[Federal Register Volume 59, Number 66 (Wednesday, April 6, 1994)]
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[FR Doc No: 94-8117]


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AAI40[FR Doc. 94-8212 Filed 4-5-94; 8:45 am]BILLING CODE 4210-32-C
                                                    VOL. 59, NO. 66

                                           Wednesday, April 6, 1994
      

DEPARTMENT OF AGRICULTURE

Food and Nutrition Service

7 CFR Part 246

RIN 0584-AB53

 
Special Supplemental Food Program for Women, Infants, and 
Children (WIC): Homelessness/Migrancy as Nutritional Risk Conditions

AGENCY: Food and Nutrition Service, USDA.

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: This proposed rule would amend regulations governing the 
Special Supplemental Food Program for Women, Infants and Children (WIC) 
to comply with the mandate of section 204 of the Child Nutrition 
Amendments of 1992, enacted on August 14, 1992. Consistent with that 
legislation, this rulemaking would add homelessness and migrancy to the 
predisposing nutritional risk conditions for the WIC Program.
    This proposed rule would also alter the current WIC nutritional 
risk priority system by placing individuals certified for WIC due 
solely to homelessness or migrancy in Priority VII, along with 
previously certified participants who might regress in nutritional 
status without continued provision of supplemental foods. The use of 
Priority VII for this latter group of individuals would remain a State 
agency option. However, State agencies would be required to use 
Priority VII for homeless or migrant individuals who are certified 
solely due to their homelessness or migrancy.
    The intended effect of this proposed rule is to allow categorical 
and income-eligible homeless or migrant individuals, who lack any other 
documented nutritional or medical condition, to receive WIC Program 
assistance.

DATES: To be assured of consideration, written comments must be 
received on or before June 6, 1994. Since comments are being accepted 
simultaneously on several separate rulemakings, commenters on this 
proposed rule are asked to label their comments ``Homelessness/
Migrancy.''

ADDRESSES: Comments may be mailed to Stanley C. Garnett, Director, 
Supplemental Food Programs Division, Food and Nutrition Service, USDA, 
3101 Park Center Drive, room 540, Alexandria, Virginia 22302, (703) 
305-2746. Submission of comments in duplicate would be appreciated. All 
written submissions will be available for public inspection at this 
address during regular business hours (8:30 a.m. to 5 p.m.) Monday 
through Friday.

FOR FURTHER INFORMATION CONTACT: Contact Barbara Hallman, Supplemental 
Food Programs Division, Food and Nutrition Service, USDA, 3101 Park 
Center Drive, room 542, Alexandria, Virginia 22302, (703) 305-2730.

SUPPLEMENTARY INFORMATION:

Classification

Executive Order 12866

    This proposed rule is issued in conformance with Executive Order 
12866. It has been designated ``not significant'' and did not require 
clearance by the Office of Management and Budget.

Regulatory Flexibility Act

    This rule has been reviewed with regard to the requirements of the 
Regulatory Flexibility Act (5 U.S.C. 601-612). Pursuant to that review, 
William E. Ludwig, Administrator of the Food and Nutrition Service has 
certified that this rule will not have a significant impact on a 
substantial number of small entities. WIC local agency participant 
caseloads may potentially increase and thereby affect demand on local 
food vendor business.
    The net effect on State and local agencies is expected to be 
minimal.

Paperwork Reduction Act

    This proposed rule imposes no new reporting or recordkeeping 
provisions that are subject to OMB review in accordