper to school-age children
participating in an outside-school-hours care program meeting the
criteria of Sec. 226.19(b) that is distinct from its day care program
for preschool-age children. The State agency may authorize the service
of lunch to such participating children who attend a school that does
not offer a lunch program, provided that the limit of two meals and one
snack, or one meal and two snacks, per child per day is not exceeded.
(6) A child care center with preschool children may also be approved
to serve
[[Page 261]]
a snack to school age children participating in an afterschool care
program meeting the requirements of Sec. 226.17a that is distinct from
its day care program for preschool children, provided that the limit of
two meals, and one snack, or one meal and two snacks, per child per day
is not exceeded.
(7) A child care center may utilize existing school food service
facilities or obtain meals from a school food service facility, and the
pertinent requirements of this part shall be embodied in a written
agreement between the child care center and school. The center shall
maintain responsibility for all Program requirements set forth in this
part.
(8) Child care centers shall collect and maintain documentation of
the enrollment of each child, including information used to determine
eligibility for free and reduced price meals in accordance with Sec.
226.23(e)(1). In addition, Head Start participants need only have a Head
Start statement of income eligibility, or a statement of Head Start
enrollment from an authorized Head Start representative, to be eligible
for free meal benefits under the CACFP. Such documentation of enrollment
must be updated annually, signed by a parent or legal guardian, and
include information on each child's normal days and hours of care and
the meals normally received while in care.
(9) Each child care center must maintain daily records of time of
service meal counts by type (breakfast, lunch, supper, and snacks)
served to enrolled children, and to adults performing labor necessary to
the food service.
(10) Each child care center must require key staff, as defined by
the State agency, to attend Program training prior to the center's
participation in the Program, and at least annually thereafter, on
content areas established by the State agency.
(c) Each child care center shall comply with the recordkeeping
requirements established in Sec. 226.10(d), in paragraph (b) of this
section and, if applicable, in Sec. 226.15(e). Failure to maintain such
records shall be grounds for the denial of reimbursement.
(d) If so instructed by its sponsoring organization, a sponsored
center must distribute to parents a copy of the sponsoring
organization's notice to parents.
(e) Unaffiliated sponsored child care centers must enter into a
written permanent agreement with the sponsoring organization. The
agreement must specify the rights and responsibilities of both parties.
At a minimum, the agreement must include the provisions set forth in
paragraph (b) of this section.
(f) Independent child care centers must enter into a written
permanent agreement with the State agency. The agreement must specify
the rights and responsibilities of both parties as required by Sec.
226.6(b)(4). At a minimum, the agreement must include the provisions set
forth in paragraph (b) of this section.
[47 FR 36527, Aug. 20, 1982, as amended at 52 FR 36907, Oct. 2, 1987; 53
FR 52591, Dec. 28, 1988; 54 FR 26724, June 26, 1989; Amdt. 22, 55 FR
1378, Jan. 14, 1990; 61 FR 25554, May 22, 1996; 62 FR 23619, May 1,
1997; 63 FR 9729, Feb. 26, 1998; 64 FR 72261, Dec. 27, 1999; 67 FR
43493, June 27, 2002; 69 FR 53546, Sept. 1, 2004; 70 FR 43262, July 27,
2005; 72 FR 41608, July 31, 2007; 75 FR 16328, Apr. 1, 2010; 78 FR
13451, Feb. 28, 2013; 88 FR 57856, Aug. 23, 2023]
Sec. 226.17a At-risk afterschool care center provisions.
(a) Organizations eligible to receive reimbursement for at-risk
afterschool snacks and at-risk afterschool meals--(1) Eligible
organizations. To receive reimbursement for at-risk afterschool snacks,
organizations must meet the criteria in paragraphs (a)(1)(i) through
(a)(1)(iv) of this section. To receive reimbursement for at-risk
afterschool meals, organizations must meet the criteria in paragraphs
(a)(1)(i) through (a)(1)(v) of this section.
(i) Organizations must meet the definition of an At-risk afterschool
care center in Sec. 226.2. An organization may participate in the
Program either as an independent center or as a child care facility
under the auspices of a sponsoring organization. Public and private
nonprofit centers may not participate under the auspices of a for-profit
sponsoring organization.
(ii) Organizations must operate an eligible afterschool care
program, as described in paragraph (b) of this section.
[[Page 262]]
(iii) Organizations must meet the licensing/approval requirements in
Sec. 226.6(d)(1).
(iv) Except for for-profit centers, at-risk afterschool care centers
must be public, or have tax-exempt status under the Internal Revenue
Code of 1986 or be currently participating in another Federal program
requiring nonprofit status.
(v) Organizations eligible to be reimbursed for at-risk afterschool
meals must be located in one of the eligible States designated by law or
selected by the Secretary as directed by law.
(2) Limitations. (i) To be reimbursed for at-risk afterschool snacks
and/or at-risk afterschool meals, all organizations must:
(A) Serve the at-risk afterschool snacks and/or at-risk afterschool
meals to children who are participating in an approved afterschool care
program; and
(B) Not exceed the authorized capacity of the at-risk afterschool
care center.
(ii) In any calendar month, a for-profit center must be eligible to
participate in the Program as described in the definition of For-profit
center in Sec. 226.2. However, children who only receive at-risk
afterschool snacks and/or at-risk afterschool meals must not be
considered in determining this eligibility.
(b) Eligible at-risk afterschool care programs--(1) Eligible
programs. To be eligible for reimbursement, an afterschool care program
must:
(i) Be organized primarily to provide care for children after school
or on weekends, holidays, or school vacations during the regular school
year (an at-risk afterschool care center may not claim snacks during
summer vacation, unless it is located in the attendance area of a school
operating on a year-round calendar);
(ii) Have organized, regularly scheduled activities (i.e., in a
structured and supervised environment);
(iii) Include education or enrichment activities; and
(iv) Except for Emergency shelters as defined in Sec. 226.2, be
located in an eligible area, as described in paragraph (i) of this
section.
(2) Eligibility limitation. Organized athletic programs engaged in
interscholastic or community level competitive sports are not eligible
afterschool care programs.
(c) Eligibility requirements for children. At-risk afterschool
snacks and/or at-risk afterschool meals are reimbursable only if served
to children who are participating in an approved afterschool care
program and who either are age 18 or under at the start of the school
year or meet the definition of Persons with disabilities in Sec. 226.2.
(d) Licensing requirements for at-risk afterschool care centers. In
accordance with Sec. 226.6(d)(1), if Federal, State or local licensing
or approval is not otherwise required, at-risk afterschool care centers
must meet State or local health and safety standards. When State or
local health and safety standards have not been established, State
agencies are encouraged to work with appropriate State and local
officials to create such standards. Meeting these standards will remain
a precondition for any afterschool center's eligibility for CACFP
nutrition benefits. In cases where Federal, State or local licensing or
approval is required, at-risk afterschool care centers that are
complying with applicable procedures to renew licensing or approval may
participate in the Program during the renewal process, unless the State
agency has information that indicates the renewal will be denied.
(e) Application procedures--(1) Application. An official of the
organization must make written application to the State agency for any
afterschool care program that it wants to operate as an at-risk
afterschool care center.
(2) Required information. At a minimum, an organization must submit:
(i) An indication that the applicant organization meets the
eligibility criteria for organizations as specified in paragraph (a) of
this section;
(ii) A description of how the afterschool care program(s) meets the
eligibility criteria in paragraph (b) of this section;
(iii) In the case of a sponsoring organization, a list of all
applicant afterschool care centers;
(iv) Documentation that permits the State agency to confirm that all
applicant afterschool care centers are located in an eligible area, as
described in paragraph (i) of this section; and
[[Page 263]]
(v) Other information required as a condition of eligibility in the
CACFP must be submitted with an application for participation in
accordance with Sec. 226.6(b)(1).
(f) State agency action on applications--(1) State agency approval.
The State agency must determine the eligibility of the afterschool care
program for each sponsored afterschool care center based on the
information submitted by the sponsoring organization in accordance with
Sec. Sec. 226.6(b)(1) and 226.15(g) and the requirements of this
section. The State agency must determine the eligibility of the
afterschool care programs of independent afterschool care centers based
on the information submitted by the independent center in accordance
with Sec. 226.6(b)(1) and the requirements of this section. The State
agency must determine the area eligibility of independent at-risk
afterschool care centers in accordance with the requirements of Sec.
226.6(f)(1)(ix)(B). An approved organization must enter into an
agreement with the State agency as described in paragraph (f)(2) of this
section.
(2) Agreements. The State agency must enter into a permanent
agreement with an institution approved to operate one or more at-risk
afterschool care centers, as described in Sec. 226.6(b)(4). The
agreement must describe the approved afterschool care programs and list
the approved centers. The agreement must also require the institution to
comply with the applicable requirements of this part 226.
(i) Unaffiliated sponsored afterschool care centers must enter into
a written permanent agreement with the sponsoring organization. The
agreement must specify the rights and responsibilities of both parties.
At a minimum, the agreement must include the applicable provisions set
forth in this section.
(ii) Independent afterschool care centers must enter into a written
permanent agreement with the State agency. The agreement must specify
the rights and responsibilities of both parties as required by Sec.
226.6(b)(4). At a minimum, the agreement must include the applicable
provisions set forth in this section.
(g) Application process in subsequent years. To continue
participating in the Program, independent at-risk afterschool care
centers must comply with the annual information submission requirements,
as described in Sec. Sec. 226.6(b)(2)(i) and (f)(3)(ii). Sponsoring
organizations of at-risk afterschool care centers must comply with the
annual information submission requirements, as described in in Sec.
226.6(b)(2)(ii), and provide area eligibility data, as described in
Sec. 226.15(g).
(h) Changes to participating centers. Independent at-risk
afterschool care centers or sponsors of at-risk afterschool care centers
must advise the State agency of any substantive changes to the
afterschool care program. Sponsoring organizations that want to add new
at-risk afterschool care centers must provide the State agency with the
information sufficient to demonstrate that the new centers meet the
requirements of this section.
(i) Area eligibility. Except for emergency shelters, at-risk
afterschool care centers must be located in an area described in
paragraph (a) of the Eligible area definition in Sec. 226.2 and in
paragraph (i)(1) of this section.
(1) Definition. An at-risk afterschool care center is in an eligible
area if it is located in the attendance area of a school in which at
least 50 percent of the enrolled children are certified eligible for
free or reduced-price school meals.
(2) Data used. Area eligibility determinations must be based on the
total number of children approved for free and reduced-price school
meals for the preceding October, or another month designated by the
State agency that administers the National School Lunch Program (the
NSLP State agency). If the NSLP State agency chooses a month other than
October, it must do so for the entire State.
(3) Frequency of area eligibility determinations. Area eligibility
determinations are valid for five years. The State agency may determine
the date in the fifth year in which the next five-year cycle of area
eligibility will begin. The State agency must not routinely require
redeterminations of area eligibility based on updated school data during
the five-year period, except in
[[Page 264]]
cases where the State agency has determined it is most efficient to
incorporate area eligibility decisions into the three-year application
cycle. However, a sponsoring organization, the State agency, or FNS may
change the determination of area eligibility if information becomes
available indicating that an at-risk afterschool care center is no
longer area eligible.
(j) Cost of at-risk afterschool snacks and meals. All at-risk
afterschool snacks and at-risk afterschool meals served under this
section must be provided at no charge to participating children.
(k) Limit on daily reimbursements. Only one at-risk afterschool
snack and, in eligible States, one at-risk afterschool meal per child
per day may be claimed for reimbursement. An at-risk afterschool care
center that provides care to a child under another component of the
Program during the same day may not claim reimbursement for more than
two meals and one snack, or one meal and two snacks, per child per day,
including the at-risk afterschool snack and the at-risk afterschool
meal. All meals and snacks must be claimed in accordance with the
requirements for the applicable component of the Program.
(l) Meal pattern requirements for at-risk afterschool snacks and at-
risk afterschool meals. At-risk afterschool snacks must meet the meal
pattern requirements for snacks in Sec. 226.20(b)(6) and/or (c)(4); at-
risk afterschool meals must meet the meal pattern requirements for meals
in Sec. 226.20(b)(6) and/or (c)(1), (c)(2), or (c)(3).
(m) Time periods for snack and meal services--(1) At-risk
afterschool snacks. When school is in session, the snack must be served
after the child's school day. With State agency approval, the snack may
be served at any time on weekends and vacations during the regular
school year. Afterschool snacks may not be claimed during summer
vacation, unless an at-risk afterschool care center is located in the
attendance area of a school operating on a year-round calendar.
(2) At-risk afterschool meals. When school is in session, the meal
must be served after the child's school day. With State agency approval,
any one meal may be served (breakfast, lunch, or supper) per day on
weekends and vacations during the regular school year. Afterschool meals
may not be claimed during summer vacation, unless an at-risk afterschool
care center is located in the attendance area of a school operating on a
year-round calendar.
(n) Reimbursement rates. At-risk afterschool snacks are reimbursed
at the free rate for snacks. At-risk afterschool meals are reimbursed at
the respective free rates for breakfast, lunch, or supper
(o) Recordkeeping requirements. In addition to the other records
required by this part, at-risk afterschool care centers must maintain:
(1) Daily attendance rosters, sign-in sheets or, with State agency
approval, other methods which result in accurate recording of daily
attendance;
(2) The number of at-risk afterschool snacks prepared or delivered
for each snack service and/or, in eligible States, the number of at-risk
afterschool meals prepared or delivered for each meal service;
(3) The number of at-risk afterschool snacks served to participating
children for each snack service and/or, in eligible States, the number
of at-risk afterschool meals served to participating children for each
meal service; and
(4) Menus for each at-risk afterschool snack service and each at-
risk afterschool meal service.
(p) Reporting requirements. In addition to other reporting
requirements under this part, at-risk afterschool care centers must
report the total number of at-risk afterschool snacks and/or (in
eligible States) the total number of at-risk afterschool meals served to
eligible children based on daily attendance rosters or sign-in sheets.
(q) Monitoring requirements. State agencies must monitor independent
centers in accordance with Sec. 226.6(m). Sponsoring organizations of
at-risk afterschool care centers must monitor their centers in
accordance with Sec. 226.16(d)(4).
[72 FR 41608, July 31, 2007, as amended at 75 FR 16328, Apr. 1, 2010; 78
FR 13451, Feb. 28, 2013; 88 FR 57856, Aug. 23, 2023]
[[Page 265]]
Sec. 226.18 Day care home provisions.
(a) Day care homes shall have current Federal, State or local
licensing or approval to provide day care services to children. Day care
homes which cannot obtain their license because they lack the funding to
comply with licensing standards may request a total limit per home of
$300 in administrative funds from a sponsoring organization to assist
them in obtaining their license. Day care homes that, at the option of
their sponsoring organization, receive administrative funds for
licensing-related expenses must complete documentation requested by
their sponsor as described in Sec. 226.16(k) prior to receiving any
funds. The agreement must be signed by the sponsoring organization and
the provider and must include the provider's full name, mailing address,
and date of birth. Day care homes which are complying with applicable
procedures to renew licensing or approval may participate in the Program
during the renewal process, unless the State agency has information
which indicates that renewal will be denied. If licensing or approval is
not available, a day care home may participate in the Program if:
(1) It receives title XX funds for providing child care; or
(2) It demonstrates compliance with CACFP child care standards or
applicable State or local child care standards to the State agency.
(b) Day care homes participating in the program shall operate under
the auspices of a public or private nonprofit sponsoring organization.
Sponsoring organizations shall enter into a written permanent agreement
with each sponsored day care home which specifies the rights and
responsibilities of both parties. Nothing in the preceding sentence
shall be construed to limit the ability of the sponsoring organization
to suspend or terminate the permanent agreement in accordance with Sec.
226.16(l). This agreement shall be developed by the State agency, unless
the State agency elects, at the request of the sponsor, to approve an
agreement developed by the sponsor. At a minimum, the agreement shall
embody:
(1) The right of the sponsoring organization, the State agency, the
Department, and other State and Federal officials to make announced or
unannounced reviews of the day care home's operations and to have access
to its meal service and records during normal hours of operation.
(2) The responsibility of the sponsoring organization to require key
staff, as defined by the State agency, to receive Program training prior
to the day care home's participation in the Program, and at least
annually thereafter, on content areas established by the State agency,
and the responsibility of the day care home to participate in that
training;
(3) The responsibility of the day care home to prepare and serve
meals which meet the meal patterns specified in Sec. 226.20;
(4) The responsibility of the day care home to maintain records of
menus, and of the number of meals, by type, served to enrolled children;
(5) The responsibility of the day care home to promptly inform the
sponsoring organization about any change in the number of children
enrolled for care or in its licensing or approval status;
(6) The meal types approved for reimbursement to the day care home
by the State agency;
(7) The right of the day care home to receive in a timely manner the
full food service rate for each meal served to enrolled children for
which the sponsoring organization has received payment from the State
agency. However, if, with the home provider's consent, the sponsoring
organization will incur costs for the provision of program foodstuffs or
meals in behalf of the home, and subtract such costs from Program
payments to the home, the particulars of this arrangement shall be
specified in the agreement. The sponsoring organization must not
withhold Program payments to any family day care home for any other
reason, except that the sponsoring organization may withhold from the
provider any amounts that the sponsoring organization has reason to
believe are invalid, due to the provider having submitted a false or
erroneous meal count;
[[Page 266]]
(8) The right of the sponsoring organization or the day care home to
terminate the agreement for cause or, subject to stipulations by the
State agency, convenience;
(9) A prohibition of any sponsoring organization fee to the day care
home for its Program administrative services;
(10) If the State agency has approved a time limit for submission of
meal records by day care homes, that time limit shall be stated in the
agreement;
(11) The responsibility of the sponsoring organization to inform
tier II day care homes of all of their options for receiving
reimbursement for meals served to enrolled children. These options
include:
(i) Receiving tier I rates for the meals served to eligible enrolled
children, by electing to have the sponsoring organization identify all
income-eligible children through the collection of free and reduced-
price applications and the sponsoring organization or day care home's
possession of other proof of a child or household's participation in a
categorically eligible program;
(ii) Receiving tier I rates for the meals served to eligible
enrolled children, by electing to have the sponsoring organization
identify only those children for whom the sponsoring organization or day
care home possess documentation of the child or household's
participation in a categorically eligible program, under the expanded
categorical eligibility provision, as described in Sec. 226.23(e)(1);
or
(iii) Receiving tier II rates of reimbursement for all meals served
to enrolled children;
(12) The responsibility of the sponsoring organization, upon the
request of a tier II day care home, to collect applications and
determine the eligibility of enrolled children for free or reduced price
meals;
(13) The right of the tier II day care home to assist in collecting
applications from households and transmitting the applications to the
sponsoring organization. However, a tier II day care home may not review
the collected applications. The sponsoring organizations may prohibit a
tier II day care home from assisting in collection and transmittal of
applications if the day care home does not comply with the process, as
described in Sec. 226.23(e)(2)(viii);
(14) The State agency's policy to restrict transfers of day care
homes between sponsoring organizations;
(15) The responsibility of the day care home to notify their
sponsoring organization in advance whenever they are planning to be out
of their home during the meal service period. The agreement must also
state that, if this procedure is not followed and an unannounced review
is conducted when the children are not present in the day care home,
claims for meals that would have been served during the unannounced
review will be disallowed;
(16) The day care home's opportunity to request an administrative
review if a sponsoring organization issues a notice of proposed
termination of the day care home's Program agreement, or if a sponsoring
organization suspends participation due to health and safety concerns,
in accordance with Sec. 226.6(1)(2); and
(17) If so instructed by its sponsoring organization, the day care
home's responsibility to distribute to parents a copy of the sponsoring
organization's notice to parents.
(c) Each day care home must serve one or more of the following meal
types--breakfast, lunch, supper, and snack. Reimbursement may not be
claimed for more than two meals and one snack, or one meal and two
snacks, provided daily to each child.
(d) Each day care home participating in the program shall serve the
meal types specified in its approved application in accordance with the
meal pattern requirements specified in Sec. 226.20. Menu records shall
be maintained to document compliance with these requirements. Meals
shall be served at no separate charge to enrolled children;
(e) Each day care home must maintain on file documentation of each
child's enrollment and must maintain daily records of the number of
children in attendance and the number of meals, by type, served to
enrolled children. Such documentation of enrollment must be updated
annually, signed by a parent or legal guardian, and include information
on each child's normal
[[Page 267]]
days and hours of care and the meals normally received while in care.
Each tier II day care home in which the provider elects to have the
sponsoring organization identify enrolled children who are eligible for
free or reduced price meals, and in which the sponsoring organization
employs a meal counting and claiming system in accordance with Sec.
226.13(d)(3)(i), shall maintain and submit each month to the sponsoring
organization daily records of the number and types of meals served to
each enrolled child by name. Payment may be made for meals served to the
provider's own children only when (1) such children are enrolled and
participating in the child care program during the time of the meal
service, (2) enrolled nonresident children are present and participating
in the child care program and (3) providers' children are eligible to
receive free or reduced-price meals. Reimbursement may not be claimed
for meals served to children who are not enrolled, or for meals served
at any one time to children in excess of the home's authorized capacity
or for meals served to providers' children who are not eligible for free
or reduced-price meals.
(f) The State agency may not require a day care home or sponsoring
organization to maintain documentation of home operating costs.
(g) Each day care home shall comply with the recordkeeping
requirements established in Sec. 226.10(d) and in this section. Failure
to maintain such records shall be grounds for the denial of
reimbursement.
[47 FR 36527, Aug. 20, 1982]
Editorial Note: For Federal Register citations affecting Sec.
226.18, see the List of CFR Sections Affected, which appears in the
Finding Aids section of the printed volume and at www.govinfo.gov.
Sec. 226.19 Outside-school-hours care center provisions.
(a) Outside-school-hours care centers may participate in the Program
either as independent centers or under the auspices of a sponsoring
organization; Provided, however, That public and private nonprofit
centers shall not be eligible to participate in the Program under the
auspices of a for-profit sponsoring organization. Outside-school-hours
care centers participating as independent centers shall comply with the
provisions of Sec. 226.15.
(b) All outside-school-hours care centers, independent or sponsored,
shall meet the following requirements:
(1) In accordance with Sec. 226.6(d)(1), if Federal, State or local
licensing or approval is not otherwise required, outside-school-hours
care centers must meet State or local health and safety standards. When
State or local health and safety standards have not been established,
State agencies are encouraged to work with appropriate State and local
officials to create such standards. Meeting these standards will remain
a precondition for any outside-school-hours care center's eligibility
for CACFP nutrition benefits. In cases where Federal, State or local
licensing or approval is required, outside-school-hours care centers
that are complying with applicable procedures to renew licensing or
approval may participate in the Program during the renewal process,
unless the State agency has information that indicates the renewal will
be denied.
(2) Except for for-profit centers, outside-school-hours care centers
shall be public, or have tax-exempt status under the Internal Revenue
Code of 1986.
(3) Nonresidential public or private nonprofit schools which provide
organized child care programs for school children may participate in the
Program as outside-school-hours care centers if:
(i) Children participate in a regularly scheduled program that meets
the criteria of paragraph (b)(1) of this section. The program is
organized for the purpose of providing services to children and is
distinct from any extracurricular programs organized primarily for
scholastic, cultural, or athletic purposes; and
(ii) Separate Program records are maintained.
(4) Outside-school-hours care centers shall be eligible to serve one
or more of the following meal types: breakfasts, snacks and suppers. In
addition, outside-school-hours care centers shall be eligible to serve
lunches to enrolled
[[Page 268]]
children during periods of school vacation, including weekends and
holidays, and to children attending schools which do not offer a lunch
program. Notwithstanding the eligibility of outside-school-hours care
centers to serve Program meals to children on school vacation, including
holidays and weekends, such centers shall not operate under the Program
on weekends only.
(5) Each outside-school-hours care center participating in the
Program shall claim only the meal types specified in its approved
application and served in compliance with the meal pattern requirements
of Sec. 226.20. Reimbursement may not be claimed for more than two
meals and one snack provided daily to each child or for meals served to
children at any one time in excess of authorized capacity. For-profit
centers may not claim reimbursement for meals served to children in any
month in which less than 25 percent of the children in care (enrolled or
licensed capacity, whichever is less) were eligible for free or reduced
price meals or were title XX beneficiaries.
(6) Each outside-school-hours care center must require key
operational staff, as defined by the State agency, to attend Program
training prior to the center's participation in the Program, and at
least annually thereafter, on content areas established by the State
agency. Each meal service must be supervised by an adequate number of
operational personnel who have been trained in Program requirements as
outlined in this section. Operational personnel must ensure that:
(i) Meals are served only to children and to adults who perform
necessary food service labor;
(ii) Meals served to children meet the meal pattern requirements
specified in Sec. 226.20;
(iii) Meals served are consumed on the premises of the centers;
(iv) Accurate records are maintained; and
(v) The number of meals prepared or ordered is promptly adjusted on
the basis of participation trends.
(7) Each outside-school-hours care center shall accurately maintain
the following records:
(i) Information used to determine eligibility for free or reduced
price meals in accordance with Sec. 226.23(e)(1);
(ii) Number of meals prepared or delivered for each meal service;
(iii) Daily menu records for each meal service;
(iv) Number of meals served to children at each meal service;
(v) Number of children in attendance during each meal service;
(vi) Number of meals served to adults performing necessary food
service labor for each meal service; and
(vii) All other records required by the State agency financial
management system.
(8) An outside-school-hours care center may utilize existing school
food service facilities or obtain meals from a school food service
facility, and the pertinent requirements of this part shall be embodied
in a written agreement between the outside-school-hours care center and
the school. The center shall maintain responsibility for all Program
requirements set forth in this part.
(c) Each outside-school-hours care center shall comply with the
recordkeeping requirements established in Sec. 226.10(d), in paragraph
(b) of this section and, if applicable, in Sec. 226.15(e). Failure to
maintain such records shall be grounds for the denial of reimbursement.
(d) Unaffiliated sponsored outside-school-hours-care centers must
enter into a written permanent agreement with the sponsoring
organization. The agreement must specify the rights and responsibilities
of both parties. At a minimum, the agreement must include the provisions
set forth in paragraph (b) of this section.
(e) Independent outside-school-hours care centers must enter into a
written permanent agreement with the State agency. The agreement must
specify the rights and responsibilities of both parties as required by
Sec. 226.6(b)(4). At a minimum, the agreement must include
[[Page 269]]
the provisions described in paragraph (b) of this section.
[47 FR 36527, Aug. 20, 1982, as amended at 52 FR 36907, Oct. 2, 1987; 54
FR 26724, June 26, 1989; Amdt. 22, 55 FR 1378, Jan. 14, 1990; 56 FR
58175, Nov. 16, 1991; 61 FR 25554, May 22, 1996; 62 FR 23619, May 1,
1997; 64 FR 72261, Dec. 27, 1999; 67 FR 43493, June 27, 2002; 69 FR
53546, Sept. 1, 2004; 70 FR 43262, July 27, 2005; 72 FR 41603, 41610,
July 31, 2007; 88 FR 57857, Aug. 23, 2023]
Sec. 226.19a Adult day care center provisions.
(a) Adult day care centers may participate in the Program either as
independent centers or under the auspices of a sponsoring organization;
provided, however, that public and private nonprofit centers shall not
be eligible to participate in the Program under the auspices of a for-
profit sponsoring organization. Adult day care centers participating as
independent centers shall comply with the provisions of Sec. 226.15.
(b) All adult day care centers, independent or sponsored, shall meet
the following requirements:
(1) Adult day care centers shall provide a community-based group
program designed to meet the needs of functionally impaired adults
through an individual plan of care. Such a program shall be a
structured, comprehensive program that provides a variety of health,
social and related support services to enrolled adult participants.
(2) Adult day care centers shall provide care and services directly
or under arrangements made by the agency or organization whereby the
agency or organization maintains professional management responsibility
for all such services.
(3) Adult day care centers shall have Federal, State or local
licensing or approval to provide day care services to functionally
impaired adults (as defined in Sec. 226.2) or individuals 60 years of
age or older in a group setting outside their home or a group living
arrangement on a less than 24-hour basis. Adult day care centers which
are complying with applicable procedures to renew licensing or approval
may participate in the Program during the renewal process, unless the
State agency has information which indicates that renewal will be
denied.
(4) Except for for-profit centers, adult day care centers shall be
public, or have tax-exempt status under the Internal Revenue Code of
1986.
(5) Each adult day care center participating in the Program must
serve one or more of the following meal types--breakfast, lunch, supper,
and snack. Reimbursement may not be claimed for more than two meals and
one snack, or one snack and two meals, provided daily to each adult
participant.
(6) Each adult day care center participating in the Program shall
claim only the meal types specified in its approved application in
accordance with the meal pattern requirements specified in Sec. 226.20.
Participating centers may not claim CACFP reimbursement for meals
claimed under part C of title III of the Older Americans Act of 1965.
Reimbursement may not be claimed for meals served to persons who are not
enrolled, or for meals served to participants at any one time in excess
of the center's authorized capacity, or for any meal served at a for-
profit center during a calendar month when less than 25 percent of
enrolled participants were title XIX or title XX beneficiaries. Menus
and any other nutritional records required by the State agency shall be
maintained to document compliance with such requirements.
(7) An adult day care center may obtain meals from a school food
service facility, and the pertinent requirements of this part shall be
embodied in a written agreement between the center and school. The
center shall maintain responsibility for all Program requirements set
forth in this part.
(8) Adult day care centers shall collect and maintain documentation
of the enrollment of each adult participant including information used
to determine eligibility for free and reduced price meals in accordance
with Sec. 226.23(e)(1).
(9) Each adult day care center must maintain daily records of time
of service meal counts by type (breakfast, lunch, supper, and snacks)
served to enrolled participants, and to adults performing labor
necessary to the food service.
[[Page 270]]
(10) Each adult day care center shall maintain records on the age of
each enrolled person. In addition, each adult day care center shall
maintain records which demonstrate that each enrolled person under the
age of 60 meets the functional impairment eligibility requirements
established under the definition of ``functionally impaired adult''
contained in this part. Finally, each adult day care center shall
maintain records which document that qualified adult day care
participants reside in their own homes (whether alone or with spouses,
children or guardians) or in group living arrangements as defined in
Sec. 226.2.
(11) Each adult day care center must require key operational staff,
as defined by the State agency, to attend Program training prior to the
facility's participation in the Program, and at least annually
thereafter, on content areas established by the State agency. Each meal
service must be supervised by an adequate number of operational
personnel who have been trained in Program requirements as outlined in
this section.
(c) Each adult day care center shall comply with the recordkeeping
requirements established in Sec. 226.10(d), in paragraph (b) of this
section and, if applicable, in Sec. 226.15(e). Failure to maintain such
records shall be grounds for the denial of reimbursement.
(d) Unaffiliated sponsored adult day care centers must enter into a
written permanent agreement with the sponsoring organization. The
agreement must specify the rights and responsibilities of both parties.
At a minimum, the agreement must address the provisions set forth in
paragraph (b) this section.
(e) Independent adult day care centers must enter into a written
permanent agreement with the State agency. The agreement must specify
the rights and responsibilities of both parties as required by Sec.
226.6(b)(4). At a minimum, the agreement must include the provisions
described in paragraph (b) of this section.
[53 FR 52591, Dec. 28, 1988, as amended by Amdt. 22, 55 FR 1378, Jan.
14, 1990; 61 FR 25554, May 22, 1996; 62 FR 23619, May 1, 1997; 64 FR
72261, Dec. 27, 1999; 67 FR 43493, June 27, 2002; 69 FR 53546, Sept. 1,
2004; 72 FR 41610, July 31, 2007; 88 FR 57857, Aug. 23, 2023]
Sec. 226.20 Requirements for meals.
(a) Meal components. Except as otherwise provided in this section,
each meal served in the Program must contain, at a minimum, the
indicated components:
(1) Fluid milk. Fluid milk must be served as a beverage or on
cereal, or a combination of both. Lactose-free and reduced-lactose milk
that meet the fat content and flavor specifications for each age group
may also be offered.
(i) Children 1 year old. Unflavored whole milk must be served.
(ii) Children 2 through 5 years old. Either unflavored low-fat (1
percent) or unflavored fat-free (skim) milk must be served.
(iii) Children 6 years old and older. Low-fat (1 percent fat or
less) or fat-free (skim) milk must be served. Milk may be unflavored or
flavored.
(iv) Adults. Low-fat (1 percent fat or less) or fat-free (skim) milk
must be served. Milk may be unflavored or flavored. Six ounces (weight)
or \3/4\ cup (volume) of yogurt may be used to fulfill the equivalent of
8 ounces of fluid milk once per day. Yogurt may be counted as either a
fluid milk substitute or as a meat alternate, but not as both in the
same meal.
(2) Vegetables. A serving may contain fresh, frozen, or canned
vegetables, dry beans, peas, and lentils, or vegetable juice. All
vegetables are credited based on their volume as served, except that 1
cup of leafy greens counts as \1/2\ cup of vegetables.
(i) Pasteurized, full-strength vegetable juice may be used to
fulfill the entire requirement. Vegetable juice or fruit juice may only
be served at one meal, including snack, per day.
(ii) Cooked dry beans, peas, and lentils may be counted as either a
vegetable or as a meat alternate, but not as both in the same dish.
(3) Fruits. A serving may contain fresh, frozen, canned, dried
fruits, or
[[Page 271]]
fruit juice. All fruits are based on their volume as served, except that
\1/4\ cup of dried fruit counts as \1/2\ cup of fruit.
(i) Pasteurized, full-strength fruit juice may be used to fulfill
the entire requirement. Fruit juice or vegetable juice may only be
served at one meal, including snack, per day.
(ii) A vegetable may be used to meet the entire fruit requirement at
lunch and supper. When two vegetables are served at lunch or supper, two
different kinds of vegetables must be served.
(4) Grains--(i) Enriched and whole grains. All grains must be made
with enriched or whole grain meal or flour.
(A) At least one serving per day, across all eating occasions of
bread, cereals, and grains, must be whole grain-rich, as defined in
Sec. 226.2. Whole grain-rich is the term designated by FNS to indicate
that the grain content of a product is between 50 and 100 percent whole
grain with any remaining grains being enriched.
(B) A serving may contain whole grain-rich or enriched bread,
cornbread, biscuits, rolls, muffins, and other bread products; or whole
grain-rich, enriched, or fortified cereal grain, cooked pasta or noodle
products, or breakfast cereal; or any combination of these foods.
(ii) Breakfast cereals. Breakfast cereals are those as defined by
the Food and Drug Administration in 21 CFR 170.3(n)(4) for ready-to-eat
and instant and regular hot cereals. Through September 30, 2025,
breakfast cereals must contain no more than 6 grams of total sugars per
dry ounce. By October 1, 2025, breakfast cereals must contain no more
than 6 grams of added sugars per dry ounce.
(iii) Desserts. Grain-based desserts do not count toward meeting the
grains requirement.
(5) Meats/meat alternates--(i) Serving meats/meat alternates. Meats/
meat alternates must be served in a main dish, or in a main dish and one
other menu item. The creditable quantity of meats/meat alternates must
be the edible portion as served of:
(A) Lean meat, poultry, or fish;
(B) Alternate protein products;
(C) Cheese, or an egg;
(D) Cooked dry beans, peas, and lentils;
(E) Peanut butter; or
(F) Any combination of these foods.
(ii) Nuts and seeds. Nuts and seeds and their butters are allowed as
meat alternates. Information on crediting nuts and seeds may be found in
FNS guidance.
(A) Nut and seed meals or flours may credit only if they meet the
requirements for alternate protein products established in appendix A of
this part.
(B) Acorns, chestnuts, and coconuts do not credit as meat alternates
because of their low protein and iron content.
(iii) Yogurt. Four ounces (weight) or \1/2\ cup (volume) of yogurt
equals one ounce of the meats/meat alternates component. Yogurt may be
used to meet all or part of the meats/meat alternates component as
follows:
(A) Yogurt may be plain or flavored, unsweetened, or sweetened;
(B) Through September 30, 2025, yogurt must contain no more than 23
grams of total sugars per 6 ounces. By October 1, 2025, yogurt must
contain no more than 12 grams of added sugars per 6 ounces (2 grams of
added sugars per ounce);
(C) Noncommercial or commercial standardized yogurt products, such
as frozen yogurt, drinkable yogurt products, homemade yogurt, yogurt
flavored products, yogurt bars, yogurt covered fruits or nuts, or
similar products are not creditable; and
(D) For adults, yogurt may only be used as a meat alternate when it
is not also being used as a fluid milk substitute in the same meal.
(iv) Tofu and soy products. Commercial tofu and soy products may be
used to meet all or part of the meats/meat alternates component in
accordance with FNS guidance and appendix A of this part. Non-commercial
and non-standardized tofu and soy products cannot be used.
(v) Beans, peas, and lentils. Cooked dry beans, peas, and lentils
may be used to meet all or part of the meats/meat alternates component.
Beans, peas, and lentils include black beans, garbanzo beans, lentils,
kidney beans, mature lima beans, navy beans, pinto beans, and split
peas. Beans, peas, and lentils may be counted as either a
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meat/meat alternate or as a vegetable, but not as both in the same dish.
(vi) Other meat alternates. Other meat alternates, such as cheese,
eggs, and nut butters may be used to meet all or part of the meats/meat
alternates component.
(b) Infant meals--(1) Feeding infants. Foods in reimbursable meals
served to infants ages birth through 11 months must be of a texture and
a consistency that are appropriate for the age and development of the
infant being fed. Foods must also be served during a span of time
consistent with the infant's eating habits.
(2) Breastmilk and iron-fortified formula. Breastmilk or iron-
fortified infant formula, or portions of both, must be served to infants
birth through 11 months of age. An institution or facility must offer at
least one type of iron-fortified infant formula. Meals containing
breastmilk or iron-fortified infant formula supplied by the institution
or facility, or by the parent or guardian, are eligible for
reimbursement.
(i) Parent or guardian provided breastmilk or iron-fortified
formula. A parent or guardian may choose to accept the offered formula,
or decline the offered formula and supply expressed breastmilk or an
iron-fortified infant formula instead. Meals in which a mother directly
breastfeeds her child at the child care institution or facility are also
eligible for reimbursement. When a parent or guardian chooses to provide
breastmilk or iron-fortified infant formula and the infant is consuming
solid foods, the institution or facility must supply all other required
meal components in order for the meal to be reimbursable.
(ii) Breastfed infants. For some breastfed infants who regularly
consume less than the minimum amount of breastmilk per feeding, a
serving of less than the minimum amount of breastmilk may be offered. In
these situations, additional breastmilk must be offered at a later time
if the infant will consume more.
(3) Solid foods. The gradual introduction of solid foods may begin
at six months of age, or before or after six months of age if it is
developmentally appropriate for the infant and in accordance with FNS
guidance.
(4) Infant meal pattern. Infant meals must have, at a minimum, each
of the food components indicated, in the amount that is appropriate for
the infant's age.
(i) Birth through 5 months--(A) Breakfast. Four to 6 fluid ounces of
breastmilk or iron-fortified infant formula, or portions of both.
(B) Lunch or supper. Four to 6 fluid ounces of breastmilk or iron-
fortified infant formula, or portions of both.
(C) Snack. Four to 6 fluid ounces of breastmilk or iron-fortified
infant formula, or portions of both.
(ii) 6 through 11 months. Breastmilk or iron-fortified formula, or
portions of both, is required. Meals are reimbursable when institutions
and facilities provide all the components in the meal pattern that the
infant is developmentally ready to accept.
(A) Breakfast, lunch, or supper. Six to 8 fluid ounces of breastmilk
or iron-fortified infant formula, or portions of both; and 0 to \1/2\
ounce equivalent of iron-fortified dry infant cereal; or 0-4 tablespoons
meat, fish, poultry, whole egg, cooked dry beans, peas, and lentils; or
0 to 2 ounces (weight) of cheese; or 0 to 4 ounces (volume) of cottage
cheese; or 0 to 4 ounces of yogurt; and 0 to 2 tablespoons of vegetable,
fruit, or portions of both. Fruit juices and vegetable juices must not
be served.
(B) Snack. Two to 4 fluid ounces of breastmilk or iron-fortified
infant formula; and 0 to \1/2\ ounce equivalent bread; or 0-\1/4\ ounce
equivalent crackers; or 0-\1/2\ ounce equivalent infant cereal or ready-
to-eat cereals; and 0 to 2 tablespoons of vegetable or fruit, or
portions of both. Fruit juices and vegetable juices must not be served.
A serving of grains must be whole grain-rich, enriched meal, or enriched
flour.
(5) Infant meal pattern table. The minimum amounts of meal
components to serve to infants, as described in paragraph (b)(4) of this
section, are:
[[Page 273]]
Table 1 to Paragraph (b)(5)--Infant Meal Patterns
----------------------------------------------------------------------------------------------------------------
Infants Birth through 5 months 6 through 11 months
----------------------------------------------------------------------------------------------------------------
Breakfast, Lunch, or Supper........... 4-6 fluid ounces breast milk 6-8 fluid ounces breast milk \1\ or
\1\ or formula \2\. formula; \2\ and
0-\1/2\ ounce equivalent infant cereal;
2 3 or
0-4 tablespoons meat, fish, poultry,
whole egg, cooked dry beans, peas, and
lentils; or
0-2 ounces of cheese; or
0-4 ounces (volume) of cottage cheese;
or
0-4 ounces or \1/2\ cup of yogurt; \4\
or a combination of the above; \5\ and
0-2 tablespoons vegetable or fruit, or a
combination of both.5 6
Snack................................. 4-6 fluid ounces breast milk 2-4 fluid ounces breast milk \1\ or
\1\ or formula \2\. formula; \2\ and
0-\1/2\ ounce equivalent bread; 3 7 or
0-\1/4\ ounce equivalent crackers; 3 7
or
0-\1/2\ ounce equivalent infant cereal;
2 3 or
0-\1/4\ ounce equivalent ready-to-eat
breakfast cereal; 3 5 7 8 and
0-2 tablespoons vegetable or fruit, or a
combination of both.5 6
----------------------------------------------------------------------------------------------------------------
\1\ Breast milk or formula, or portions of both, must be served; however, it is recommended that breast milk be
served from birth through 11 months. For some breastfed infants who regularly consume less than the minimum
amount of breast milk per feeding, a serving of less than the minimum amount of breast milk may be offered,
with additional breast milk offered at a later time if the infant will consume more.
\2\ Infant formula and dry infant cereal must be iron-fortified.
\3\ Information on crediting grain items may be found in FNS guidance.
\4\ Through September 30, 2025, yogurt must contain no more than 23 grams of total sugars per 6 ounces. By
October 1, 2025, yogurt must contain no more than 12 grams of added sugars per 6 ounces (2 grams of added
sugars per ounce).
\5\ A serving of this component is required when the infant is developmentally ready to accept it.
\6\ Fruit and vegetable juices must not be served.
\7\ A serving of grains must be whole grain-rich, enriched meal, enriched flour, bran, or germ.
\8\ Through September 30, 2025, breakfast cereals must contain no more than 6 grams of total sugars per dry
ounce. By October 1, 2025, breakfast cereals must contain no more than 6 grams of added sugars per dry ounce.
(c) Meal patterns for children age 1 through 18 and adult
participants. Institutions and facilities must serve the meal components
and quantities specified in the following meal patterns for children and
adult participants in order to qualify for reimbursement.
(1) Breakfast. Fluid milk, vegetables or fruit, or portions of both,
and grains are required components of the breakfast meal. Meats/meat
alternates may be offered to meet the entire grains requirement a
maximum of three times per week. The minimum amounts of meal components
to be served at breakfast are as follows:
Table 2 to Paragraph (c)(1)--Child and Adult Care Food Program Breakfast
[Select the appropriate components for a reimbursable meal]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Minimum quantities
Meal components and food items \1\ --------------------------------------------------------------------------------------------------------------------
Ages 1-2 Ages 3-5 Ages 6-12 Ages 13-18 \2\ Adult participants
--------------------------------------------------------------------------------------------------------------------------------------------------------
Fluid Milk......................... 4 fluid ounces \3\.... 6 fluid ounces \4\.... 8 fluid ounces \5\... 8 fluid ounces \5\... 8 fluid ounces.\6\
Vegetables, fruits, or portions of \1/4\ cup............. \1/2\ cup............. \1/2\ cup............ \1/2\ cup............ \1/2\ cup.
both \7\.
Grains \8\......................... \1/2\ ounce equivalent \1/2\ ounce equivalent 1 ounce equivalent... 1 ounce equivalent... 2 ounce equivalents.
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Must serve all three components for a reimbursable meal. Offer versus serve is an option for at-risk afterschool care and adult day care centers.
\2\ At-risk afterschool programs and emergency shelters may need to serve larger portions to children ages 13 through 18 to meet their nutritional
needs.
\3\ Must serve unflavored whole milk to children age 1.
\4\ Must serve unflavored milk to children 2 through 5 years old. The milk must be fat-free, skim, low-fat, or 1 percent or less.
[[Page 274]]
\5\ May serve unflavored or flavored milk to children ages 6 and older. The milk must be fat-free, skim, low-fat, or 1 percent or less.
\6\ May serve unflavored or flavored milk to adults. The milk must be fat-free, skim, low-fat, or 1 percent or less. Yogurt may be offered in the place
of milk once per day for adults. Yogurt may count as either a fluid milk substitute or as a meat alternate, but not both, in the same meal. Six ounces
(by weight) or \3/4\ cup (by volume) of yogurt is the equivalent of 8 ounces of fluid milk. Through September 30, 2025, yogurt must contain no more
than 23 grams of total sugars per 6 ounces. By October 1, 2025, yogurt must contain no more than 12 grams of added sugars per 6 ounces (2 grams of
added sugars per ounce).
\7\ Juice must be pasteurized. Full-strength juice may only be offered to meet the vegetable or fruit requirement at one meal or snack, per day.
\8\ Must serve at least one whole grain-rich serving, across all eating occasions, per day. Grain-based desserts may not be used to meet the grains
requirement. Meats/meat alternates may be offered in place of the entire grains requirement, up to 3 times per week at breakfast. One ounce equivalent
of meats/meat alternates credits equal to one ounce equivalent of grains. Through September 30, 2025, breakfast cereals must contain no more than 6
grams of total sugars per dry ounce. By October 1, 2025, breakfast cereals must contain no more than 6 grams of added sugars per dry ounce.
Information on crediting grain items and meats/meat alternates may be found in FNS guidance.
(2) Lunch and supper. Fluid milk, meats/meat alternates, vegetables,
fruits, and grains are required components in the lunch and supper
meals. The minimum amounts of meal components to be served at lunch and
supper are as follows:
Table 3 to Paragraph (c)(2)--Child and Adult Care Food Program Lunch and Supper
[Select the appropriate components for a reimbursable meal]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Minimum quantities
Meal components and food items \1\ --------------------------------------------------------------------------------------------------------------------
Ages 1-2 Ages 3-5 Ages 6-12 Ages 13-18 \2\ Adult participants
--------------------------------------------------------------------------------------------------------------------------------------------------------
Fluid milk......................... 4 fluid ounces \3\.... 6 fluid ounces \4\.... 8 fluid ounces \5\... 8 fluid ounces \5\... 8 fluid ounces.\6\
Meats/meat alternates \7\.......... 1 ounce equivalent.... 1\1/2\ ounce 2 ounce equivalents.. 2 ounce equivalents.. 2 ounce equivalents.
equivalents.
Vegetables \8\..................... \1/8\ cup............. \1/4\ cup............. \1/2\ cup............ \1/2\ cup............ \1/2\ cup.
Fruits \8\......................... \1/8\ cup............. \1/4\ cup............. \1/4\ cup............ \1/4\ cup............ \1/2\ cup.
Grains \9\......................... \1/2\ ounce equivalent \1/2\ ounce equivalent 1 ounce equivalent... 1 ounce equivalent... 2 ounce equivalents.
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Must serve all five components for a reimbursable meal. Offer versus serve is an option for at-risk afterschool care and adult day care centers.
\2\ At-risk afterschool programs and emergency shelters may need to serve larger portions to children ages 13 through 18 to meet their nutritional
needs.
\3\ Must serve unflavored whole milk to children age 1.
\4\ Must serve unflavored milk to children 2 through 5 years old. The milk must be fat-free, skim, low-fat, or 1 percent or less.
\5\ May serve unflavored or flavored milk to children ages 6 and older. The milk must be fat-free, skim, low-fat, or 1 percent or less.
\6\ May serve unflavored or flavored milk to adults. The milk must be fat-free, skim, low-fat, or 1 percent or less. Yogurt may be offered in place of
milk once per day for adults. Yogurt may count as either a fluid milk substitute or as a meat alternate, but not both, in the same meal. Six ounces
(by weight) or \3/4\ cup (by volume) of yogurt is the equivalent of 8 ounces of fluid milk. A serving of fluid milk is optional for suppers served to
adult participants.
\7\ Alternate protein products must meet the requirements in appendix A to this part. Through September 30, 2025, yogurt must contain no more than 23
grams of total sugars per 6 ounces. By October 1, 2025, yogurt must contain no more than 12 grams of added sugars per 6 ounces (2 grams of added
sugars per ounce). Information on crediting meats/meat alternates may be found in FNS guidance.
\8\ Juice must be pasteurized. Full-strength juice may only be offered to meet the vegetable or fruit requirement at one meal or snack, per day. A
vegetable may be offered to meet the entire fruit requirement. When two vegetables are served at lunch or supper, two different kinds of vegetables
must be served.
\9\ Must serve at least one whole grain-rich serving, across all eating occasions, per day. Grain-based desserts may not be used to meet the grains
requirement. Through September 30, 2025, breakfast cereals must contain no more than 6 grams of total sugars per dry ounce. By October 1, 2025,
breakfast cereal must contain no more than 6 grams of added sugars per dry ounce. Information on crediting grain items may be found in FNS guidance.
(3) Snack. Serve two of the following five components: Fluid milk,
meats/meat alternates, vegetables, fruits, and grains. Fruit juice,
vegetable juice, and
[[Page 275]]
milk may comprise only one component of the snack. The minimum amounts
of meal components to be served at snacks are as follows:
Table 4 to Paragraph (c)(3)--Child and Adult Care Food Program Snack
[Select two of the five components for a reimbursable snack]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Minimum quantities
Meal components and food items \1\ --------------------------------------------------------------------------------------------------------------------
Ages 1-2 Ages 3-5 Ages 6-12 Ages 13-18 \2\ Adult participants
--------------------------------------------------------------------------------------------------------------------------------------------------------
Fluid milk......................... 4 fluid ounces \3\.... 4 fluid ounces \4\.... 8 fluid ounces \5\... 8 fluid ounces \5\... 8 fluid ounces.\6\
Meats/meat alternates \7\.......... \1/2\ ounce equivalent \1/2\ ounce equivalent 1 ounce equivalent... 1 ounce equivalent... 1 ounce equivalent.
Vegetables \8\..................... \1/2\ cup............. \1/2\ cup............. \3/4\ cup............ \3/4\ cup............ \1/2\ cup.
Fruits \8\......................... \1/2\ cup............. \1/2\ cup............. \3/4\ cup............ \3/4\ cup............ \1/2\ cup.
Grains \9\......................... \1/2\ ounce equivalent \1/2\ ounce equivalent 1 ounce equivalent... 1 ounce equivalent... 1 ounce equivalent.
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Must serve two of the five components for a reimbursable snack. Milk and juice may not be served as the only two items in a reimbursable snack.
\2\ At-risk afterschool programs and emergency shelters may need to serve larger portions to children ages 13 through 18 to meet their nutritional
needs.
\3\ Must serve unflavored whole milk to children age 1.
\4\ Must serve unflavored milk to children 2 through 5 years old. The milk must be fat-free, skim, low-fat, or 1 percent or less.
\5\ May serve unflavored or flavored milk to children ages 6 and older. The milk must be fat-free, skim, low-fat, or 1 percent or less.
\6\ May serve unflavored or flavored milk to adults. The milk must be fat-free, skim, low-fat, or 1 percent or less. Yogurt may be offered in place of
milk, once per day for adults. Yogurt may count as either a fluid milk substitute or as a meat alternate, but not both, in the same meal. Six ounces
(by weight) or \3/4\ cup (by volume) of yogurt is the equivalent of 8 ounces of fluid milk.
\7\ Alternate protein products must meet the requirements in appendix A to this part. Through September 30, 2025, yogurt must contain no more than 23
grams of total sugars per 6 ounces. By October 1, 2025, yogurt must contain no more than 12 grams of added sugars per 6 ounces (2 grams of added
sugars per ounce). Information on crediting meats/meat alternates may be found in FNS guidance.
\8\ Juice must be pasteurized. Full-strength juice may only be offered to meet the vegetable or fruit requirement at one meal or snack, per day.
\9\ Must serve at least one whole grain-rich serving, across all eating occasions, per day. Grain-based desserts may not be used to meet the grains
requirement. Through September 30, 2025, breakfast cereals must contain no more than 6 grams of total sugars per dry ounce. By October 1, 2025,
breakfast cereal must contain no more than 6 grams of added sugar per dry ounce. Information on crediting grain items may be found in FNS guidance.
(d) Food preparation. Deep-fat fried foods that are prepared on-site
cannot be part of the reimbursable meal. For this purpose, deep-fat
frying means cooking by submerging food in hot oil or other fat. Foods
that are pre-fried, flash-fried, or par-fried by a commercial
manufacturer may be served, but must be reheated by a method other than
frying.
(e) Unavailability of fluid milk--(1) Temporary. When emergency
conditions prevent an institution or facility normally having a supply
of milk from temporarily obtaining milk deliveries, the State agency may
approve the service of breakfast, lunches, or suppers without milk
during the emergency period.
(2) Continuing. When an institution or facility is unable to obtain
a supply of milk on a continuing basis, the State agency may approve
service of meals without milk, provided an equivalent amount of canned,
whole dry or fat-free dry milk is used in the preparation of the
components of the meal set forth in paragraph (a) of this section.
(f) Grain substitutions. In American Samoa, Guam, Hawaii, Puerto
Rico, and the U.S. Virgin Islands, and in institutions or facilities in
any State that serve primarily American Indian or Alaska Native
participants, any vegetable, including vegetables such as breadfruit,
prairie turnips, plantains, sweet potatoes, and yams, may be served to
meet the grains requirement.
(g) Modifications and variations in reimbursable meals and snacks as
described
[[Page 276]]
in paragraphs (a) through (c) of this section--(1) Modifications for
disability reasons. Institutions and facilities must make meal
modifications including substitutions in meals and snacks described in
this section for participants with a disability and whose disability
restricts their diet. The modification requested must be related to the
disability and must be offered at no additional cost to the child or
adult participant.
(i) In order to receive Federal reimbursement when a modified meal
does not meet the meal pattern requirements specified in this section,
the institution or facility must obtain from the household a written
medical statement signed by a State licensed healthcare professional. By
October 1, 2025, institutions and facilities must also accept a medical
statement signed by a registered dietitian. The medical statement must
provide sufficient information about the child or adult participant's
dietary restrictions, such as foods to be omitted and recommended
alternatives, if appropriate. Modified meals that meet the meal pattern
requirements in this section are reimbursable with or without a medical
statement.
(ii) Institutions and facilities must ensure that parents and
guardians, and their children when age-appropriate at institution or
facility discretion; adult participants; and persons on behalf of adult
participants have notice of the procedure for requesting meal
modifications for disabilities and the process for procedural safeguards
related to meal modifications for disabilities. See Sec. Sec. 15b.6(b)
and 15b.25 of this title.
(iii) Expenses incurred when making meal modifications that exceed
Program reimbursement rates must be paid by the institution or facility;
costs may be paid from the institution or facility's nonprofit food
service account.
(iv) A parent, guardian, adult participant, or a person on behalf of
an adult participant may supply one or more components of the
reimbursable meal as long as the institution or facility provides at
least one required meal component.
(2) Variations for non-disability reasons. (i) Institutions and
facilities should consider participants' dietary preferences when
planning and preparing meals and snacks. Any variations must be
consistent with the meal pattern requirements specified in this section.
(ii) Expenses incurred from variations that exceed program
reimbursement rates must be paid by the institution or facility; costs
may be paid from the institution or facility's nonprofit food service
account.
(iii) A parent, guardian, adult participant, or a person on behalf
of an adult participant may supply one component of the reimbursable
meal as long as the component meets the requirements described in this
section and the institution or facility provides the remaining
components.
(3) Fluid milk substitutes for non-disability reasons. (i) An
institution or facility may offer fluid milk substitutes based on a
written request from a child's parent or guardian, an adult participant,
a person on behalf of an adult participant, a State licensed healthcare
professional, or registered dietitian for participants with dietary
needs that are not disabilities that identifies the reason for the
substitute. An institution or facility choosing to offer fluid milk
substitutes for a non-disability reason is not required to offer the
specific fluid milk substitutes requested but may offer the fluid milk
substitutes of its choice, provided the fluid milk substitutes offered
meet the requirements of paragraph (g)(3)(ii) of this section. For
disability-related meal modifications, see paragraph (g)(1) of this
section.
(ii) If an institution or facility chooses to offer one or more
fluid milk substitutes for non-disability reasons, the fluid milk
substitutes must provide, at a minimum, the nutrients listed in the
following table. Fluid milk substitutes must be fortified in accordance
with fortification guidelines issued by the Food and Drug
Administration.
[[Page 277]]
Table 5 to Paragraph (g)(3)(ii)--Nutrient Requirements for Fluid Milk
Substitutes
------------------------------------------------------------------------
Nutrient Per cup (8 fl. oz.)
------------------------------------------------------------------------
Calcium................................... 276 mg.
Protein................................... 8 g.
Vitamin A................................. 150 mcg. retinol activity
equivalents (RAE).
Vitamin D................................. 2.5 mcg.
Magnesium................................. 24 mg.
Phosphorus................................ 222 mg.
Potassium................................. 349 mg.
Riboflavin................................ 0.44 mg.
Vitamin B-12.............................. 1.1 mcg.
------------------------------------------------------------------------
(iii) Expenses incurred when providing fluid milk substitutes that
exceed Program reimbursements must be paid by the participating
institution or facility; costs may be paid from the institution or
facility's nonprofit food service account.
(h) Special variations. FNS may approve variations in the meal
components of the meals on an experimental or continuing basis in any
institution or facility where there is evidence that such variations are
nutritionally sound and are necessary to meet ethnic, religious,
economic, or physical needs.
(i) Meals prepared in schools. The State agency must allow
institutions and facilities which serve meals to children 5 years old
and older and are prepared in schools participating in the National
School Lunch and School Breakfast Programs to substitute the meal
pattern requirements of the regulations governing those Programs (parts
210 and 220 of this chapter, respectively) for the meal pattern
requirements contained in this section.
(j) Meal planning. Institutions and facilities must plan for and
order meals on the basis of current participant trends, with the
objective of providing only one meal per participant at each meal
service. Records of participation and of ordering or preparing meals
must be maintained to demonstrate positive action toward this objective.
In recognition of the fluctuation in participation levels which makes it
difficult to estimate precisely the number of meals needed and to reduce
the resultant waste, any excess meals that are ordered may be served to
participants and may be claimed for reimbursement, unless the State
agency determines that the institution or facility has failed to plan
and prepare or order meals with the objective of providing only one meal
per participant at each meal service.
(k) Time of meal service. State agencies may require any institution
or facility to allow a specific amount of time to elapse between meal
services or require that meal services not exceed a specified duration.
(l) Sanitation. Institutions and facilities must ensure that in
storing, preparing, and serving food proper sanitation and health
standards are met which conform with all applicable State and local laws
and regulations. Institutions and facilities must ensure that adequate
facilities are available to store food or hold meals.
(m) Donated commodities. Institutions and facilities must
efficiently use in the Program any foods donated by the Department and
accepted by the institution or facility.
(n) Family style meal service. Family style is a type of meal
service which allows children and adults to serve themselves from common
platters of food with the assistance of supervising adults. Institutions
and facilities choosing to exercise this option must be in compliance
with the following practices:
(1) A sufficient amount of prepared food must be placed on each
table to provide the full required portions of each of the components,
as outlined in paragraphs (c)(1) and (2) of this section, for all
children or adults at the table and to accommodate supervising adults if
they wish to eat with the children and adults.
(2) Children and adults must be allowed to serve the meal components
themselves, with the exception of fluids (such as milk). During the
course of the meal, it is the responsibility of
[[Page 278]]
the supervising adults to actively encourage each child and adult to
serve themselves the full required portion of each meal component of the
meal pattern. Supervising adults who choose to serve the fluids directly
to the children or adults must serve the required minimum quantity to
each child or adult.
(3) Institutions and facilities which use family style meal service
may not claim second meals for reimbursement.
(o) Offer versus Serve. (1) Each adult day care center and at-risk
afterschool program must offer its participants all of the required food
servings as set forth in paragraphs (c)(1) and (2) of this section.
However, at the discretion of the adult day care center or at-risk
afterschool program, participants may be permitted to decline:
(i) For adults--(A) One of the four food items required at breakfast
(one serving of fluid milk; one serving of vegetable or fruit, or a
combination of both; and two servings of grains, or meat or meat
alternates);
(B) Two of the five meal components required at lunch (fluid milk;
vegetables; fruit; grain; and meat or meat alternate); and
(C) One of the four meal components required at supper (vegetables;
fruit; grain; and meat or meat alternate).
(ii) For children. Two of the five meal components required at
supper (fluid milk; vegetables; fruit; grain; and meat or meat
alternate).
(2) In pricing programs, the price of the reimbursable meal must not
be affected if a participant declines a food item.
(p) Prohibition on using foods and beverages as punishments or
rewards. Meals served under this part must contribute to the development
and socialization of children. Institutions and facilities must not use
foods and beverages as punishments or rewards.
(q) Severability. If any provision of this section is held to be
invalid or unenforceable by its terms, or as applied to any person or
circumstances, it shall be severable from this section and not affect
the remainder thereof. In the event of such holding of invalidity or
unenforceability of a provision, the meal pattern requirements covered
by that provision reverts to the version that immediately preceded the
invalidated provision.
[81 FR 24377, Apr. 25, 2016, as amended at 81 FR 75677, Nov. 1, 2016; 83
FR 56716, Nov. 30, 2017; 84 FR 50292, Sept. 25, 2019; 85 FR 7855, Feb.
12, 2020; 85 FR 74850, Nov. 24, 2020; 86 FR 57547, Oct. 18, 2021; 87 FR
4127, Jan. 27, 2022; 87 FR 7007, Feb. 7, 2022; 89 FR 32088, Apr. 25,
2024]
Sec. 226.21 Food service management companies.
(a) Any institution may contract with a food service management
company. An institution which contracts with a food service management
company must remain responsible for ensuring that the food service
operation conforms to its agreement with the State agency. All
procurements of meals from food service management companies must adhere
to the procurement standards set forth in Sec. 226.22 and comply with
the following procedures intended to prevent fraud, waste, and Program
abuse:
(1) All proposed contracts shall be publicly announced at least once
14 calendar days prior to the opening of bids. The announcement shall
include the time and place of the bid opening;
(2) The institution shall notify the State agency at least 14
calendar days prior to the opening of the bids of the time and place of
the bid opening;
(3) The invitation to bid shall not provide for loans or any other
monetary benefit or terms or conditions to be made to institutions by
food service management companies;
(4) Nonfood items shall be excluded from the invitation to bid,
except where such items are essential to the conduct of the food
service;
(5) The invitation to bid shall not specify special meal
requirements to meet ethnic or religious needs unless special
requirements are necessary to meet the needs of the participants to be
served;
(6) The bid shall be publicly opened;
(7) All bids totaling $50,000 or more shall be submitted to the
State agency for approval before acceptance. All bids shall be submitted
to the State agency for approval before accepting a bid which exceeds
the lowest bid. State agencies shall respond to any request
[[Page 279]]
for approval within 10 working days of receipt;
(8) The institutions shall inform the State agency of the reason for
selecting the food service management company chosen. State agencies may
require institutions to submit copies of all bids submitted under this
section.
(b) The institution and the food service management company shall
enter into a standard contract as required by Sec. 226.6(i). However,
public institutions may, with the approval of the State agency, use
their customary form of contract if it incorporates the provisions of
Sec. 226.6(i).
(c) A copy of the contract between each institution and food service
management company shall be submitted to the State agency prior to the
beginning of Program operations under the subject contract.
(d) Each proposed additional provision to the standard form of
contract shall be submitted to the State agency for approval.
(e) A food service management company may not subcontract for the
total meal, with or without milk, or for the assembly of the meal.
[47 FR 36527, Aug. 20, 1982, as amended at 53 FR 52594, Dec. 28, 1988;
83 FR 63791, Dec. 12, 2018; 88 FR 57857, Aug. 23, 2023]
Sec. 226.22 Procurement standards.
(a) General. This section establishes standards and guidelines for
the procurement of foods, supplies, equipment, and other goods and
services. These standards are furnished to ensure that goods and
services are obtained efficiently and economically and in compliance
with the provisions of applicable Federal law and Executive orders.
(b) Compliance. Institutions may use their own procedures for
procurement with Program funds to the extent that:
(1) Procurements by public institutions comply with applicable State
or local laws and standards set forth in 2 CFR part 200, subpart D and
USDA implementing regulations 2 CFR parts 400 and 415; and
(2) Procurements by private nonprofit institutions comply with
standards set forth in 2 CFR part 200, subpart D and USDA implementing
regulations 2 CFR parts 400 and 415.
(c) Geographic preference. (1) Institutions participating in the
Program may apply a geographic preference when procuring unprocessed
locally grown or locally raised agricultural products, including the use
of ``locally grown'', ``locally raised'', or ``locally caught'' as
procurement specifications or selection criteria for unprocessed or
minimally processed food items. When utilizing the geographic preference
to procure such products, the institution making the purchase has the
discretion to determine the local area to which the geographic
preference option will be applied so long as there are an appropriate
number of qualified firms able to compete;
(2) For the purpose of applying the optional geographic preference
in paragraph (c)(1) of this section, ``unprocessed locally grown or
locally raised agricultural products'' means only those agricultural
products that retain their inherent character. The effects of the
following food handling and preservation techniques will not be
considered as changing an agricultural product into a product of a
different kind or character: Cooling; refrigerating; freezing; size
adjustment made by peeling, slicing, dicing, cutting, chopping,
shucking, and grinding; forming ground products into patties without any
additives or fillers; drying/dehydration; washing; packaging (such as
placing eggs in cartons), vacuum packing and bagging (such as placing
vegetables in bags or combining two or more types of vegetables or
fruits in a single package); addition of ascorbic acid or other
preservatives to prevent oxidation of produce; butchering livestock and
poultry; cleaning fish; and the pasteurization of milk.
[88 FR 57857, Aug. 23, 2023, as amended at 89 FR 32092, Apr. 25, 2024]
Sec. 226.23 Free and reduced-price meals.
(a) The State agency must not enter into a Program agreement with a
new institution until the institution has submitted, and the State
agency has approved, a written policy statement concerning free and
reduced-price meals to be used in all child and adult day care
facilities under its jurisdiction, as described in paragraph (b) of this
section. The State agency must
[[Page 280]]
not require an institution to revise its free and reduced-price policy
statement or its nondiscrimination statement unless the institution
makes a substantive change to either policy. Pending approval of a
revision to these statements, the existing policy must remain in effect.
(b) Institutions that may not serve meals at a separate charge to
children (including emergency shelters, at-risk afterschool care
centers, and sponsoring organizations of emergency shelters, at-risk
afterschool care centers, and day care homes) and other institutions
that elect to serve meals at no separate charge must develop a policy
statement consisting of an assurance to the State agency that all
participants are served the same meals at no separate charge, regardless
of race, color, national origin, sex, age, or disability and that there
is no discrimination in the course of the food service.This statement
shall also contain an assurance that there will be no identification of
children in day care homes in which meals are reimbursed at both the
tier I and tier II reimbursement rates, and that the sponsoring
organization will not make any free and reduced price eligibility
information concerning individual households available to day care homes
and will otherwise limit the use of such information to persons directly
connected with the administration and enforcement of the Program.
(c) Independent centers and sponsoring organizations of centers
which charge separately for meals shall develop a policy statement for
determining eligibility for free and reduced-price meals which shall
include the following:
(1) The specific criteria to be used in determining eligibility for
free and reduced-price meals. The institution's standards of eligibility
shall conform to the Secretary's income standards;
(2) A description of the method or methods to be used in accepting
applications from families for free and reduced-price meals. These
methods will ensure that applications are accepted from households on
behalf of a foster child and children who receive SNAP, FDPIR, or TANF
assistance, or for adult participants who receive SNAP, FDPIR, SSI, or
Medicaid assistance;
(3) A description of the method or methods to be used to collect
payments from those participants paying the full or reduced price of the
meal which will protect the anonymity of the participants receiving a
free or reduced-price meal;
(4) An assurance which provides that the institution will establish
a hearing procedure for use when benefits are denied or terminated as a
result of verification:
(i) A simple, publicly announced method for a family to make an oral
or written request for a hearing;
(ii) An opportunity for the family to be assisted or represented by
an attorney or other person in presenting its appeal;
(iii) An opportunity to examine, prior to and during the hearing,
the documents and records presented to support the decision under
appeal;
(iv) That the hearing shall be held with reasonable promptness and
convenience to the family and that adequate notice shall be given to the
family as to the time and place of the hearing;
(v) An opportunity for the family to present oral or documentary
evidence and arguments supporting its position;
(vi) An opportunity for the family to question or refute any
testimony or other evidence and to confront and cross-examine any
adverse witnesses;
(vii) That the hearing shall be conducted and the determination made
by a hearing official who did not participate in making the initial
decision;
(viii) The determination of the hearing official shall be based on
the oral and documentary evidence presented at the hearing and made a
part of that hearing record;
(ix) That the family and any designated representatives shall be
notified in writing of the decision of the hearing official;
(x) That a written record shall be prepared with respect to each
hearing, which shall include the decision under appeal, any documentary
evidence and a summary of any oral testimony presented at the hearing,
the decision of
[[Page 281]]
the hearing official, including the reasons therefor, and a copy of the
notification to the family of the decision of the hearing official; and
(xi) That such written record of each hearing shall be preserved for
a period of three years and shall be available for examination by the
family or its representatives at any reasonable time and place during
such period;
(5) An assurance that there will be no overt identification of free
and reduced-price meal recipients and no discrimination against any
participant on the basis of race, color, national origin, sex, age, or
handicap;
(6) An assurance that the charges for a reduced-price lunch or
supper will not exceed 40 cents, that the charge for a reduced-price
breakfast will not exceed 30 cents, and that the charge for a reduced-
price snack will not exceed 15 cents.
(d) Each institution shall annually provide the information media
serving the area from which the institution draws its attendance with a
public release, unless the State agency has issued a Statewide media
release on behalf of all institutions. All media releases issued by
institutions other than emergency shelters, at-risk afterschool care
centers, and sponsoring organizations of emergency shelters, at-risk
afterschool care centers, or day care homes must include the Secretary's
Income Eligibility Guidelines for Free and Reduced-Price Meals. The
release issued by all emergency shelters, at-risk afterschool care
centers, and sponsoring organizations of emergency shelters, at-risk
afterschool care centers, or day care homes, and by other institutions
which elect not to charge separately for meals, must announce the
availability of meals at no separate charge. The release issued by child
care institutions which charge separately for meals shall announce the
availability of free and reduced-price meals to children meeting the
approved eligibility criteria. The release issued by child care
institutions shall also announce that a foster child, or a child who is
a member of a household receiving SNAP, FDPIR, or TANF assistance, or a
Head Start participant is automatically eligible to receive free meal
benefits. The release issued by adult day care centers which charge
separately for meals shall announce the availability of free and
reduced-price meals to participants meeting the approved eligibility
criteria. The release issued by adult day care centers shall also
announce that adult participants who are members of SNAP or FDPIR
households or who are SSI or Medicaid participants are automatically
eligible to receive free meal benefits. All releases shall state that
meals are available to all participants without regard to race, color,
national origin, sex, age or disability.
(e)(1) Application for free and reduced-price meals. (i) For the
purpose of determining eligibility for free and reduced price meals,
institutions (other than emergency shelters and at-risk afterschool care
centers) shall distribute applications for free and reduced price meals
to the families of participants enrolled in the institution. Sponsoring
organizations of day care homes shall distribute applications for free
and reduced price meals to day care home providers who wish to enroll
their own eligible children in the Program. At the request of a provider
in a tier II day care home, sponsoring organizations of day care homes
shall distribute applications for free and reduced price meals to the
households of all children enrolled in the home, except that
applications need not be distributed to the households of enrolled
children that the sponsoring organization determines eligible for free
and reduced price meals under the circumstances described in paragraph
(e)(1)(vi) of this section. These applications, and any other
descriptive material distributed to such persons, shall contain only the
family-size income levels for reduced price meal eligibility with an
explanation that households with incomes less than or equal to these
levels are eligible for free or reduced price meals. Such forms and
descriptive materials may not contain the income standards for free
meals. However, such forms and materials distributed by child care
institutions other than sponsoring organizations of day care homes shall
state that, if a child is a member of a SNAP or FDPIR household or is a
TANF recipient, the child is automatically eligible to receive free
Program
[[Page 282]]
meal benefits, subject to the completion of the application as described
in paragraph (e)(1)(ii) of this section; such forms and materials
distributed by sponsoring organizations of day care homes shall state
that, if a child or a child's parent is participating in or subsidized
under a Federally or State supported child care or other benefit program
with an income eligibility limit that does not exceed the eligibility
standard for free or reduced price meals, meals served to the child are
automatically eligible for tier I reimbursement, subject to the
completion of the application as described in paragraph (e)(1)(ii) of
this section, and shall list any programs identified by the State agency
as meeting this standard; such forms and materials distributed by adult
day care centers shall state that, if an adult participant is a member
of a SNAP or FDPIR household or is a SSI or Medicaid participant, the
adult participant is automatically eligible to receive free Program meal
benefits, subject to the completion of the application as described in
paragraph (e)(1)(iii) of this section. Sponsoring organizations of day
care homes shall not make free and reduced price eligibility information
concerning individual households available to day care homes and shall
otherwise limit the use of such information to persons directly
connected with the administration and enforcement of the Program.
However, sponsoring organizations may inform tier II day care homes of
the number of identified income-eligible enrolled children. If a State
agency distributes, or chooses to permit its sponsoring organizations to
distribute, applications to the households of children enrolled in tier
II day care homes which include household confidentiality waiver
statements, such applications shall include a statement informing
households that their participation in the program is not dependent upon
signing the waivers. Furthermore, such forms and materials distributed
by child care institutions shall state that a foster child is
automatically eligible to receive free Program meal benefits, and a
child who is a Head Start participant is automatically eligible to
receive free Program meal benefits, subject to submission by Head Start
officials of a Head Start statement of income eligibility or income
eligibility documentation.
(ii) Except as provided in paragraph (e)(1)(iv) of this section, the
application for children shall contain a request for the following
information:
(A) The names of all children for whom application is made;
(B) The names of all other household members;
(C) The last four digits of the social security number of the adult
household member who signs the application, or an indication that the
adult does not possess a social security number.
(D) The income received by each household member identified by
source of income (such as earnings, wages, welfare, pensions, support
payments, unemployment compensation, social security, and other cash
income received or withdrawn from any other source, including savings,
investments, trust accounts, and other resources);
(E) A statement which includes substantially the following
information:
(1) ``The Richard B. Russell National School Lunch Act requires the
information on this application. You do not have to give the
information, but if you do not, we cannot approve the participant for
free or reduced-price meals. You must include the last four digits of
the Social Security Number of the adult household member who signs the
application. The last four digits of the Social Security Number are not
required when you apply on behalf of a foster child or you list a
Supplemental Nutrition Assistance Program (SNAP), Temporary Assistance
for Needy Families (TANF) Program or Food Distribution Program on Indian
Reservations (FDPIR) case number for the participant or other (FDPIR)
identifier or when you indicate that the adult household member signing
the application does not have a Social Security Number. We will use your
information to determine if the participant is eligible for free or
reduced-price meals, and for administration and enforcement of the
Program.''
(2) When either the State agency or the child care institution plans
to use or disclose children's eligibility information for non-program
purposes, additional information, as specified in
[[Page 283]]
paragraph (k) of this section, must be added to this statement; and
(F) The signature of an adult member of the household which appears
immediately below a statement that the person signing the application
certifies that all information furnished is true and correct; that the
application is being made in connection with the receipt of Federal
funds; that Program officials may verify the information on the
application; and that the deliberate misrepresentation of any of the
information on the application may subject the applicant to prosecution
under applicable State and Federal criminal statutes.
(iii) Except as provided in paragraph (e)(1)(v) of this section, the
application for adults shall contain a request for the following
information:
(A) The names of all adults for whom application is made;
(B) The names of all other household members;
(C) The last four digits of the social security number of the adult
household member who signs the application, or an indication that the
adult does not possess a social security number.
(D) The income received by source of income (such as earnings,
wages, welfare, pensions, support payments, unemployment compensation,
social security, and other cash income received or withdrawn from any
other source, including savings, investments, trust accounts and other
resources);
(E) A statement which includes substantially the following
information: ``The Richard B. Russell National School Lunch Act requires
the information on this meal benefit form. You do not have to give the
information, but if you do not, we cannot approve the participant for
free or reduced-price meals. You must include the last four digits of
the social security number of the adult household member who signs the
meal benefit form. The last four digits of the social security number
are not required when you list a Supplemental Nutrition Assistance
Program (SNAP), Food Distribution Program on Indian Reservations (FDPIR)
or other FDPIR identifier, SSI or Medicaid case number for the
participant receiving meal benefits or when you indicate that the adult
household member signing the application does not have a social security
number. We will use your information to determine if the participant is
eligible for free or reduced-price meals, and for administration and
enforcement of the CACFP;'' and
(F) The signature of an adult member of the household which appears
immediately below a statement that the person signing the application
certifies that all information furnished is true and correct; that the
application is being made in connection with the receipt of Federal
funds; that Program officials may verify the information on the
application; and that the deliberate misrepresentation of any of the
information on the application may subject the applicant to prosecution
under applicable State and Federal criminal statutes.
(iv) If they so desire, households applying on behalf of children
who are members of SNAP or FDPIR households who are TANF recipients may
apply under this paragraph rather than under the procedures described in
paragraph (e)(1)(ii) of this section. In addition, households of
children enrolled in tier II day care homes who are participating in a
Federally or State supported child care or other benefit program with an
income eligibility limit that does not exceed the eligibility standard
for free and reduced price meals may apply under this paragraph rather
than under the procedures described in paragraph (e)(1)(ii) of this
section. Households applying on behalf of children who are members of
SNAP or FDPIR households; children who are TANF recipients; or for
children enrolled in tier II day care homes, other qualifying Federal or
State program, shall be required to provide:
(A) For the child(ren) for whom automatic free meal eligibility is
claimed, their names and SNAP, FDPIR, or TANF case number; or for the
households of children enrolled in tier II day care homes, their names
and other program case numbers (if the program utilizes case numbers);
and
(B) The signature of an adult member of the household as provided
for in paragraph (e)(1)(ii)(G) of this section. In accordance with
paragraph (e)(1)(ii)(F) of this section, if a case
[[Page 284]]
number is provided, it may be used to verify the current certification
for the child(ren) for whom free meal benefits are claimed. Whenever
households apply for children not receiving SNAP, FDPIR, or TANF
benefits; or for tier II homes, other qualifying Federal or State
program benefits, they must apply in accordance with the requirements
set forth in paragraph (e)(1)(ii) of this section.
(v) If they so desire, households applying on behalf of adults who
are members of SNAP or FDPIR households or SSI or Medicaid participants
may apply for free meal benefits under this paragraph rather than under
the procedures described in paragraph (e)(1)(iii) of this section.
Households applying on behalf of adults who are members of SNAP or FDPIR
households or SSI or Medicaid participants shall be required to provide:
(A) The names and SNAP or FDPIR case numbers or SSI or Medicaid
assistance identification numbers of the adults for whom automatic free
meal eligibility is claimed; and
(B) The signature of an adult member of the household as provided in
paragraph (e)(1)(iii)(F) of this section. In accordance with paragraph
(e)(1)(iii)(G) of this section, if a SNAP or FDPIR case number or SSI or
Medicaid assistance identification number is provided, it may be used to
verify the current SNAP, FDPIR, SSI, or Medicaid certification for the
adult(s) for whom free meal benefits are being claimed. Whenever
households apply for benefits for adults not receiving SNAP, FDPIR, SSI,
or Medicaid benefits, they must apply in accordance with the
requirements set forth in paragraph (e)(1)(iii) of this section.
(vi) A sponsoring organization of day care homes may identify
enrolled children eligible for free and reduced price meals (i.e., tier
I rates), without distributing free and reduced price applications, by
documenting the child's or household's participation in or receipt of
benefits under a Federally or State supported child care or other
benefit program with an income eligibility limit that does not exceed
the eligibility standard for free and reduced price meals. Documentation
shall consist of official evidence, available to the tier II day care
home or sponsoring organization, and in the possession of the sponsoring
organization, of the household's participation in the qualifying
program.
(vii) If a tier II day care home elects to assist in collecting and
transmitting the applications to the sponsoring organization, it is the
responsibility of the sponsoring organization to establish procedures to
ensure the provider does not review or alter the application. The
household consent form must explain that:
(A) The household is not required to complete the income eligibility
form in order for their children to participate in CACFP:
(B) The household may return the application to either the
sponsoring organization or the day care home provider;
(C) By signing the letter and giving it to the day care home
provider, the household has given the day care home provider written
consent to collect and transmit the household's application to the
sponsoring organization; and
(D) The application will not be reviewed by the day care home
provider.
(2) Letter to households. Institutions shall distribute a letter to
households or guardians of enrolled participants in order to inform them
of the procedures regarding eligibility for free and reduced-price
meals. The letter shall accompany the application required under
paragraph (e)(1) of this section and shall contain:
(i) The income standards for reduced-price meals, with an
explanation that households with incomes less than or equal to the
reduced-price standards would be eligible for free or reduced-price
meals (the income standards for free meals shall not be included in
letters or notices to such applicants);
(ii) How a participant's household may make application for free or
reduced-price meals;
(iii) An explanation that an application for free or reduced price
benefits cannot be approved unless it contains complete
``documentation'' as defined in Sec. 226.2.
(iv) The statement: ``In the operation of child feeding programs, no
person will be discriminated against because of race, color, national
origin, sex, age, or disability'';
[[Page 285]]
(v) A statement to the effect that participants having family
members who become unemployed are eligible for free or reduced-price
meals during the period of unemployment, provided that the loss of
income causes the family income during the period of unemployment to be
within the eligibility standards for those meals;
(vi) An explanation that households receiving free and reduced-price
meals must notify appropriate institution officials during the year of
any decreases in household size or increases in income of over $50 per
month or $600 per year or--
(A) In the case of households of enrolled children that provide a
SNAP, FDPIR or TANF case number to establish a child's eligibility for
free meals, any termination in the child's certification to participate
in the SNAP, FDPIR or TANF Programs, or
(B) In the case of households of adult participants that provide a
food stamp or FDPIR case number or an SSI or Medicaid assistance
identification number to establish an adult's eligibility for free
meals, any termination in the adult's certification to participate in
the SNAP, FDPIR, SSI or Medicaid Programs.
(3) In addition to the information listed in paragraph (e)(2) of
this section pricing institutions must include in their letter to
household an explanation that indicates that: (i) The information in the
application may be verified at any time during the year; and (ii) how a
family may appeal a decision of the institution to deny, reduce, or
terminate benefits as described under the hearing procedure set forth in
paragraph (c)(4) of this section.
(4) Determination of eligibility. The institution shall take the
income information provided by the household on the application and
calculate the household's total current income. When a completed
application furnished by a family indicates that the family meets the
eligibility criteria for free or reduced-price meals, the participants
from that family shall be determined eligible for free or reduced-price
meals. Institutions that are pricing programs shall promptly provide
written notice to each family informing them of the results of the
eligibility determinations. When the information furnished by the family
is not complete or does not meet the eligibility criteria for free or
reduced-price meals, institution officials must consider the
participants from that family as not eligible for free or reduced-price
meals, and must consider the participants as eligible for ``paid''
meals. When information furnished by the family of participants enrolled
in a pricing program does not meet the eligibility criteria for free or
reduced-price meals, pricing program officials shall provide written
notice to each family denied free or reduced-price benefits. At a
minimum, this notice shall include:
(i) The reason for the denial of benefits, e.g., income in excess of
allowable limits or incomplete application;
(ii) Notification of the right to appeal;
(iii) Instructions on how to appeal; and
(iv) A statement reminding the household that they may reapply for
free or reduced-price benefits at any time during the year,
The reasons for ineligibility shall be properly documented and retained
on file at the institution.
(5) Appeals of denied benefits. A family that wishes to appeal the
denial of an application in a pricing program shall do so under the
hearing procedures established under paragraph (c)(4) of this section.
However, prior to initiating the hearing procedures, the household may
request a conference to provide all affected parties the opportunity to
discuss the situation, present information and obtain an explanation of
the data submitted on the application or the decision rendered. The
request for a conference shall not in any way prejudice or diminish the
right to a fair hearing. The institution shall promptly schedule a fair
hearing, if requested.
(f) Free, reduced-price and paid meal eligibility figures must be
reported by institutions to State agencies at least once each year and
shall be based on current family-size and income information of enrolled
participants. Such information shall be no more than 12 months old.
(g) Sponsoring organizations for family day care homes shall ensure
that no
[[Page 286]]
separate charge for food service is imposed on families of children
enrolled in participating family day care homes.
(h) Verification of eligibility. State agencies shall conduct
verification of eligibility for free and reduced-price meals on an
annual basis, in accordance with the verification procedures outlined in
paragraphs (h) (1) and (2) of this section. Verification may be
conducted in accordance with Program assistance requirements of Sec.
226.6(m); however, the performance of verification for individual
institutions shall occur no less frequently than once every three years.
Any State may, with the written approval of FNSRO, use alternative
approaches in the conduct of verification, provided that the results
achieved meet the requirements of this part. If the verification process
discloses deficiencies with the determination of eligibility and/or
application procedures which exceed maximum levels established by FNS,
State agencies shall conduct follow-up reviews for the purpose of
determining that corrective action has been taken by the institution.
These reviews shall be conducted within one year of the date the
verification process was completed. The verification effort shall be
applied without regard to race, color, national origin, sex, age, or
disability. State agencies shall maintain on file for review a
description of the annual verification to be accomplished in order to
demonstrate compliance with paragraphs (h) (1) and (2) of this section.
(1) Verification procedures for nonpricing programs. Except for
sponsoring organizations of family day care homes, State agency
verification procedures for nonpricing programs shall consist of a
review of all approved free and reduced price applications on file. For
sponsoring organizations of family day care homes, State agency
verification procedures shall consist of a review only of the approved
free and reduced price applications (or other documentation, if vouchers
or other documentation are used in lieu of free and reduced price
applications) on file for those day care homes that are required to be
reviewed when the sponsoring organization is reviewed, in accordance
with the review requirements set forth in Sec. 226.6(m). However, the
State agency shall ensure that the day care homes selected for review
are representative of the proportion of tier I, tier II, and tier II day
care homes with a mix of income-eligible and non-income-eligible
children in the sponsorship, and shall ensure that at least 10 percent
of all free and reduced price applications (or other documentation, if
applicable) on file for the sponsorship are verified. The review of
applications shall ensure that:
(i) The application has been correctly and completely executed by
the household;
(ii) The institution has correctly determined and classified the
eligibility of enrolled participants for free or reduced price meals or,
for family day care homes, for tier I or tier II reimbursement, based on
the information included on the application submitted by the household;
(iii) The institution has accurately reported to the State agency
the number of enrolled participants meeting the criteria for free or
reduced price meal eligibility or, for day care homes, the number of
participants meeting the criteria for tier I reimbursement, and the
number of enrolled participants that do not meet the eligibility
criteria for those meals; and
(iv) In addition, the State agency may conduct further verification
of the information provided by the household on the approved application
for program meal eligibility. If this effort is undertaken, the State
agency shall conduct this further verification for nonpricing programs
in accordance with the procedures described in paragraph (h)(2) of this
section.
(2) Verification procedures for pricing programs. (i) For pricing
programs, in addition to the verification procedures described in
paragraph (h)(1) of this section, State agencies shall also conduct
verification of the income information provided on the approved
application for free and reduced price meals and, at State agency
discretion, verification may also include confirmation of other
information required on the application. However,
(A) If a SNAP, FDPIR or TANF case number is provided for a child,
[[Page 287]]
verification for such child shall include only confirmation that the
child is included in a currently certified SNAP or FDPIR household or is
a TANF recipient; or
(B) If a SNAP or FDPIR case number or SSI or Medicaid assistance
identification number is provided for an adult, verification for such
adult shall include only confirmation that the adult is included in a
currently certified SNAP or FDPIR household or is currently certified to
receive SSI or Medicaid benefits.
(ii) State agencies shall perform verification on a random sample of
no less than 3 percent of the approved free and reduced price
applications in an institution which is a pricing program.
(iii) Households shall be informed in writing that they have been
selected for verification and they are required to submit the requested
verification information to confirm their eligibility for free or
reduced-price benefits by such date as determined by the State agency.
Those households shall be informed of the type or types of information
and/or documents acceptable to the State agency and the name and phone
number of an official who can answer questions and assist the household
in the verification effort.
(iv) Households of enrolled children selected for verification shall
also be informed that if they are currently certified to participate in
SNAP, FDPIR or TANF they may submit proof of that certification in lieu
of income information. In those cases, such proof shall consist of a
current ``Notice of Eligibility'' for SNAP, FDPIR or TANF benefits or
equivalent official documentation issued by a SNAP, Indian Tribal
Organization, or welfare office which shows that the children are
members of households or assistance units currently certified to
participate in SNAP, FDPIR or TANF. An identification card for any of
these programs is not acceptable as verification unless it contains an
expiration date. Households of enrolled adults selected for verification
shall also be informed that if they are currently certified to
participate in SNAP or FDPIR or SSI or Medicaid Programs, they may
submit proof of that certification in lieu of income information. In
those cases, such proof shall consist of:
(A) A current ``Notice of Eligibility'' for SNAP or FDPIR benefits
or equivalent official documentation issued by a SNAP, Indian Tribal
Organization, or welfare office which shows that the adult participant
is a member of a household currently certified to participate in the
SNAP Program or FDPIR. An identification card is not acceptable as
verification unless it contains an expiration date; or
(B) Official documentation issued by an appropriate SSI or Medicaid
office which shows that the adult participant currently receives SSI or
Medicaid assistance. An identification card is not acceptable as
verification unless it contains an expiration date. All households
selected for verification shall be advised that failure to cooperate
with verification efforts will result in a termination of benefits.
(v) Sources of information for verification may include written
evidence, collateral contacts, and/or systems of records.
(A) Written evidence shall be used as the primary source of
information for verification. Written evidence includes written
confirmation of a household's circumstances, such as wage stubs, award
letters, letters from employers, and, for enrolled children, current
certification to participate in the SNAP, FDPIR or TANF Programs, or,
for adult participants, current certification to participate in the
SNAP, FDPIR, SSI or Medicaid Programs. Whenever written evidence is
insufficient to confirm eligibility, the State agency may use collateral
contacts.
(B) Collateral contact is a verbal confirmation of a household's
circumstances by a person outside of the household. The collateral
contact may be made in person or by phone and shall be authorized by the
household. The verifying official may select a collateral contact if the
household fails to designate one or designates one which is unacceptable
to the verifying official. If the verifying official designates a
collateral contact, the contact shall not be made without providing
written or oral notice to the household. At the time of this notice, the
household shall be informed that it may consent to the
[[Page 288]]
contact or provide acceptable verification in another form. The
household shall be informed that its eligibility for free or reduced
price meals shall be terminated if it refuses to choose one of these
options. Termination shall be made in accordance with paragraph
(h)(2)(vii) of this section. Collateral contacts could include
employers, social service agencies, and migrant agencies.
(C) Systems of records to which the State agency may have routine
access are not considered collateral contacts. Information concerning
income, family size, or SNAP/FDPIR/TANF certification for enrolled
children, or SNAP/FDPIR/SSI/Medicaid certification for enrolled adults,
which is maintained by other government agencies and to which a State
agency can legally gain access may be used to confirm a household's
eligibility for Program meal benefits. One possible source could be wage
and benefit information maintained by the State unemployment agency, if
that information is available. The use of any information derived from
other agencies must be used with applicable safeguards concerning
disclosure.
(vi) Verification by State agencies of receipt of SNAP, FDPIR, TANF,
SSI or Medicaid benefits shall be limited to a review to determine that
the period of eligibility is current. If the benefit period is found to
have expired, or if the household's certification has been terminated,
the household shall be required to document their income eligibility.
(vii) The State agency may work with the institution to verify the
documentation submitted by the household on the application; however,
the responsibility to complete the verification process may not be
delegated to the institution.
(viii) If a household refuses to cooperate with efforts to verify,
or the verification of income indicates that the household is ineligible
to receive benefits or is eligible to receive reduced benefits, the
State agency shall require the pricing program institution to terminate
or adjust eligibility in accordance with the following procedures.
Institution officials shall immediately notify families of the denial of
benefits in accordance with paragraphs (e)(4) and (e)(5) of this
section. Advance notification shall be provided to families which
receive a reduction or termination of benefits 10 calendar days prior to
the actual reduction or termination. The 10-day period shall begin the
day the notice is transmitted to the family. The notice shall advise the
household of: (A) The change; (B) the reasons for the change; (C)
notification of the right to appeal the action and the date by which the
appeal must be requested in order to avoid a reduction or termination of
benefits; (D) instructions on how to appeal; and (E) the right to
reapply at any time during the year. The reasons for ineligibility shall
be properly documented and retained on file at the institution.
(ix) When a household disagrees with an adverse action which affects
its benefits and requests a fair hearing, benefits shall be continued as
follows while the household awaits the hearing:
(A) Households which have been approved for benefits and which are
subject to a reduction or termination of benefits later in the same year
shall receive continued benefits if they appeal the adverse action
within the 10-day advance notice period; and
(B) Households which are denied benefits upon application shall not
received benefits.
(3) State agencies shall inform institution officials of the results
of the verification effort and the action which will be taken in
response to the verification findings. This notification shall be made
in accordance with the procedures outlined in Sec. 226.14(a).
(4) If the verification results disclose that an institution has
inaccurately classified or reported the number of participants eligible
for free, reduced-price or paid meals, the State agency shall adjust
institution rates of reimbursement retroactive to the month in which the
incorrect eligibility figures were reported by the institution to the
State agency.
(5) If the verification results disclose that a household has not
reported accurate documentation on the application which would support
continued eligibility for free or reduced-price
[[Page 289]]
meals, the State agency shall immediately adjust institution rates of
reimbursement. However, this rate adjustment shall not become effective
until the affected households have been notified in accordance with the
procedures of paragraph (h)(2)(vi) of this section and any ensuing
appeals have been heard as specified in paragraph (h)(2)(viii) of this
section.
(6) Verification procedures for sponsoring organizations of day care
homes. Prior to approving an application for a day care home that
qualifies as tier I day care home on the basis of the provider's
household income, sponsoring organizations of day care homes shall
conduct verification of such income in accordance with the procedures
contained in paragraph (h)(2)(i) of this section. Sponsoring
organizations of day care homes may verify the information on
applications submitted by households of children enrolled in day care
homes in accordance with the procedures contained in paragraph (h)(2)(i)
of this section.
(i) Disclosure of children's free and reduced price meal eligibility
information to certain programs and individuals without parental
consent. The State agency or child care institution, as appropriate, may
disclose aggregate information about children eligible for free and
reduced price meals to any party without parental notification and
consent when children cannot be identified through release of the
aggregate data or by means of deduction. Additionally, the State agency
or institution may disclose information that identifies children
eligible for free and reduced price meals to the programs and the
individuals specified in this paragraph (i) without parental/guardian
consent. The State agency or child care institution that makes the free
and reduced price meal eligibility determination is responsible for
deciding whether to disclose program eligibility information.
(1) Persons authorized to receive eligibility information. Only
persons directly connected with the administration or enforcement of a
program or activity listed in paragraphs (i)(2) or (i)(3) of this
section may have access to children's free milk eligibility information,
without parental consent. Persons considered directly connected with
administration or enforcement of a program or activity listed in
paragraphs (i)(2) or (i)(3) of this section are Federal, State, or local
program operators responsible for the ongoing operation of the program
or activity or persons responsible for program compliance. Program
operators may include persons responsible for carrying out program
requirements and monitoring, reviewing, auditing, or investigating the
program. Program operators may include contractors, to the extent those
persons have a need to know the information for program administration
or enforcement. Contractors may include evaluators, auditors, and others
with whom Federal or State agencies and program operators contract with
to assist in the administration or enforcement of their program in their
behalf.
(2) Disclosure of children's names and free or reduced price meal
eligibility status. The State agency or child care institution, as
appropriate, may disclose, without parental consent, only children's
names and eligibility status (whether they are eligible for free meals
or reduced price meals) to persons directly connected with the
administration or enforcement of:
(i) A Federal education program;
(ii) A State health program or State education program administered
by the State or local education agency;
(iii) A Federal, State, or local means-tested nutrition program with
eligibility standards comparable to the National School Lunch Program
(i.e., food assistance programs for households with incomes at or below
185 percent of the Federal poverty level); or
(iv) A third party contractor assisting in verification of
eligibility efforts by contacting households who fail to respond to
requests for verification of their eligibility.
(3) Disclosure of all eligibility information. In addition to
children's names and eligibility status, the State agency or child care
institution, as appropriate, may disclose, without parental/guardian
consent, all eligibility information obtained through the free and
reduced price meal eligibility process (including all information on the
application or obtained through direct certification) to:
[[Page 290]]
(i) Persons directly connected with the administration or
enforcement of programs authorized under the Richard B. Russell National
School Lunch Act or the Child Nutrition Act of 1966. This means that all
eligibility information obtained for the Child and Adult Care Food
Program may be disclosed to persons directly connected with
administering or enforcing regulations under the National School Lunch
Program, Special Milk Program, School Breakfast Program, Summer Food
Service Program, and the Special Supplemental Nutrition Program for
Women, Infants and Children (WIC) (Parts 210, 215, 220, 225 and 246,
respectively, of this chapter);
(ii) The Comptroller General of the United States for purposes of
audit and examination; and
(iii) Federal, State, and local law enforcement officials for the
purpose of investigating any alleged violation of the programs listed in
paragraphs (i)(2) and (i)(3) of this section.
(4) Use of free and reduced price meals eligibility information by
programs other than Medicaid or the State Children's Health Insurance
Program (SCHIP). State agencies and child care institutions may use
children's free milk eligibility information for administering or
enforcing the Child and Adult Care Food Program. Additionally, any other
Federal, State, or local agency charged with administering or enforcing
the Child and Adult Care Food Program may use the information for that
purpose. Individuals and programs to which children's free or reduced
price meal eligibility information has been disclosed under this section
may use the information only in the administration or enforcement of the
receiving program. No further disclosure of the information may be made.
(j) Disclosure of children's free or reduced price meal eligibility
information to Medicaid and/or SCHIP, unless parents decline. Children's
free or reduced price meal eligibility information only may be disclosed
to Medicaid or SCHIP when both the State agency and the child care
institution so elect, the parent/guardian does not decline to have their
eligibility information disclosed and the other provisions described in
paragraph (j)(1) of this section are met. The State agency or child care
institution, as appropriate, may disclose children's names, eligibility
status (whether they are eligible for free or reduced price meals), and
any other eligibility information obtained through the free and reduced
price meal application or obtained through direct certification to
persons directly connected with the administration of Medicaid or SCHIP.
Persons directly connected to the administration of Medicaid and SCHIP
are State employees and persons authorized under Federal and State
Medicaid and SCHIP requirements to carry out initial processing of
Medicaid or SCHIP applications or to make eligibility determinations for
Medicaid or SCHIP.
(1) The State agency must ensure that:
(i) The child care institution and health insurance program
officials have a written agreement that requires the health insurance
program agency to use the eligibility information to seek to enroll
children in Medicaid and SCHIP; and
(ii) Parents/guardians are notified that their eligibility
information may be disclosed to Medicaid or SCHIP and given an
opportunity to decline to have their children's eligibility information
disclosed, prior to any disclosure.
(2) Use of children's free and reduced price meal eligibility
information by Medicaid/SCHIP. Medicaid and SCHIP agencies and health
insurance program operators receiving children's free and reduced price
meal eligibility information must use the information to seek to enroll
children in Medicaid or SCHIP. The Medicaid and SCHIP enrollment process
may include targeting and identifying children from low-income
households who are potentially eligible for Medicaid or SCHIP for the
purpose of seeking to enroll them in Medicaid or SCHIP. No further
disclosure of the information may be made. Medicaid and SCHIP agencies
and health insurance program operators also may verify children's
eligibility in a program under the Child Nutrition Act of 1966 or the
Richard B. Russell National School Lunch Act.
(k) Notifying households of potential uses and disclosures of
children's free and reduced price meal eligibility information.
[[Page 291]]
Households must be informed that the information they provide on the
free and reduced price meal application will be used to determine
eligibility for free or reduced price meals and that their eligibility
information may be disclosed to other programs.
(1) For disclosures to programs, other than Medicaid or SCHIP, that
are permitted access to children's eligibility information, without
parent/guardian consent, the State agency or child care institution, as
appropriate, must notify parents/guardians at the time of application
that their children's free or reduced price meal eligibility information
may be disclosed. The State agency or child care institution, as
appropriate, must add substantially the following statement to the
statement required under paragraph (e)(1)(ii)(F) of this section, ``We
may share your eligibility information with education, health, and
nutrition programs to help them evaluate, fund, or determine benefits
for their programs; auditors for program reviews; and law enforcement
officials to help them look into violations of program rules.'' For
children determined eligible for free meals through direct
certification, the notice of potential disclosure may be included in the
document informing parents/guardians of their children's eligibility for
free meals through direct certification.
(2) For disclosure to Medicaid or SCHIP, the State agency or child
care institution, as appropriate, must notify parents/guardians that
their children's free or reduced price meal eligibility information will
be disclosed to Medicaid and/or SCHIP unless the parent/guardian elects
not to have their information disclosed and notifies the State agency or
child care institution, as appropriate, by a date specified by the State
agency or child care institution, as appropriate. Only the parent or
guardian who is a member of the household or family for purposes of the
free and reduced price meal application may decline the disclosure of
eligibility information to Medicaid or SCHIP. The notification must
inform parents/guardians that they are not required to consent to the
disclosure, that the information, if disclosed, will be used to identify
eligible children and seek to enroll them in Medicaid or SCHIP, and that
their decision will not affect their children's eligibility for free or
reduced price meals. The notification may be included in the letter/
notice to parents/guardians that accompanies the free and reduced price
meal application, on the application itself or in a separate notice
provided to parents/guardians. The notice must give parents/guardians
adequate time to respond if they do not want their information
disclosed. The State agency or child care institution, as appropriate,
must add substantially the following statement to the statement required
under paragraph (e)(1)(ii)(F) of this section, ``We may share your
information with Medicaid or the State Children's Health Insurance
Program, unless you tell us not to. The information, if disclosed, will
be used to identify eligible children and seek to enroll them in
Medicaid or SCHIP.'' For children determined eligible for free meals
through direct certification, the notice of potential disclosure and
opportunity to decline the disclosure may be included in the document
informing parents/guardians of their children's eligibility for free
meals through direct certification process.
(l) Other disclosures. State agencies and child care institutions
that plan to use or disclose information about children eligible for
free and reduced price meals in ways not specified in this section must
obtain written consent from children's parents or guardians prior to the
use or disclosure.
(1) The consent must identify the information that will be shared
and how the information will be used.
(2) There must be a statement informing parents and guardians that
failing to sign the consent will not affect the child's eligibility for
free or reduced price meals and that the individuals or programs
receiving the information will not share the information with any other
entity or program.
(3) Parents/guardians must be permitted to limit the consent only to
those programs with which they wish to share information.
(4) The consent statement must be signed and dated by the child's
parent or guardian who is a member of the
[[Page 292]]
household for purposes of the free and reduced price meal application.
(m) Agreements with programs/individuals receiving children's free
or reduced price meal eligibility information. Agreements or Memoranda
of Understanding (MOU) are recommended or required as follows:
(1) The State agency or child care institution, as appropriate,
should have a written agreement or MOU with programs or individuals
receiving eligibility information, prior to disclosing children's free
and reduced price meal eligibility information. The agreement or MOU
should include information similar to that required for disclosures to
Medicaid and SCHIP specified in paragraph (m)(2) of this section.
(2) For disclosures to Medicaid or SCHIP, the State agency or child
care institution, as appropriate, must have a written agreement with the
State or local agency or agencies administering Medicaid or SCHIP prior
to disclosing children's free or reduced price meal eligibility
information to those agencies. At a minimum, the agreement must:
(i) Identify the health insurance program or health agency receiving
children's eligibility information;
(ii) Describe the information that will be disclosed;
(iii) Require that the Medicaid or SCHIP agency use the information
obtained and specify that the information must be used to seek to enroll
children in Medicaid or SCHIP;
(iv) Require that the Medicaid or SCHIP agency describe how they
will use the information obtained;
(v) Describe how the information will be protected from unauthorized
uses and disclosures;
(vi) Describe the penalties for unauthorized disclosure; and
(vii) Be signed by both the Medicaid or SCHIP program or agency and
the State agency or child care institution, as appropriate.
(n) Penalties for unauthorized disclosure or misuse of children's
free and reduced price meal eligibility information. In accordance with
section 9(b)(6)(C) of the Richard B. Russell National School Lunch Act
(42 U.S.C. 1758(b)(6)(C)), any individual who publishes, divulges,
discloses or makes known in any manner, or to any extent not authorized
by statute or this section, any information obtained under this section
will be fined not more than $1,000 or imprisoned for up to 1 year, or
both.
[47 FR 36527, Aug. 20, 1982]
Editorial Note: For Federal Register citations affecting Sec.
226.23, see the List of CFR Sections Affected, which appears in the
Finding Aids section of the printed volume and at www.govinfo.gov.
Subpart F_Food Service Equipment Provisions
Sec. 226.24 Property management requirements.
Institutions and administering agencies shall follow the policies
and procedures governing title, use, and disposition of equipment
obtained by purchase, whose cost was acquired in whole or part with food
service equipment assistance funds in accordance with 2 CFR part 200,
subpart D and USDA implementing regulations 2 CFR part 400 and part 415,
as applicable.
[48 FR 41142, Sept. 14, 1983, as amended at 71 FR 39519, July 13, 2006;
81 FR 66492, Sept. 28, 2016]
Subpart G_Other Provisions
Sec. 226.25 Other provisions.
(a) Grant closeout procedures. Grant closeout procedures for the
Program shall be in accordance with 2 CFR part 200, subpart D and USDA
implementing regulations 2 CFR part 400 and part 415, as applicable.
(b) State requirements. Nothing contained in this part shall prevent
a State agency from imposing additional requirements for participation
in the Program which are not inconsistent with the provisions of this
part; however, any additional requirements shall be approved by FNSRO
and may not deny the Program to an eligible institution.
(c) Value of assistance. The value of assistance to participants
under the Program shall not be considered to be income or resources for
any purposes under any Federal or State laws, including, but not limited
to laws relating to taxation, welfare, and public assistance programs.
[[Page 293]]
(d) Maintenance of effort. Expenditure of funds from State and local
sources for the maintenance of food programs for children shall not be
diminished as a result of funds received under the Act.
(e) Fraud penalty. Whoever embezzles, willfully misapplies, steals,
or obtains by fraud any funds, assets, or property that are the subject
of a grant or other form of assistance under this part, whether received
directly or indirectly from the Department or whoever receives,
conceals, or retains such funds, assets, or property to his use or gain,
knowing such funds, assets, or property have been embezzled, willfully
misapplied, stolen, or obtained by fraud shall, if such funds, assets,
or property are of the value of $100 or more, be fined not more than
$10,000 or imprisoned not more than five years, or both, or, if such
funds, assets, or property are of value of less than $100, shall be
fined not more than $1,000 or imprisoned for not more than one year, or
both.
(f) Claims adjustment authority. The Secretary shall have the
authority to determine the amount of, to settle, and to adjust any claim
arising under the Program, and to compromise or deny such claim or any
part thereof. The Secretary shall also have the authority to waive such
claims if the Secretary determines that to do so would serve the
purposes of the program. This provision shall not diminish the authority
of the Attorney General of the United States under section 516 of title
28, U.S. Code, to conduct litigation on behalf of the United States.
(g) Data collection related to organizations. (1) Each State agency
must collect data related to institutions that have an agreement with
the State agency to participate in the program for each of Federal
fiscal years 2006 through 2009, including those institutions that
participated only for part of the fiscal year. Such data shall include:
(i) The name of each institution;
(ii) The city in which each participating institution was
headquartered and the name of the state;
(iii) The amount of funds provided to the participating
organization, i.e., the sum of the amount of federal funds reimbursed
for operating and, where applicable, administrative costs; and
(iv) The type of participating organization, e.g., government
agency, educational institution, for-profit organization, non-profit
organization/secular, non-profit organization/faith-based, and
``other.''
(2) On or before August 31, 2007, and each subsequent year through
2010, State agencies must report to FNS data as specified in paragraph
(g)(1) of this section for the prior Federal fiscal year. State agencies
must submit this data in a format designated by FNS.
(h) Program evaluations. States, State agencies, institutions,
facilities and contractors must cooperate in studies and evaluations
conducted by or on behalf of the Department, related to programs
authorized under the Richard B. Russell National School Lunch Act and
the Child Nutrition Act of 1966.
(i) Drinking water. A child care institution or facility must offer
and make potable drinking water available to children throughout the
day.
(j) Fines. (1) An institution that is a school food authority may be
subject to fines. The State agency may establish an assessment when it
has determined that the institution or its facility has:
(i) Failed to correct severe mismanagement of the Program;
(ii) Disregarded a Program requirement of which the institution or
its facility had been informed; or
(iii) Failed to correct repeated violations of Program requirements.
(2) FNS may direct the State agency to establish a fine against any
institution when it has determined that the institution or its facility
has committed one or more acts under paragraph (j)(1) of this section.
(3) Funds used to pay a fine established under this paragraph must
be derived from non-Federal sources. In calculating an assessment, the
State agency must calculate the fine based on the amount of Program
reimbursement earned by the institution or its facility for the most
recent fiscal year for which full year data is available, provided that
the fine does not exceed the equivalent of:
(i) For the first fine, 1 percent of the amount of meal
reimbursement earned for the fiscal year;
[[Page 294]]
(ii) For the second fine, 5 percent of the amount of meal
reimbursement earned for the fiscal year; and
(iii) For the third or subsequent fine, 10 percent of the amount of
meal reimbursement earned for the fiscal year.
(4) The State agency must inform FNS at least 30 days prior to
establishing the fine under this paragraph. The State agency must send
the institution written notification of the fine established under this
paragraph and provide a copy of the notification to FNS. The
notification must:
(i) Specify the violations or actions which constitute the basis for
the fine and indicate the amount of the fine;
(ii) Inform the institution that it may appeal the fine and advise
the institution of the appeal procedures established under Sec.
226.6(k);
(iii) Indicate the effective date and payment procedures should the
institution not exercise its right to appeal within the specified
timeframe.
(5) Any institution subject to a fine under paragraph (j)(1) of this
section may appeal the State agency's determination. In appealing a
fine, the institution must submit to the State agency any pertinent
information, explanation, or evidence addressing the Program violations
identified by the State agency. Any institution seeking to appeal the
State agency determination must follow State agency appeal procedures.
(6) The decision of the State agency review official is final and
not subject to further administrative or judicial review. Failure to pay
a fine established under this paragraph may be grounds for suspension or
termination.
(7) Money received by the State agency as a result of a fine
established under this paragraph against an institution and any interest
charged in the collection of these fines must be remitted to FNS, and
then remitted to the United States Treasury.
[47 FR 36527, Aug. 20, 1982, as amended at 53 FR 52597, Dec. 28, 1988;
54 FR 13049, Mar. 30, 1989; 69 FR 53547, Sept. 1, 2004; 71 FR 39519,
July 13, 2006; 72 FR 24183, May 2, 2007; 76 FR 37982, June 29, 2011; 81
FR 24383, Apr. 25, 2016; 81 FR 66492, Sept. 28, 2016; 88 FR 57858, Aug.
23, 2023]
Sec. 226.26 Program information.
Persons seeking information about this Program should contact their
State administering agency or the appropriate FNSRO. The FNS website has
contact information for State agencies at https://www.fns.usda.gov/fns-
contacts and FNSROs at https://www.fns.usda.gov/ fns-regional-offices.
[88 FR 57858, Aug. 23, 2023]
Sec. 226.27 Information collection/recordkeeping--OMB assigned control numbers.
------------------------------------------------------------------------
Current OMB
7 CFR section where requirements are described control
number
------------------------------------------------------------------------
226.3-226.4................................................ 0584-0055
226.6-226.10............................................... 0584-0055
226.14-226.16.............................................. 0584-0055
226.23-226.24.............................................. 0584-0055
------------------------------------------------------------------------
[50 FR 53258, Dec. 31, 1985]
Sec. Appendix A to Part 226--Alternate Foods for Meals
Alternate Protein Products
A. What are the criteria for alternate protein products used in the
Child and Adult Care Food Program?
1. An alternate protein product used in meals planned under the
provisions in Sec. 226.20 must meet all of the criteria in this
section.
2. An alternate protein product whether used alone or in combination
with meat or meat alternate must meet the following criteria:
a. The alternate protein product must be processed so that some
portion of the non-protein constituents of the food is removed. These
alternate protein products must be safe and suitable edible products
produced from plant or animal sources.
b. The biological quality of the protein in the alternate protein
product must be at least 80 percent that of casein, determined by
performing a Protein Digestibility Corrected Amino Acid Score (PDCAAS).
c. The alternate protein product must contain at least 18 percent
protein by weight when fully hydrated or formulated. (``When hydrated or
formulated'' refers to a dry alternate protein product and the amount of
water, fat, oil, colors, flavors or any other substances which have been
added).
d. Manufacturers supplying an alternate protein product to
participating schools or institutions must provide documentation that
the product meets the criteria in paragraphs A.2. through c of this
appendix.
[[Page 295]]
e. Manufacturers should provide information on the percent protein
contained in the dry alternate protein product and on an as prepared
basis.
f. For an alternate protein product mix, manufacturers should
provide information on:
(1) The amount by weight of dry alternate protein product in the
package;
(2) Hydration instructions; and
(3) Instructions on how to combine the mix with meat or other meat
alternates.
B. How are alternate protein products used in the Child and Adult Care
Food Program?
1. Schools, institutions, and service institutions may use alternate
protein products to fulfill all or part of the meat/meat alternate
component discussed in Sec. 226.20.
2. The following terms and conditions apply:
a. The alternate protein product may be used alone or in combination
with other food ingredients. Examples of combination items are beef
patties, beef crumbles, pizza topping, meat loaf, meat sauce, taco
filling, burritos, and tuna salad.
b. Alternate protein products may be used in the dry form
(nonhydrated), partially hydrated or fully hydrated form. The moisture
content of the fully hydrated alternate protein product (if prepared
from a dry concentrated form) must be such that the mixture will have a
minimum of 18 percent protein by weight or equivalent amount for the dry
or partially hydrated form (based on the level that would be provided if
the product were fully hydrated).
C. How are commercially prepared products used in the Child and
Adult Care Food Program?
Schools, institutions, and service institutions may use a
commercially prepared meat or meat alternate product combined with
alternate protein products or use a commercially prepared product that
contains only alternate protein products.
[65 FR 12442, Mar. 9, 2000]
Sec. Appendix B to Part 226 [Reserved]
Sec. Appendix C to Part 226--Child Nutrition (CN) Labeling Program
1. The Child Nutrition (CN) Labeling Program is a voluntary
technical assistance program administered by the Food and Nutrition
Service (FNS) in conjunction with the Food Safety and Inspection Service
(FSIS), and Agricultural Marketing Service (AMS) of the U.S. Department
of Agriculture (USDA), and National Marine Fisheries Service of the U.S.
Department of Commerce (USDC) for the Child Nutrition Programs. This
program essentially involves the review of a manufacturer's recipe or
product formulation to determine the contribution a serving of a
commercially prepared product makes toward meal pattern requirements and
a review of the CN label statement to ensure its accuracy. CN labeled
products must be produced in accordance with all requirements set forth
in this rule.
2. Products eligible for CN labels are as follows:
(a) Commercially prepared food products that contribute
significantly to the meat/meat alternate component of meal pattern
requirements of 7 CFR 210.10, 225.21, and 226.20 and are served in the
main dish.
(b) Juice drinks and juice drink products that contain a minimum of
50 percent full-strength juice by volume.
3. For the purpose of this appendix the following definitions apply:
(a) CN label is a food product label that contains a CN label
statement and CN logo as defined in paragraph 3 (b) and (c) below.
(b) The CN logo (as shown below) is a distinct border which is used
around the edges of a ``CN label statement'' as defined in paragraph
3(c).
[GRAPHIC] [TIFF OMITTED] TC17SE91.009
(c) The CN label statement includes the following:
(1) The product identification number (assigned by FNS),
[[Page 296]]
(2) The statement of the product's contribution toward meal pattern
requirements of 7 CFR 210.10, 220.8, 225.21, and 226.20. The statement
shall identify the contribution of a specific portion of a meat/meat
alternate product toward the meat/meat alternate, bread/bread alternate,
and/or vegetable/fruit component of the meal pattern requirements. For
juice drinks and juice drink products the statement shall identify their
contribution toward the vegetable/fruit component of the meal pattern
requirements,
(3) Statement specifying that the use of the CN logo and CN
statement was authorized by FNS, and
(4) The approval date.
For example:
[GRAPHIC] [TIFF OMITTED] TC17SE91.010
(d) Federal inspection means inspection of food products by FSIS,
AMS or USDC.
4. Food processors or manufacturers may use the CN label statement
and CN logo as defined in paragraph 3 (b) and (c) under the following
terms and conditions:
(a) The CN label must be reviewed and approved at the national level
by the Food and Nutrition Service and appropriate USDA or USDC Federal
agency responsible for the inspection of the product.
(b) The CN labeled product must be produced under Federal inspection
by USDA or USDC. The Federal inspection must be performed in accordance
with an approved partial or total quality control program or standards
established by the appropriate Federal inspection service.
(c) The CN label statement must be printed as an integral part of
the product label along with the product name, ingredient listing, the
inspection shield or mark for the appropriate inspection program, the
establishment number where appropriate, and the manufacturer's or
distributor's name and address.
(1) The inspection marking for CN labeled non-meat, non-poultry, and
non-seafood products with the exception of juice drinks and juice drink
products is established as follows:
[GRAPHIC] [TIFF OMITTED] TC17SE91.011
(d) Yields for determining the product's contribution toward meal
pattern requirements must be calculated using the Food Buying Guide for
Child Nutrition Programs (Program Aid Number 1331).
5. In the event a company uses the CN logo and CN label statement
inappropriately, the company will be directed to discontinue the use of
the logo and statement and the matter will be referred to the
appropriate agency for action to be taken against the company.
6. Products that bear a CN label statement as set forth in paragraph
3(c) carry a warranty. This means that if a food service authority
participating in the child nutrition programs purchases a CN labeled
product and uses it in accordance with the manufacturer's directions,
the school or institution will not have an audit claim filed against it
for the CN labeled product for noncompliance with the meal pattern
requirements of 7 CFR 210.10, 220.8, 225.21, and 226.20. If a State or
Federal auditor finds that a product that is CN labeled does not
actually meet the meal pattern requirements claimed on the label, the
auditor will report this finding to FNS. FNS will prepare a report of
the findings and send it to the appropriate divisions of FSIS and AMS of
the USDA, National Marine Fisheries Services of the USDC, Food and Drug
Administration, or the Department of Justice for action against the
company.
Any or all of the following courses of action may be taken:
(a) The company's CN label may be revoked for a specific period of
time;
(b) The appropriate agency may pursue a misbranding or mislabeling
action against the company producing the product;
(c) The company's name will be circulated to regional FNS offices;
(d) FNS will require the food service program involved to notify the
State agency of the labeling violation.
7. FNS is authorized to issue operational policies, procedures, and
instructions for the CN Labeling Program.
To apply for a CN label and to obtain additional information on CN
label application procedures write to: CN Labels, U.S. Department of
Agriculture, Food and Nutrition
[[Page 297]]
Service, Nutrition and Technical Services Division, 3101 Park Center
Drive, Alexandria, Virginia 22302.
[49 FR 18457, May 1, 1984; 49 FR 45109, Nov. 15, 1984]
PART 227_NUTRITION EDUCATION AND TRAINING PROGRAM--Table of Contents
Subpart A_General
Sec.
227.1 General purpose and scope.
227.2 Definitions.
227.3 Administration.
227.4 Application and agreement.
227.5 Program funding.
Subpart B_State Agency Provisions
227.30 Responsibilities of State agencies.
227.31 Audits, management reviews, and evaluations.
Subpart C_State Coordinator Provisions
227.35 Responsibilities of State coordinator.
227.36 Requirements of needs assessment.
227.37 State plan for nutrition education and training.
Subpart D_Miscellaneous
227.40 Program information.
227.41 Recovery of funds.
227.42 Grant closeout procedures.
227.43 Participation of adults.
227.44 Management evaluations and reviews.
Appendix to Part 227--Apportionment of Funds for Nutrition Education and
Training
Authority: Sec. 15, Pub. L. 95-166, 91 Stat. 1340 (42 U.S.C. 1788),
unless otherwise noted.
Source: 44 FR 28282, May 15, 1979, unless otherwise noted.
Subpart A_General
Sec. 227.1 General purpose and scope.
The purpose of these regulations is to implement section 19 of the
Child Nutrition Act (added by Pub. L. 95-166, effective November 10,
1977) which authorizes the Secretary to formulate and carry out a
nutrition information and education program through a system of grants
to State agencies to provide for (a) the nutritional training of
educational and foodservice personnel, (b) the foodservice management
training of school foodservice personnel, and (c) the conduct of
nutrition education activities in schools and child care institutions.
To the maximum extent possible, the Program shall fully utilize the
child nutrition programs as a learning experience.
Sec. 227.2 Definitions.
(a) Administrative costs means costs allowable under Federal
Management Circular 74-4, other than program costs, incurred by a State
agency for overall administrative and supervisory purposes, including,
but not limited to, costs of financial management, data processing,
recordkeeping and reporting, personnel management, and supervising the
State Coordinator.
(b) Child Care Food Program means the program authorized by section
17 of the National School Lunch Act, as amended.
(c) Child Nutrition Programs means any or all of the following:
National School Lunch Program, School Breakfast Program, Child Care Food
Program.
(d) Commodity only school means a school which has entered into an
agreement under Sec. 210.15a(b) of this subchapter to receive
commodities donated under part 250 of this chapter for a nonprofit lunch
program.
(e) Department means the U.S. Department of Agriculture.
(f) Federal fiscal year means a period of 12 calendar months
beginning October 1 of any calendar year and ending September 30 of the
following calendar year.
(g) FNS means the Food and Nutrition Service of the Department.
(h) FNSRO means the appropriate Regional Office of the Food and
Nutrition Service of the Department.
(i) Institution means any licensed, nonschool, public or private
nonprofit organization providing day care services where children are
not maintained in permanent residence, including but not limited to day
care centers, settlement houses, after school recreation centers,
neighborhood centers, Head Start centers, and organizations providing
day care services for handicapped children and includes a sponsoring
organization under the Child Care Food Program regulations.
[[Page 298]]
(j) National School Lunch Program means the lunch program authorized
by the National School Lunch Act.
(k) Needs assessment means a systematic process for delineating the
scope, extent (quantity), reach and success of any current nutrition
education activities, including those relating to:
(1) Methods and materials available inside and outside the
classroom;
(2) Training of teachers in the principles of nutrition and in
nutrition education strategies, methods, and techniques;
(3) Training of school foodservice personnel in the principles and
practices of foodservice management; and
(4) Compilation of existing data concerning factors impacting on
nutrition education and training such as statistics on child health and
competency levels achieved by foodservice personnel.
(l) Program costs means costs, other than administrative costs,
incurred in connection with any or all of the following:
(1) The State Coordinator's salary, and related support personnel
costs, including fringe benefits and travel expenses;
(2) Applying for assessment and planning funds;
(3) The conduct of the needs assessment;
(4) The development of the State Plan; and
(5) The implementation of the approved State Plan, including related
support services.
(m) Program means the Nutrition Education and Training Program
authorized by section 19 of the Child Nutrition Act of 1966, as amended.
(n) School means:
(1) An educational unit of high school grade or under operating
under public or nonprofit private ownership in a single building or
complex of buildings. The term ``high school grade or under'' includes
classes of preprimary grade when they are conducted in a school having
classes of primary or higher grade, or when they are recognized as a
part of the educational system in the State, regardless of whether such
preprimary grade classes are conducted in a school having classes of
primary or higher grade.
(2) With the exception of residential summer camps which participate
in the Summer Food Service Program for Children and private foster
homes, any distinct part of a public or nonprofit private institution or
any public or nonprofit private child care institution, which (i)
maintains children in residence, (ii) operates principally for the care
of children and (iii) if private, is licensed to provide residential
child care services under the appropriate licensing code by the State or
a subordinate level of government. The term ``child care institution''
includes, but is not limited to: Homes for the mentally retarded, the
emotionally disturbed, the physically handicapped, and unmarried mothers
and their infants; group homes; halfway houses; orphanages; temporary
shelters for abused children and for runaway children; long term care
facilities of chronically ill children; and juvenile detention centers.
(3) With respect to the Commonwealth of Puerto Rico, non-profit
child care centers certified as such by the Governor of Puerto Rico.
(o) School Breakfast Program means the program authorized by section
4 of the Child Nutrition Act of 1966, as amended.
(p) Foodservice personnel means those individuals responsible for
planning, preparing, serving and otherwise operating foodservice
programs funded by USDA grants as provided for in the National School
Lunch Act and the Child Nutrition Act of 1966.
(q) State means any of the 50 States, the District of Columbia, the
Commonwealth of Puerto Rico, the Virgin Islands, Guam, American Samoa,
the Trust Territory of the Pacific Islands, and the Northern Mariana
Islands.
(r) State agency means the State educational agency.
(s) State educational agency means, as the State legislature may
determine:
(1) The Chief State School Officer (such as the State Superintendent
of Public Instruction, Commissioner of Education, or similar officer),
or (2) a board of education controlling the State Department of
Education.
[[Page 299]]
Sec. 227.3 Administration.
(a) Within the Department, FNS shall act on behalf of the Department
in the administration of the Program.
(b) Within the States, responsibility for administration of the
Program shall be in the State agency, except that FNSRO shall administer
the Program with respect to nonprofit private schools or institutions in
any State where the State agency is prohibited by law from administering
the Program in nonprofit private schools or institutions.
Sec. 227.4 Application and agreement.
After the initial fiscal year of participation each State agency
desiring to take part in the Program shall enter into a written
agreement with the Department for the administration of the Program in
accordance with the provisions of this part. The State agency shall
execute Form FNS-74, which shall constitute the written agreement.
(Approved by the Office of Management and Budget under control number
0584-0062)
(44 U.S.C. 3506)
[44 FR 28282, May 15, 1979, as amended at 47 FR 746, Jan. 2, 1982]
Sec. 227.5 Program funding.
(a) Total grant. The total grant to each State agency for each
fiscal year for program costs and administrative costs shall consist of
an amount equal to 50 cents per child enrolled in schools and
institutions within the State during such year, but in no event shall
such grant be less than $50,000: Provided, however, That a State's total
grant shall be reduced proportionately if the State does not administer
the program in nonprofit private schools and institutions. If funds
appropriated for a fiscal year are insufficient to pay the amount to
which each State is entitled, the amount of such grant shall be ratably
reduced to the extent necessary so that the total of the amounts paid to
each State does not exceed the amount of appropriated funds. Each State
agency which receives funds based on all children enrolled in public and
nonprofit private schools and institutions shall make the Program
available to those schools and institutions. Enrollment figures shall be
the latest available as certified by the Department of Education.
(b) First fiscal year participation--(1) Assessment and planning
grant. A portion of the total grant shall be made available to each
State agency during its first fiscal year of participation as an
assessment and planning grant for:
(i) Employing a State Coordinator, as provided for in Sec. 227.30,
and related support personnel costs including fringe benefits and travel
expenses,
(ii) Undertaking a needs assessment in the State,
(iii) Developing a State Plan for nutrition education and training
within the State, and
(iv) Applying for the State assessment and planning grant.
(2) Advances for the assessment and planning grant. FNS shall make
advances to any State desiring to participate in the Program, to enable
the State to carry out the responsibilities set forth in paragraph
(b)(1) of this section. Advances shall be made in two phases, in
accordance with the following procedures:
(i) Initially, State agencies may receive an advance up to $35,000
for the purpose of hiring a State coordinator, as provided for in Sec.
227.30. Application for such an advance shall be made on Form AD-623
when the State agency applies for participation in the Program. The
information required for this advance shall be set out in Part III,
Budget Information, Section B, Budget Categories. The State agency shall
there indicate the funds required for the salary, travel, and fringe
benefits of the State Coordinator, and related personnel costs necessary
to carry out the duties and responsibilities of the State Coordinator.
(ii) After appointment of the State Coordinator, the State agency
may receive an additional advance of up to 50 percent of the total grant
to which the State agency is entitled for the first year of
participation, after deduction of the advance made for the State
Coordinator under Sec. 227.5(b)(2), but not to exceed $100,000, for the
purpose of undertaking a needs assessment in the State, developing a
State Plan for nutrition education and training, and applying for the
assessment and planning grant. Application for such advance
[[Page 300]]
shall be made by amending Part III, Budget Information, of Form AD-623.
(3) Funds for implementing State plan. (i) States receiving
advances. Each State agency shall receive the remaining portion of its
total grant in order to implement its State plan, which has been
approved by FNS, if the State agency has carried out the
responsibilities for which advances were received. With the submission
of the State plan each State agency may apply for the funds remaining of
its total grant.
(ii) States previously participating. Those States which previously
participated may apply for their total grant upon submission of the
State Plan.
(c) Administrative costs. Each State agency may use up to 15 percent
of its total grant for up to 50 percent of its cash expenditures for
administrative costs.
(d) Payment to State agencies. Approval of the State plan by FNS is
a prerequisite to the payment of funds to the State agency. All funds
made available for the Program shall be provided through a letter of
credit or check, as determined by FNS.
(e) Unobligated funds. The State agency will release to FNS any
Federal funds made available to it under the Program which are
unobligated by September 30 of each fiscal year.
(f) Funds for existing programs. State agencies shall maintain their
present level of funding for existing nutrition education and training
programs. FNS funds for the Program shall augment current nutrition
education and training programs and projects. Funds made available by
FNS for this Program shall not replace such funds.
[44 FR 28282, May 15, 1979, as amended at 52 FR 8223, Mar. 17, 1987]
Subpart B_State Agency Provisions
Sec. 227.30 Responsibilities of State agencies.
(a) General. Except to the extent that it would be inconsistent with
this part, the Program shall be administered in accordance with the
applicable provisions of the Departmental regulations 2 CFR part 200,
subpart D, and USDA implementing regulations 2 CFR part 400 and part
415, as applicable.
(b) Application. For the initial fiscal year of participation States
shall make application for administration of the Program on Form and are
responsible for amending Form AD-623 to request advance funding. In the
initial application, in connection with the request for advance funding
for the State Coordinator, part IV, Program Narrative, of Form AD-623
shall indicate the State agency's procedures for hiring a State
Coordinator and contain a justification for the dollar value of salary
requested. The narrative shall also indicate the time frame for hiring
the State Coordinator. In amending Form AD-623 in connection with the
request for advance funding for the remaining portion of the assessment
and planning grant, part IV, Program Narrative, shall set forth the
details for areas of the assessment and planning grant, other than
employment of the State Coordinator.
(b-1) If any State does not apply for participation in the Program,
by April 1 of a fiscal year by submitting Form AD 623 as required in
Sec. Sec. 227.30(b) and 227.5(b)(2)(i), the State's share of the funds
shall be provided to the remaining States, so long as this does not take
the remaining States' grants above 50 cents per child enrolled in
schools or institutions, except in those States which receive a minimum
grant of $75,000 for a fiscal year.
(c) State Coordinator. After execution of the agreement the State
agency shall appoint a nutrition education specialist to serve as a
State Coordinator for the Program who may be employed on a full-time or
part-time basis. The State Coordinator may be a State employee who
reports directly or indirectly to the Chief State School Officer or an
individual under contract with the State agency to serve as the State
Coordinator. A State agency shall not contract with an organization to
provide for the services of a State Coordinator. The State Coordinator,
at a minimum, shall meet both of the following requirements:
(1) The State Coordinator shall have a Masters degree or equivalent
experience. Equivalent experience is experience related to the position
being filled or as defined by State civil service or
[[Page 301]]
personnel policies. If the Masters degree is not in foods and nutrition
or dietetics, the Bachelors degree shall include academic preparations
in foods and nutrition or dietetics.
(2) In addition, the State Coordinator shall have recognized and
demonstrated skills in management and education through at least three
years experience in one or more of these areas: Elementary or secondary
education, but not limited to classroom teaching; foodservice management
and training for adults; community nutrition or public health programs;
foodservice operations for children; or community action or assistance
programs.
(d) Needs assessment. Each State agency shall conduct an ongoing
needs assessment in accordance with Sec. 227.36 The needs assessment
shall be the data base utilized in formulating the State plan for each
fiscal year. For the first year of participation a State agency may
apply for funds in order to carry out the needs assessment in accordance
with Sec. 227.5.
(e) Developing and submitting the State plan. Each State agency
shall submit to the Secretary a State plan for Nutrition Education and
Training in accordance with Sec. 227.37 prior to the beginning of each
fiscal year. The date of submission for the State plan shall be
designated by the Secretary. The Secretary shall act on the submitted
State plan within 60 days after it is received. For the first year of
participation the State agency shall submit to the Secretary, within
nine months after the award of the planning and assessment grant, a
State plan for nutrition education and training in accordance with Sec.
227.37.
(f) Records and reports. (1) Each State agency shall maintain full
and complete records concerning Program operations and shall retain such
records in accordance with 2 CFR part 200, subpart D and USDA
implementing regulations 2 CFR part 400 and part 415.
(2) Each State agency shall submit to FNS a quarterly Financial
Status Report, FNS-777, as required 2 CFR part 200, subpart D and USDA
implementing regulations 2 CFR part 400 and part 415.
(3) Each State agency shall submit an annual performance report
(Form FNS-42) to FNS within 30 days after the close of the Fiscal Year.
(4) Each State agency shall maintain a financial management system
in accordance with 2 CFR part 200, subpart D and USDA implementing
regulations 2 CFR part 400 and part 415.
(5) Each State agency shall comply with the requirements of 2 CFR
part 200, subpart D and USDA implementing regulations 2 CFR part 400 and
part 415, for property management and the procurement of supplies,
equipment and other services with these Program funds.
(6) Any income accruing to a State or local agency because of the
Program shall be used in accordance with 2 CFR part 200, subpart D and
USDA implementing regulations 2 CFR part 400 and part 415.
(g) Nondiscrimination. Each State agency shall ensure that Program
operations are in compliance with the Department's nondiscrimination
regulations (part 15 of this title) issued under title VI of the Civil
Rights Act of 1964.
(Approved by the Office of Management and Budget under control number
0584-0062)
(44 U.S.C. 3506; E.O. 12372, July 14, 1982, 47 FR 30959, sec. 401(b) of
the Intergovernmental Cooperation Act of 1968 (31 U.S.C. 6506(c))
[44 FR 28282, May 15, 1979, as amended at 45 FR 14842, Mar. 7, 1980; 47
FR 746, Jan. 7, 1982; 47 FR 22072, May 21, 1982; 48 FR 29123, June 24,
1983; 48 FR 39213, Aug. 30, 1983; 81 FR 66493, Sept. 28, 2016]
Sec. 227.31 Audits, management reviews, and evaluations.
(a) Audits. (1) Examinations by the State agencies in the form of
audits or internal audits shall be performed in accord with 2 CFR part
200, subpart F and Appendix XI, Compliance Supplement.
(b) Management reviews. The State agency is responsible for meeting
the following requirements:
(1) The State agency shall establish management evaluation and
review procedures to monitor compliance with the State plan for local
educational agencies and land grant colleges, other institutions of
higher education and public or private nonprofit educational or research
agencies, institutions, or organizations.
[[Page 302]]
(2) The State agency shall require participating agencies to
establish program review procedures to be used in reviewing the Agencies
operations and those of subsidiaries or contractors.
(c) Evaluations. The State agency shall conduct formal evaluations
of program activities at least annually. These evaluations shall be
aimed at assessing the effectiveness of the various activities
undertaken by the State and local agencies. State officials shall
analyze why some activities have proved effective while others have not
and shall initiate appropriate improvements. The results of the
evaluations shall be used to make adjustments in ongoing activities and
to plan activities and programs for the next year's State plan. The
State agency shall submit a plan for evaluation of Program activities as
part of the State plan in accordance with Sec. 227.37(b)(14).
(Approved by the Office of Management and Budget under control number
0584-0062)
(44 U.S.C. 3506; E.O. 12372 (July 14, 1982, 47 FR 30959); sec. 401(b)
Intergovernmental Cooperation Act of 1968 (31 U.S.C. 6506(c))
[44 FR 28282, May 15, 1979, as amended at 47 FR 746, Jan. 7, 1982; 48 FR
29123, June 24, 1983; 81 FR 66493, Sept. 28, 2016]
Subpart C_State Coordinator Provisions
Sec. 227.35 Responsibilities of State coordinator.
At a minimum, the State Coordinator shall be responsible for:
(a) Preparation of a budget,
(b) The conduct of the needs assessment,
(c) Development of a State plan,
(d) Implementation of the approved State Plan,
(e) Evaluation of the progress and implementation of the State Plan,
(f) Coordination of the Program with the Child Nutrition Programs at
the State and local levels,
(g) Coordination of the Program with other nutrition education and
training programs conducted with Federal or State funds,
(h) Communication of needs and accomplishments of State nutrition
education and training programs to parents and the community at large,
(i) Use of Program funds in compliance with all regulations,
instructions, or other guidance material provided by FNS,
(j) Coordinating the submission and preparation of the Program
financial status report (FNS-777), and
(k) Annual evaluation of the effectiveness of the State Plan.
[44 FR 28282, May 15, 1979, as amended at 81 FR 66493, Sept. 28, 2016;
83 FR 14173, Apr. 3, 2018]
Sec. 227.36 Requirements of needs assessment.
(a) The needs assessment is an ongoing process which identifies the
discrepancies between ``what should be'' and ``what is'' and shall be
applied to each category listed below to enable State agencies to
determine their nutrition education and training needs for each year.
The needs assessment shall identify the following as a minimum:
(1) Children, teachers, and food service personnel in need of
nutrition education and training;
(2) Existing State or federally funded nutrition education and
training programs including their:
(i) Goals and objectives;
(ii) Source and level of funding;
(iii) Any available documentation of their relative success or
failure; and
(iv) Factors contributing to their success or failure;
(3) Offices or agencies at the State and local level designated to
be responsible for nutrition education and training of teachers and
school food service personnel;
(4) Any relevant State nutrition education mandates;
(5) Funding levels at the State and local level for preservice and
inservice nutrition education and training of food service personnel and
teachers;
(6) State and local individuals, and groups conducting nutrition
education and training;
(7) Materials which are currently available for nutrition education
and training programs, and determine for each:
(i) Subject area and content covered;
(ii) Grade level;
(iii) How utilized;
(iv) Acceptability by user;
[[Page 303]]
(v) Currency of materials;
(8) Any major child nutrition related health problems in each State;
(9) Existing sources of primary and secondary data, including any
data that has been collected for documenting the State's nutrition
education and training needs;
(10) Available documentation of the competencies of teachers in the
area of nutrition education;
(11) Available documentation of the competencies of food service
personnel;
(12) Problems encountered by schools and institutions in procuring
nutritious food economically and in preparing nutritious appetizing
meals and areas where training can assist in alleviating these problems;
(13) Problems teachers encounter in conducting effective nutrition
education activities and areas where inservice training or materials can
assist in alleviating these problems;
(14) Problems in dietary habits of children and areas where
nutrition education may assist in positive changes;
(15) Problems encountered in coordinating the nutrition education by
teachers with the meal preparation and activities of the food service
facility and areas where training might alleviate these problems.
(b) The needs assessment should be an ongoing process and provide
not only data on current activities but also a description of the
problems and needs in each category and whether training or materials
would help alleviate the identified problems.
Sec. 227.37 State plan for nutrition education and training.
(a) General. Each fiscal year the State agency shall submit a State
plan for Nutrition Education and Training for approval to FNS. The State
plan shall be based on the needs identified from the ongoing needs
assessment and evaluation of the State plans from previous years. The
State plan shall be submitted in accordance with Sec. 227.30(e).
Guidance for the preparation and submission of the State plan shall be
provided by FNS.
(b) Requirements for the State plan. The State plan shall provide
the following:
(1) Description of the ongoing needs assessment conducted within the
State;
(2) The findings of the needs assessment within the State used to
determine the goals and objectives of the State plan and results of the
evaluation of the previous years' State plans for:
(i) Inservice training of food service personnel,
(ii) Nutrition education of children,
(iii) Inservice training in nutrition education for teachers;
(3) Goals and objectives of the State plan;
(4) Identification of the priority populations to be reached during
the fiscal year;
(5) Provisions for coordinating the nutrition education and training
programs carried out with funds made available under this part with any
related publicly supported programs being carried out within the State
to include:
(i) Identification of existing programs that may be utilized,
(ii) Description of how representatives of such groups are to be
involved in the planning and implementation of the State program;
(iii) Criteria and procedure for selection of such representatives;
(6) Plans to solicit advice and recommendations of the National
Advisory Council on Child Nutrition, State educational or other
appropriate agencies; the U.S. Department of Education; the U.S.
Department of Health and Human Services; and other interested groups and
individuals concerned with improvement of child nutrition.
(7) Plans, including a timetable, for reaching all children in the
State with instruction in the nutritional value of foods and the
relationship among food, nutrition and health, for inservice training of
food service personnel in the principles and skills of food service
management and nutrition and for inservice instruction for teachers in
sound principles of nutrition education;
(8) Any plans for using, on a priority basis, the resources of the
land-grant colleges eligible to receive funds under the Act of July 2,
1862 (12 Stat. 503; 7 U.S.C. 301 through 305, 307, and 308) or
[[Page 304]]
the Act of August 30, 1890 (26 Stat. 417, as amended; 7 U.S.C. 312
through 326 and 328), including the Tuskegee Institute;
(9) A brief description of the program or activities to be
contracted with land-grant colleges, described above, and other
institutions of higher education, and other public or private nonprofit
educational or research agencies, institutions or organizations for
carrying out nutrition education and training activities;
(10) A brief description of pilot projects, including objectives,
subject matter and expected outcomes, to be contracted with the land-
grant colleges described above, other institutions of higher education,
public and nonprofit educational or research agencies, institutions, or
organizations for but not limited to projects for development,
demonstration, testing and evaluation of curricula for use in early
childhood, elementary, and secondary education programs;
(11) Identification of schools, school districts, and sponsoring
agencies which may agree to participate in the nutrition education and
training program;
(12) A brief description of (i) State agency sponsored pilot
projects including objectives, subject matter and anticipated outcomes
and (ii) nutrition education and training programs to be conducted by
schools, school districts, and sponsoring agencies receiving funds under
this provision including objectives, subject matter and expected
outcomes;
(13) Time frame and milestones for implementation of State plans;
(14) Plans to evaluate program activities including an evaluation
component for each objective of the State plan;
(15) Description of staff available to perform State agency
responsibilities of the State nutrition education and training program
which includes:
(i) Definition of duties and responsibilities,
(ii) Minimum professional qualifications,
(iii) Number and classification of personnel;
(16) A description of the procedures used to comply with the
requirements of Title VI of the Civil Rights Act of 1964, including
racial and ethnic participation data collection, public notification
procedures and the annual civil rights compliance review process;
(17) Plans for the conduct of audits in accordance with Sec.
227.31;
(18) A budget detailing the use of program funds;
(19) Description of the financial management system in accordance
with Sec. 227.30(e);
(20) Description of the management evaluation and review procedures
established in accordance with Sec. 227.31(b); and
(21) Other components that the States determine necessary.
(c) States eligible to receive additional funds pursuant to Sec.
227.30(b-1) shall submit an amendment to the State plan to the Food and
Nutrition Service Regional Office for prior approval.
[44 FR 28282, May 15, 1979, as amended at 45 FR 14842, Mar. 7, 1980; 48
FR 39213, Aug. 30, 1983]
Subpart D_Miscellaneous
Sec. 227.40 Program information.
Persons desiring information concerning the program may write to the
appropriate State agency or Regional Office of FNS as indicated below:
(a) In the States of Connecticut, Maine, Massachusetts, New
Hampshire, Rhode Island, and Vermont: New England Regional Office, FNS,
U.S. Department of Agriculture, 33 North Avenue, Burlington, Mass.
01803.
(b) In the States of Delaware, District of Columbia, Maryland, New
Jersey, New York, Pennsylvania, Puerto Rico, Virginia, Virgin Islands,
and West Virginia: Mid-Atlantic Regional Office, FNS, U.S. Department of
Agriculture, One Vahlsing Center, Robbinsville, N.J. 08691.
(c) In the States of Alabama, Florida, Georgia, Kentucky,
Mississippi, North Carolina, South Carolina, and Tennessee: Southeast
Regional Office, FNS, U.S. Department of Agriculture, 1100 Spring Street
NW., Atlanta, Ga. 30309.
(d) In the States of Illinois, Indiana, Michigan, Minnesota, Ohio,
and Wisconsin: Midwest Regional Office, FNS,
[[Page 305]]
U.S. Department of Agriculture, 536 South Clark Street, Chicago, Ill.
60605.
(e) In the States of Colorado, Iowa, Kansas, Missouri, Montana,
Nebraska, North Dakota, South Dakota, Utah, and Wyoming: Mountain Plains
Regional Office, FNS, U.S. Department of Agriculture, 2420 West 26th
Avenue, Room 430D, Denver, Colo. 80211.
(f) In the States of Arkansas, Louisiana, New Mexico, Oklahoma, and
Texas: Southwest Regional Office, FNS, U.S. Department of Agriculture,
1100 Commerce Street, Room 5-C-30, Dallas, Tex. 75242.
(g) In the States of Alaska, American Samoa, Arizona, California,
Guam, Hawaii, Idaho, Nevada, Oregon, Trust Territory of the Pacific
Islands, the Northern Mariana Islands, and Washington: Western Regional
Office, FNS, U.S. Department of Agriculture, 550 Kearny Street, Room
400, San Francisco, Calif. 94108.
Sec. 227.41 Recovery of funds.
(a) FNS may recover funds from a State agency under any of the
following conditions:
(1) If FNS determines, through a review of the State agency's
reports, program, or financial analysis, monitoring, audit or otherwise,
that the State agency's performance is inadequate or that the State
agency has failed to comply with this part or FNS instructions and
guidelines.
(2) If FNS determines that the State agency is not expending funds
at a rate commensurate with the amount of funds distributed or provided
for expenditure under the program.
(3) If FNS determines that a State agency is not providing full and
timely reports.
(b) FNS shall effect such recoveries of funds through adjustments in
the amount of funds provided under the program.
Sec. 227.42 Grant closeout procedures.
The requirements of 2 CFR part 200, subpart D, and USDA implementing
regulations 2 CFR part 400 and part 415, are applicable in the
termination of any grant under this part.
[44 FR 28282, May 15, 1979, as amended at 81 FR 66493, Sept. 28, 2016]
Sec. 227.43 Participation of adults.
Nothing in this part shall prohibit a State or local educational
agency from making available or distributing to adults education
materials, resources, activities or programs authorized by this part.
Sec. 227.44 Management evaluations and reviews.
FNS shall establish evaluation procedures to determine whether State
agencies carry out the purpose and provisions of this part, the State
agency plan and FNS guidelines and instructions. To the maximum extent
possible the State's performance shall be reviewed and evaluated by FNS
on a regular basis including the use of public hearings.
Sec. Appendix to Part 227--Apportionment of Funds for Nutrition
Education and Training
Pursuant to sections 19(j) of the Child Nutrition Act of 1966, as
amended (42 U.S.C. 1788), funds available for the fiscal year ending
September 30, 1980, are apportioned among the States as follows:
[See footnotes at the end of Table.]
----------------------------------------------------------------------------------------------------------------
Residential Nonresidential
Public Private child care child care
State schools schools institutions institutions Total \5\
\1\ \2\ \3\ \4\
----------------------------------------------------------------------------------------------------------------
Connecticut.................................... 231,069 38,488 1,260 2,866 273,683
Maine.......................................... 93,406 6,538 387 808 101,139
Massachusetts.................................. 420,866 68,337 2,697 5,352 497,252
New Hampshire.................................. 67,087 7,978 331 1,160 76,556
Rhode Island................................... 62,521 12,570 304 767 76,162
Vermont........................................ 39,419 3,814 247 579 75,000
914,368 137,725 5,226 11,532 1,099,792
Delaware....................................... 43,210 7,277 107 1,339 75,000
District of Columbia........................... 44,309 7,511 447 2,458 75,000
Maryland....................................... 315,196 51,992 1,292 5,234 373,714
New Jersey..................................... 520,438 117,060 3,930 8,588 650,016
[[Page 306]]
New York....................................... 1,204,026 274,593 14,068 19,756 1,512,443
Pennsylvania................................... 796,518 182,089 9,026 7,312 994,945
Puerto Rico.................................... 280,750 36,776 0 0 317,526
Virginia....................................... 410,660 34,947 6,239 6,068 457,914
Virgin Islands................................. 9,783 2,452 11 0 75,000
West Virginia.................................. 154,000 4,942 770 854 160,566
3,778,890 719,639 35,890 51,609 4,692,124
Alabama........................................ 296,412 21,949 892 10,607 329,860
Florida........................................ 589,122 57,440 2,116 19,074 667,752
Georgia \5\.................................... 424,042 27,708 2,783 14,806 469,339
Kentucky....................................... 269,690 27,786 3,685 3,652 304,813
Mississippi.................................... 192,134 25,802 541 12,175 230,652
North Carolina................................. 452,523 22,104 3,052 19,722 497,401
South Carolina \5\............................. 243,200 19,225 1,255 6,559 270,239
Tennessee...................................... 339,753 17,396 1,448 7,847 366,444
2,806,876 219,410 15,772 94,442 3,136,500
Illinois....................................... 793,671 160,491 5,343 15,971 975,476
Indiana........................................ 433,267 39,967 2,814 5,279 481,327
Michigan....................................... 747,374 85,655 3,069 7,817 843,915
Minnesota...................................... 314,333 38,994 1,245 3,135 357,707
Ohio........................................... 818,192 110,561 5,836 10,767 945,356
Wisconsin...................................... 344,962 73,707 1,922 3,579 424,170
3,451,799 509,375 20,229 46,548 4,027,951
Arkansas....................................... 177,730 8,095 385 4,453 190,663
Louisiana...................................... 317,817 64,562 1,551 6,307 390,237
New Mexico..................................... 108,673 5,448 235 2,619 116,975
Oklahoma....................................... 229,166 3,969 1,916 8,639 243,690
Texas.......................................... 1,115,829 52,654 4,163 38,934 1,211,580
1,949,215 134,728 8,250 60,952 2,153,145
Colorado \5\................................... 217,264 15,800 937 4,399 238,400
Iowa........................................... 221,255 25,957 3,204 2,631 253,047
Kansas......................................... 168,720 12,765 330 1,062 182,877
Missouri....................................... 350,248 54,950 1,271 6,629 413,098
Montana........................................ 63,950 3,425 75 677 75,000
Nebraska....................................... 115,891 17,629 376 1,694 135,590
North Dakota \5\............................... 47,486 4,826 309 383 75,000
South Dakota................................... 53,792 5,760 267 390 75,000
Utah........................................... 126,488 1,518 541 1,325 129,872
Wyoming........................................ 36,709 1,206 74 497 75,000
1,401,803 143,836 7,384 19,687 1,652,884
Alaska......................................... 35,308 739 310 392 75,000
Samoa.......................................... 3,616 778 0 0 75,000
Arizona........................................ 198,407 21,871 661 4,712 225,651
California..................................... 1,629,801 170,376 28,777 44,277 1,873,231
Guam........................................... 11,118 1,985 0 0 75,000
Hawaii......................................... 66,454 13,348 1,854 3,352 85,008
Idaho.......................................... 79,009 1,868 119 860 81,856
Nevada......................................... 56,927 2,179 473 1,643 75,000
Oregon......................................... 183,441 9,379 859 3,703 197,382
Trust Territory................................ 11,590 0 0 0 75,000
Washington..................................... 299,362 17,318 2,140 5,656 324,476
N Marianas..................................... 1,945 0 0 0 75,000
2,576,978 239,841 35,193 64,595 3,237,604
16,879,929 2,104,554 127,944 349,365 20,000,000
----------------------------------------------------------------------------------------------------------------
\1\ Sources: (1) U.S. Department of Health, Education, and Welfare, Education Division, NCES, Statistics of
Public Schools, Fall 1977, prepublication data, Table 5 for States and areas, except (2) Northern Marianas and
Trust Territory, 1975-76 data from Department of Interior, adjust to include pre-school; Puerto Rico and Guam,
Fall 1976 data.
\2\ U.S. Department of Health, Education, and Welfare, Education Division, (NCES). Digest of Education
Statistics, 1976, Table 46, p. 47, Northern Marianas and Trust Territory 1975-76 data from Department of
Interior, adjust to include pre-school.
\3\ U.S. Department of Agriculture, Food and Nutrition Service, Annual Report of Meal Service in Schools (Form
FNS-47), October 1978.
\4\ U.S. Department of Health, Education, and Welfare, Day Care Centers In the U.S.; A National Profile 1976-77,
Volume 3 of the Final Report of the National Day Care Study, Table 63.
\5\ A portion of these funds will be withheld from the States' allocations for use by FNS in administering the
Program in nonprofit private schools or institutions.
[[Page 307]]
[44 FR 70451, Dec. 7, 1979]
PART 235_STATE ADMINISTRATIVE EXPENSE FUNDS--Table of Contents
Sec.
235.1 General purpose and scope.
235.2 Definitions.
235.3 Administration.
235.4 Allocation of funds to States.
235.5 Payments to States.
235.6 Use of funds.
235.7 Records and reports.
235.8 Management evaluations and audits.
235.9 Procurement and property management standards.
235.10 [Reserved]
235.11 Other provisions.
235.12 Information collection/recordkeeping--OMB assigned control
numbers.
Authority: Secs. 7 and 10 of the Child Nutrition Act of 1966, 80
Stat. 888, 889, as amended (42 U.S.C. 1776, 1779).
Source: 41 FR 32405, Aug. 3, 1976, unless otherwise noted.
Sec. 235.1 General purpose and scope.
This part announces the policies and prescribes the regulations
necessary to carry out the provisions of section 7 of the Child
Nutrition Act of 1966, as amended. It prescribes the methods for making
payments of funds to State agencies for use for administrative expenses
incurred in supervising and giving technical assistance in connection
with activities undertaken by them under the National School Lunch
Program (7 CFR part 210), the Special Milk Program (7 CFR part 215), the
School Breakfast Program (7 CFR part 220), the Child and Adult Care Food
Program (7 CFR part 226) and the Food Distribution Program (7 CFR part
250).
(Sec. 7, Pub. L. 95-627, 92 Stat. 3621 (42 U.S.C. 1776))
[44 FR 51185, Aug. 31, 1979, as amended by Amdt. 17, 55 FR 1378, Jan.
16, 1990; 60 FR 15461, Mar. 24, 1995]
Sec. 235.2 Definitions.
For the purpose of this part, the term:
2 CFR part 200, means the Uniform Administrative Requirements, Cost
Principles, and Audit Requirements for Federal Awards published by OMB.
The part reference covers applicable: Acronyms and Definitions (subpart
A), General Provisions (subpart B), Post Federal Award Requirements
(subpart D), Cost Principles (subpart E), and Audit Requirements
(subpart F). (NOTE: Pre-Federal Award Requirements and Contents of
Federal Awards (subpart C) does not apply to the National School Lunch
Program).
Act means the Child Nutrition Act of 1966, as amended.
CND means the Child Nutrition Division of the Food and Nutrition
Service of the U.S. Department of Agriculture.
Department means the U.S. Department of Agriculture.
Distributing agency means a State agency which enters into an
agreement with the Department for the distribution of donated foods
pursuant to part 250 of this title.
FNS means the Food and Nutrition Service of the U.S. Department of
Agriculture.
FNSRO means the appropriate Food and Nutrition Service Regional
Office of the Food and Nutrition Service of the U.S. Department of
Agriculture.
Fiscal year means a period of 12 calendar months beginning October
1, 1976, and October 1 of each calendar year thereafter and ending with
September 30 of the following calendar year.
Institution means a child or adult care center or a sponsoring
organization as defined in part 226 of this chapter.
Large school food authority means, in any State:
(1) All school food authorities that participate in the National
School Lunch Program (7 CFR part 210) and have enrollments of 40,000
children or more each; or
(2) If there are less than two school food authorities with
enrollments of 40,000 or more, the two largest school food authorities
that participate in the National School Lunch Program (7 CFR part 210)
and have enrollments of 2,000 children or more each.
Nonprofit means exempt from income tax under section 501(c)(3) of
the Internal Revenue Code of 1986.
OIG means the Office of the Inspector General of the Department.
SAE means federally provided State administrative expense funds for
State agencies under this part.
[[Page 308]]
School means the term as defined in Sec. Sec. 210.2, 215.2, and
220.2 of this chapter, as applicable.
School Food Authority means the governing body which is responsible
for the administration of one or more schools and which has the legal
authority to operate a breakfast or a lunch program therein. The term
``School Food Authority'' also includes a nonprofit agency or
organization to which such governing body has delegated authority to
operate the lunch or breakfast program in schools under its
jurisdiction, provided the governing body retains the responsibility to
comply with breakfast or lunch program regulations.
Secretary means the Secretary of Agriculture.
State means any of the 50 States, District of Columbia, the
Commonwealth of Puerto Rico, the Virgin Islands, Guam, and, as
applicable, American Samoa and the Commonwealth of the Northern
Marianas.
State agency means (1) the State educational agency or (2) such
other agency of the State as has been designated by the Governor or
other appropriate executive or legislative authority of the State and
approved by the Department to administer programs under part 210, 215,
220, 226 or 250 of this title. Unless otherwise indicated, ``State
agency'' shall also mean Distributing agency as defined in this
section,, when such agency is receiving funds directly from FNS under
this part.
State educational agency means, as the State legislature may
determine: (1) The chief State school officer (such as the State
Superintendent of Public Instruction, Commissioner of Education, or
similar officer), or (2) a board of education controlling the State
department of education.
USDA implementing regulations include the following: 2 CFR part 400,
Uniform Administrative Requirements, Cost Principles, and Audit
Requirements for Federal Awards; 2 CFR part 415, General Program
Administrative Regulations; 2 CFR part 416, General Program
Administrative Regulations for Grants and Cooperative Agreements to
State and Local Governments; and 2 CFR part 418, New Restrictions on
Lobbying.
(Sec. 7, Pub. L. 95-627, 92 Stat. 3621 (42 U.S.C. 1776); sec. 205, Pub.
L. 96-499, The Omnibus Reconciliation Act of 1980, 94 Stat. 2599; secs.
807 and 808, Pub. L. 97-35, 95 Stat. 521-535 (42 U.S.C. 1772, 1784,
1760); Pub. L. 79-396, 60 Stat. 231 (42 U.S.C. 1751); Pub. L. 89-642, 80
Stat. 885-890 (42 U.S.C. 1773); Pub. L. 91-248, 84 Stat. 207 (42 U.S.C.
1759)
[41 FR 32405, Aug. 3, 1976, as amended at 44 FR 48957, Aug. 21, 1979; 44
FR 51185, Aug. 31, 1979; Amdt. 9, 48 FR 19355, Apr. 29, 1983; Amdt. 14,
51 FR 27151, July 30, 1986; 54 FR 2991, Jan. 23, 1989; Amdt. 17, 55 FR
1378, Jan. 16, 1990; 60 FR 15461, Mar. 24, 1995; 64 FR 50743, Sept. 20,
1999; 71 FR 39519, July 13, 2006; 72 FR 63792, Nov. 13, 2007; 81 FR
50194, July 29, 2016; 81 FR 66494, Sept. 28, 2016]
Sec. 235.3 Administration.
(a) Within the Department, FNS shall act on behalf of the Department
in the administration of the program for payment to States of State
administrative expense funds covered by this part. Within FNS, CND shall
be responsible for administration of the program.
(b) Each State agency desiring to receive payments under this part
shall enter into a written agreement with the Department for the
administration of the child nutrition programs in accordance with the
applicable requirements of this part, 7 CFR parts 210, 215, 220, 225,
226, 245, 15, 15a, 15b, and 2 CFR part 200, subpart D and USDA
implementing regulations 2 CFR part 400 and part 415. Each agreement
shall cover the operation of the Program during the period specified
therein and may be extended at the option of the Department.
(Sec. 14, Pub. L. 95-166, 91 Stat. 1338 (42 U.S.C. 1776); sec. 7, Pub.
L. 95-627, 92 Stat. 3621 (42 U.S.C. 1776))
[41 FR 32405, Aug. 3, 1976, as amended at 44 FR 48957, Aug. 21, 1979;
Amdt. 14, 51 FR 27151, July 30, 1986; 71 FR 39519, July 13, 2006; 81 FR
66493, Sept. 28, 2016]
Sec. 235.4 Allocation of funds to States.
(a) Nondiscretionary SAE Funds. For each fiscal year, FNS shall
allocate the following:
(1) To each State which administers the National School Lunch,
School Breakfast or Special Milk Programs an amount equal to one (1)
percent of the
[[Page 309]]
funds expended by such State during the second preceding fiscal year
under sections 4 and 11 of the National School Lunch Act, as amended,
and sections 3, 4 and 17A of the Child Nutrition Act of 1966, as
amended. However, the total amount allocated to any State under this
paragraph shall not be less than $200,000 or the amount allocated to the
State in the fiscal year ending September 30, 1981, whichever is
greater. On October 1, 2008 and each October 1 thereafter, the minimum
dollar amount for a fiscal year for administrative costs shall be
adjusted to reflect the percentage change between the value of the index
for State and local government purchases, as published by the Bureau of
Economic Analysis of the Department of Commerce, for the 12-month period
ending June 30 of the second preceding fiscal year, and the value of
that index for the 12-month period ending June 30 of the preceding
fiscal year.
(2) To each State which administers the Child and Adult Care Food
Program an amount equal to the sum of: Twenty percent of the first
$50,000; ten percent of the next $100,000; five percent of the next
$250,000; and two and one-half percent of any remaining funds expended
within the State under section 17 of the National School Lunch Act, as
amended, during the second preceding fiscal year. FNS may adjust the
amount of any such allocation in accordance with changes in the size of
the Child and Adult Care Food Program in a State.
(3) For each of fiscal years 2005 through 2007 no State shall
receive less than its fiscal year 2004 allocation for administrative
costs for all child nutrition programs.
(b) Discretionary SAE Funds. For each fiscal year, FNS shall provide
the following additional allocations:
(1) Allocate $30,000 to each State which administers the Child and
Adult Care Food Program (7 CFR part 226).
(2) $30,000 to each State which administers the Food Distribution
Program (part 250 of this chapter) in schools and/or institutions which
participate in programs under parts 210, 220, and 226 of this chapter;
provided that the State meets the training requirements set forth in
Sec. 235.11(h).
(3) Amounts derived by application of the following four-part
formula to each State agency which is allocated funds under paragraph
(a) of this section:
(i) One equal share of forty (40) percent of the funds designated by
FNS for the reviews conducted under Sec. 210.18 of this title.
(ii) The ratio of the number of School Food Authorities
participating in the National School Lunch or Commodity School Programs
under the jurisdiction of the State agency to such School Food
Authorities in all States times twenty (20) percent of the funds
designated by FNS for reviews conducted under Sec. 210.18 or of this
title.
(iii) The ratio of the number of free and reduced price meals served
in School Food Authorities under the jurisdiction of the State agency
during the second preceding fiscal year to the number of free and
reduced price meals served in all States in the second preceding fiscal
year times twenty (20) percent of the funds designated by FNS for
reviews conducted under Sec. 210.18 of this title.
(iv) Equal shares of twenty (20) percent of the funds designated by
FNS for reviews conducted under Sec. 210.18 of this title for each
School Food Authority under the jurisdiction of the State agency
participating in the National School Lunch or Commodity School Programs
which has an enrollment of 40,000 or more; Provided, however, That for
State agencies with fewer than two School Food Authorities with
enrollments of 40,000 or more, an equal share shall be provided to the
State agency, for either, or both, of the two largest School Food
Authorities which have enrollments of more than 2,000; and Provided,
further, That State agencies with only one School Food Authority,
regardless of size, shall be provided with one equal share. For each
fiscal year, the amount of State Administrative Expense Funds designated
by FNS for reviews conducted under Sec. 210.18 of this title and
subject to allocation under this paragraph shall be equal to or greater
than the amount designated by FNS for program management improvements
for the fiscal year ending September 30, 1980.
(4) Funds which remain after the allocations required in paragraphs
(a)(1),
[[Page 310]]
(a)(2), (b)(1), (b)(2) and (b)(3) of this section, and after any
payments provided for under paragraph (c) of this section, as determined
by the Secretary, to those States which administer the Food Distribution
Program (part 250 of this chapter) in schools and/or institutions which
participate in programs under parts 210, 220, or 226 of this chapter and
to those States which administer part 226 of this chapter. The amount of
funds to be allocated to each State for the Food Distribution Program
for any fiscal year shall bear the same ratio to the total amount of
funds made available for allocation to the State for the Food
Distribution Program under this paragraph as the value of USDA donated
foods delivered to the State for schools and institutions participating
in programs under parts 210, 220 and 226 of this chapter during the
second preceding fiscal year bears to the value of USDA donated foods
delivered to all the States for such schools and institutions during the
second preceding fiscal year. The amount of funds to be allocated to
each State which administers the Child and Adult Care Food Program for
any fiscal year shall bear the same ratio to the total amount of funds
made available for allocation to all such States under this paragraph as
the amount of funds allocated to each State under paragraph (a)(2) of
this section bears to the amount allocated to all States under that
paragraph.
(c) SAE Funds for the Child and Adult Care Food Program. If a State
elects to have a separate State agency administer the adult care
component of the Child and Adult Care Food Program, such separate State
agency shall receive a pro rata share of the SAE funds allocated to the
State under paragraphs (a)(2), (b)(1), and (b)(4) of this section which
is equal to the ratio of funds expended by the State for the adult care
component of the Child and Adult Care Food Program during the second
preceding fiscal year to the funds expended by the State for the entire
Child and Adult Care Food Program during the second preceding fiscal
year. The remaining funds shall be allocated to the State agency
administering the child care component of the Child and Adult Care Food
Program.
(d) SAE Start-up Cost Assistance for State Administration of Former
ROAPs. For any State agency which agrees to assume responsibility for
the administration of food service programs in nonprofit private schools
or child and adult care institutions that were previously administered
by FNS, an appropriate adjustment in the administrative funds paid under
this part to the State shall be made by FNS not later than the
succeeding fiscal year. Such an adjustment shall consist of an amount of
start-up cost assistance, negotiated with the State agency, of no less
than $10,000 and not exceeding $100,000, per State.
(e) SAE Funding Reduction Upon State Agency Termination of a Food
Service Program. For any State agency which terminates its
administration of any food service program for which State
administrative expense funds are provided under this part, a reduction
in the amount of such funds, negotiated with the State agency, shall be
made by FNS.
(f) SAE Funds for ROAPs. FNS shall have available to it the
applicable amounts provided for in paragraphs (a)(1), (a)(2), and (b)(1)
of this section, and part 225 of this title, when it is responsible for
the administration of a program or programs within a State.
(g) Reallocation. Funds allotted to State agencies under this
section shall be subject to the reallocation provisions of Sec.
235.5(d).
(h) Withholding SAE funds. The Secretary may withhold some or all of
the funds allocated to the State agency under this section if the
Secretary determines that the State agency is seriously deficient in the
administration of any program for which State administrative expense
funds are provided under this part or in the compliance of any
regulation issued pursuant to those programs. On a subsequent
determination by the Secretary that State agency administration of the
programs or compliance with regulations is no
[[Page 311]]
longer seriously deficient and is operated in an acceptable manner, the
Secretary may allocate some or all of the funds withheld.
(Sec. 14, Pub. L. 95-166, 91 Stat. 1338 (42 U.S.C. 1776); sec. 7, Pub.
L. 95-627, 92 Stat. 3621 (42 U.S.C. 1776); sec. 7(a), Pub. L. 95-627, 92
Stat. 3622 (42 U.S.C. 1751); Pub. L. 96-499, secs. 201 and 204, 94 Stat.
2599; secs. 805, 812, 814 and 819, Pub. L. 97-35, 95 Stat. 521-535 (42
U.S.C. 1754, 1759a, 1774 and 1776); E.O. 12372 (July 14, 1982, 47 FR
30959); sec. 401(b) Intergovernmental Cooperation Act of 1968 (31 U.S.C.
6506(c))
[44 FR 48957, Aug. 21, 1979]
Editorial Note: For Federal Register citations affecting Sec.
235.4, see the List of CFR Sections Affected, which appears in the
Finding Aids section of the printed volume and at www.govinfo.gov.
Sec. 235.5 Payments to States.
(a) Method of payment. FNS will specify the terms and conditions of
the State agency's annual grant of SAE funds in conjunction with the
grant award document and will make funds available for payment by means
of a Letter of Credit issued in favor of the State agency. The total
amount of a State agency's grant shall be equal to the sum of the
amounts allocated to such agency under Sec. 235.4 plus or minus any
adjustments resulting from the reallocation provisions under paragraph
(d) of this section plus any transfers under Sec. 235.6(a) and/or Sec.
235.6(c) of this part. The amount of SAE funds made available for
payment to a State agency in any fiscal year shall be determined by FNS
upon approval of the State agency's administrative plan under paragraph
(b) of this section and any amendments to such plan under paragraph (c)
of this section. Funds shall not be made available before the State
agency's plan or amendment to such plan, as applicable, has been
approved by FNS. However, if the plan has not been approved by October 1
of the base year, FNS may advance SAE funds to the State agency, in
amounts determined appropriate by FNS, pending approval of the plan.
(b) Administrative plan. (1) Each State agency shall submit, subject
to FNS approval, an initial State Administrative Expense plan based upon
guidance provided by FNS. This base year plan shall include:
(i) The staffing pattern for State level personnel;
(ii) A budget for the forthcoming fiscal year showing projected
amounts (combined SAE and State funds) by cost category;
(iii) The total amount of budgeted funds to be provided from State
sources;
(iv) The total amount of budgeted funds to be provided under this
part;
(v) The State agency's estimate of the total amount of budgeted
funds (combined SAE and State funds) attributable to administration of
the School Nutrition Programs (National School Lunch, School Breakfast
and Special Milk Programs), Child and Adult Care Food Program, and/or
Food Distribution Program in schools and child and adult care
institutions and to each of the major activity areas of the State
agency; and
(vi) The State agency's estimate of the total Child and Adult Care
Food Program audit funds to be used for the forthcoming fiscal year.
(2) These activity areas shall be defined and described by the State
agency in accordance with guidance issued by FNS and may include such
activities as program monitoring, technical assistance, Federal
reporting/claims processing, policy implementation, and allocation of
foods to recipient agencies.
(3) Except in specific instances where determined necessary by FNS,
State agencies shall not be required to maintain expenditure records by
activity area or program. State agencies shall refer to 2 CFR part 200,
subpart E and USDA implementing regulations 2 CFR part 400 and part 415.
(4) FNS shall approve a State agency's plan, or any amendment to
such plan under paragraph (c) of this section, if it determines that the
plan or amendment is consistent with program administrative needs and
SAE requirements under this part.
(5) To the extent practicable, State agencies shall implement their
approved plans (as amended). FNS shall monitor State agency
implementation
[[Page 312]]
of the plans through management evaluations, State agency reports
submitted under this part, audits, and through other available means.
(6) FNS may expand plan requirements for individual State agencies
in order to address specific administrative deficiencies which affect
compliance with program requirements and which have been identified by
FNS through its monitoring activities.
(c) Amendments to the administrative plan. A State agency may amend
its plan at any time to reflect changes in funding or activities, except
that, if such changes are substantive as defined in the June 5, 1997
guidance, and any amendments or updates to this guidance, the State
agency shall amend its plan in accordance with guidance provided by FNS.
Plan amendments shall provide information in a format consistent with
that provided in the State agency's plan, but shall only require FNS
approval if it results in a substantive change as defined by FNS.
(d) Reallocation of funds. Annually, between March 1 and May 1 on a
date specified by FNS, of each year, each State agency shall submit to
FNS a State Administrative Expense Funds Reallocation Report (FNS-525)
on the use of SAE funds. At such time, a State agency may release to FNS
any funds that have been allocated, reallocated or transferred to it
under this part or may request additional funds in excess of its current
grant level. Based on this information or on other available
information, FNS shall reallocate, as it determines appropriate, any
funds allocated to State agencies in the current fiscal year which will
not be obligated in the following fiscal year and any funds carried over
from the prior fiscal year which remain unobligated at the end of the
current fiscal year. Reallocated funds shall be made available for
payment to a State agency upon approval by FNS of the State agency's
amendment to the base year plan which covers the reallocated funds, if
applicable. Notwithstanding any other provision of this part, a State
agency may, at any time, release to FNS for reallocation any funds that
have been allocated, reallocated or transferred to it under this part
and are not needed to implement its approved plan under this section.
(e) Return of funds. (1) In Fiscal Year 1991, up to 25 per cent of
the SAE funds allocated to each State agency under Sec. 235.4 may
remain available for obligation and expenditure in the second fiscal
year of the grant. In subsequent fiscal years, up to 20 percent may
remain available for obligation and expenditure in the second fiscal
year. The maximum amount to remain available will be calculated at the
time of the formula allocation by multiplying the appropriate percentage
by each State agency's formula allocation as provided under Sec.
235.4(a) through (c). At the end of the first fiscal year, the amount
subject to the retention limit is determined by subtracting the amount
reported by the State agency as Total Federal share of outlays and
unliquidated obligations on the fourth quarter Standard Form FNS 777,
Financial Status Report, from the total amount of SAE funds made
available for that fiscal year (i.e., the formula allocation adjusted
for any transfers or reallocations). However, funds provided under Sec.
235.4(d) are not subject to the retention limit. Any funds in excess of
the amount that remains available to each State agency shall be returned
to FNS.
(2) At the end of the fiscal year following the fiscal year for
which funds were allocated, each State agency shall return any funds
made available which are unobligated.
(3) Return of funds by the State agency shall be made as soon as
practicable, but in any event, not later than 30 days following demand
by FNS.
[Amdt. 14, 51 FR 27151, July 30, 1986, as amended by Amdt. 17, 55 FR
1378, Jan. 16, 1990; 60 FR 15462, Mar. 24, 1995; 64 FR 50743, Sept. 20,
199; 88 FR 57858, Aug. 23, 20239]
Sec. 235.6 Use of funds.
(a) Funds allocated under this part and 7 CFR part 225 shall be used
for State agency administrative costs incurred in connection with the
programs governed by 7 CFR parts 210, 215, 220, 225, 226, and 250 of
this title. Except as provided under Sec. 235.6(c), funds allocated
under Sec. 235.4, paragraphs (a) and (b) and 7 CFR part 225 shall be
used for
[[Page 313]]
the program(s) for which allocated, except that the State agency may
transfer funds allocated for any such program(s) to other such
program(s). Subject to the provisions of this paragraph, a State agency
may also transfer SAE funds that are not needed to implement its
approved plan Sec. 235.5(b) to another State agency within the State
that is eligible to receive SAE funds under this part. Up to 25 per cent
of funds allocated under Sec. 235.4(a) through (c) for Fiscal Year 1991
and up to 20 per cent of funds allocated in subsequent fiscal years to a
State agency may, subject to the provisions of Sec. 235.5 of this part,
remain available for obligation and expenditure by such State agency
during the following fiscal year.
(a)(1) State administrative expense funds paid to any State may be
used by State agencies to pay salaries, including employee benefits and
travel expenses for administrative and supervisory personnel, for
support services, for office equipment, and for staff development,
particularly for monitoring and training of food service personnel at
the local level in areas such as food purchasing and merchandizing. Such
funds shall be used to employ additional personnel, as approved in the
applicable State plan to supervise, improve management, and give
technical assistance to school food authorities and to institutions in
their initiation, expansion, and conduct of any programs for which the
funds are made available. State agencies may also use these funds for
their general administrative expenses in connection with any such
programs, including travel and related expenses. Additional personnel or
part-time personnel hired are expected to meet professional
qualifications and to be paid at salary scales of positions of
comparable difficulty and responsibility under the State agency.
Personnel may be used on a staff year equivalent basis, thus permitting
new personnel and existing staff to be cross-utilized for most effective
and economical operation under existing and new programs. State agencies
may also use these funds for the purposes of State director annual
continuing education/training as described in Sec. 235.11(h)(3);
however, costs associated with obtaining college credits to meet the
hiring standards in Sec. 235.11(h)(1) and (2) are not allowable.
(a)(2) State Administrative Expense Funds paid to any State agency
under Sec. 235.4(b)(3) shall be available for reviews conducted under
Sec. 210.18 activities associated with carrying out actions to ensure
adherence to the program performance standards.
(b) State administrative expense funds shall be used consistent with
the cost principles and constraints on allowable and unallowable costs
and indirect cost rates as prescribed in 2 CFR part 200, subpart E and
USDA implementing regulations 2 CFR part 400 and part 415.
(c) In addition to State Administrative Expense funds made available
specifically for food distribution purposes under Sec. 235.4 (b)(2) and
(b)(4), State Administrative Expense funds allocated under Sec. 235.4
(a)(1), (a)(2), (b)(1), (b)(3), and (d), and under (b)(4) for the Child
and Adult Care Food Program may be used to assist in the administration
of the Food Distribution Program (7 CFR part 250) in schools and
institutions which participate in programs governed by parts 210, 220,
and 226 of this title when such Food Distribution Program is
administered within the State agency and may also be used to pay
administrative expenses of a distributing agency, when such agency is
other than the State agency and is responsible for administering all or
part of such Food Distribution Program.
(d) FNS shall allocate, for the purpose of providing grants on an
annual basis to public entities and private nonprofit organizations
participating in projects under section 18(c) of the National School
Lunch Act, not more than $4,000,000 in each of Fiscal Years 1993 and
1994. Subject to the maximum allocation for such projects for each
fiscal year, at the beginning of each of Fiscal Years 1993 and 1994, FNS
shall allocate, from funds available under Sec. 235.5(d) that have not
otherwise been allocated to States, an amount equal to the estimates by
FNS of the funds to be returned under paragraph (a) of this section, but
not less than $1,000,000 in each fiscal year. To the extent that amounts
returned to FNS are less than estimated or are insufficient to meet
[[Page 314]]
the needs of the projects, FNS may allocate amounts to meet the needs of
the projects from funds available under this section that have not been
otherwise allocated to States. FNS shall reallocate any of the excess
funds above the minimum level in accordance with Sec. 235.5(d).
(e) Where State Administrative Expense Funds are used to acquire
personal property or services the provisions of Sec. Sec. 235.9 and
235.10 must be observed.
(f) Each State agency shall adequately safeguard all assets and
assure that they are used solely for authorized purposes.
(g) Whoever embezzles, willfully misapplies, steals, or obtains by
fraud any funds, assets, or property provided under this part, whether
received directly or indirectly from the Department, shall:
(1) If such funds, assets, or property are of a value of $100 or
more, be fined not more than $25,000 or imprisoned not more than five
years or both; or
(2) If such funds, assets, or property are of a value of less than
$100, be fined not more than $1,000 or imprisoned not more than one year
or both.
(h) Whoever receives, conceals, or retains to his use or gain funds,
assets, or property provided under this part, whether received directly
or indirectly from the Department, knowing such funds, assets, or
property have been embezzled, willfully misapplied, stolen, or obtained
by fraud, shall be subject to the same penalties provided in paragraph
(h) of this section.
(i) Full use of Federal funds. States and State agencies must
support the full use of Federal funds provided to State agencies for the
administration of Child Nutrition Programs, and exclude such funds from
State budget restrictions or limitations including hiring freezes, work
furloughs, and travel restrictions.
(Sec. 14, Pub. L. 95-166, 91 Stat. 1338, 1339, 1340 (42 U.S.C. 1751,
1753, 1759a, 1761, 1766, 1772-1775, 1776, 1786); sec. 7(a), Pub. L. 95-
627, 92 Stat. 3621, 3622 (42 U.S.C. 1751, 1776))
[41 FR 32405, Aug. 3, 1976]
Editorial Note: For Federal Register citations affecting Sec.
235.6, see the List of CFR Sections Affected, which appears in the
Finding Aids section of the printed volume and at www.govinfo.gov.
Sec. 235.7 Records and reports.
(a) Each State agency shall keep records on the expenditure of State
administrative expense funds provided under this part and part 225 of
this title. Such records shall conform with the applicable State plan
for use of State administrative expense funds. The State agency shall
make such records available, upon a reasonable request, to FNS, OIG, or
the U.S. Comptroller General and shall maintain current accounting
records of State administrative expense funds which shall adequately
identify fund authorizations, obligations, unobligated balances, assets,
liabilities, outlays and income. The records may be kept in their
original form or on microfilm, and shall be retained for a period of
three years after the date of the submission of the final Financial
Status Report, subject to the exceptions noted below:
(1) If audit findings have not been resolved, the records shall be
retained beyond the three-year period as long as required for the
resolution of the issues raised by the audit.
(2) Records for nonexpendable property acquired with State
Administrative Expense Funds shall be retained for three years after its
final disposition.
(b) Each State agency shall submit to FNS a quarterly Financial
Status Report (FNS-777) on the use of State administrative expense funds
provided for each fiscal year under this part. Reports shall be
postmarked and/or submitted to FNS no later than 30 days after the end
of each quarter of the fiscal year and, in case of funds carried over
under Sec. 235.6(a), each quarter of the following fiscal year until
all such funds have been obligated and expended. Obligations shall be
reported for the fiscal year in which they occur. Each State agency
shall submit a final Financial Status Report for each fiscal year's
State administrative expense funds. This report shall be postmarked and/
or submitted to FNS no later than 30 days after the end of the fiscal
year following the fiscal year for which the funds were initially made
available.
[[Page 315]]
Based on guidance provided by FNS, each State agency shall also use the
quarterly FNS-777 to report on the use of State funds provided during
the fiscal year. Each State agency shall also submit an annual report
containing information on School Food Authorities under agreement with
the State agency to participate in the National School Lunch or
Commodity School programs.
(c) State agencies operating those programs governed by parts 210,
215, 220 and 226 and those State agencies which are distributing
agencies eligible for SAE funds shall participate in surveys and studies
of programs authorized under the National School Lunch Act, as amended,
and the Child Nutrition Act of 1966, as amended, when such studies and
surveys are authorized by the Secretary of Agriculture. The
aforementioned State agencies shall encourage individual School Food
Authorities, child and adult care institutions, and distributing
agencies (as applicable) to participate in such studies and surveys.
Distribution of State Administrative Expense funds to an individual
State agency is contingent upon that State agency's cooperation in such
studies and surveys.
(Sec. 14, Pub. L. 95-166, 91 Stat. 1338 (42 U.S.C. 1776); sec. 7, Pub.
L. 95-627, 92 Stat. 3621 (42 U.S.C. 1776); 93 Stat. 837, Pub. L. 96-108
(42 U.S.C. 1776); secs. 804, 816, 817 and 819, Pub. L. 97-35, 95 Stat.
521-535 (42 U.S.C. 1753, 1756, 1759, 1771, 1773 and 1785); sec. 7(a),
Pub. L. 95-627, 92 Stat. 3622, 42 U.S.C. 1751)
[41 FR 32405, Aug. 3, 1976, as amended at 43 FR 37173, Aug. 22, 1978; 44
FR 48958, Aug. 21, 1979; 45 FR 8563, Feb. 8, 1980; Amdt. 9, 48 FR 195,
Jan. 4, 1983; Amdt. 11, 48 FR 27892, June 17, 1983; Amdt. 12, 49 FR
18989, May 4, 1984; Amdt. 14, 51 FR 27152, July 30, 1986; Amdt. 17, 55
FR 1378, Jan. 16, 1990; 60 FR 15463, Mar. 24, 1995; 81 FR 66493, Sept.
28, 2016]
Sec. 235.8 Management evaluations and audits.
(a) Unless otherwise exempt, audits at the State level shall be
conducted in accordance with 2 CFR part 200, subpart F and Appendix XI,
Compliance Supplement and USDA implementing regulations 2 CFR part 400
and part 415.
(b) While OIG shall rely to the fullest extent feasible upon State
sponsored audits, it shall, whenever considered necessary, (1) perform
on-site test audits, and (2) review audit reports and related working
papers of audits performed by or for State agencies.
(c) Each State agency shall provide FNS with full opportunity to
conduct management evaluations of all operations of the State agency
under this part and shall provide OIG with full opportunity to conduct
audits of all such operations. Each State agency shall make available
its records, including records of the receipt and expenditure of funds,
upon a reasonable request by FNS, OIG, or the U.S. Comptroller General.
(Sec. 7, Pub. L. 95-627, 92 Stat. 3621 (42 U.S.C. 1776); secs. 804, 805,
812, 814, 816, 817 and 819, Pub. L. 97-35, 95 Stat. 521-535 (42 U.S.C.
1753, 1754, 1756, 1759, 1759a, 1771, 1773, 1774, 1776, and 1785))
[41 FR 32405, Aug. 3, 1976, as amended at 44 FR 51186, Aug. 31, 1979;
Amdt. 7, 47 FR 18567, Apr. 30, 1982; Amdt. 9, 48 FR 195, Jan. 4, 1983;
54 FR 2991, Jan. 23, 1989; 71 FR 39519, July 13, 2006; 81 FR 66493,
Sept. 28, 2016]
Sec. 235.9 Procurement and property management standards.
(a) Requirements. State agencies shall comply with the requirements
of 2 CFR part 200, subpart D and USDA implementing regulations 2 CFR
part 400 and part 415 concerning the procurement of supplies, equipment
and other services with State Administrative Expense Funds.
(b) Contractual responsibilities. The standards contained in 2 CFR
part 200, subpart D and USDA implementing regulations 2 CFR part 400 and
part 415 do not relieve the State agency of any contractual
responsibilities under its contract. The State agency is the responsible
authority, without recourse to FNS, regarding the settlement and
satisfaction of all contractual and administrative issues arising out of
procurements entered into in connection with the Program. This includes,
but is not limited to source evaluation, protests, disputes, claims, or
other matters of a contractual nature. Matters concerning violation of
law are to be referred to the local, State or Federal authority that has
proper jurisdiction.
(c) Procurement procedure. The State agency may use its own
procurement procedures which reflect applicable State laws and
regulations, in accordance with 2 CFR part 200, subpart D
[[Page 316]]
and USDA implementing regulations 2 CFR part 400 and part 415.
(d) Property acquired with State administrative expense funds. State
Agencies shall comply with the requirements of 2 CFR part 200, subpart D
and USDA implementing regulations 2 CFR part 400 and part 415 in their
utilization and disposition of property acquired in whole or in part
with State Administrative Expense Funds.
(Pub. L. 79-396, 60 Stat. 231 (42 U.S.C. 1751); Pub. L. 89-642, 80 Stat.
885-890 (42 U.S.C. 1773); Pub. L. 91-248, 84 Stat. 207 (42 U.S.C. 1759))
[Amdt. 9, 48 FR 19355, Apr. 29, 1983, as amended at 71 FR 39519, July
13, 200; 81 FR 66493, Sept. 28, 2016]
Sec. 235.10 [Reserved]
Sec. 235.11 Other provisions.
(a) State funds. Expenditures of funds from State sources in any
fiscal year for the administration of the National School Lunch Program,
School Breakfast Program, Special Milk Program, Child and Adult Care
Food Program shall not be less than that expended or obligated in fiscal
year 1977. Failure of a State to maintain this level of funding will
result in the total withdrawal of SAE funds. State agencies shall follow
the provisions of 2 CFR part 200, subpart E and USDA implementing
regulations 2 CFR part 400 and part 415 in identifying and documenting
expenditures of funds from State revenues to meet the State funding
requirement of this paragraph.
(b) Sanctions imposed. (1) FNS may recover, withhold or cancel
payment of up to one hundred (100) percent of the funds payable to a
State agency under this part, whenever it is determined by FNS that the
State agency has failed to comply with the requirements contained in
this part and in parts 210, 215, 220 and 226 of this title and in part
250 of this title as it applies to the operation of the Food
Distribution Program in schools and child and adult care institutions.
(2) In addition to the general provisions found in paragraph (b)(1)
of this section, FNS may, for any fiscal year, recover, withhold or
cancel payment of up to thirty-three and one-third (33\1/3\) percent of
the funds payable to, and to be used by, a State agency under Sec.
235.4(a)(1) and Sec. 235.4(b)(3) for administration of school nutrition
programs in FNS determines that a State agency is deficient in one or
more of the following:
(i) Implementing the requirements in Sec. 210.18;
(ii) Conducting the number of reviews required in Sec. 210.18
within the timeframes specified;
(iii) Covering the areas of review set forth in the Sec. 210.18,
carrying out corrective action, and assessing and recovering claims as
prescribed in Sec. Sec. 210.18 and 210.19 of this title;
(iv) Conducting reviews with sufficient thoroughness to identify
violations of the areas of review identified in Sec. 210.18;
(v) Meeting the reporting deadlines prescribed for the forms (FNS-10
and FNS-777) required under Sec. 210.5(d) of this title; and
(vi) Meeting the professional standards required in paragraph (g) of
this section.
(3) Furthermore, FNS may for any fiscal year, recover, withhold or
cancel payment of up to thirty-three and one-third (33\1/3\) percent of
the funds payable to, and to be used by, a State agency under Sec.
235.4(a)(2), Sec. 235.4(b)(1) and Sec. 235.4(b)(4) for administration
of the Child and Adult Care Food Program if FNS determines that a State
agency is deficient in meeting the reporting deadlines prescribed for
the forms (FNS-44 and FNS-777) required under Sec. 226.7(d) of this
title.
(4) In establishing the amounts of funds to be recovered, withheld
or cancelled under paragraph (b)(2) and (b)(3) of this section, FNS
shall determine the current or projected rate of funds usage by the
State agency for all funds subject to sanction, and after considering
the severity and longevity of the cumulative deficiencies, shall apply
an appropriate sanction percentage to the amount so determined. During
the fiscal year under sanction, a State agency may not use funds not
included in the determination of funds usage to replace sanctioned
funds. The maximum sanction percentage that may be imposed against a
State agency for failure within one or more of the five deficiency areas
specified in paragraph (b)(2) of
[[Page 317]]
this section for any fiscal year shall be thirty-three and one-third
(33\1/3\) percent of the funds payable under Sec. 235.4(a)(1) and Sec.
235.4(b)(3) for administration of school nutrition programs for such
fiscal year.
(5) Before carrying out any sanction against a State agency under
this section, the following procedures shall be implemented:
(i) FNS shall notify the Chief State School Officer or equivalent of
the deficiencies found and of its intention to impose sanctions unless
an acceptable corrective action plan is submitted and approved by FNS
within 60 calendar days.
(ii) The State agency shall develop a corrective action plan with
specific timeframes to correct the deficiencies and/or prevent their
future recurrence. The plan will include dates by which the State agency
will accomplish such corrective action.
(iii) FNS shall review the corrective action plan. If it is
acceptable, FNS shall issue a letter to the Chief State School Officer
or equivalent approving the corrective action plan, and detailing the
technical assistance that is available to the State agency to correct
the deficiencies. The letter shall advise the Chief State School Officer
or equivalent of the specific sanctions to be imposed if the corrective
action plan is not implemented within timeframes set forth in the
approved plan.
(iv) Upon advice from the State agency that corrective action has
been taken, FNS shall assess such action and, if necessary, shall
perform a follow-up review to determine if the noted deficiencies have
been corrected. FNS shall then advise the State agency if the actions
taken are in compliance with the corrective action plan or if additional
corrective action is needed.
(v) If an acceptable corrective action plan is not submitted and
approved within 60 calendar days, or if corrective action is not
completed within the time limits established in the corrective action
plan, FNS may impose a sanction by assessing a claim against the State
agency or taking action in accordance with 2 CFR part 200, subpart D and
USDA implementing regulations 2 CFR part 400 and part 415 FNS shall
notify the Chief State School Officer or equivalent of any such action.
(vi) If, subsequent to the imposition of any sanction, FNS
determines that the noted deficiencies have been resolved and that the
programs for which SAE funds were made available are being operated in
an acceptable manner, FNS may return to the State agency or restore to
the State agency's Letter of Credit (LOC) part or all of any sanctioned
SAE funds.
(6) In carrying out sanctions under this part for any fiscal year,
FNS may reduce the amount of allocated SAE funds payable to a State
agency in whole or in part during such fiscal year and during following
fiscal years if necessary.
(7) Any State agency which has a sanction imposed against it in
accordance with this paragraph shall not be eligible to participate in
any reallocation of SAE funds under Sec. 235.5(d) of this part during
any fiscal year in which such sanction is being applied.
(c) Fines. (1) FNS may establish a fine against any State agency
administering the programs under parts 210, 215, 220, 225, 226, and 250
of this chapter, as it applies to the operation of the Food Distribution
Program in schools and child and adult care institutions, when it has
determined that the State agency has:
(i) Failed to correct severe mismanagement of the programs;
(ii) Disregarded a program requirement of which the State has been
informed; or
(iii) Failed to correct repeated violations of program requirements.
(2) Funds used to pay a fine established under paragraph (c)(1) of
this section must be derived from non-Federal sources. The amount of the
fine will not exceed the equivalent of:
(i) For the first fine, 1 percent of all allocations made available
under Sec. 235.4 during the most recent fiscal year for which full year
data are available;
(ii) For the second fine, 5 percent of all allocations made
available under Sec. 235.4 during the most recent fiscal year for which
full year data are available; and
(iii) For the third or subsequent fines, 10 percent of all
allocations made available under Sec. 235.4 during the most
[[Page 318]]
recent fiscal year for which full year data are available.
(3) State agencies seeking to appeal a fine established under this
paragraph must follow the procedures set forth in this paragraph (g).
(d) Termination for convenience. FNS and the State agency may
terminate the State agency's participation under this part in whole, or
in part, when both parties agree that continuation would not produce
beneficial results commensurate with the further expenditure of funds.
The two parties shall agree upon the termination conditions, including
the effective date and, in the case of partial termination, the portion
to be terminated. The State agency shall not incur new obligations for
the terminated portion after the effective date, and shall cancel as
many outstanding obligations as possible. FNS shall allow full credit to
the State agency for the Federal share of the noncancellable
obligations, properly incurred by the State agency prior to termination.
(e) In taking any action under paragraphs (b), (c), or (d) of this
section, FNS and the State agency shall comply with the provisions of 2
CFR part 200, subpart D and USDA implementing regulations 2 CFR part 400
and part 415 concerning grant suspension, termination and closeout
procedures.
(f) State requirements. Nothing contained in this part shall prevent
a State agency from imposing additional operating requirements which are
not inconsistent with the provisions of this part.
(g) Administrative review process. When FNS asserts a sanction or
fine against a State agency under the provisions of paragraphs (b) and
(c) of this section, the State agency may appeal the case and be
afforded a review by an FNS Administrative Review Officer of the record
including any additional written submissions prepared by the State
agency.
(1) FNS shall provide a written notice and shall ensure the receipt
of such notice when asserting a sanction or fine against a State agency.
(2) A State agency aggrieved by a sanction or fine asserted against
it may file a written request with the Director, Administrative Review
Staff, U.S. Department of Agriculture, Food and Nutrition Service, 3101
Park Center Drive, Alexandria, Va. 22302 for a review of the record.
Such request must be postmarked within 30 calendar days of the date of
delivery of the sanction or fine notice and the envelope containing the
request shall be prominently marked ``REQUEST FOR REVIEW.'' If the State
agency does not request a review within 30 calendar days of the date of
delivery of the sanction or fine notice, the administrative decision on
the sanction or fine shall be final.
(3) Upon receipt of a request for review, FNS shall promptly provide
the State agency with a written acknowledgment of the request. The
acknowledgment shall include the name and address of the FNS
Administrative Review Officer reviewing the sanction or fine. The
acknowledgment shall also notify the State agency that any additional
information in support of its position must be submitted within 30
calendar days of the receipt of the acknowledgment.
(4) When a review is requested, the FNS Administrative Review
Officer shall review all available information and shall make a final
determination within 45 calendar days after receipt of the State
agency's additional information. The final determination shall take
effect upon delivery of the written notice of this final decision to the
State agency.
(5) The final determination of the FNS Administrative Review Officer
will be the Department's final decision in the case and will not be
subject to reconsideration.
(h) Professional standards. State agencies must meet the minimum
hiring and training standards established by FNS.
(1) Hiring standards for State directors of school nutrition
programs. Beginning July 1, 2015, newly hired State agency directors
with responsibility for the administration of the National School Lunch
Program under part 210 of this chapter and the School Breakfast Program
under part 220 of this chapter must have:
(i) Bachelor's degree, master's degree, or doctorate degree with an
academic major in areas including food
[[Page 319]]
and nutrition, food service management, dietetics, family and consumer
sciences, nutrition education, culinary arts, business, or a related
field;
(ii) Extensive relevant knowledge and experience in areas such as
institutional food service operations, management, business, and/or
nutrition education (experience in three or more of these areas highly
recommended); and
(iii) Additional abilities and skills needed to lead, manage and
supervise people to support the mission of Child Nutrition programs.
(iv) It is also strongly preferred that new hires possess:
(A) Both a bachelor's degree and a master's or doctorate degree with
an academic major in areas including food and nutrition, food service
management, dietetics, family and consumer sciences, nutrition
education, culinary arts, business, or a related field;
(B) At least five years of experience leading people in successfully
accomplishing major multi-faceted projects related to child nutrition
and/or institutional foodservice management; and
(C) Professional certification in food and nutrition, food service
management, school business management or a related field as determined
by FNS.
(2) Hiring standards for State directors of distributing agencies.
Beginning July 1, 2015, newly hired State agency directors with
responsibility for the administration of the distribution of USDA
donated foods under part 250 of this chapter must have:
(i) Bachelor's degree in any academic major;
(ii) Extensive relevant knowledge and experience in areas such as
institutional food service operations, management, business, and/or
nutrition education; and
(iii) Additional abilities and skills needed to lead, manage and
supervise people to support the mission of Child Nutrition programs.
(iv) It is also strongly preferred that new hires possess at least
five years of experience in institutional food service operations.
(3) Continuing education and training standards for State directors
of school nutrition programs and distributing agencies. Each school
year, all State directors with responsibility for the National School
Lunch Program under part 210 of this chapter and the School Breakfast
Program under part 220 of this chapter, as well as those responsible for
the distribution of USDA donated foods under part 250 of this chapter,
must complete a minimum of 15 hours of training in core areas that may
include nutrition, operations, administration, communications and
marketing. State directors tasked with National School Lunch Program
procurement responsibilities must complete annual procurement training,
as required under Sec. 210.21(h) of this chapter. Additional hours and
topics may be specified by FNS, as needed, to address program integrity
and other critical issues.
(4) Provision of annual training. At least annually, State agencies
with responsibility for the National School Lunch Program under part 210
of this chapter and the School Breakfast Program under part 220 of this
chapter, as well as State agencies with responsibility for the
distribution of USDA donated foods under part 250 of this chapter, must
provide or ensure that State agency staff receive annual continuing
education/training.
(i) Each State agency with responsibility for the National School
Lunch Program under part 210 of this chapter and the School Breakfast
Program under part 220 of this chapter must provide a minimum of 18
hours of continuing education/training to school food authorities.
Topics include administrative practices (including training in
application, certification, verification, meal counting, and meal
claiming procedures); the accuracy of approvals for free and reduced
price meals; the identification of reimbursable meals at the point of
service; nutrition; health and food safety standards; the efficient and
effective use of USDA donated foods; and any other appropriate topics,
as determined by FNS, to ensure program compliance and integrity or to
address other critical issues.
(ii) Each State agency with responsibility for the distribution of
USDA donated foods under part 250 of this chapter must provide or ensure
receipt of continuing education/training to State distribution agency
staff on an annual
[[Page 320]]
basis. Topics may include the efficient and effective use of USDA
donated foods; inventory rotation and control; health and food safety
standards; and any other appropriate topics, as determined by FNS, to
ensure program compliance and integrity or to address other critical
issues.
(5) Records and recordkeeping. State agencies must annually retain
records for a period of three years to adequately demonstrate compliance
with the professional standards for State directors of school nutrition
programs established in this paragraph.
(6) Failure to comply. Failure to comply with the professional
standards in this paragraph may result in sanctions as specified in
paragraph (b) of this section.
(Sec. 14, Pub. L. 95-166, 91 Stat. 1338 (42 U.S.C. 1776); sec. 7, Pub.
L. 95-627, 92 Stat. 3621 (42 U.S.C. 1776); secs. 805 and 819, Pub. L.
97-35, 95 Stat. 521-535 (42 U.S.C. 1773); sec. 7(a), Pub. L. 95-627, 93
Stat. 3622, 42 U.S.C. 1751)
[41 FR 32405, Aug. 3, 1976]
Editorial Note: For Federal Register citations affecting Sec.
235.11, see the List of CFR Sections Affected, which appears in the
Finding Aids section of the printed volume and at www.govinfo.gov.
Sec. 235.12 Information collection/recordkeeping--OMB assigned control numbers.
------------------------------------------------------------------------
7 CFR Section where requirements are
described Current OMB control No.
------------------------------------------------------------------------
235.3(b)............................ 0584-0067.
235.4............................... 0584-0067.
235.5(b), (d)....................... 0584-0067.
235.7(a), (b)....................... 0584-0067.
235.9(c), (d)....................... 0584-0067.
235.11.............................. 0584-0067.
210.7............................... 0584-0067.
------------------------------------------------------------------------
[80 FR 11096, Mar. 2, 2015]
PART 240_CASH IN LIEU OF DONATED FOODS--Table of Contents
Sec.
240.1 General purpose and scope.
240.2 Definitions.
240.3 Cash in lieu of donated foods for program schools.
240.4 Cash in lieu of donated foods for nonresidential child and adult
care institutions.
240.5 Cash in lieu of donated foods for commodity schools.
240.6 Funds for States which have phased out facilities.
240.7 Payments to States.
240.8 Payments to program schools, service institutions, nonresidential
child care institutions and commodity schools.
240.9 Use of funds.
240.10 Unobligated funds.
240.11 Records and reports.
Authority: 42 U.S.C. 612c note, 1751, 1755, 1762a, 1765, 1766, 1779.
Source: 47 FR 15982, Apr. 13, 1982, unless otherwise noted.
Sec. 240.1 General purpose and scope.
(a) Each school year the Department programs agricultural
commodities and other foods to States for delivery to program and
commodity schools, nonresidential child care institutions, and service
institutions pursuant to the regulations governing the donation of foods
for use in the United States, its territories and possessions and areas
under its jurisdiction (7 CFR part 250).
(b) Section 6(b) of the Act requires that not later than June 1 of
each school year, the Secretary shall make an estimate of the value of
the agricultural commodities and other foods that will be delivered
during that school year for use in lunch programs by schools
participating in the National School Lunch Program (7 CFR part 210). If
this estimate is less than the total level of assistance authorized
under section 6(e) of the Act the Secretary shall pay to the State
administering agency not later than July 1 of that school year, an
amount of funds equal to the difference between the value of donated
foods as then programmed for that school year and the total level of
assistance authorized under such section.
(c) Section 6(e)(1) of the Act requires:
(1) That for each school year, the total commodity assistance, or
cash in lieu thereof, available to each State for the National School
Lunch Program shall be the amount obtained by multiplying the national
average value of donated foods, described in paragraph (c)(2) of this
section, by the number of lunches served in that State in the preceding
school year; and
[[Page 321]]
(2) That the national average value of foods donated to schools
participating in the National School Lunch Program, or cash payments
made in lieu thereof, shall be 11 cents, adjusted on July 1, 1982, and
each July 1 thereafter to reflect changes in the Price Index for Food
Used in Schools and Institutions. Section 6(e)(1) further requires that
not less than 75 percent of the assistance under that section shall be
in the form of donated foods for the National School Lunch Program.
After the end of each school year, FNS shall reconcile the number of
lunches served by schools in each State with the number served in the
preceding school year and, based on such reconciliation, shall increase
or reduce subsequent commodity assistance or cash in lieu thereof
provided to each State.
(d) Section 12(g) of the Act provides that whoever embezzles,
willfully misapplies, steals, or obtains by fraud any funds, assets, or
property that are the subject of a grant or other form of assistance
under this Act or the Child Nutrition Act of 1966, whether received
directly or indirectly from the United States Department of Agriculture,
or whoever receives, conceals, or retains such funds, assets, or
property to his use or gain, knowing such funds, assets, or property
have been embezzled, willfully misapplied, stolen, or obtained by fraud
shall, if such funds, assets, or property are of the value of $100 or
more, be fined not more than $10,000 or imprisoned not more than five
years, or both, or, if such funds, assets, or property are of a value of
less than $100, shall be fined not more than $1,000 or imprisoned for
not more than one year, or both.
(e) Section 14(f) of the Act provides that the value of foods
donated to States for use in commodity schools for any school year shall
be the sum of the national average value of donated foods established
under section 6(e) of the Act and the national average payment
established under section 4 of the Act. Section 14(f) also provides that
such schools shall be eligible to receive up to five cents of such value
in cash for processing and handling expenses related to the use of the
donated foods.
(f) Sections 17(h)(1) (B) and (C) of the Act provide that the value
of commodities, or cash in lieu thereof, donated to States for use in
nonresidential child or adult care institutions participating in the
Child and Adult Care Food Program (7 CFR part 226) for any school year
shall be, at a minimum, the amount obtained by multiplying the number of
lunches and suppers served during the preceding school year by the rate
established for lunches for that school year under section 6(e) of the
Act. At the end of each school year, FNS shall reconcile the number of
lunches and suppers served in participating institutions in each State
during such school year with the number of lunches and suppers served in
the preceding school year and, based on such reconciliation, shall
increase or reduce subsequent commodity assistance or cash in lieu of
commodities provided to each State.
(g) Section 16 of the Act provides that a State which has phased out
its food distribution facilities prior to June 30, 1974, may elect to
receive cash payments in lieu of donated foods for the purposes of the
applicable child nutrition programs--i.e., the National School Lunch
Program, the Summer Food Service Program for Children (7 CFR part 225)
and the Child Care Food Program.
(h) These regulations prescribe the methods for determination of the
amount of payments, the manner of disbursement and the requirements for
accountability for funds when these respective statutory authorities
require the Department to make cash payments in lieu of donating
agricultural commodities and other foods.
[47 FR 15982, Apr. 13, 1982, as amended at 52 FR 7267, Mar. 10, 1987; 58
FR 39120, July 22, 1993]
Sec. 240.2 Definitions.
For the purpose of this part the term:
Act means the National School Lunch Act, as amended.
Child Care Food Program means the Program authorized by section 17
of the Act.
Commodity school means a school that does not participate in the
National School Lunch Program under part 210 of this chapter but which
operates a
[[Page 322]]
nonprofit lunch program under agreement with the State educational
agency or FNSRO and receives donated foods, or donated foods and cash or
services of a value of up to 5 cents per lunch in lieu of donated foods
under this part for processing and handling the foods.
Department means the U.S. Department of Agriculture.
Distributing agencies means State, Federal or private agencies which
enter into agreements with the Department for the distribution of
donated foods to program schools, commodity schools, and nonresidential
child care institutions.
Donated-food processing and handling expenses means any expenses
incurred by or on behalf of a commodity school for processing or other
aspects of the preparation, delivery, and storage of donated foods for
use in its lunch program.
Donated foods means foods donated, or available for donation, by the
Department under any of the legislation referred to in part 250 of this
chapter.
Fiscal year means the period of 12 months beginning October 1 of any
calendar year and ending September 30 of the following calendar year.
FNS means the Food and Nutrition Service of the Department.
FNSRO means the appropriate Food and Nutrition Service Regional
Office.
National School Lunch Program means the Program authorized by
sections 4 and 11 of the Act.
Nonprofit means exempt from income tax under section 501(c)(3) of
the Internal Revenue Code of 1954, as amended; or in the Commonwealth of
Puerto Rico, certified as nonprofit by its Governor.
Nonresidential child care institution means any child care center,
day care home, or sponsoring organization (as those terms are defined in
part 226 of this chapter) which participates in the Child Care Food
Program.
Program school means a school which participates in the National
School Lunch Program.
School means (1) an educational unit of high school grade or under
except for a private school with an average yearly tuition exceeding
$1,500 per child, operating under public or nonprofit private ownership
in a single building or complex of buildings. The term ``high school
grade or under'' includes classes of preprimary grade when they are
conducted in a school having classes of primary or higher grade, or when
they are recognized as a part of the educational system in the State,
regardless of whether such preprimary grade classes are conducted in a
school having classes of primary or higher grade; (2) with the exception
of residential summer camps which participate in the Summer Food Service
Program for Children, Job Corps centers funded by the Department of
Labor and private foster homes, any public or nonprofit private child
care institution, or distinct part of such institution, which (i)
maintains children in residence, (ii) operates principally for the care
of children, and (iii) if private, is licensed to provide residential
child care services under the appropriate licensing code by the State or
a subordinate level of government. The term ``child care institutions''
includes, but is not limited to: homes for the mentally retarded, the
emotionally disturbed, the physically handicapped, and unmarried mothers
and their infants; group homes; halfway houses; orphanages; temporary
shelters for abused children and for runaway children; long-term care
facilities for chronically ill children; and juvenile detention centers;
and (3) with respect to the Commonwealth of Puerto Rico, nonprofit child
care centers certified as such by the Governor of Puerto Rico.
School food authority means the governing body which is responsible
for the administration of one or more schools and which has the legal
authority to operate a nonprofit lunch program therein.
School year means the period of 12 months beginning July 1 of any
calendar year and ending June 30 of the following calendar year.
Secretary means the Secretary of Agriculture.
Service institutions means camps or sponsors (as those terms are
defined in part 225 of this chapter) which participate in the Summer
Food Service Program for Children.
[[Page 323]]
Special needs children means children who are emotionally, mentally
or physically handicapped.
State means any of the 50 States, the District of Columbia, the
Commonwealth of Puerto Rico, the Virgin Islands, Guam, American-Samoa,
the Trust Territory of the Pacific Islands, or the Commonwealth of the
Northern Mariana Islands.
State agency means the State educational agency or such other agency
of the State as has been designated by the Governor or other appropriate
executive or legislative authority of the State and approved by the
Department to administer, in the State, the National School Lunch
Program, the Child Care Food Program, the Summer Food Service Program
for Children, or nonprofit lunch programs in commodity schools.
State educational agency means, as the State legislature may
determine, (1) the chief State school officer (such as the State
Superintendent of Public Instruction, Commissioner of Education, or
similar officer), or (2) a board of education controlling the State
Department of Education.
Summer Food Service Program for Children means the Program
authorized by section 13 of the Act.
Tuition means any educational expense required by the school as part
of the students' educational program; not including transportation fees
for commuting to and from school, and the cost of room and board. The
following monies shall not be included when calculating a school's
average yearly tuition per child:
(1) Academic scholarship aid from public or private organizations or
entities given to students, or to schools for students, and (2) state,
county or local funds provided to schools operating principally for the
purpose of educating handicapped or other special needs children for
whose education the State, county or local government is primarily or
solely responsible. In a school which varies tuition, the average yearly
tuition shall be calculated by dividing the total tuition receipts for
the current school year by the total number of students enrolled for
purposes of determining if the average yearly tuition exceeds $1,500 per
child.
Sec. 240.3 Cash in lieu of donated foods for program schools.
(a) Not later than June 1 of each school year, FNS shall make an
estimate of the value of agricultural commodities and other foods that
will be delivered to States during the school year under the food
distribution regulations (7 CFR part 250) for use in program schools. If
the estimated value is less than the total value of assistance
authorized under section 6(e) of the Act for the National School Lunch
Program, FNS shall determine the difference between the value of the
foods then programmed for each State for the school year and the
required value and shall pay the difference to each State agency not
later than July 1 of that school year.
(b) Notwithstanding any other provision of this section, in any
State in which FNS administers the National School Lunch Program in any
of the schools of the State, FNS shall withhold from the funds payable
to that State under this section an amount equal to the ratio of the
number of lunches served in schools in which the program is administered
by FNS to the total number of lunches served in all program schools in
the State.
[47 FR 15982, Apr. 13, 1982, as amended at 52 FR 7267, Mar. 10, 1987; 58
FR 39120, July 22, 1993]
Sec. 240.4 Cash in lieu of donated foods for nonresidential child
and adult care institutions.
(a) For each school year any State agency may, upon application to
FNS prior to the beginning of the school year, elect to receive cash in
lieu of donated foods for use in nonresidential child care or adult care
institutions participating in the Child and Adult Care Food Program. FNS
shall pay each State agency making such election, at a minimum, an
amount calculated by multiplying the number of lunches and suppers
served in the State's nonresidential child and adult care institutions
which meet the meal pattern requirements prescribed in the regulations
for the Child and Adult Care Food Program under part 226 of this chapter
by the national average value of donated food prescribed in section
6(e)(1) of the Act. However, if a
[[Page 324]]
State agency has elected to receive a combination of donated foods and
cash, the required amount shall be reduced based upon the number of such
lunches and suppers served for which the State receives donated foods.
(b) Notwithstanding any other provision of this section in any State
in which FNS administers the Child Care Food Program in any
nonresidential child care institution, FNS shall withhold from the funds
payable to such State under this section an amount equal to the ratio of
the number of lunches and suppers served in such institutions in which
the program is administered by the FNS and for which cash payments are
provided to the total number of lunches and suppers served in that
program and for which cash in lieu of payments are received, in all
nonresidential child care institutions in the State.
[47 FR 15982, Apr. 13, 1982, as amended at 58 FR 39120, July 22, 1993]
Sec. 240.5 Cash in lieu of donated foods for commodity schools.
(a) The school food authority of a commodity school may elect (1) to
receive cash payments in lieu of up to five cents per lunch of the value
specified in Sec. 250.4(b)(2)(ii) of this chapter to be used for
donated-food processing and handling expenses, or (2) to have such
payments retained for use on its behalf by the State agency. The school
food authority shall consult with commodity schools before making the
election.
(b) When a school food authority makes an election regarding receipt
of cash payments and the amount of any payments to be received under
this paragraph, such election shall be binding on the school food
authority for the school year to which the election applies.
(c) The State agency shall (1) no later than May 14, 1982 for the
school year ending June 30, 1982, and no later than August 15 of each
subsequent school year, contact all school food authorities of commodity
schools to learn their election regarding cash payments under this
section and the amount of any such payments, and (2) forward this
information to the distributing agency and FNSRO, in accordance with
Sec. 210.14(d)(2) of this chapter.
Sec. 240.6 Funds for States which have phased out facilities.
Notwithstanding any other provision of this part, any State which
phased out its food distribution facilities prior to June 30, 1974, may,
for purposes of the National School Lunch Program, the Summer Food
Service Program for Children, and the Child Care Food Program, elect to
receive cash payments in lieu of donated foods. Where such an election
is made, FNS shall make cash payments to such State in an amount
equivalent in value to the donated foods (or cash in lieu thereof) to
which the State would otherwise have been entitled under section 6(e) of
the Act, if it had retained its food distribution facilities, except
that the amount may be based on the number of meals served in the
current school year, rather than on the number of meals served in the
preceding school year with a subsequent reconciliation.
[47 FR 15982, Apr. 13, 1982, as amended at 58 FR 39120, July 22, 1993]
Sec. 240.7 Payments to States.
(a) Funds to be paid to any State agency under Sec. 240.3 of this
part for disbursement to program schools shall be made available by
means of United States Treasury Department checks. The State agency
shall use the funds received without delay for the purpose for which
issued.
(b) Funds to be paid to any State agency under Sec. 240.4(a) for
disbursement to nonresidential child care institutions and funds to be
paid to any State agency under Sec. 240.6 for disbursement to program
schools, service institutions, or nonresidential child care institutions
shall be made available by means of Letters of Credit issued by FNS in
favor of the State agency. The State agency shall:
(1) Obtain funds needed to pay school food authorities,
nonresidential child care institutions, and service institutions, as
applicable through presentation by designated State Officials of a
Payment Voucher on Letter of Credit (Treasury Form GFO 7578) in
accordance with procedures prescribed by
[[Page 325]]
FNS and approved by the United States Treasury Department;
(2) Submit requests for funds on a monthly basis in such amounts as
necessary to make payments with respect to meals served the previous
month;
(3) Use the funds received without delay for the purpose for which
drawn.
(c) FNS shall make any cash payments elected under Sec. 240.5 of
this part by increasing the amount of the Letter of Credit or, where
applicable, of the Federal Treasury check, in accordance with the
information provided under Sec. 240.5(c) of this part.
(d) Funds received by State agencies pursuant to this part for
disbursement to program schools and to commodity schools shall not be
subject to the matching provisions of Sec. 210.6 of part 210 of this
chapter.
Sec. 240.8 Payments to program schools, service institutions,
nonresidential child care institutions and commodity schools.
(a) Each State agency shall promptly and equitably disburse any cash
received in lieu of donated foods under this part to eligible program
schools, service institutions and nonresidential child care
institutions, as applicable. Funds withheld from States under Sec. Sec.
240.3 and 240.4 shall be disbursed to eligible program schools, service
institutions, and nonresidential child care institutions by FNSRO's in
the same manner.
(b) Unless the school food authority of a commodity school elects to
have cash payments for donated-food processing and handling expenses
retained for use on its behalf by the State agency, the State agency
shall make such payments to the school food authority of such a school
on a monthly basis in an amount equal to the number of lunches served
(as reported in accordance with Sec. 210.13(a) of this chapter) times
the value per lunch elected by the school food authority in accordance
with Sec. 240.5 of this part. For the period November 11, 1981, through
the close of the month in which this part is published in the Federal
Register, a retroactive payment shall be made, where applicable, to the
school food authority of a commodity school based on the number of
lunches served during that period which meet the nutritional
requirements specified in Sec. 210.10 of this chapter.
Sec. 240.9 Use of funds.
(a) Funds made available to school food authorities (for program
schools), service institutions and nonresidential child care
institutions under this part shall be used only to purchase United
States agricultural commodities and other foods for use in their food
service under the National School Lunch Program, Child Care Food
Program, or Summer Food Service Program for Children, as applicable.
Such foods shall be limited to those necessary to meet the requirements
set forth in Sec. 210.10 of part 210 of this chapter, Sec. 225.10 of
part 225 of this chapter and Sec. 226.10 of part 226 of this chapter,
respectively. On or before disbursing funds to school food authorities
(for program schools), service institutions and nonresidential child
care institutions, State agencies and FNSRO's shall notify them of the
reason for special disbursement, the purpose for which these funds may
be used, and, if possible, the amount of funds they will receive.
(b) Cash payments received under Sec. 240.5 of this part shall be
used only to pay donated-food processing and handling expenses of
commodity schools.
(c) Funds provided under this part shall be subject to 2 CFR part
200, subpart D and USDA implementing regulations 2 CFR part 400 and part
415.
[47 FR 15982, Apr. 13, 1982, as amended at 81 FR 66494, Sept. 28, 2016]
Sec. 240.10 Unobligated funds.
State agencies shall release to FNS any funds paid to them under
this part which are unobligated at the end of each fiscal year. Release
of funds by any State agency shall be made as soon as practicable, but
in any event, not later than 30 days following demand by FNS. Release of
funds shall be reflected by a related adjustment in the State agency's
Letter of Credit where appropriate or payment by State check where the
funds have been paid by United States Treasury Department check.
[[Page 326]]
Sec. 240.11 Records and reports.
(a) State agencies and distributing agencies shall maintain records
and reports on the receipt and disbursement of funds made available
under this part, and shall retain such records and reports for a period
of three years after the end of the fiscal year to which they pertain,
except that, if audit findings have not been resolved, the records shall
be retained beyond the three-year period as long as required for the
resolution of the issues raised by the audit.
(b) State agencies shall establish controls and procedures which
will assure that the funds made available under this part are not
included in determining the State's matching requirements under Sec.
210.6 of part 210 of this chapter.
PART 245_DETERMINING ELIGIBILITY FOR FREE AND REDUCED PRICE
MEALS AND FREE MILK IN SCHOOLS--Table of Contents
Sec.
245.1 General purpose and scope.
245.2 Definitions.
245.3 Eligibility standards and criteria.
245.4 Exceptions for Puerto Rico and the Virgin Islands.
245.5 Public announcement of the eligibility criteria.
245.6 Application, eligibility and certification of children for free
and reduced price meals and free milk.
245.6a Verification requirements.
245.7 Hearing procedure for families and local educational agencies.
245.8 Nondiscrimination practices for children eligible to receive free
and reduced price meals and free milk.
245.9 Special assistance certification and reimbursement alternatives.
245.10 Action by local educational agencies.
245.11 Second review of applications.
245.12 Action by State agencies and FNSROs.
245.13 State agencies and direct certification requirements.
245.14 Fraud penalties.
245.15 Information collection/recordkeeping--OMB assigned control
numbers.
Authority: 42 U.S.C. 1752, 1758, 1759a, 1772, 1773, and 1779.
Sec. 245.1 General purpose and scope.
(a) This part established the responsibilities of State agencies,
Food and Nutrition Service Regional Offices, school food authorities or
local educational agencies, as defined in Sec. 245.2, as applicable in
providing free and reduced price meals and free milk in the National
School Lunch Program (7 CFR part 210), the School Breakfast Program (7
CFR part 220), the Special Milk Program for Children (7 CFR part 215),
and commodity schools. Section 9 of the National School Lunch Act, as
amended, and sections 3 and 4 of the Child Nutrition Act of 1966, as
amended, require schools participating in any of the programs and
commodity schools to make available, as applicable, free and reduced
price lunches, breakfasts, and at the option of the School Food
Authority for schools participating only in the Special Milk Program
free milk to eligible children.
(b) This part sets forth the responsibilities under these Acts of
State agencies, the Food and Nutrition Service Regional Offices, school
food authorities or local educational agencies, as applicable, with
respect to the establishment of income guidelines, determination of
eligibility of children for free and reduced price meals, and for free
milk and assurance that there is no physical segregation of, or other
discrimination against, or overt identification of children unable to
pay the full price for meals or milk.
(Sec. 803, Pub. L. 97-35, 95 Stat. 521-535 (42 U.S.C. 1758))
[Amdt. 6, 39 FR 30337, Aug. 22, 1974, as amended by Amdt. 10, 41 FR
28783, July 13, 1976; 47 FR 31852, July 23, 1982; 72 FR 63792, Nov. 13,
2007]
Sec. 245.2 Definitions.
Adult means any individual 21 years of age or older.
Categorically eligible means considered income eligible for free
meals or free milk, as applicable, based on documentation that a child
is a member of a Family, as defined in this section, and one or more
children in that family are receiving assistance under SNAP, FDPIR or
the TANF program, as defined in this section. A Foster child, Homeless
child, a Migrant child, a Head Start child and a Runaway child, as
defined in this section, are also categorically eligible. Categorical
eligibility and automatic eligibility may be used synonymously.
[[Page 327]]
Commodity school means a school which does not participate in the
National School Lunch Program under part 210 of this chapter, but which
enters into an agreement as provided in Sec. 210.15a(b) to receive
commodities donated under part 250 of this chapter for a nonprofit lunch
program.
Current income means income, as defined in Sec. 245.6(a), received
during the month prior to application. If such income does not
accurately reflect the household's annual rate of income, income shall
be based on the projected annual household income. If the prior year's
income provides an accurate reflection of the household's current annual
income, the prior year may be used as a base for the projected annual
rate of income.
Direct certification means determining a child is eligible for free
meals or free milk, as applicable, based on documentation obtained
directly from the appropriate State or local agency or individuals
authorized to certify that the child is a member of a household
receiving assistance under SNAP, as defined in this section; is a member
of a household receiving assistance under FDPIR or under the TANF
program, as defined in this section; a Foster child, Homeless child, a
Migrant child, a Head Start child and a Runaway child, as defined in
this section.
Disclosure means reveal or use individual children's program
eligibility information obtained through the free and reduced price meal
or free milk eligibility process for a purpose other than for the
purpose for which the information was obtained. The term refers to
access, release, or transfer of personal data about children by means of
print, tape, microfilm, microfiche, electronic communication or any
other means.
Documentation means:
(1) The completion of a free and reduced price school meal or free
milk application which includes:
(i) For households applying on the basis of income and household
size, names of all household members; income received by each household
member, identified by source of the income (such as earnings, wages,
welfare, pensions, support payments, unemployment compensation, and
social security and other cash income); the signature of an adult
household member; and the last four digits of the social security number
of the adult household member who signs the application or an indication
that the adult does not possess a social security number; or
(ii) For a child who is receiving assistance under SNAP, FDPIR or
TANF, as defined in this section, the child's name and appropriate SNAP
or TANF case number or FDPIR case number or other FDPIR identifier and
signature of an adult household member.
(2) In lieu of completion of the free and reduced price meal
application:
(i) Information obtained from the State or local agency responsible
for administering SNAP, FDPIR or TANF, as defined in this section.
Documentation for these programs includes the name of the child; a
statement certifying that the child is a member of a household receiving
assistance under SNAP, FDPIR or TANF, as defined in this section;
information in sufficient detail to match the child attending school in
the local educational agency with the name of a child who is a member of
one of the applicable programs as defined in this section; the signature
of the official from the applicable program who is authorized to provide
such documentation on behalf of that program and the date that the
official signed the certification statement;
(ii) A letter or other document provided to the household by the
agency administering FDPIR or the TANF program, as defined in this
section or by the court, entity, or official authorized to administer an
eligible program for a Foster child, a Homeless child, a Migrant child,
a Head Start child, or a Runaway child as defined in this section.
(iii) Information from the local educational agency, such as
enrollment information or information from applications submitted for
free or reduced price meals, or from SNAP, FDPIR or TANF program
officials that indicate there are children in a Family, as defined in
this section, who were not documented as receiving assistance under
SNAP, FDPIR or TANF, in order to extend categorical eligibility to such
children as found in Sec. 245.6(b)(7). Documentation for these purposes
is the information discussed in paragraph (2)(i)
[[Page 328]]
of this definition, plus a written statement by a local educational
agency official briefly explaining how the presence of additional
children in the family was determined.
(iv) Information obtained from an official responsible for
determining if a child is a Foster child, a Homeless child, a Migrant
child, a Head Start child, or a Runaway child, as defined in the
section. Documentation for these children includes the name of the
child; a statement certifying that the child has been determined
eligible for that program or is enrolled in the Head Start Program;
information in sufficient detail to match the child attending school in
the local educational agency with the name of a child who has been
determined eligible for that program or is enrolled in an eligible Head
Start Program; the signature of the official from the program who is
authorized to provide such documentation on behalf of that program and
the date that the official signed the certification statement.
Documentation may also be a list of children, a computer match, or a
court document that includes this information.
(v) When a signature is impracticable to obtain, such as in a
computer match, the local educational agency shall have a method to
ensure that a responsible official can attest to the accuracy of the
information provided.
Family means a group of related or nonrelated individuals, who are
not residents of an institution or boarding house, but who are living as
one economic unit.
FDPIR means the food distribution program for households on Indian
reservations operated under part 253 of this title.
FNS means the Food and Nutrition Service, United States Department
of Agriculture.
FNSRO where applicable means the appropriate Food and Nutrition
Service Regional Office when that agency administers the National School
Lunch Program, School Breakfast Program or Special Milk Program with
respect to nonprofit private schools.
Foster child means a child who is formally placed by a court or an
agency that administers a State plan under parts B or E of title IV of
the Social Security Act (42 U.S.C. 621 et seq.). It does not include a
child in an informal arrangement that may exist outside of State or
court based systems.
Free meal means a meal for which neither the child nor any member of
his family pays or is required to work in the school or in the school's
food service.
Free milk means milk served under the regulations governing the
Special Milk Program and for which neither the child nor any member of
his family pays or is required to work in the school or in the school's
food service.
Head Start child means a child enrolled as a participant in a Head
Start program authorized under the Head Start Act (42 U.S.C. 9831 et
seq.)
Homeless child means a child identified as lacking a fixed, regular
and adequate nighttime residence, as specified under section 725(a) of
the McKinney-Vento Homeless Assistance Act (42 U.S.C. 11434a(2)) by the
local educational agency liaison, director of a homeless shelter or
other individual identified by FNS.
Household means ``family'' as defined in this section.
Household application means an application for free and reduced
price meal or milk benefits, submitted by a household for a child or
children who attend school(s) in the same local educational agency.
Income eligibility guidelines means the family-size income levels
prescribed annually by the Secretary for use by States in establishing
eligibility for free and reduced price meals and for free milk.
Local educational agency means a public board of education or other
public or private nonprofit authority legally constituted within a State
for either administrative control or direction of, or to perform a
service function for, public or private nonprofit elementary schools or
secondary schools in a city, county, township, school district, or other
political subdivision of a State, or for a combination of school
districts or counties that is recognized in a State as an administrative
agency for its public or private nonprofit elementary schools or
secondary schools. The term also includes any other public or private
nonprofit institution or agency
[[Page 329]]
having administrative control and direction of a public or private
nonprofit elementary school or secondary school, including residential
child care institutions, Bureau of Indian Affairs schools, and
educational service agencies and consortia of those agencies, as well as
the State educational agency in a State or territory in which the State
educational agency is the sole educational agency for all public or
private nonprofit schools.
Meal means a lunch or meal supplement or a breakfast which meets the
applicable requirements prescribed in Sec. Sec. 210.10, 210.15a, and
220.8 of this chapter.
Medicaid means the State medical assistance program under title XIX
of the Social Security Act (42 U.S.C. 1396 et seq.).
Migrant child means a child identified as meeting the definition of
migrant in section 1309 of the Elementary and Secondary Education Act of
1965 (20 U.S.C. 6399) by the State or local Migrant Education Program
coordinator or the local educational liaison, or other individual
identified by FNS.
Milk means pasteurized fluid types of unflavored or flavored whole
milk, lowfat milk, skim milk, or cultured buttermilk which meet State
and local standards for such milk except that, in the meal pattern for
infants (0 to 1 year of age) milk means unflavored types of whole fluid
milk or an equivalent quantity of reconstituted evaporated milk which
meet such standards. In Alaska, Hawaii, American Samoa, Guam, Puerto
Rico, the Trust Territory of the Pacific Islands, and the Virgin
Islands, if a sufficient supply of such types of fluid milk cannot be
obtained, ``milk'' shall include reconstituted or recombined milk. All
milk should contain vitamins A and D at levels specified by the Food and
Drug Administration and consistent with State and local standards for
such milk.
Nonprofit means exempt from income tax under section 501(c)(3) of
the Internal Revenue Code of 1986.
Operating day means a day that reimbursable meals are offered to
eligible students under the National School Lunch Program or School
Breakfast Program.
Reduced price meal means a meal which meets all of the following
criteria: (1) The price shall be less than the full price of the meal;
(2) the price shall not exceed 40 cents for a lunch and 30 cents for a
breakfast; and (3) neither the child nor any member of his family shall
be required to supply an equivalent value in work for the school or the
school's food service.
Runaway child means a child identified as a runaway receiving
assistance under a program under the Runaway and Homeless Youth Act (42
U.S.C. 5701 et seq.) by the local educational liaison, or other
individual in accordance with guidance issued by FNS.
Service institution shall have the meaning ascribed to it in part
225 of this chapter.
School, school food authority, and other terms and abbreviations
used in this part shall have the meanings ascribed to them in part 210
of this chapter.
SNAP means the Supplemental Nutrition Assistance Program established
under the Food and Nutrition Act of 2008 (7 U.S.C. 2011 et. seq.) and
operated under parts 271 and 283 of this chapter.
SNAP household means any individual or group of individuals
currently certified to receive assistance as a household from SNAP.
Special Assistance Certification and Reimbursement Alternatives
means the three optional alternatives for free and reduced price meal
application and claiming procedures in the National School Lunch Program
and School Breakfast Program which are available to those School Food
Authorities with schools in which at least 80 percent of the enrolled
children are eligible for free or reduced price meals, or schools which
are currently, or who will be serving all children free meals.
State Children's Health Insurance Program (SCHIP) means the State
medical assistance program under title XXI of the Social Security Act
(42 U.S.C. 1397aa et seq.).
TANF means the State funded program under part A of title IV of the
Social Security Act that the Secretary determines complies with
standards established by the Secretary that ensure
[[Page 330]]
that the standards under the State program are comparable to or more
restrictive than those in effect on June 1, 1995. This program is
commonly referred to as Temporary Assistance for Needy Families,
although States may refer to the program by another name.
Verification means confirmation of eligibility for free or reduced
price benefits under the National School Lunch Program or School
Breakfast Program. Verification shall include confirmation of income
eligibility and, at State or local discretion, may also include
confirmation of any other information required in the application which
is defined as Documentation in Sec. 245.2. Such verification may be
accomplished by examining information provided by the household such as
wage stubs, or by other means as specified in Sec. 245.6a(a)(7). If a
SNAP or TANF case number or a FDPIR case number or other identifier is
provided for a child, verification for such child shall only include
confirmation that the child is a member of a household receiving SNAP,
TANF or FDPIR benefits. Verification may also be completed through
direct contact with one or more of the public agencies as specified in
Sec. 245.6a(g).
(Secs. 801, 803, 812; Pub. L. 97-35, 95 Stat. 521-535 (42 U.S.C. 1753,
1759(a), 1773, 1758))
Editorial Note: For Federal Register citations affecting Sec.
245.2, see the List of CFR Sections Affected, which appears in the
Finding Aids section of the printed volume and at www.govinfo.gov.
Sec. 245.3 Eligibility standards and criteria.
(a) Each State agency, or FNSRO where applicable, shall by July 1 of
each year announce family-size income standards to be used by local
educational agencies, as defined in Sec. 245.2, under the jurisdiction
of such State agency, or FNSRO where applicable, in making eligibility
determinations for free or reduced price meals and for free milk. Such
family size income standards for free and reduced price meals and for
free milk shall be in accordance with Income Eligibility Guidelines
published by the Department by notice in the Federal Register.
(b) Each participating local educational agency and all
participating schools under its jurisdiction must adhere to the
eligibility criteria specified in this part. Local educational agencies
must include these eligibility criteria in their policy statement as
required under Sec. 245.10 and it must be publicly announced in
accordance with the provisions of Sec. 245.5. Additionally, each State
agency, or FNSRO where applicable, must require that local educational
agencies accept as income eligible for free meals and free milk,
children who are categorically eligible for those benefits based on
documentation of eligibility, as specified in Sec. 245.6 (b).
(c) Each School Food Authority shall serve free and reduced price
meals or free milk in the respective programs to children eligible under
its eligibility criteria. When a child is not a member of a family (as
defined in Sec. 245.2), the child shall be considered a family of one.
In any school which participates in more than one of the child nutrition
programs, eligibility shall be applied uniformly so that eligible
children receive the same benefits in each program. If a child transfers
from one school to another school under the jurisdiction of the same
School Food Authority, his eligibility for free or reduced price meals
or for free milk, if previously established, shall be transferred to,
and honored by, the receiving school if it participates in the National
School Lunch Program, School Breakfast Program, Special Milk Program and
the School Food Authority has elected to provide free milk, or is a
commodity-only school.
(Sec. 8, Pub. L. 95-627, 92 Stat. 3623 (42 U.S.C. 1758); sec. 5, Pub. L.
95-627, 92 Stat. 3619 (42 U.S.C. 1772); 42 U.S.C. 1785, 1766, 1772,
1773(e), sec. 203, Pub. L. 96-499, 94 Stat. 2599; secs. 807 and 808,
Pub. L. 97-35, 95 Stat. 521-535, 42 U.S.C. 1772, 1784, 1760; sec. 803,
Pub. L. 97-35, 95 Stat. 521-535 (42 U.S.C. 1758))
[Amdt. 8, 40 FR 57207, Dec. 8, 1975; 40 FR 58281, Dec. 16, 1975, as
amended by Amdt. 10, 41 FR 28783, July 13, 1976; Amdt. 13, 44 FR 33049,
June 8, 1979; 47 FR 31852, July 23, 1982; 72 FR 63793, Nov. 13, 2007; 76
FR 22800, Apr. 25, 2011]
Sec. 245.4 Exceptions for Puerto Rico and the Virgin Islands.
Because the State agencies of Puerto Rico and the Virgin Islands
provide free meals or milk to all children in
[[Page 331]]
schools under their jurisdiction, regardless of the economic need of the
child's family, they are not required to make individual eligibility
determinations or publicly announce eligibility criteria. Instead, such
State agencies may use a statistical survey to determine the number of
children eligible for free or reduced price meals and milk on which a
percentage factor for the withdrawal of special cash assistance funds
will be developed subject to the following conditions:
(a) State agencies shall conduct a statistical survey once every
three years in accordance with the standards provided by FNS;
(b) State agencies shall submit the survey design to FNS for
approval before proceeding with the survey;
(c) State agencies shall conduct the survey and develop the factor
for withdrawal between July 1 and December 31 of the first school year
of the three-year period;
(d) State agencies shall submit the results of the survey and the
factor for fund withdrawal to FNS for approval before any reimbursement
may be received under that factor;
(e) State agencies shall keep all material relating to the conduct
of the survey and determination of the factor for fund withdrawal in
accordance with the record retention requirements in Sec. 210.8(e)(14)
of this chapter;
(f) Until the results of the triennial statistical survey are
available, the factor for fund withdrawal will be based on the most
recently established percentages. The Department shall make retroactive
adjustments to the States' Letter of Credit, if appropriate, for the
year of the survey;
(g) If any school in these States wishes to charge a student for
meals, the State agency, School Food Authority and school shall comply
with all the applicable provisions of this part and parts 210, 215 and
220 of this chapter.
(Sec. 9, Pub. L. 95-166, 91 Stat 1336 (42 U.S.C. 1759a); secs. 807 and
808, Pub. L. 97-35, 95 Stat. 521-535, 42 U.S.C. 1772, 1784, 1760; 44
U.S.C. 3506)
[Amdt. 18, 45 FR 52771, Aug. 8, 1980, as amended at 46 FR 51366, Oct.
20, 1981; 47 FR 746, Jan. 7, 1982]
Sec. 245.5 Public announcement of the eligibility criteria.
(a) After the State agency, or FNSRO where applicable, notifies the
local educational agency (as defined in Sec. 245.2) that its criteria
for determining the eligibility of children for free and reduced price
meals and for free milk have been approved, the local educational agency
(as defined in Sec. 245.2) shall publicly announce such criteria:
Provided however, that no such public announcement shall be required for
boarding schools, residential child care institutions (see Sec. 210.2
of this chapter, definition of Schools), or a school which includes food
service fees in its tuition, where all attending children are provided
the same meals or milk. Such announcements shall be made at the
beginning of each school year or, if notice of approval is given
thereafter, within 10 days after the notice is received. The public
announcement of such criteria, as a minimum, shall include the
following:
(1) Except as provided in Sec. 245.6(b), a letter or notice and
application distributed on or about the beginning of each school year,
to the parents of all children in attendance at school. The letter or
notice shall contain the following information:
(i) In schools participating in a meal service program, the
eligibility criteria for reduced price benefits with an explanation that
households with incomes less than or equal to the reduced price criteria
would be eligible for either free or reduced price meals, or in schools
participating in the free milk option, the eligibility criteria for free
milk benefits;
(ii) How a household may make application for free or reduced price
meals or for free milk for its children;
(iii) An explanation that an application for free or reduced price
benefits cannot be approved unless it contains complete information as
described in paragraph (1)(i) of the definition of Documentation in
Sec. 245.2;
(iv) An explanation that households with children who are members of
currently certified SNAP, FDPIR or TANF households may submit
applications for these children with the abbreviated information
described in paragraph
[[Page 332]]
(2)(ii) of the definition of Documentation in Sec. 245.2;
(v) An explanation that the information on the application may be
verified at any time during the school year;
(vi) How a household may apply for benefits at any time during the
school year as circumstances change;
(vii) A statement to the effect that children having parents or
guardians who become unemployed are eligible for free or reduced price
meals or for free milk during the period of unemployment, Provided, that
the loss of income causes the household income during the period of
unemployment to be within the eligibility criteria;
(viii) The statement: ``In the operation of child feeding programs,
no child will be discriminated against because of race, sex, color,
national origin, age or disability;''
(ix) An explanation that Head Start enrollees and foster, homeless,
migrant, and runaway children, as defined in Sec. 245.2, are
categorically eligible for free meals and free milk and their families
should contact the school for more information;
(x) How a household may appeal the decision of the local educational
agencywith respect to the application under the hearing procedure set
forth in Sec. 245.7. The letter or notice shall be accompanied by a
copy of the application form required under Sec. 245.6.
(xi) A statement to the effect that the Special Supplemental
Nutrition Program for Women, Infants and Children (WIC) participants may
be eligible for free or reduced price meals.
(2) On or about the beginning of each school year, a public release,
containing the same information supplied to parents, and including both
free and reduced price eligibility criteria shall be provided to the
informational media, the local unemployment office, and to any major
employers contemplating large layoffs in the area from which the school
draws its attendance.
(b) Copies of the public release shall be made available upon
request to any interested persons. Any subsequent changes in a school's
eligibility criteria during the school year shall be publicly announced
in the same manner as the original criteria were announced.
(Sec. 803, Pub. L. 97-35, 95 Stat. 521-535 (42 U.S.C. 1758); Pub. L. 79-
396, 60 Stat. 231 (42 U.S.C. 1751); Pub. L. 89-642, 80 Stat. 885-880 (42
U.S.C. 1773); Pub. L. 91-248, 84 Stat. 207 (42 U.S.C. 1759))
[Amdt. 8, 40 FR 57207, Dec. 8, 1975]
Editorial Note: For Federal Register citations affecting Sec.
245.5, see the List of CFR Sections Affected, which appears in the
Finding Aids section of the printed volume and at www.govinfo.gov.
Sec. 245.6 Application, eligibility and certification of children
for free and reduced price meals and free milk.
(a) General requirements--content of application and descriptive
materials. Each local educational agency, as defined in Sec. 245.2, for
schools participating in the National School Lunch Program, School
Breakfast Program or Special Milk Program or a commodity only school,
shall provide meal benefit forms for use by families in making
application for free or reduced price meals or free milk for their
children.
(1) Household applications. The State agency or local educational
agency must provide a form that permits a household to apply for all
children in that household who attend schools in the same local
educational agency. The local educational agency must provide newly
enrolled students with an application and determine eligibility
promptly. The local educational agency cannot require the household to
submit an application for each child attending its schools. The
application shall be clear and simple in design and the information
requested therein shall be limited to that required to demonstrate that
the household does, or does not, meet the eligibility criteria for free
or reduced price meals, respectively, or for free milk, provided by the
local educational agency.
(2) Understandable communications. Any communication with households
for eligibility determination purposes must be in an understandable and
uniform format and to the maximum extent practicable, in a language that
parents and guardians can understand.
(3) Electronic availability. In addition to the distribution of
applications and descriptive materials in paper form as
[[Page 333]]
provided for in this section, the local educational agency may establish
a system for executing household applications electronically and using
electronic signatures. The electronic submission system must comply with
the disclosure requirements in this section and with technical
assistance and guidance provided by FNS. Descriptive materials may also
be made available electronically by the local educational agency.
(4) Transferring eligibility status. When a student transfers to a
new school district, the new local educational agency may accept the
eligibility determination from the student's former local educational
agency without incurring liability for the accuracy of the initial
determination. As required under paragraph (c)(3) of this section, the
accepting local educational agency must make changes that occur as a
result of verification activities or coordinated review findings
conducted in that local educational agency.
(5) Required income information. The information requested on the
application with respect to the current income of the household must be
limited to:
(i) The income received by each member identified by the household
member who received the income or an indication which household members
had no income; and
(ii) The source of the income (such as earnings, wages, welfare,
pensions, support payments, unemployment compensation, social security
and other cash income). Other cash income includes cash amounts received
or withdrawn from any source, including savings, investments, trust
accounts, and other resources which are available to pay for a child's
meals or milk.
(6) Household members and social security numbers. The application
must require applicants to provide the names of all household members.
In addition, the last four digits of the social security number of the
adult household member who signs the application must be provided. If
the adult member signing the application does not possess a social
security number, the household must so indicate. However, if application
is being made for a child(ren) who is a member of a household receiving
assistance under the SNAP, or is in a FDPIR or TANF household, the
application shall enable the household to provide the appropriate SNAP
or TANF case number or FDPIR case number or other FDPIR identifier in
lieu of names of all household members, household income information and
social security number.
(7) Adult member's signature. The application must be signed by an
adult member of the family. The application must contain clear
instructions with respect to the submission of the completed application
to the official or officials designated by the local educational agency
to make eligibility determinations. A household must be permitted to
file an application at any time during the school year. A household may,
but is not required to, report any changes in income, household size or
program participation during the school year.
(8) Required statements for the application. (i) The application and
descriptive materials must include substantially the following
statements:
(A) ``The Richard B. Russell National School Lunch Act requires the
information on this application. You do not have to give the
information, but if you do not, we cannot approve your child for free or
reduced-price meals. You must include the last four digits of the social
security number of the adult household member who signs the application.
The last four digits of the social security number are not required when
you list a Supplemental Nutrition Assistance Program (SNAP), Temporary
Assistance for Needy Families (TANF) Program or Food Distribution
Program on Indian Reservations (FDPIR) case number or other FDPIR
identifier for your child or when you indicate that the adult household
member signing the application does not have a social security number.
We will use your information to determine if your child is eligible for
free or reduced-price meals, and for administration and enforcement of
the lunch and breakfast programs. We MAY share your eligibility
information with education, health, and nutrition programs
[[Page 334]]
to help them evaluate, fund, or determine benefits for their programs,
auditors for program reviews, and law enforcement officials to help them
look into violations of program rules.''
(B) ``Foster, migrant, homeless, and runaway children, and children
enrolled in a Head Start program are categorically eligible for free
meals and free milk. If you are completing an application for these
children, contact the school for more information.''
(ii) When either the State agency or the local educational agency
plans to use or disclose children's eligibility information for non-
program purposes, additional information, as specified in paragraph (h)
of this section, must be added to this statement. State agencies and
local educational agencies are responsible for drafting the appropriate
statement.
(9) Attesting to information on the application. The application
must also include a statement, immediately above the space for
signature, that the person signing the application certifies that all
information furnished in the application is true and correct, that the
application is being made in connection with the receipt of Federal
funds, that school officials may verify the information on the
application, and that deliberate misrepresentation of the information
may subject the applicant to prosecution under applicable State and
Federal criminal statutes. Applicants must attest to changes in
information as specified in this paragraph (b), if changes are
voluntarily reported in writing during the eligibility period.
(b) Direct certification. In lieu of requiring a household to
complete the free and reduced price meal or free milk application, as
specified in paragraph (a) of this section, the local educational agency
must certify children as eligible for free meals or free milk in
accordance with paragraph (b)(1)(i) of this section or may certify
children as eligible for free meals or free milk in accordance with
paragraph (b)(2) of this section. If a household also submits an
application for directly certified children, the direct certification
eligibility determination will take precedence.
(1) Mandatory direct certification of children in SNAP households.
(i) All local educational agencies conducting eligibility determinations
must directly certify children who are members of a household receiving
assistance under SNAP, as defined in Sec. 245.2, in School Year 2008-
2009, which begins on July 1, 2008, and each subsequent school year.
(ii) Schools participating only in the Special Milk Program
authorized under part 215 of this chapter may directly certify children
for that program but are not required to conduct direct certification
with SNAP. In addition, residential child care institutions, as defined
in paragraph (c) of the definition of School in Sec. 210.2 of this
chapter, that do not have non-residential children are also not required
to conduct direct certification with SNAP.
(iii) Beginning in School Year 2012-2013, direct certification shall
be conducted using a data matching technique only and letters to
household for direct certification may be used only as an additional
means to notify households of children's eligibility based on receipt of
SNAP benefits. The last period that letters to households may be used as
the primary method for direct certification is School Year 2011-12.
(iv) Each State agency must enter into an agreement with the State
agency conducting eligibility determinations for SNAP. The agreement
must specify the procedures that will be used to facilitate the direct
certification of children who are members of a household receiving
assistance under SNAP, as defined in Sec. 245.2. The agreement must
address procedures to comply with the requirements of paragraphs (b)(3)
through (b)(9) of this section. Direct certification must allow for
notifying parents that their children have been determined eligible for
free meals or free milk, as applicable, and that no further application
is required. Such agreements must address how phase-out of non-
electronic matches as the primary method for conducting direct
certification for SNAP will be completed by School Year 2012-2013. The
agreement shall be maintained by the State agency.
(v) Local educational agencies and schools currently operating
Provision 2 or Provision 3 in non-base years, or the
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community eligibility provision, as permitted under Sec. 245.9, are
required to conduct a data match between Supplemental Nutrition
Assistance Program records and student enrollment records at least once
annually. State agencies may conduct data matching on behalf of LEAs and
exempt LEAs from this requirement.
(2) Children who may be directly certified. The local educational
agency may directly certify children for free meals or free milk based
on documentation received from the appropriate State or local agency
that administers FDPIR or TANF, as defined in Sec. 245.2, when that
agency indicates that the children are members of a household receiving
assistance under one of these programs. In addition, the local
educational agency may directly certify children for free meals or free
milk based on documentation from the appropriate State or local agency
or other appropriate individual, as specified by FNS, that the child is
a Foster child, a Homeless child, a Migrant, a Runaway child, or a Head
Start child, as defined in Sec. 245.2.
(3) Frequency of direct certification contacts with SNAP. (i) Until
School Year 2011-2012, local educational agencies must conduct direct
certification activities with SNAP at least at the beginning of the
school year.
(ii) (A) Beginning in School Year 2011-2012, at a minimum, all local
educational agencies must conduct direct certification as follows:
(1) At or around the beginning of the school year;
(2) Three months after the initial effort; and
(3) Six months after the initial effort.
(B) The information used shall be the most recent available.
(iii) The names of all newly enrolled children and all children not
certified for free meals shall be submitted for the direct certification
required in paragraph (b)(3)(ii)(B) and paragraph (b)(3)(ii)(C) of this
section. Newly enrolled children must be provided with application
materials in order to alleviate a delay in receipt of free meals or free
milk if direct certification for these children cannot be completed
promptly upon enrollment.
(iv) State agencies are encouraged to conduct direct certification
more frequently to obtain information about newly enrolled children or
children who may be newly certified for that program's benefits.
(4) Frequency of direct certification with other programs. Local
educational agencies opting to conduct direct certification activities
with FDPIR or TANF should conduct such activities at or around the
beginning of the school year. Obtaining information about foster,
homeless, migrant, or runaway children or Head Start enrollees should be
done, at a minimum, at or around the beginning of the school year and
when newly enrolled children or children newly eligible for those
programs are being certified.
(5) Direct certification documentation. (i) The required
documentation for direct certification is provided in paragraph (2) of
the definition of Documentation in Sec. 245.2.
(ii) (A) Beginning in School Year 2012-2013, direct certification
with SNAP shall be conducted using a data matching technique only.
Letters to households for direct certification may be used only as an
additional means to notify households of children's eligibility based on
receipt of SNAP benefits. The last period that letters to households may
be used as the primary method for direct certification is School Year
2011-2012. While such notices cannot be the primary method used by a
state to document receipt of SNAP, the local educational agency shall
accept such a letter if presented by a household.
(B) Letters or other documents may be used as the primary method for
direct certification to document receipt of FDPIR or TANF benefits.
(iii) Individual notices from officials of eligible programs for a
Foster child, a Homeless child, a Migrant child, a Runaway child, or a
Head Start child, as defined in Sec. 245.2, may continue to be used.
These notices are provided to school officials who must certify these
children as eligible for free meals or free milk, as applicable, without
further application, upon receipt of such notice.
(6) Officials who can provide documentation for direct
certification. (i) The
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local educational agency must accept documentation from officials of the
State or local agency that administers SNAP, certifying that a child is
a member of a household receiving assistance under SNAP as defined in
Sec. 245.2, or officials of the State or local agency that administers
FDPIR or TANF, as defined in Sec. 245.2, certifying that a child is a
member of a household receiving assistance under one of those programs.
(ii) For a Foster child, as defined in Sec. 245.2, an official
document indicating the status of the child as a foster child from an
appropriate State or local agency or a court where the foster child
received placement may provide appropriate documentation. In the case of
a child who is a Homeless child, as defined in Sec. 245.2, the director
of a homeless shelter or the local educational liaison for homeless
children and youth may provide the appropriate documentation. The
Migrant Education Program coordinator or the local educational liaison,
as applicable, may provide the supporting documentation for a Migrant
child, as defined in Sec. 245.2. For a Head Start child, as defined in
Sec. 245.2, an official from that program may supply the documentation
indicating enrollment in the Head Start program. Once the appropriate
official has provided the direct certification documentation to the
local educational agency, the child must have free benefits made
available as soon as possible but no later than three operating days
after the date the local educational agency receives the direct
certification documentation.
(7) Extension of eligibility to all children in a family. If any
child is identified as a member of a household receiving assistance
under SNAP, FDPIR, or TANF, all children in the Family, as defined in
Sec. 245.2, shall be categorically eligible for free meals or free
milk. This applies to children identified through direct certification
or through a free and reduced price application.
(8) Foster, Homeless, Migrant, Runaway, or Head Start Children. To
be categorically eligible as a Foster child, a Homeless child, a Migrant
child, a Runaway child, or a Head Start child, the child's individual
eligibility or participation for these programs shall be established.
Categorical eligibility based on these programs shall not be extended to
other children in the household.
(9) Confidential nature of direct certification information.
Information about children or their households obtained through the
direct certification process must be kept confidential and is subject to
the limitations on disclosure of information in section 9 of the Richard
B. Russell National School Lunch Act, 42 U.S.C. 1758. Therefore,
information that a household is receiving benefits from SNAP, FDPIR or
TANF or that a child is participating in another program which makes
children categorically eligible for free school meals or free milk must
be used solely for the purposes of direct certification for determining
children's eligibility for free school meals or free milk and as
otherwise permitted under Sec. 245.6(f).
(10) Notification to families. For children who are directly
certified, local educational agencies are not required to provide
application materials and notice to parents informing them of the
availability of free and reduced price meal benefits, as specified in
Sec. 245.5(a), when that information is distributed by mail,
individualized student packets, or other method which prevents overt
identification of children eligible for direct certification.
(c) Determination of eligibility--(1) Duration of eligibility.
Except as otherwise specified in paragraph (c)(3) of this section,
eligibility for free or reduced price meals, as determined through an
approved application or by direct certification, must remain in effect
for the entire school year and for up to 30 operating days into the
subsequent school year. The local educational agency must determine
household eligibility for free or reduced price meals either through
direct certification or the application process at or about the
beginning of the school year. The local educational agency must
determine eligibility for free or reduced price meals when a household
submits an application or, if feasible, through direct certification, at
any time during the school year.
(2) Use of prior year's eligibility status. Prior to the processing
of applications
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or the completion of direct certification procedures for the current
school year, children from households with approved applications or
documentation of direct certification on file from the preceding year,
shall be offered reimbursable free and reduced price meals or free milk,
as appropriate. The local educational agency must extend eligibility to
newly enrolled children when other children in their household (as
defined in Sec. 245.2) were approved for benefits the previous year.
However, applications and documentation of direct certification from the
preceding year shall be used only to determine eligibility for the first
30 operating days following the first operating day at the beginning of
the school year, or until a new eligibility determination is made in the
current school year, whichever comes first. At the State agency's
discretion, students who, in the preceding school year, attended a
school operating a special assistance certification and reimbursement
alternative (as permitted in Sec. 245.9)) may be offered free
reimbursable meals for up to 30 operating days or until a new
eligibility determination is made in the current school year, whichever
comes first.
(3) Exceptions for year-long duration of eligibility--(i) Voluntary
reporting of changes. Households are not required to report changes in
circumstances during the school year, but a household may voluntarily
contact the local educational agency to report any changes. If the
household voluntarily reports a change in income or in program
participation that would result in loss of categorical eligibility, the
local educational agency may only reduce benefits if the household
requests the reduction in writing, for example, by submitting a new
application.
(ii) Households must attest to changes in information as specified
in Sec. 245.6(a)(9). In addition, benefits cannot be reduced by
information received through other sources without the written consent
of the household, except for information received through verification.
(iii) Changes resulting from verification or administrative reviews.
The local educational agency must change the children's eligibility
status when a change is required as a result of verification activities
conducted under Sec. 245.6a or as a result of a review conducted in
accordance with Sec. 210.18 of this chapter.
(4) Calculating income. The local educational agency must use the
income information provided by the household on the application to
calculate the household's total current income. When a household submits
an application containing complete documentation, as defined in Sec.
245.2, and the household's total current income is at or below the
eligibility limits specified in the Income Eligibility Guidelines as
defined in Sec. 245.2, the children in that household must be approved
for free or reduced price benefits, as applicable.
(5) Categorical eligibility--(i) SNAP, FDPIR, TANF When a household
submits an application containing the required SNAP, FDPIR or TANF
documentation, as defined under Documentation in Sec. 245.2, all
children in that household shall be categorically eligible for free
meals or free milk. Additionally, when the local educational agency
obtains confirmation of eligibility for these programs through direct
certification, all children who are identified as members of a Family,
as defined in Sec. 245.2, shall be categorically eligible for free
meals or milk.
(ii) Foster, homeless, migrant, andrunaway children and Head Start
enrollees. Upon receipt of Documentation, as defined in paragraph
(2)(ii) and (2)(iv) of the definition in Sec. 245.2, the local
educational agency must approve such children for free benefits without
further application.
(6) Notice of approval--(i) Income applications. The local
educational agency must notify the household of the children's
eligibility and provide the eligible children the benefits to which they
are entitled within 10 operating days of receiving the application from
the household.
(ii) Direct Certification. Households approved for benefits based on
information provided by the appropriate State or local agency
responsible for the administration of the SNAP, FDPIR or TANF must be
notified, in writing, that their children are eligible for free meals or
free milk, that no application for free and reduced price school meals
or free milk is required. The notice of
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eligibility must also inform the household that the parent or guardian
must notify the local educational agency if they do not want their
children to receive free benefits. However, when the parent or guardian
transmits a notice of eligibility provided by the SNAP, FDPIR or TANF
office, the local educational agency is not required to provide a
separate notice of eligibility. The local educational agency must
notify, in writing, households with children who are approved on the
basis of documentation that they are Categorically eligible, as defined
in Sec. 245.2, that their children are eligible for free meals or free
milk, and that no application is required.
(iii) Households declining benefits. Children from households that
notify the local educational agency that they do not want free or
reduced price benefits must have their benefits discontinued as soon as
possible. Any notification from the household declining benefits must be
documented and maintained on file, as required under paragraph (e) of
this section, to substantiate the eligibility determination.
(7) Denied applications and the notice of denial. When the
application furnished by a family is not complete or does not meet the
eligibility criteria for free or reduced price benefits, the local
educational agency must document and retain the reasons for
ineligibility and must retain the denied application. In addition, the
local educational agency must promptly provide written notice to each
family denied benefits. At a minimum, this notice shall include:
(i) The reason for the denial of benefits, e.g. income in excess of
allowable limits or incomplete application;
(ii) Notification of the right to appeal;
(iii) Instructions on how to appeal; and
(iv) A statement reminding parents that they may reapply for free or
reduced price benefits at any time during the school year.
(8) Appeals of denied benefits. A family that wishes to appeal an
application that was denied may do so in accordance with the procedures
established by the local educational agency as required by Sec. 245.7.
However, prior to initiating the hearing procedure, the family may
request a conference to provide the opportunity for the family and local
educational agency officials to discuss the situation, present
information, and obtain an explanation of the data submitted in the
application or the decision rendered. The request for a conference shall
not in any way prejudice or diminish the right to a fair hearing. The
local educational authority shall promptly schedule a fair hearing, if
requested.
(d) Households that fail to apply. After the letter to parents and
the applications have been disseminated, the local educational agency
may determine, based on information available to it, that a child for
whom an application has not been submitted meets the local educational
agency's eligibility criteria for free and reduced price meals or for
free milk. In such a situation, the local educational agency shall
complete and file an application for such child setting forth the basis
of determining the child's eligibility. When a local educational agency
has obtained a determination of individual family income and family-size
data from other sources, it need not require the submission of an
application for any child from a family whose income would qualify for
free or reduced price meals or for free milk under the local educational
agency's established criteria. In such event, the School Food Authority
shall notify the family that its children are eligible for free or
reduced price meals or for free milk. Nothing in this paragraph shall be
deemed to provide authority for the local educational agency to make
eligibility determinations or certifications by categories or groups of
children.
(e) Recordkeeping. The local educational agency must maintain
documentation substantiating eligibility determinations on file for 3
years after the date of the fiscal year to which they pertain, except
that if audit findings have not been resolved, the documentation must be
maintained as long as required for resolution of the issues raised by
the audit.
(f) Disclosure of children's free and reduced price meal or free
milk eligibility information to education and certain other
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programs and individuals without parental consent. The State agency or
local educational agency, as appropriate, may disclose aggregate
information about children eligible for free and reduced price meals or
free milk to any party without parental notification and consent when
children cannot be identified through release of the aggregate data or
by means of deduction. Additionally, the State agency or local
educational agency also may disclose information that identifies
children eligible for free and reduced price meals or free milk to
persons directly connected with the administration or enforcement of the
programs and the individuals specified in this paragraph (f) without
parent/guardian consent. The State agency or local educational agency
that makes the free and reduced price meal or free milk eligibility
determination is responsible for deciding whether to disclose children's
free and reduced price meal or free milk eligibility information.
(1) Persons authorized to receive eligibility information. Only
persons directly connected with the administration or enforcement of a
program or activity listed in paragraphs (f)(2) or (f)(3) of this
section may have access to children's eligibility information, without
parental consent. Persons considered directly connected with
administration or enforcement of a program or activity listed in
paragraphs (f)(2) or (f)(3) of this section are Federal, State, or local
program operators responsible for the ongoing operation of the program
or activity or responsible for program compliance. Program operators may
include persons responsible for carrying out program requirements and
monitoring, reviewing, auditing, or investigating the program. Program
operators may include contractors, to the extent those persons have a
need to know the information for program administration or enforcement.
Contractors may include evaluators, auditors, and others with whom
Federal or State agencies and program operators contract with to assist
in the administration or enforcement of their program in their behalf.
(2) Disclosure of children's names and eligibility status only. The
State agency or local educational agency, as appropriate, may disclose,
without parental consent, children's names and eligibility status
(whether they are eligible for free or reduced price meals or free milk)
to persons directly connected with the administration or enforcement of:
(i) A Federal education program;
(ii) A State health program or State education program administered
by the State or local education agency;
(iii) A Federal, State, or local means-tested nutrition program with
eligibility standards comparable to the National School Lunch Program
(i.e., food assistance programs for households with incomes at or below
185 percent of the Federal poverty level); or
(iv) A third party contractor assisting in verification of
eligibility efforts by contacting households who fail to respond to
requests for verification of their eligibility.
(3) Disclosure of all eligibility information in addition to
eligibility status. In addition to children's names and eligibility
status, the State agency or local educational agency, as appropriate,
may disclose, without parental consent, all eligibility information
obtained through the free and reduced price meals or free milk
eligibility process (including all information on the application or
obtained through direct certification) to:
(i) Persons directly connected with the administration or
enforcement of programs authorized under the Richard B. Russell National
School Lunch Act or the Child Nutrition Act of 1966. This means that all
eligibility information obtained for the National School Lunch Program,
School Breakfast Program or Special Milk Program may be disclosed to
persons directly connected with administering or enforcing regulations
under the National School Lunch or School Breakfast Programs (Parts 210
and 220, respectively, of this chapter), Child and Adult Care Food
Program (Part 226 of this chapter), Summer Food Service Program (Part
225 of this chapter) and the Special Supplemental Nutrition Program for
Women, Infants and Children (WIC) (Part 246 of this chapter);
(ii) The Comptroller General of the United States for purposes of
audit and examination; and
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(iii) Federal, State, and local law enforcement officials for the
purpose of investigating any alleged violation of the programs listed in
paragraphs (g)(3) and (g)(4) of this section.
(4) Use of free and reduced price meal or free milk eligibility
information by other programs other than Medicaid or the State
Children's Health Insurance Program (SCHIP). State agencies and local
educational agencies may use free and reduced price meal or free milk
eligibility information for administering or enforcing the National
School Lunch, Special Milk or School Breakfast Programs (Parts 210, 215
and 220, respectively, of this chapter). Additionally, any other
Federal, State, or local agency charged with administering or enforcing
these programs may use the information for that purpose. Individuals and
programs to which children's free and reduced price meal eligibility
information has been disclosed under this section may use the
information only in the administration or enforcement of the receiving
program. No further disclosure of the information may be made.
(g) Disclosure of children's eligibility information to Medicaid
and/or SCHIP, unless parents decline. Children's free or reduced price
meal or free milk eligibility information only may be disclosed to
Medicaid or SCHIP when both the State agency and the local educational
agency so elect, the parent/guardian does not decline to have their
eligibility information disclosed and the other provisions described in
paragraph (i) of this section are met. Provided that both the State
agency and local educational agency opt to allow the disclosure of
eligibility information to Medicaid and/or SCHIP, the State agency or
local educational agency, as appropriate, may disclose children's names,
eligibility status (whether they are eligible for free or reduced price
meals or free milk), and any other eligibility information obtained
through the free and reduced price meal or free milk application or
obtained through direct certification to persons directly connected with
the administration of Medicaid or SCHIP. Persons directly connected to
the administration of Medicaid and SCHIP are State employees and persons
authorized under Federal and State Medicaid and SCHIP requirements to
carry out initial processing of Medicaid or SCHIP applications or to
make eligibility determinations for Medicaid or SCHIP.
(1) The State agency must ensure that:
(i) The child care institution and health insurance program
officials have a written agreement that requires the health insurance
program agency to use the eligibility information to seek to enroll
children in Medicaid and SCHIP; and
(ii) Parents/guardians are notified that their eligibility
information may be disclosed to Medicaid or SCHIP and given an
opportunity to decline to have their children's eligibility information
disclosed, prior to any disclosure.
(2) Use of children's free and reduced price meal eligibility
information by Medicaid/SCHIP. Medicaid and SCHIP agencies and health
insurance program operators receiving children's free and reduced price
meal or free milk eligibility information may use the information to
seek to enroll children in Medicaid or SCHIP. The Medicaid and SCHIP
enrollment process may include targeting and identifying children from
low-income households who are potentially eligible for Medicaid or SCHIP
for the purpose of seeking to enroll them in Medicaid or SCHIP. No
further disclosure of the information may be made. Medicaid and SCHIP
agencies and health insurance program operators also may verify
children's eligibility in a program under the Child Nutrition Act of
1966 or the Richard B. Russell National School Lunch Act.
(h) Notifying households of potential uses and disclosures of
children's eligibility information. Households must be informed that the
information they provide on the free and reduced price meal or free milk
application will be used to determine eligibility for free and reduced
price meals or free milk and that eligibility information may be
disclosed to other programs.
(1) For disclosures to programs, other than Medicaid or SCHIP, that
are permitted access to children's eligibility information, without
parent/guardian consent, the State agency or local educational agency,
as appropriate, must
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notify parents/guardians at the time of application that their
children's free and reduced price meal or free milk eligibility
information may be disclosed. The State agency or local educational
agency, as appropriate, must add substantially the following statement
to the statement required under paragraph (a)(8)(i) of this section,
``We may share your eligibility information with education, health, and
nutrition programs to help them evaluate, fund, or determine benefits
for their programs; auditors for program reviews; and law enforcement
officials to help them look into violations of program rules.'' For
children determined eligible through direct certification, the notice of
potential disclosure may be included in the document informing parents/
guardians of their children's eligibility for free meals or free milk
through direct certification.
(2) For disclosure to Medicaid or SCHIP, the State agency or local
educational agency, as appropriate, must notify parents/guardians that
their children's free and reduced price meal or free milk eligibility
information will be disclosed to Medicaid and/or SCHIP unless the
parent/guardian elects not to have their information disclosed.
Additionally, the State agency or local educational agency, as
appropriate, must give parents/guardians an opportunity to elect not to
have their information disclosed to Medicaid or SCHIP. Only the parent
or guardian who is a member of the household or family for purposes of
the free and reduced price meal or free milk application may decline the
disclosure of eligibility information to Medicaid or SCHIP. The
notification must inform parents/guardians that they are not required to
consent to the disclosure, that the information, if disclosed, will be
used to identify children eligible for and to seek to enroll children in
a health insurance program, and that their decision will not affect
their children's eligibility for free and reduced price meals or free
milk. The notification may be included in the letter/notice to parents/
guardians that accompanies the free and reduced price meal or free milk
application, on the application itself or in a separate notice provided
to parents/guardians. The notice must give parents/guardians adequate
time to respond. The State agency or local educational agency, as
appropriate, must add substantially the following statement to the
statement required under paragraph (a)(8)(i) of this section, ``We may
share your information with Medicaid or the State Children's Health
Insurance Program, unless you tell us not to. The information, if
disclosed, will be used to identify eligible children and seek to enroll
them in Medicaid or SCHIP.'' For children determined eligible through
direct certification, the notice of potential disclosure and opportunity
to decline the disclosure may be included in the document informing
parents/guardians of their children's eligibility for free meal or free
milk through direct certification.
(i) Other disclosures. State agencies and local educational agencies
that plan to use or disclose information about children eligible for
free or reduced price meals or free milk in ways not specified in this
section must obtain written consent from the child's parent or guardian
prior to the use or disclosure. Only a parent or guardian who is a
member of the child's household for purposes of the free and reduced
price meal or free milk application may give consent to the disclosure
of free and reduced price meal eligibility information.
(1) The consent must identify the information that will be shared
and how the information will be used.
(2) The consent statement must be signed and dated by the child's
parent or guardian who is a member of the household for purposes of the
free and reduced price meal or free milk application.
(3) There must be a statement informing parents and guardians that
failing to sign the consent will not affect the child's eligibility for
free or reduced price meals or free milk and that the individuals or
programs receiving the information will not share the information with
any other entity or program.
(4) Parents/guardians must be permitted to limit the consent only to
those programs with which they wish to share information.
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(j) Agreements with programs/individuals receiving children's free
and reduced price meal or free milk eligibility information. (1) An
agreement with programs or individuals receiving free and reduced price
meal or free milk eligibility information is recommended for programs
other than Medicaid or SCHIP. The agreement or MOU should include
information similar to that required for disclosures to Medicaid and
SCHIP specified in paragraph (j)(2) of this section.
(2) The State agency or school food authorities, as appropriate,
must have a written agreement with the State or local agency or agencies
administering Medicaid or SCHIP prior to disclosing children's free and
reduced price meal or free milk eligibility information. At a minimum,
the agreement must:
(i) Identify the health insurance program or health agency receiving
children's eligibility information;
(ii) Describe the information that will be disclosed;
(iii) Require that the Medicaid or SCHIP agency use the information
obtained and specify that the information must be used to seek to enroll
children in Medicaid or SCHIP;
(iv) Require that the Medicaid or SCHIP agency describe how they
will use the information obtained;
(v) Describe how the information will be protected from unauthorized
uses and disclosures;
(vi) Describe the penalties for unauthorized disclosure; and
(vii) Be signed by both the Medicaid or SCHIP program or agency and
the State agency or child care institution, as appropriate.
(k) Penalties for unauthorized disclosure or misuse of information.
In accordance with section 9(b)(6)(C) of the Richard B. Russell National
School Lunch Act (42 U.S.C. 1758(b)(6)(C)), any individual who
publishes, divulges, discloses or makes known in any manner, or to any
extent not authorized by statute or this section, any information
obtained under this section will be fined not more than $1,000 or
imprisoned for up to 1 year, or both.
(Sec. 803, Pub. L. 97-35, 95 Stat. 521-535 (42 U.S.C. 1758))
[35 FR 14065, Sept. 4, 1970]
Editorial Note: For Federal Register citations affecting Sec.
245.6, see the List of CFR Sections Affected, which appears in the
Finding Aids section of the printed volume and at www.govinfo.gov.
Sec. 245.6a Verification requirements.
(a) Definitions--(1) Eligible programs. For the purposes of this
section, the following programs qualify as programs for which a case
number may be provided in lieu of income information and that may be
used for direct verification purposes:
(i) SNAP, as defined in 245.2;
(ii) The Food Distribution Program on Indian Reservations (FDPIR) as
defined in Sec. 245.2; and
(iii) A State program funded under the program of block grants to
States for temporary assistance for needy families (TANF) as defined in
Sec. 245.2.
(2) Error prone application. For the purposes of this section,
``error prone application'' means an approved household application that
indicates monthly income within $100 or annual income within $1,200 of
the applicable income eligibility limit for free or for reduced meals.
(3) Non-response rate. For the purposes of this section, ``non-
response rate'' means the percentage of approved household applications
for which verification information was not obtained by the local
educational agency after verification was attempted. The non-response
rate is reported on the FNS-742 in accordance with paragraph (h) of this
section.
(4) Official poverty line. For the purposes of this section,
``official poverty line'' means that described in section 1902(l)(2)(A)
of the Social Security Act (42 U.S.C. 1396a(l)(2)(A)).
(5) Sample size. For the purposes of this section, ``sample size''
means the number of approved applications that a local educational
agency is required to verify based on the number of approved
applications on file as of October 1 of the current school year.
(6) School year. For the purposes of this section, a school year
means a period of 12 calendar months beginning July 1 of any year and
ending June 30 of the following year.
(7) Sources of information. For the purposes of this section,
sources of information for verification may include
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written evidence, collateral contacts, and systems of records as
follows:
(i) Written evidence shall be used as the primary source of
information for verification. Written evidence includes written
confirmation of a household's circumstances, such as wage stubs, award
letters, and letters from employers. Whenever written evidence is
insufficient to confirm income information on the application or current
eligibility, the local educational agency may require collateral
contacts.
(ii) Collateral contacts are verbal confirmations of a household's
circumstances by a person outside of the household. The collateral
contact may be made in person or by phone. The verifying official may
select a collateral contact if the household fails to designate one or
designates one which is unacceptable to the verifying official. If the
verifying official designates a collateral contact, the contact shall
not be made without providing written or oral notice to the household.
At the time of this notice, the household shall be informed that it may
consent to the contact or provide acceptable documentation in another
form. If the household refuses to choose one of these options, its
eligibility shall be terminated in accordance with the normal procedures
for failure to cooperate with verification efforts. Collateral contacts
could include employers, social service agencies, and migrant agencies.
(iii) Agency records to which the State agency or local educational
agency may have access are not considered collateral contacts.
Information concerning income, household size, or SNAP, FDPIR, or TANF
eligibility, maintained by other government agencies to which the State
agency, the local educational agency, or school can legally gain access,
may be used to confirm a household's income, size, or receipt of
benefits. Information may also be obtained from individuals or agencies
serving foster, homeless, migrant, or runaway children, as defined in
Sec. 245.2. Agency records may be used for verification conducted after
the household has been notified of its selection for verification or for
the direct verification procedures in paragraph (g) of this section.
(iv) Households which dispute the validity of income information
acquired through collateral contacts or a system of records shall be
given the opportunity to provide other documentation.
(b) Deadline and extensions for local educational agencies--(1)
Deadline. The local education agency must complete the verification
efforts specified in paragraph (c) of this section not later than
November 15 of each school year.
(2) Deadline extensions. (i) The local educational agency may
request an extension of the November 15 deadline, in writing, from the
State agency. The State agency may approve an extension up to December
15 of the current school year due to natural disaster, civil disorder,
strike or other circumstances that prevent the local educational agency
from timely completion of verification activities.
(ii) In the case of natural disaster, civil disorder or other local
conditions, USDA may substitute alternatives for the verification
deadline in paragraph (b)(1) of this section.
(3) Beginning verification activities. The local educational agency
may conduct verification activity once it begins the application
approval process for the current school year and has approved
applications on file. However, the final required sample size must be
based on the number of approved applications on file as of October 1.
(c) Verification requirement--(1) General. The local educational
agency must verify eligibility of children in a sample of household
applications approved for free and reduced price meal benefits for that
school year.
(i) A State may, with the written approval of FNS, assume
responsibility for complying with the verification requirements of this
section on behalf of its local educational agencies. When assuming such
responsibility, States may qualify, if approved by FNS, to use one of
the alternative sample sizes provided for in paragraph (c)(4) of this
section if qualified under paragraph (d) of this section.
(ii) An application must be approved if it contains the essential
documentation specified in the definition of Documentation in Sec.
245.2 and, if applicable, the household meets the income eligibility
criteria for free or reduced price
[[Page 344]]
benefits. Verification efforts must not delay the approval of
applications.
(2) Exceptions from verification. Verification is not required in
residential child care institutions; in schools in which FNS has
approved special cash assistance claims based on economic statistics
regarding per capita income; or in schools in which all children are
served with no separate charge for food service and no special cash
assistance is claimed. Local educational agencies in which all schools
participate in the special assistance certification and reimbursement
alternatives specified in Sec. 245.9 shall meet the verification
requirement only in those years in which applications are taken for all
children in attendance. Verification of eligibility is not required of
households if all children in the household are determined eligible
based on documentation provided by the State or local agency responsible
for the administration of the SNAP, FDPIR or TANF or if all children in
the household are determined to be foster, homeless, migrant, or
runaway, as defined in Sec. 245.2.
(3) Standard sample size. Unless eligible for an alternative sample
size under paragraph (d) of this section, the sample size for each local
educational agency shall equal the lesser of:
(i) Three (3) percent of all applications approved by the local
educational agency for the school year, as of October 1 of the school
year, selected from error prone applications; or
(ii) 3,000 error prone applications approved by the local
educational agency for the school year, as of October 1 of the school
year.
(iii) Local educational agencies shall not exceed the standard
sample size in paragraphs (c)(3)(i) or (c)(3)(ii) of this section, as
applicable, and, unless eligible for one of the alternative sample sizes
provided in paragraph (c)(4) of this section, the local educational
agency shall not use a smaller sample size than those in paragraphs
(c)(3)(i) or (c)(3)(ii) of this section, as applicable.
(iv) If the number of error-prone applications exceeds the required
sample size, the local educational agency shall select the required
sample at random, i.e., each application has an equal chance of being
selected, from the total number of error-prone applications.
(4) Alternative sample sizes. If eligible under paragraph (d) of
this section for an alternative sample size, the local educational
agency may use one of the following alternative sample sizes:
(i) Alternative One. The sample size shall equal the lesser of:
(A) 3,000 of all applications selected at random from applications
approved by the local educational agency as of October 1 of the school
year; or
(B) Three (3) percent of all applications selected at random from
applications approved by the local educational agency as of October 1 of
the school year.
(ii) Alternative Two. The sample size shall equal the lesser of the
sum of:
(A) 1,000 of all applications approved by the local educational
agency as of October 1 of the school year, selected from error prone
applications or
(B) One (1) percent of all applications approved by the local
educational agency as of October 1 of the school year, selected from
error prone applications PLUS
(C) The lesser of:
(1) 500 applications approved by the local educational agency as of
October 1 of the school year that provide a case number in lieu of
income information showing participation in an eligible program as
defined in paragraph (a)(1) of this section; or
(2) One-half (\1/2\) of one (1) percent of applications approved by
the local educational agency as of October 1 of the school year that
provide a case number in lieu of income information showing
participation in an eligible program as defined in paragraph (a)(1) of
this section.
(5) Completing the sample size. When there are an insufficient
number of error prone applications or applications with case number to
meet the sample sizes provided for in paragraphs (c)(3) or (c)(4) of
this section, the local educational agency shall select, at random,
additional approved applications to comply with the specified sample
size requirements.
(6) Local conditions. In the case of natural disaster, civil
disorder, strike or other local conditions as determined
[[Page 345]]
by FNS, FNS may substitute alternatives for the sample size and sample
selection criteria in paragraphs (c)(3) and (c)(4) of this section.
(7) Verification for cause. In addition to the required verification
sample, local educational agencies must verify any questionable
application and should, on a case-by-case basis, verify any application
for cause such as an application on which a household reports zero
income or when the local educational agency is aware of additional
income or persons in the household. Any application verified for cause
is not considered part of the required sample size. If the local
educational agency verifies a household's application for cause, all
verification procedures in this section must be followed.
(d) Eligibility for alternative sample sizes--(1) State agency
oversight. At a minimum, the State agency shall establish a procedure
for local educational agencies to designate use of an alternative sample
size and may set a deadline for such notification. The State agency may
also establish criteria for reviewing and approving the use of an
alternative sample size, including deadlines for submissions.
(2) Lowered non-response rate. Any local educational agency is
eligible to use one of the alternative sample sizes in paragraph (c)(4)
of this section for any school year when the non-response rate for the
preceding school year is less than twenty percent.
(3) Improved non-response rate. A local educational agency with more
than 20,000 children approved by application as eligible for free or
reduced price meals as of October 1 of the school year is eligible to
use one of the alternative sample sizes in paragraph (c)(4) of this
section for any school year when the non-response rate for the preceding
school year is at least ten percent below the non-response rate for the
second preceding school year.
(4) Continuing eligibility for alternative sample sizes. The local
educational agency must annually determine if it is eligible to use one
of the alternative sample sizes provided in paragraph (c)(4) of this
section. If qualified, the local educational agency shall contact the
State agency in accordance with procedures established by the State
agency under paragraph (d)(1) of this section.
(e) Activities prior to household notification--(1) Confirmation of
a household's initial eligibility. (i) Prior to conducting any other
verification activity, an individual, other than the individual who made
the initial eligibility determination, shall review for accuracy each
approved application selected for verification to ensure that the
initial determination was correct. If the initial determination was
correct, the local educational agency shall verify the approved
application. If the initial determination was incorrect, the local
educational agency must:
(A) If the eligibility status changes from reduced price to free,
make the increased benefits immediately available and notify the
household of the change in benefits; the local educational agency will
then verify the application;
(B) If the eligibility status changes from free to reduced price,
first verify the application and then notify the household of the
correct eligibility status after verification is completed and, if
required, send the household a notice of adverse action in accordance
with paragraph (j) of this section; or
(C) If the eligibility status changes from free or reduced price to
paid, send the household a notice of adverse action in accordance with
paragraph (j) of this section and do not conduct verification on this
application and select a similar application (for example, another
error-prone application) to replace it.
(ii) The requirements in paragraph (e)(1)(i) of this section are
waived if the local educational agency is using a technology-based
system that demonstrates a high level of accuracy in processing an
initial eligibility determination based on the income eligibility
guidelines for the National School Lunch Program. Any local educational
agency that conducts a confirmation review of all applications at the
time of certification meets this requirement. The State agency may
request documentation to support the accuracy of the local educational
agency's system. If the State agency determines that the technology-
based system is inadequate, it may require that
[[Page 346]]
the local educational agency conduct a confirmation review of each
application selected for verification.
(2) Replacing applications. The local educational agency may, on a
case-by-case basis, replace up to five percent of applications selected
and confirmed for verification. Applications may be replaced when the
local educational agency determines that the household would be unable
to satisfactorily respond to the verification request. Any application
removed shall be replaced with another approved application selected on
the same basis (i.e., an error-prone application must be substituted for
a withdrawn error-prone application).
(f) Verification procedures and assistance for households--(1)
Notification of selection. Other than households verified through the
direct verification process in paragraph (g) of this section, households
selected for verification must be notified in writing that their
applications were selected for verification. The written statement must
include a telephone number for assistance as required in paragraph
(f)(5) of this section. Any communications with households concerning
verification must be in an understandable and uniform format and, to the
maximum extent practicable, in a language that parents and guardians can
understand. These households must be advised of the type of information
or documents the school accepts. Households selected for verification
must be informed that:
(i) They are required to submit the requested information to verify
eligibility for free or reduced-price meals, by the date determined by
the local educational agency.
(ii) They may, instead, submit proof that the children receive SNAP,
FDPIR, or TANF assistance, as explained in paragraph (f)(3) of this
section.
(iii) They may, instead, request that the local educational agency
contact the appropriate officials to confirm that their children are
foster, homeless, migrant, or runaway, as defined in Sec. 245.2.
(iv) Failure to cooperate with verification efforts will result in
the termination of benefits.
(2) Documentation timeframe. Households selected and notified of
their selection for verification must provide documentation of income.
The documentation must indicate the source, amount and frequency of all
income and can be for any point in time between the month prior to
application for school meal benefits and the time the household is
requested to provide income documentation.
(3) SNAP FDPIR or TANF recipients. On applications where households
have furnished SNAP or TANF case numbers or FDPIR case numbers or other
FDPIR identifiers, verification shall be accomplished by confirming with
the SNAP, FDPIR, or TANF office that at least one child who is eligible
because a case number was furnished, is a member of a household
participating in one of the eligible programs in paragraph (a)(1) of
this section. The household may also provide a copy of ``Notice of
Eligibility'' for the SNAP, FDPIR or the TANF Program or equivalent
official documentation issued by the SNAP, FDPIR or TANF office which
confirms that at least one child who is eligible because a case number
was provided is a member of a household receiving assistance under the
SNAP, FDPIR or the TANF program. An identification card for these
programs is not acceptable as verification unless it contains an
expiration date. If it is not established that at least one child is a
member of a household receiving assistance under the SNAP, FDPIR or the
TANF program (in accordance with the timeframe in paragraph (f)(2) of
this section), the procedures for adverse action specified in paragraph
(j) of this section must be followed.
(4) Household cooperation. If a household refuses to cooperate with
efforts to verify, eligibility for free or reduced price benefits shall
be terminated in accordance with paragraph (j) of this section.
Households which refuse to complete the verification process and which
are consequently determined ineligible for such benefits shall be
counted toward meeting the local educational agency's required sample of
verified applications.
(5) Telephone assistance. The local educational agency shall provide
a
[[Page 347]]
telephone number to households selected for verification to call free of
charge to obtain information about the verification process. The
telephone number must be prominently displayed on the letter to
households selected for verification.
(6) Followup attempts. The local educational agency shall make at
least one attempt to contact any household that does not respond to a
verification request. The attempt may be through a telephone call, e-
mail, mail or in person and must be documented by the local educational
agency. Non-response to the initial request for verification includes no
response and incomplete or ambiguous responses that do not permit the
local educational agency to resolve the children's eligibility for free
or reduced price meal and milk benefits. The local educational agency
may contract with another entity to conduct followup activity in
accordance with Sec. 210.21 of this chapter, the use and disclosure of
information requirements of the Richard B. Russell National School Lunch
Act and this section.
(7) Eligibility changes. Based on the verification activities, the
local educational agency shall make appropriate modifications to the
eligibility determinations made initially. The local educational agency
must notify the household of any change. Households must be notified of
any reduction in benefits in accordance with paragraph (j) of this
section. Households with reduced benefits or that are longer eligible
for free or reduced price meals must be notified of their right to
reapply at any time with documentation of income or participation in one
of the eligible programs in paragraph (a)(1) of this section.
(g) Direct verification. Local educational agencies may conduct
direct verification activities with the eligible programs defined in
paragraph (a)(1) of this section and with the public agency that
administers the State plan for medical assistance under title XIX of the
Social Security Act (42 U.S.C. 1396 et seq.), (Medicaid), and under
title XXI of the Social Security Act (42 U.S.C. 1397aa et seq.), the
State Children's Health Insurance Program (SCHIP) as defined in Sec.
245.2. Records from the public agency may be used to verify income and
program participation. The public agency's records are subject to the
timeframe in paragraph (g)(5) of this section. Direct verification must
be conducted prior to contacting the household for documentation.
(1) Names submitted. The local educational agency must only submit
the names of school children certified for free or reduced price meal
benefits or free milk to the agency administering an eligible program,
the Medicaid program or the SCHIP program. Names and other identifiers
of adult or non-school children must not be submitted for direct
verification purposes.
(2) Eligible programs. If information obtained through direct
verification of an application for free or reduced price meal benefits
indicates a child is participating in one of the eligible programs in
paragraph (a)(1) of this section, no additional verification is
required.
(3) States with Medicaid Income Limits of 133%. In States in which
the income eligibility limit applied in the Medicaid program or in SCHIP
is not more than 133% of the official poverty line or in States that
otherwise identify households that have income that is not more than
133% of the official poverty line, records from these agencies may be
used to verify eligibility. If information obtained through direct
verification with these programs verifies the household's eligibility
status, no additional verification is required.
(4) States with Medicaid Income Limits between 133%-185%. In States
in which the income eligibility limit applied in the Medicaid program or
in SCHIP exceeds 133% of the official poverty line, direct verification
information must include either the percentage of the official poverty
line upon which the applicant's Medicaid participation is based or
Medicaid income and Medicaid household size in order to determine that
the applicant is either at or below 133% of the Federal poverty line, or
is between 133% and 185% of the Federal poverty line. Verification for
children approved for free meals is complete if Medicaid data indicates
that the percentage is at or below 133% of the Federal poverty line.
Verification for children approved for reduced price meals
[[Page 348]]
is complete if Medicaid data indicates that the percentage is at or
below 185% of the Federal poverty line. If information obtained through
direct verification with these programs verifies eligibility status, no
additional verification is required.
(5) Documentation timeframe. For the purposes of direct
verification, documentation must be the most recent available but such
documentation must indicate eligibility for participation or income
within the 180-day period ending on the date of application. In
addition, local educational agencies may use documentation, which must
be within the 180-day period ending on the date of application, for any
one month or for all months in the period from the month prior to
application through the month direct verification is conducted. The
information provided only needs to indicate eligibility for
participation in the program at that point in time, not that the child
was certified for that program's benefits within the 180-day period.
(6) Incomplete information. If it is the information provided by the
public agency does not verify eligibility, the local educational agency
must conduct verification in accordance with paragraph (f) of this
section. In addition, households must be able to dispute the validity of
income information acquired through direct verification and shall be
given the opportunity to provide other documentation.
(h) Verification reporting and recordkeeping requirements. By
February 1, each local educational agency must report information
related to its annual statutorily required verification activity, which
excludes verification conducted in accordance with paragraph (c)(7) of
this section, to the State agency in accordance with guidelines provided
by FNS. These required data elements will be specified by FNS.
Contingent upon new funding to support this purpose, FNS will also
require each local educational agency to collect and report the number
of students who were terminated as a result of verification but who were
reinstated as of February 15th. The first report containing this data
element would be required in the school year beginning July 1, 2005 and
each school year thereafter. State agencies may develop paper or
electronic reporting forms to collect this data from local educational
agencies, as long as all required data elements are collected from each
local educational agency. Local educational agencies shall retain copies
of the information reported under this section and all supporting
documents for a minimum of 3 years. All verified applications must be
readily retrievable on an individual school basis and include all
documents submitted by the household for the purpose of confirming
eligibility, reproductions of those documents, or annotations made by
the determining official which indicate which documents were submitted
by the household and the date of submission. All relevant correspondence
between the households selected for verification and the school or local
educational agency must be retained. Local educational agencies are
encouraged to collect and report any or all verification data elements
before the required dates.
(i) Nondiscrimination. The verification efforts shall be applied
without regard to race, sex, color, national origin, age, or disability.
(j) Adverse action. If verification activities fail to confirm
eligibility for free or reduced price benefits or should the household
fail to cooperate with verification efforts, the school or local
educational agencyshall reduce or terminate benefits, as applicable, as
follows: Ten days advance notification shall be provided to households
that are to receive a reduction or termination of benefits, prior to the
actual reduction or termination. The first day of the 10 day advance
notice period shall be the day the notice is sent. The notice shall
advise the household of:
(1) The change;
(2) The reasons for the change;
(3) Notification of the right to appeal and when the appeal must be
filed to ensure continued benefits while awaiting a hearing and
decision;
(4) Instructions on how to appeal; and
(5) The right to reapply at any time during the school year. The
reasons for
[[Page 349]]
ineligibility shall be properly documented and retained on file at the
local educational agency.
(Sec. 803, Pub. L. 97-35, 95 Stat. 521-535 (42 U.S.C. 1758))
[48 FR 12510, Mar. 25, 1983, as amended at 49 FR 26034, June 26, 1984;
52 FR 19275, May 22, 1987; 55 FR 19240, May 9, 1990; 56 FR 32950, July
17, 1991; 56 FR 33861, July 24, 1991; 64 FR 50744, Sept. 20, 1999; 64 FR
72474, Dec. 28, 1999; 66 FR 48328, Sept. 20, 2001; 68 FR 53489, Sept.
11, 2003; 72 FR 63795, Nov. 13, 2007; 73 FR 76859, Dec. 18, 2008; 76 FR
22802, Apr. 25, 2011; 78 FR 12230, Feb. 22, 2013; 78 FR 13453, Feb. 28,
2013]
Sec. 245.7 Hearing procedure for families and local educational agencies.
(a) Each local educational agency of a school participating in the
National School Lunch Program, School Breakfast Program or the Special
Milk Program or of a commodity only school shall establish a hearing
procedure under which:
(1) A family can appeal from a decision made by the local
educational agency with respect to an application the family has made
for free or reduced price meals or for free milk, and
(2) The local educational agency can challenge the continued
eligibility of any child for a free or reduced price meal or for free
milk. The hearing procedure shall provide for both the family and the
local educational agency:
(i) A simple, publicly announced method to make an oral or written
request for a hearing;
(ii) An opportunity to be assisted or represented by an attorney or
other person;
(iii) An opportunity to examine, prior to and during the hearing,
any documents and records presented to support the decision under
appeal;
(iv) That the hearing shall be held with reasonable promptness and
convenience, and that adequate notice shall be given as to the time and
place of the hearing;
(v) An opportunity to present oral or documentary evidence and
arguments supporting a position without undue interference;
(vi) An opportunity to question or refute any testimony or other
evidence and to confront and cross-examine any adverse witnesses;
(vii) That the hearing shall be conducted and the decision made by a
hearing official who did not participate in making the decision under
appeal or in any previously held conference;
(viii) That the decision of the hearing official shall be based on
the oral and documentary evidence presented at the hearing and made a
part of the hearing record;
(ix) That the parties concerned and any designated representative
shall be notified in writing of the decision of the hearing official;
(x) That a written record shall be prepared with respect to each
hearing, which shall include the challenge or the decision under appeal,
any documentary evidence and a summary of any oral testimony presented
at the hearing, the decision of the hearing official, including the
reasons therefor, and a copy of the notification to the parties
concerned of the decision of the hearing official; and
(xi) That the written record of each hearing shall be preserved for
a period of 3 years and shall be available for examination by the
parties concerned or their representatives at any reasonable time and
place during that period.
(b) Continuation of benefits. When a household disagrees with an
adverse action which affects its benefits and requests a fair hearing,
benefits shall be continued as follows while the household awaits the
hearing and decision:
(1) Households that have been approved for benefits and that are
subject to a reduction or termination of benefits later in the same
school year shall receive continued benefits if they appeal the adverse
action within the 10 day advance notice period; and
(2) Households that are denied benefits upon application shall not
receive benefits.
(44 U.S.C. 3506; sec. 803, Pub. L. 97-35, 95 Stat. 521-535 (42 U.S.C.
1758))
[Amdt. 6, 39 FR 30339, Aug. 22, 1974, as amended at 47 FR 746, Jan. 7,
1982; 48 FR 12511, Mar. 25, 1983; 72 FR 63796, Nov. 13, 2007]
Sec. 245.8 Nondiscrimination practices for children eligible to receive free and reduced price meals and free milk.
School Food Authorities and local educational agencies of schools
participating in the National School Lunch Program, School Breakfast
Program or
[[Page 350]]
Special Milk Program or of commodity only schools shall take all actions
that are necessary to insure compliance with the following
nondiscrimination practices for children eligible to receive free and
reduced price meals or free milk:
(a) The names of the children shall not be published, posted or
announced in any manner;
(b) There shall be no overt identification of any of the children by
the use of special tokens or tickets or by any other means;
(c) The children shall not be required to work for their meals or
milk;
(d) The children shall not be required to use a separate dining
area, go through a separate serving line, enter the dining area through
a separate entrance or consume their meals or milk at a different time;
(e) When more than one lunch or breakfast or type of milk is offered
which meets the requirements prescribed in Sec. 210.10, Sec. 220.8 or
the definition of Milk in Sec. 215.2 of this chapter, the children
shall have the same choice of meals or milk that is available to those
children who pay the full price for their meal or milk.
[Amdt. 6, 39 FR 30339, Aug. 22, 1974, as amended at 72 FR 63796, Nov.
13, 2007]
Sec. 245.9 Special assistance certification and reimbursement alternatives.
(a) Provision 1. A Local educational agency of a school having at
least 80 percent of its enrolled children determined eligible for free
or reduced price meals may, at its option, authorize the school to
reduce annual certification and public notification for those children
eligible for free meals to once every two consecutive school years. This
alternative shall be known as provision 1 and the following requirements
shall apply:
(1) A Local educational agency of a school operating under provision
1 requirements shall publicly notify in accordance with Sec. 245.5,
parents of enrolled children who are receiving free meals once every two
consecutive school years, and shall publicly notify in accordance with
Sec. 245.5, parents of all other enrolled children on an annual basis.
(2) The 80 percent enrollment eligibility for this alternative shall
be based on the school's March enrollment data of the previous school
year, or on other comparable data.
(3) A Local educational agency of a school operating under provision
1, shall count the number of free, reduced price and paid meals served
to children in that school as the basis for monthly reimbursement
claims.
(b) Provision 2. A local educational agency may certify children for
free and reduced price meals for up to 4 consecutive school years in the
schools which serve meals at no charge to all enrolled children;
provided that public notification and eligibility determinations are in
accordance with Sec. Sec. 245.5 and 245.3, respectively, during the
base year as defined in paragraph (b)(6) of this section. The Provision
2 base year is the first year, and is included in the 4-year cycle. The
following requirements apply:
(1) Meals at no charge. Participating schools must serve
reimbursable meals, as determined by a point of service observation, or
as otherwise approved under part 210 of this chapter, to all
participating children at no charge.
(2) Cost differential. The local educational agency of a school
participating in Provision 2 must pay, with funds from non-Federal
sources, the difference between the cost of serving lunches and/or
breakfasts at no charge to all participating children and Federal
reimbursement.
(3) Meal counts. During the base year, even though meals are served
to participating students at no charge, schools must take daily meal
counts of reimbursable student meals by type (free, reduced price, and
paid) at the point of service, or as otherwise approved under part 210
of this chapter. During the non-base years, participating Provision 2
schools must take total daily meal counts (not by type) of reimbursable
student meals at the point of service, or as otherwise approved under
part 210 of this chapter. For the purpose of calculating reimbursement
claims in the non-base years, local educational agencies must establish
school specific monthly or annual claiming percentages, as follows:
[[Page 351]]
(i) Monthly percentages. In any given Provision 2 school, the
monthly meal counts of the actual number of meals served by type (free,
reduced price, and paid) during the base year must be converted to
monthly percentages for each meal type. For example, the free lunch
percentage is derived by dividing the monthly total number of
reimbursable free lunches served by the total number of reimbursable
lunches served in the same month (free, reduced price and paid). The
percentages for the reduced price and paid lunches are calculated using
the same method as the above example for free lunches. These three
percentages, calculated at the end of each month of the first school
year, are multiplied by the corresponding monthly lunch count total of
all reimbursable lunches served in the second, third and fourth
consecutive school years, and applicable extensions, in order to
calculate reimbursement claims for free, reduced price and paid lunches
each month. The free, reduced price and paid percentages for breakfasts
and, as applicable, snacks, are calculated using the same method; or
(ii) Annual percentages. In any given Provision 2 school, the actual
number of all reimbursable meals served by type (free, reduced price,
and paid) during the base year must be converted to an annual percentage
for each meal type. For example, the free lunch percentage is derived by
dividing the annual total number of reimbursable free lunches served by
the annual total number of reimbursable lunches served for all meal
types (free, reduced price and paid). The percentages for the reduced
price and paid lunches are calculated using the same method as the above
example for free lunches. These three percentages, calculated at the end
of the base year, are multiplied by the total monthly lunch count of all
reimbursable lunches served in each month of the second, third and
fourth consecutive school years, and applicable extensions, in order to
calculate reimbursement claims for free, reduced price and paid lunches
each month. The free, reduced price and paid percentages for breakfasts
and, as applicable, snacks, are calculated using the same method for
each type of meal service.
(4) Local educational agency claims review process. During the
Provision 2 base year (not including a streamlined base year under
paragraph (c)(2)(iii) of this section), local educational agencies are
required to review the lunch count data for each school under its
jurisdiction to ensure the accuracy of the monthly Claim for
Reimbursement in accordance with Sec. 210.8(a)(2) of this chapter.
During non-base years and streamlined base years, local educational
agencies must compare each Provision 2 school's total daily meal counts
to the school's total enrollment, adjusted by an attendance factor. The
local educational agency must promptly follow-up as specified in Sec.
210.8(a)(4) of this chapter when the claims review suggests the
likelihood of lunch count problems. When a school elects to operate
Provision 2 only in the School Breakfast Program, local educational
agencies must continue to comply with the claims review requirements of
Sec. 210.8(a)(2) of this chapter for the National School Lunch Program.
(5) Verification. Except as otherwise specified in Sec.
245.6a(a)(5), local educational agencies are required to conduct
verification in accordance with Sec. 245.6a. When a school elects to
participate under Provision 2 or for all of the meal programs in which
it participates (breakfast 7 CFR part 220 and/or lunch 7 CFR part 210),
the applications from that school are excluded from the local
educational agency's required verification sample size and are exempt
from verification during non-base years.
(6) Base year. For purposes of this paragraph (b), the term base
year means the last school year for which eligibility determinations
were made and meal counts by type were taken or the school year in which
a school conducted a streamlined base year as authorized under paragraph
(c)(2)(iii) of this section. Schools shall offer reimbursable meals to
all students at no charge during the Provision 2 base year except as
otherwise specified in paragraph (b)(6)(ii) of this section.
(i) Duration of the base year. The base year must begin at the start
of the school year or as otherwise specified in paragraph (b)(6)(ii) of
this section.
[[Page 352]]
(ii) Delayed implementation. At State agency discretion, schools may
delay implementation of Provision 2 for a period of time not to exceed
the first claiming period of the school year in which the base year is
established. Schools implementing this option may conduct standard meal
counting and claiming procedures, including charging students eligible
for reduced price and paid meals, during the first claiming period of
the school year. Such schools must submit claims reflecting the actual
number of meals served by type. In subsequent years, such schools shall
convert the actual number of reimbursable meals served by type (free,
reduced price and paid) during the remaining claiming periods of the
base year, in which meals were served at no charge to all participating
students, to an annual percentage for each type of meal. The annual
claiming percentages must be applied to the total number of reimbursable
meals served during the first claiming period in all non-base years of
operation for that cycle and any extensions.
(c) Extension of Provision 2. At the end of the initial cycle, and
each subsequent 4-year cycle, the State agency may allow a school to
continue under Provision 2 for another 4 years using the claiming
percentages calculated during the most recent base year if the local
educational agency can establish, through available and approved
socioeconomic data, that the income level of the school's population, as
adjusted for inflation, has remained stable, declined or has had only
negligible improvement since the base year.
(1) Extension criteria. Local educational agencies must submit to
the State agency available and approved socioeconomic data to establish
whether the income level of a school's population, as adjusted for
inflation, remained constant with the income level of the most recent
base year.
(i) Available and approved sources of socioeconomic data. Pre-
approved sources of socioeconomic data which may be used by local
educational agencies to establish the income level of the school's
population are: local data collected by the city or county zoning and
economic planning office; unemployment data; local SNAP certification
data including direct certification; Food Distribution Program on Indian
Reservations data; statistical sampling of the school's population using
the application or equivalent income measurement process; and, Temporary
Assistance for Needy Families data (provided that the eligibility
standards were the same or more restrictive in the base year as the
current year with allowance for inflation). To grant an extension using
pre-approved socioeconomic data sources, State agencies must review and
evaluate the socioeconomic data submitted by the local educational
agency to ensure that it is reflective of the school's population,
provides equivalent data for both the base year and the last year of the
current cycle, and demonstrates that the income level of the school's
population, as adjusted for inflation, has remained stable, declined or
had only negligible improvement. If the local educational agency wants
to establish the income level of the school's population using alternate
sources of socioeconomic data, the use of such data must be approved by
the Food and Nutrition Service. Data from alternate sources must be
reflective of the school's population, be equivalent data for both the
base year and the last year of the current cycle, and effectively
measure whether the income level of the school's population, as adjusted
for inflation, has remained stable, declined or had only negligible
improvement.
(ii) Negligible improvement. The change in the income level of the
school's population shall be considered negligible if there is a 5
percent or less improvement, after adjusting for inflation, over the
base year in the level of the socioeconomic indicator which is used to
establish the income level of the school's population.
(2) Extension not approved. The State agency shall not approve an
extension of Provision 2 procedures in those schools for which the
available and approved socioeconomic data does not reflect the school's
population, is not equivalent data for the base year and the last year
of the current cycle, or shows over 5 percent improvement, after
adjusting for inflation, in the income level of the school's population.
Such schools shall:
[[Page 353]]
(i) Return to standard meal counting and claiming. Return to
standard meal counting and claiming procedures;
(ii) Establish a new base year. Establish a new Provision 2 base
year by taking new free and reduced price applications, making new free
and reduced price eligibility determinations, and taking point of
service counts of free, reduced price and paid meals for the first year
of the new cycle. For these schools, the new Provision 2 cycle will be 4
years. Schools electing to establish a Provision 2 base year shall
follow procedures contained in paragraph (b) of this section;
(iii) Establish a streamlined base year. With prior approval by the
State agency, establish a streamlined base year by providing
reimbursable meals to all participating students at no charge and
developing either enrollment based or participation based claiming
percentages.
(A) Enrollment based percentages. In accordance with guidance
established by the Food and Nutrition Service, establish a new Provision
2 base year by determining program eligibility on the basis of household
size and income, and direct certification if applicable, for a
statistically valid proportion of the school's enrollment as of October
31, or other date approved by the State agency. The statistically valid
measurement of the school's enrollment must be obtained during the first
year of the new cycle and meet the requirements of paragraph (m) of this
section. Using the data obtained, enrollment based claiming percentages
representing a proportion of the school's population eligible for free,
reduced price and paid benefits shall be developed and applied to total
daily meal counts of reimbursable meals at the point of service, or as
otherwise approved under part 210 of this chapter. For schools electing
to participate in Provision 2, these percentages shall be used for
claiming reimbursement for each year of the new cycle and any
extensions; or
(B) Participation based percentages. In accordance with guidance
established by the Food and Nutrition Service, establish a new Provision
2 base year by determining program eligibility on the basis of household
size and income, and direct certification if applicable, for a
statistically valid proportion of participating students established
over multiple operating days. The statistically valid measurement of the
school's student participation must be obtained during the first year of
the new cycle and meet the requirements of paragraph (m) of this
section. Using the data obtained, participation based claiming
percentages representing a proportion of the school's participating
students which are eligible for free, reduced price and paid benefits
shall be developed and applied to total daily meal counts of
reimbursable meals at the point of service or as otherwise approved
under part 210 of this chapter. These percentages shall be used for
claiming reimbursement for each year of the new cycle and any
extensions; or
(iv) Establish a Provision 3 base year. Schools may convert to
Provision 3 using the procedures contained in paragraphs (e)(2)(ii) or
(e)(2)(iii) of this section.
(d) Provision 3. A local educational agency of a school which serves
all enrolled children in that school reimbursable meals at no charge
during any period for up to 4 consecutive school years may elect to
receive Federal cash reimbursement and commodity assistance at the same
level as the total Federal cash and commodity assistance received by the
school during the last year that eligibility determinations for free and
reduced price meals were made and meals were counted by type (free,
reduced price and paid) at the point of service, or as otherwise
authorized under part 210 of this chapter. Such cash reimbursement and
commodity assistance will be adjusted for each of the 4 consecutive
school years pursuant to paragraph (d)(4) of this section. For purposes
of this paragraph (d), the term base year means the last complete school
year for which eligibility determinations were made and meal counts by
type were taken or the school year in which a school conducted a
streamlined base year as authorized under paragraph (e)(2)(iii) of this
section. The base year must begin at the start of a school year.
Reimbursable meals may be offered to all students at no charge or
students eligible for reduced price and paid meal benefits may be
charged for meals during a
[[Page 354]]
Provision 3 base, except that schools conducting a Provision 3
streamlined base year must provide reimbursable meals to all
participating students at no charge in accordance with paragraph
(e)(2)(iii) of this section. The Provision 3 base year immediately
precedes, and is not included in, the 4-year cycle. This alternative
shall be known as Provision 3, and the following requirements shall
apply:
(1) Meals at no charge. Participating schools must serve
reimbursable meals, as determined by a point of service observation, or
as otherwise authorized under part 210 of this chapter, to all
participating children at no charge during non-base years of operation
or as specified in paragraph (e)(2)(iii) of this section, if applicable.
(2) Cost differential. The local educational agency of a school
participating in Provision 3 must pay, with funds from non-Federal
sources, the difference between the cost of serving lunches and/or
breakfasts at no charge to all participating children and Federal
reimbursement.
(3) Meal counts. Participating schools must take total daily meal
counts of reimbursable meals served to participating children at the
point of service, or as otherwise authorized under part 210 of this
chapter, during the non-base years. Such meal counts must be retained at
the local level in accordance with paragraph (h) of this section. State
agencies may require the submission of the meal counts on the local
educational agency's monthly Claim for Reimbursement or through other
means. In addition, local educational agencies must establish a system
of oversight using the daily meal counts to ensure that participation
has not declined significantly from the base year. If participation
declines significantly, the local educational agency must provide the
school with technical assistance, adjust the level of financial
assistance received through the State agency or return the school to
standard eligibility determination and meal counting procedures, as
appropriate. In residential child care institutions, the State agency
may approve implementation of Provision 3 without the requirement to
obtain daily meal counts of reimbursable meals at the point of service
if:
(i) The State agency determines that enrollment, participation and
meal counts do not vary; and
(ii) There is an approved mechanism in place to ensure that students
will receive reimbursable meals.
(4) Annual adjustments. The State agency or local educational agency
shall make annual adjustments for enrollment and inflation to the total
Federal cash and commodity assistance received by a Provision 3 school
in the base year. The adjustments shall be made for increases and
decreases in enrollment of children with access to the program(s). The
annual adjustment for enrollment shall be based on the school's base
year enrollment as of October 31 compared to the school's current year
enrollment as of October 31. Another date within the base year may be
used if it is approved by the State agency, and provides a more accurate
reflection of the school's enrollment or accommodates the reporting
system in effect in that State. If another date is used for the base
year, the current year date must correspond to the base year date of
comparison. State agencies may, at their discretion, make additional
adjustments to a participating school's enrollment more frequently than
once per school year. If more frequent enrollment is calculated, it must
be applied for both upward and downward adjustments. The annual
adjustment for inflation shall be effected through the application of
the current year rates of reimbursement. To the extent that the number
of operating days in the current school year differs from the number of
operating days in the base year, and the difference affects the number
of meals, a prorata adjustment shall also be made to the base year level
of assistance, as adjusted by enrollment and inflation. Upward and
downward adjustments to the number of operating days shall be made. Such
adjustment shall be effected by either:
(i) Multiplying the average daily meal count by type (free, reduced
price and paid) by the difference in the number of operating days
between the base year and the current year and adding/subtracting that
number of meals from
[[Page 355]]
the Claim for Reimbursement, as appropriate. In developing the average
daily meal count by type for the current school year, schools shall use
the base year data adjusted by enrollment; or
(ii) Multiplying the dollar amount otherwise payable (i.e., the base
year level of assistance, as adjusted by enrollment and inflation) by
the ratio of the number of operating days in the current year to the
number of operating days in the base year.
(5) Reporting requirements. The State agency shall submit to the
Department on the monthly FNS-10, Report of School Programs Operations,
the number of meals, by type (i.e., monthly meal counts by type for the
base year, as adjusted); or the number of meals, by type, constructed to
reflect the adjusted levels of cash assistance. State agencies may
employ either method to effect payment of reimbursement for Provision 3
schools.
(6) Local educational agency claims review process. During the
Provision 3 base year (not including a streamlined base year under
paragraph (e)(2)(iii) of this section), local educational agencies are
required to review the lunch count data for each school under its
jurisdiction to ensure the accuracy of the monthly Claim for
Reimbursement in accordance with Sec. 210.8(a)(2) of this chapter.
During non-base years and streamlined base years, local educational
agencies must conduct their own system of oversight or compare each
Provision 3 school's total daily meal counts to the school's total
enrollment, adjusted by an attendance factor. The local educational
agency must promptly follow-up as specified in Sec. 210.8(a)(4) of this
chapter when the claims review suggests the likelihood of lunch count
problems. When a school elects to operate Provision 3 only in the School
Breakfast Program, local educational agencies must continue to comply
with the claims review requirements of Sec. 210.8(a)(2) of this chapter
for the National School Lunch Program.
(7) Verification. Except as otherwise specified in Sec.
245.6a(a)(5), local educational agencies are required to conduct
verification in accordance with Sec. 245.6a. When a school elects to
participate under Provision 3 for all of the meal programs in which it
participates (breakfast 7 CFR part 220 and/or lunch 7 CFR part 210), the
applications from that school are excluded from the local educational
agency's required verification sample size and are exempt from
verification during non-base years.
(e) Extension of Provision 3. At the end of the initial cycle, and
each subsequent 4-year cycle, the State agency may allow a school to
continue under Provision 3 for another 4 years without taking new free
and reduced price applications and meal counts by type. State agencies
may grant an extension of Provision 3 if the local educational agency
can establish, through available and approved socioeconomic data, that
the income level of the school's population, as adjusted for inflation,
has remained stable, declined, or has had only negligible improvement
since the most recent base year.
(1) Extension criteria. Local educational agencies must submit to
the State agency available and approved socioeconomic data to establish
whether the income level of the school's population, as adjusted for
inflation, remained constant with the income level of the most recent
base year.
(i) Available and approved sources of socioeconomic data. Pre-
approved sources of socioeconomic data which may be used by local
educational agencies to establish the income level of the school's
population are: local data collected by the city or county zoning and
economic planning office; unemployment data; local SNAP certification
data including direct certification; Food Distribution Program on Indian
Reservations data; statistical sampling of the school's population using
the application process; and Temporary Assistance for Needy Families
data (provided that the eligibility standards were the same or more
restrictive in the base year as the current year with allowance for
inflation). To grant an extension using pre-approved socioeconomic data
sources, State agencies must review and evaluate the socioeconomic data
submitted by the local educational agency to ensure that it is
reflective of the school's population, provides equivalent data for both
the base year and the last year
[[Page 356]]
of the current cycle, and demonstrates that the income level of the
school's population, as adjusted for inflation, has remained stable,
declined or had only negligible improvement. If the local educational
agency wants to establish the income level of the school's population
using alternate sources of data, the use of such data must be approved
by the Food and Nutrition Service. Data from alternate sources must be
reflective of the school's population, be equivalent data for both the
base year and the last year of the current cycle, and effectively
measure whether the income level of the school's population, as adjusted
for inflation, has remained stable, declined or had only negligible
improvement.
(ii) Negligible improvement. The change in the income level of the
school population shall be considered negligible if there is a 5 percent
or less improvement, after adjusting for inflation, over the base year
in the level of the socioeconomic indicator which is used to establish
the income level of the school's population.
(2) Extension not approved. Schools for which the available and
approved socioeconomic data does not reflect the school's population, is
not equivalent data for the base year and the last year of the current
cycle, or shows over 5 percent improvement after adjusting for
inflation, shall not be approved for an extension. Such schools must
elect one of the following options:
(i) Return to standard meal counting and claiming. Return to
standard meal counting and claiming procedures;
(ii) Establish a new base year. Establish a new Provision 3 base
year by taking new free and reduced price applications, making new free
and reduced price eligibility determinations, and taking point of
service counts of free, reduced price and paid meals for the first year
of the new cycle. Schools electing to establish a Provision 3 base year
shall follow procedures contained in paragraph (d) of this section;
(iii) Establish a streamlined base year. With prior approval by the
State agency, establish a streamlined base year by providing
reimbursable meals to all participating students at no charge and
developing either enrollment based or participation based claiming
percentages.
(A) Enrollment based percentages. In accordance with guidance
established by the Food and Nutrition Service, establish a new Provision
3 base year by determining program eligibility on the basis of household
size and income, and direct certification if applicable, for a
statistically valid proportion of the school's enrollment as of October
31, or other date approved by the State agency. The statistically valid
measurement of the school's enrollment must be obtained during the first
year of the new cycle and meet the requirements of paragraph (m) of this
section. Using the data obtained, enrollment based claiming percentages
representing a proportion of the school's population eligible for free,
reduced price and paid benefits shall be developed and applied to total
daily meal counts of reimbursable meals at the point of service, or as
otherwise approved under part 210 of this chapter. For schools electing
to participate in Provision 3, the streamlined base year level of
assistance will be adjusted for enrollment, inflation and, if
applicable, operating days, for each subsequent year of the new cycle
and any extensions; or
(B) Participation based percentages. In accordance with guidance
established by the Food and Nutrition Service, establish a new Provision
3 base year by determining program eligibility on the basis of household
size and income, and direct certification if applicable, for a
statistically valid proportion of participating students established
over multiple operating days. The statistically valid measurement of the
school's student participation must be obtained during the first year of
the new cycle and meet the requirements of paragraph (m) of this
section. Using the data obtained, participation based claiming
percentages representing a proportion of the school's participating
students which are eligible for free, reduced price and paid benefits
shall be developed and applied to total daily meal counts of
reimbursable meals at the point of service or as otherwise approved
under part 210 of this chapter. For schools electing to participate in
Provision 3, the streamlined base year level of assistance as described
in this
[[Page 357]]
paragraph (e)(2)(iii)(B) will be adjusted for enrollment, inflation and,
if applicable, operating days, for each subsequent year of the new cycle
and any extensions; or
(iv) Establish a Provision 2 base year. Schools may convert to
Provision 2 using the procedures contained in paragraphs (c)(2)(ii) or
(c)(2)(iii) of this section.
(f) Community eligibility. The community eligibility provision is an
alternative reimbursement option for eligible high poverty local
educational agencies. Each CEP cycle lasts up to four years before the
LEA or school is required to recalculate their reimbursement rate. LEAs
and schools have the option to recalculate sooner, if desired. A local
educational agency may elect this provision for all of its schools, a
group of schools, or an individual school. Participating local
educational agencies must offer free breakfasts and lunches for the
length of their CEP cycle, not to exceed four successive years, to all
children attending participating schools and receive meal reimbursement
based on claiming percentages, as described in paragraph (f)(4)(v) of
this section.
(1) Definitions. For the purposes of this paragraph,
(i) Enrolled students means students who are enrolled in and
attending schools participating in the community eligibility provision
and who have access to at least one meal service (breakfast or lunch)
daily.
(ii) Identified students means students with access to at least one
meal service who are not subject to verification as prescribed in Sec.
245.6a(c)(2). Identified students are students approved for free meals
based on documentation of their receipt of benefits from SNAP, TANF, the
Food Distribution Program on Indian Reservations, or Medicaid where
applicable (where approved by USDA to conduct matching with Medicaid
data to identify children eligible for free meals). The term identified
students also includes homeless children, migrant children, runaway
children, or Head Start children (approved for free school meals without
application and not subject to verification), as these terms are defined
in Sec. 245.2. In addition, the term includes foster children certified
for free meals through means other than an application for free and
reduced price school meals. The term does not include students who are
categorically eligible based on submission of an application for free
and reduced price school meals.
(iii) Identified student percentage means a percentage determined by
dividing the number of identified students as of a specified period of
time by the number of enrolled students as defined in paragraph
(f)(1)(i) of this section as of the same period of time and multiplying
the quotient by 100. The identified student percentage may be determined
by an individual participating school, a group of participating schools
in the local educational agency, or in the aggregate for the entire
local educational agency if all schools participate, following
procedures established in FNS guidance.
(2) Implementation. A local educational agency may elect the
community eligibility provision for all schools, a group of schools, or
an individual school. Community eligibility may be implemented for one
or more 4-year cycles.
(3) Eligibility criteria. To be eligible to participate in the
community eligibility provision, a local educational agency (except a
residential child care institution, as defined under the definition of
``School'' in Sec. 210.2), group of schools, or school must meet the
eligibility criteria set forth in this paragraph.
(i) Minimum identified student percentage. A local educational
agency, group of schools, or school must have an identified student
percentage of at least 25 percent, as of April 1 of the school year
prior to participating in the community eligibility provision, unless
otherwise specified by FNS. Individual schools participating in a group
may have less than 25 percent identified students, provided that the
average identified student percentage for the group is at least 25
percent.
(ii) Lunch and breakfast program participation. A local educational
agency, group of schools, or school must participate in the National
School Lunch Program and School Breakfast Program, under parts 210 and
220 of this title, for the duration of the 4-year
[[Page 358]]
cycle. Schools that operate on a limited schedule, where it is not
operationally feasible to offer both lunch and breakfast, may elect CEP
with FNS approval.
(iii) Compliance. A local educational agency, group of schools, or
school must comply with the procedures and requirements specified in
paragraph (f)(4) of this section to participate in the community
eligibility provision.
(4) Community eligibility provision procedures--(i) Election
documentation and deadline. A local educational agency, group of
schools, or school that intends to elect the community eligibility
provision for the following year for one or more schools must submit to
the State agency documentation demonstrating the LEA, group of schools,
or school meets the identified student percentage, as specified under
paragraph (f)(3)(i) of this section. Such documentation must be
submitted no later than June 30 and must include, at a minimum, the
counts of identified students and enrolled students as of April 1 of the
school year prior to CEP implementation.
(ii) State agency review of election documentation. The State agency
must review the identified student percentage documentation submitted by
the local educational agency to confirm that the local educational
agency, group of schools, or school meets the minimum identified student
percentage, participates in the National School Lunch Program and School
Breakfast Program, and has a record of administering the meal program in
accordance with program regulations, as indicated by the most recent
administrative review.
(iii) Meals at no cost. A local educational agency must ensure
participating schools offer reimbursable breakfasts and lunches at no
cost to all students attending participating schools during the 4-year
cycle, and count the number of reimbursable breakfasts and lunches
served to students daily.
(iv) Household applications. A local educational agency, group of
schools, or school must not collect applications for free and reduced
price school meals on behalf of children in schools participating in the
community eligibility provision. Any local educational agency seeking to
obtain socioeconomic data from children receiving free meals under this
section must develop, conduct, and fund this effort entirely separate
from, and not under the auspices of, the National School Lunch Program
or School Breakfast Program.
(v) Free and paid claiming percentages. Reimbursement is based on
free and paid claiming percentages applied to the total number of
reimbursable lunches and breakfasts served each month, respectively.
Reduced price students are accounted for in the free claiming
percentage, eliminating the need for a separate percentage.
(A) To determine the free claiming percentage, multiply the
applicable identified student percentage by a factor of 1.6. The product
of this calculation may not exceed 100 percent. The difference between
the free claiming percentage and 100 percent represents the paid
claiming percentage. The applicable identified student percentage means:
(1) In the first year of participation in the community eligibility
provision, the identified student percentage as of April 1 of the prior
school year.
(2) In the second, third, and fourth year of the 4-year cycle, LEAs
may choose the higher of the identified student percentage as of April 1
of the prior school year or the identified student percentage as of
April 1 of the year prior to the current 4-year cycle. LEAs and schools
may begin a new 4-year cycle with a higher identified student percentage
based on data as of the most recent April 1, as specified in paragraph
(viii).
(B) To determine the number of lunches to claim for reimbursement,
multiply the free claiming percentage as described in this paragraph by
the total number of reimbursable lunches served to determine the number
of free lunches to claim for reimbursement. The paid claiming percentage
is multiplied by the total number of reimbursable lunches served to
determine the number of paid lunches to claim for reimbursement. In the
breakfast meal service, the free and paid claiming percentages are
multiplied by the total number of reimbursable breakfasts served to
determine the number of free
[[Page 359]]
and paid breakfasts to claim for reimbursement. For any claim, if the
total number of meals claimed for free and paid reimbursement does not
equal the total number of meals served, the paid category must be
adjusted so that all served meals are claimed for reimbursement.
(vi) Multiplier factor. A 1.6 multiplier must be used for an entire
4-year cycle to calculate the percentage of lunches and breakfasts to be
claimed at the Federal free rate.
(vii) Cost differential. If there is a difference between the cost
of serving lunches and breakfasts at no cost to all participating
children and the Federal assistance provided, the local educational
agency must pay such difference with non-Federal sources of funds.
Expenditure of additional non-federal funds is not required if all
operating costs are covered by the Federal assistance provided.
(viii) New 4-year cycle. To begin a new 4-year cycle, local
educational agencies or schools must establish a new identified student
percentage as of April 1 prior to the 4-year cycle. If the local
educational agency, group of schools, or school meet the eligibility
criteria set forth in paragraph (f)(3) of this section, a new 4-year
cycle may begin.
(ix) Grace year. A local educational agency, group of schools, or
school with an identified student percentage of less than 25 percent but
equal to or greater than 15 percent as of April 1 of the fourth year of
a community eligibility cycle may continue using community eligibility
for a grace year that continues the 4-year cycle for one additional, or
fifth, year. If the local educational agency, group of schools, or
school regains the 25 percent threshold as of April 1 of the grace year,
the State agency may authorize a new 4-year cycle for the following
school year. If the local educational agency, group of schools, or
school does not regain the required threshold as of April 1 of the grace
year, they must return to collecting household applications in the
following school year in accordance with paragraph (j) of this section.
Reimbursement in a grace year is determined by multiplying the
identified student percentage at the local educational agency, group of
schools, or school as of April 1 of the fourth year of the 4-year CEP
cycle by the 1.6 multiplier.
(5) Identification of potential community eligibility schools. No
later than April 15 of each school year, each local educational agency
must submit to the State agency a list(s) of schools as described in
this paragraph. The State agency may exempt local educational agencies
from this requirement if the State agency already collects the required
information. The list(s) must include:
(i) Schools with an identified student percentage of at least 25
percent;
(ii) Schools with an identified student percentage that is less than
25 percent but greater than or equal to 15 percent; and
(iii) Schools currently in year 4 of the community eligibility
provision with an identified student percentage that is less than 25
percent but greater than or equal to 15 percent.
(6) State agency notification requirements. No later than April 15
of each school year, the State agency must notify the local educational
agencies described in this paragraph about their community eligibility
status. Each State agency must notify:
(i) Local educational agencies with an identified student percentage
of at least 25 percent district wide, of the potential to participate in
community eligibility in the subsequent year; the estimated cash
assistance the local educational agency would receive; and the
procedures to participate in community eligibility.
(ii) Local educational agencies with an identified student
percentage that is less than 25 percent district wide but greater than
or equal to 15 percent, that they may be eligible to participate in
community eligibility in the subsequent year if they meet the
eligibility requirements set forth in paragraph (f)(3) of this section
as of April 1.
(iii) Local educational agencies currently using community
eligibility district wide, of the options available in establishing
claiming percentages for next school year.
(iv) Local educational agencies currently in year 4 with an
identified student percentage district wide that is less than 25 percent
but greater than or
[[Page 360]]
equal to 15 percent, of the grace year eligibility.
(7) Public notification requirements. By May 1 of each school year,
the State agency must make the following information readily accessible
on its Web site in a format prescribed by FNS:
(i) The names of schools identified in paragraph (f)(5) of this
section, grouped as follows: Schools with an identified student
percentage of least 25 percent, schools with an identified student
percentage of less than 25 percent but greater than or equal to 15
percent, and schools currently in year 4 of the community eligibility
provision with an identified student percentage that is less than 25
percent but greater than or equal to 15 percent.
(ii) The names of local educational agencies receiving State agency
notification as required under paragraph (f)(6) of this section, grouped
as follows: Local educational agencies with an identified student
percentage of at least 25 percent district wide, local educational
agencies with an identified student percentage that is less than 25
percent district wide but greater than or equal to 15 percent, local
educational agencies currently using community eligibility district
wide, and local educational agencies currently in year 4 with an
identified student percentage district wide that is less than 25 percent
but greater than or equal to 15 percent.
(iii) The State agency must maintain eligibility lists as described
in paragraphs (i) and (ii) of this section until such time as new lists
are made available annually by May 1.
(8) Notification data. For purposes of fulfilling the requirements
in paragraphs (f)(5) and (6) of this section, the State agency must:
(i) Obtain data representative of the current school year, and
(ii) Use the identified student percentage as defined in paragraph
(f)(1) of this section. If school-specific identified student percentage
data are not readily available by school, use direct certifications as a
percentage of enrolled students, i.e., the percentage derived by
dividing the number of students directly certified under Sec. 245.6(b)
by the number of enrolled students as defined in paragraph (f)(1) as an
indicator of potential eligibility. If direct certification data are
used, the State agency must clearly indicate that the data provided does
not fully reflect the number of identified students.
(iii) If data are not as of April 1 of the current school year,
ensure the data includes a notation that the data are intended for
informational purposes and do not confer eligibility for community
eligibility. Local educational agencies must meet the eligibility
requirements specified in paragraph (f)(3) of this section to
participate in community eligibility.
(9) Other uses of the free claiming percentage. For purposes of
determining a school's or site's eligibility to participate in a Child
Nutrition Program, a community eligibility provision school's free
claiming percentage, i.e., the product of the school's identified
student percentage multiplied by 1.6, serves as a proxy for free and
reduced price certification data.
(g) Policy statement requirement. A local educational agency that
elects to participate in the special assistance provisions or the
community eligibility provision set forth in this section must:
(1) Amend its Free and Reduced Price Policy Statement, specified in
Sec. 245.10 of this part, to include a list of all schools
participating in each of the special assistance provisions specified in
this section. The following information must also be included for each
school:
(i) The initial school year of implementing the special assistance
provision;
(ii) The school years the cycle is expected to remain in effect;
(iii) The school year the special assistance provision must be
reconsidered; and
(iv) The available and approved data that will be used in
reconsideration, as applicable.
(2) Certify that the school(s) meet the criteria for participating
in each of the special assistance provisions, as specified in paragraphs
(a), (b), (c), (d), (e) or (f) of this section, as appropriate.
(h) Recordkeeping. Local educational agencies that elect to
participate in the special assistance provisions set
[[Page 361]]
forth in this section must retain implementation records for each of the
participating schools. Failure to maintain sufficient records will
result in the State agency requiring the school to return to standard
meal counting and claiming procedures and/or fiscal action.
Recordkeeping requirements include, as applicable:
(1) Base year records. A local educational agency shall ensure that
records as specified in Sec. Sec. 210.15(b) and 220.7(e) of this
chapter which support subsequent year earnings are retained for the base
year for schools under Provision 2 and Provision 3. In addition, records
of enrollment data for the base year must be retained for schools under
Provision 3. Such base year records must be retained during the period
the provision is in effect, including all extensions, plus 3 fiscal
years after the submission of the last Claim for Reimbursement which
employed the base year data. Local educational agencies that conduct a
streamlined base year must retain all records related to the statistical
methodology and the determination of claiming percentages. Such records
shall be retained during the period the provision is in effect,
including all extensions, plus 3 fiscal years after the submission of
the last Claim for Reimbursement which employed the streamlined base
year data. In either case, if audit findings have not been resolved,
base year records must be retained beyond the 3-year period as long as
required for the resolution of the issues raised by the audit.
(2) Non-base year records. Local educational agencies that are
granted an extension of a provision must retain records of the available
and approved socioeconomic data which is used to determine the income
level of the school's population for the base year and year(s) in which
extension(s) are made. In addition, State agencies must also retain
records of the available and approved socioeconomic data which is used
to determine the income level of the school's population for the base
year and year(s) in which extensions are made. Such records must be
retained at both the local educational agency level and at the State
agency during the period the provision is in effect, including all
extensions, plus 3 fiscal years after the submission of the last monthly
Claim for Reimbursement which employed base year data. If audit findings
have not been resolved, records must be retained beyond the 3-year
period as long as required for the resolution of the issues raised by
the audit. In addition, for schools operating under Provision 2, a local
educational agency must retain non-base year records pertaining to total
daily meal count information, edit checks and on-site review
documentation. For schools operating under Provision 3, a local
educational agency must retain non-base year records pertaining to total
daily meal count information, the system of oversight or edit checks,
on-site review documentation, annual enrollment data and the number of
operating days, which are used to adjust the level of assistance. Such
records shall be retained for three years after submission of the final
monthly Claim for Reimbursement for the fiscal year.
(3) Records for the community eligibility provision. Local
educational agencies must ensure records are maintained, including: data
used to calculate the identified student percentage, annual selection of
the identified student percentage, total number of breakfasts and
lunches served daily, percentages used to claim meal reimbursement, non-
Federal funding sources used to cover any excess meal costs, and school-
level information provided to the State agency for publication, if
applicable. Documentation must be made available at any reasonable time
for review and audit purposes. Such records shall be retained during the
period the community eligibility provision is in effect, including all
extensions, plus three fiscal years after the submission of the last
Claim for Reimbursement which was based on the data. In any case, if
audit findings have not been resolved, these records must be retained
beyond the three-year period as long as required for the resolution of
the issues raised by the audit.
(i) Availability of documentation. Upon request, the local
educational agency must make documentation available for review or audit
to document compliance with the requirements of this section. Depending
on the certification or reimbursement alternative used,
[[Page 362]]
such documentation includes, but is not limited to, enrollment data,
participation data, identified student percentages, available and
approved socioeconomic data that was used to grant an extension, if
applicable, or other data. In addition, upon request from FNS, local
educational agencies under Provision 2 or Provision 3, or State agencies
must submit to FNS all data and documentation used in granting
extensions including documentation as specified in paragraphs (c) and
(e) of this section. Data used to establish a new cycle for the
community eligibility provision must also be available for review.
(j) Restoring standard meal counting and claiming. Under Provisions
1, 2, or 3 or community eligibility provision, a local educational
agency may restore a school to standard notification, certification, and
counting and claiming procedures at any time during the school year or
for the following school year if standard procedures better suit the
school's program needs. If standard procedures are restored during a
school year, the local educational agency must offer all students
reimbursable, free meals for a period of at least 30 operating days
following the date of restoration of standard procedures or until a new
eligibility determination is made, whichever comes first. Prior to the
change taking place, but no later than June 30, the local educational
agency must:
(1) Notify the State agency of the intention to stop participating
in a special assistance certification and reimbursement alternative
under this section and seek State agency guidance and review regarding
the restoration of standard operating procedures.
(2) Notify the public and meet the certification and verification
requirements of Sec. Sec. 245.6 and 245.6a in affected schools.
(k) Puerto Rico and Virgin Islands. A local educational agency in
Puerto Rico and the Virgin Islands, where a statistical survey procedure
is permitted in lieu of eligibility determinations for each child, may:
Maintain their standard procedures in accordance with Sec. 245.4,
select Provision 2 or Provision 3, or elect the community eligibility
provision provided the applicable eligibility requirements as set forth
in paragraphs (a) through (f) of this section are met. For the community
eligibility provision, current direct certification data must be
available to determine the identified student percentage.
(l) Transferring eligibility for free meals during the school year.
For student transfers during the school year within a local educational
agency, a student's access to free, reimbursable meals under the special
assistance certification and reimbursement alternatives specified in
this section must be extended by a receiving school using standard
counting and claiming procedures for up to 10 operating school days or
until a new eligibility determination for the current school year is
made, whichever comes first. For student transfers between local
educational agencies, this requirement applies not later than July 1,
2019. At the State agency's discretion, students who transfer within or
between local educational agencies may be offered free reimbursable
meals for up to 30 operating days or until a new eligibility
determination for the current school year is made, whichever comes
first.
(m) Statistical income measurements. Statistical income measurements
that are used under this section to establish enrollment or
participation base claiming percentages must comply with the standards
outlined as follows:
(1) For enrollment based claiming percentages, statistical income
measurements must meet the following standards:
(i) The sample frame shall be limited to enrolled students who have
access to the school meals program;
(ii) A sample of enrolled students shall be randomly selected from
the sample frame;
(iii) The response rate to the survey shall be at least 80 percent;
(iv) The number of households that complete the survey shall be
sufficiently large so that it can be asserted with 95 percent confidence
that the true percentage of students who are enrolled in the school,
have access to the school meals program, and are eligible for free meals
is within plus or minus 2.5 percentage points of the point estimate
determined from the sample; and
[[Page 363]]
(v) To minimize statistical bias, data from all households that
complete the survey must be used when calculating the enrollment based
claiming percentages for paragraphs (c)(2)(iii)(A) and (e)(2)(iii)(A) of
this section.
(2) For participation based claiming percentages, statistical income
measurements must meet the following standards:
(i) The sample frame must be limited to students participating in
the meal program for which the participation based claiming percentages
are being developed;
(ii) The sample frame must represent multiple operating days, as
established through guidance, in the meal program for which the
participation based claiming percentages are being developed;
(iii) A sample of participating students shall be randomly selected
from the sample frame;
(iv) The response rate to the survey shall be at least 80 percent;
(v) The number of households that complete the survey shall be
sufficiently large so that it can be asserted with 95 percent confidence
that the true percentage of participating students who are eligible for
free meals is within plus or minus 2.5 percentage points of the point
estimate determined from the sample; and,
(vi) To minimize statistical bias, data from all households that
complete the survey must be used when calculating the participation
based claiming percentages for paragraphs (c)(2)(iii)(B) and
(e)(2)(iii)(B) of this section.
(Sec. 9, Pub. L. 95-166, 91 Stat. 1336 (42 U.S.C. 1759a); secs. 805, and
819, Pub. L. 97-35, 95 Stat. 521-535 (42 U.S.C. 1773))
[Amdt. 19, 45 FR 67287, Oct. 10, 1980, as amended by Amdt. 23, 47 FR
14135, Apr. 2, 1982; 66 FR 48328, Sept. 20, 2001; 76 FR 22802, Apr. 25,
2011; 81 FR 50206, July 29, 2016]
Sec. 245.10 Action by local educational agencies.
(a) Each local educational agencyof a school desiring to participate
in the National School Lunch Program, School Breakfast Program, or to
provide free milk under the Special Milk Program, or to become a
commodity-only school shall submit for approval to the State agency a
free and reduced price policy statement. Once approved, the policy
statement shall be a permanent document which may be amended as
necessary, except as specified in paragraph (c) of this section. Such
policy statement, as a minimum, shall contain the following:
(1) The official or officials designated by the local educational
agency to make eligibility determinations on its behalf for free and
reduced price meals or for free milk;
(2) An assurance that for children who are not categorically
eligible for free and reduced price benefits the local educational
agency will determine eligibility for free and reduced price meals or
free milk in accordance with the current Income Eligibility Guidelines.
(3) The specific procedures the local educational agency will use in
accepting applications from families for free and reduced price meals or
for free milk. Additionally, the local educational agency must include
the specific procedures it will use for obtaining documentation for
determining children's eligibility through direct certification, in lieu
of an application. Local educational agencies shall also provide
households that are directly certified with a notice of eligibility, as
specified in Sec. 245.6(c)(2) and shall include in their policy
statement a copy of such notice.
(4) A description of the method or methods to be used to collect
payments from those children paying the full price of the meal or milk,
or a reduced price of a meal, which will prevent the overt
identification of the children receiving a free meal or free milk or a
reduced price meal, and
(5) An assurance that the school will abide by the hearing procedure
set forth in Sec. 245.7 and the nondiscrimination practices set forth
in Sec. 245.8.
(b) The policy statement submitted by each local educational agency
shall be accompanied by a copy of the application form to be used by the
school and of the proposed letter or notice to parents.
(c) Each local educational agency shall amend its permanent free and
reduced price policy statement to reflect substantive changes. Any
amendment to a policy shall be approved by the
[[Page 364]]
State agency prior to implementation, or as provided in paragraph (e) of
this section. Each year, if a local educational agency does not have its
policy statement approved by the State agency, or FNSRO where
applicable, by October 15, reimbursement shall be suspended for any
meals or milk served until such time as the local educational agency's
free and reduced price policy statement has been approved by the State
agency, or FNSRO where applicable. Furthermore, no commodities donated
by the Department shall be used in any school after October 15, until
such time as the local educational agency's free and reduced price
policy statement has been approved by the State agency, or FNSRO where
applicable. Once the local educational agency's free and reduced price
policy statement has been approved, reimbursement may be allowed, at the
discretion of the State agency, or FNSRO where applicable, for eligible
meals and milk served during the period of suspension.
(d) If any free and reduced price policy statement submitted for
approval by any local educational agency to the State agency, or FNSRO
where applicable, is determined to be not in compliance with the
provisions of this part, the local educational agency shall submit a
policy statement that does meet the provisions within 30 days after
notification by the State agency, or FNSO where applicable.
(e) When revision of a local educational agency's approved free and
reduced price policy statement is necessitated because of a change in
the family-size income standards of the State agency, or FNSRO where
applicable, or because of other program changes, the local educational
agency shall have 60 days from the date the State agency announces the
change in which to have its revised policy statement approved by the
State agency, or FNSRO where applicable. In the event that a local
educational agency's proposed revised free and reduced price policy
statement has not been submitted to, and approved by, the State agency,
or FNSRO where applicable, within 60 days following the public
announcement by the State agency, reimbursement shall be suspended for
any meals or milk served after the end of the 60-day period. No
commodities donated by the Department shall be used in any school after
the end of the 60-day period, until such time as the local educational
agency's free and reduced price policy statement has been approved by
the State agency, or FNSRO where applicable. Reimbursement may be
allowed at the discretion of the State agency, or FNSRO where
applicable, for eligible meals and milk served during the period of
suspension once the local educational agency's free and reduced price
policy statement has been approved by the State agency, or FNSRO where
applicable. Pending approval of a revision of a policy statement, the
existing statement shall remain in effect.
(Sec. 8, Pub. L. 95-627, 92 Stat. 3623 (42 U.S.C. 1758); sec. 5, Pub. L.
95-627, 92 Stat. 3619 (42 U.S.C. 1772); 44 U.S.C. 3506; sec. 803, Pub.
L. 97-35, 95 Stat. 521-535 (42 U.S.C. 1758))
[35 FR 14065, Sept. 4, 1970, as amended at 38 FR 14958, June 7, 1973;
Amdt. 6, 39 FR 30339, Aug. 22, 1974; Amdt. 8, 40 FR 57208, Dec. 8, 1975;
Amdt. 13, 44 FR 33049, June 8, 1979; 47 FR 746, Jan. 7, 1982; 48 FR
12511, Mar. 25, 1983; 64 FR 50744, Sept. 20, 1999; 64 FR 72474, Dec. 28,
1999; 72 FR 63796, Nov. 13, 2007; 76 FR 22802, Apr. 25, 2011]
Sec. 245.11 Second review of applications.
(a) General. On an annual basis not later than the end of each
school year, State agencies must identify local educational agencies
demonstrating a high level of, or risk for, administrative error
associated with certification processes and notify the affected local
educational agencies that they must conduct a second review of
applications beginning in the following school year. The second review
of applications must be completed prior to notifying the household of
the eligibility or ineligibility of the household for free or reduced
price meals.
(b) State agency requirements--(1) Selection criteria. Local
educational agencies subject to a second review must include:
(i) Administrative review certification errors. All local
educational agencies with 10 percent or more of the certification/
benefit issuances in error, as determined by the State agency during an
administrative review; and
[[Page 365]]
(ii) State agency discretion. Local educational agencies not
selected under paragraph (b)(1)(i) that are at risk for certification
error, as determined by the State agency.
(2) Reporting requirement. Beginning March 15, 2015, and every March
15 thereafter, each State agency must submit a report, as specified by
FNS, describing the results of the second reviews conducted by each
local educational agency in their State. The report must provide
information about applications reviewed in each local educational agency
and include:
(i) The number of free and reduced price applications subject to a
second review;
(ii) The number of reviewed applications for which the eligibility
determination was changed;
(iii) The percentage of reviewed applications for which the
eligibility determination was changed; and
(iv) A summary of the types of changes that were made.
(3) State agencies must provide technical assistance to ameliorate
certification related problems at local educational agencies determined
to be at risk for certification.
(c) Local educational agency requirements. Beginning July 1, 2014,
and each July 1 thereafter, local educational agencies selected by the
State agency to conduct a second review of applications must ensure that
the initial eligibility determination for each application is reviewed
for accuracy prior to notifying the household of the eligibility or
ineligibility of the household for free and reduced price meals. The
second review must be conducted by an individual or entity who did not
make the initial determination. This individual or entity is not
required to be an employee of the local educational agency but must be
trained on how to make application determinations. All individuals or
entities who conduct a second review of applications are subject to the
disclosure requirements set forth in Sec. 245.6(f) through (k).
(1) Timeframes. The second review of initial determinations must be
completed by the local educational agency in a timely manner and must
not result in a delay in notifying the household, as set forth in Sec.
245.6(c)(6)(i).
(2) Duration of requirement to conduct a second review of
applications. Selected local educational agencies must conduct a second
review of applications annually until the State agency determines that
local educational agency-provided documentation provided in accordance
with paragraph (c)(3) of this section or data obtained by the State
agency during an administrative review, demonstrates that no more than 5
percent of reviewed applications required a change in eligibility
determination.
(3) Reporting requirement. Each local educational agency required to
conduct a second review of applications must annually submit to the
State agency, on a date established by the State agency, the following
information as of October 31st:
(i) The number of free and reduced price applications subject to a
second review;
(ii) The number of reviewed applications for which the eligibility
determination was changed;
(iii) The percentage of reviewed applications for which the
eligibility determination was changed; and
(iv) A summary of the types of changes that were made.
[79 FR 7054, Feb. 6, 2014]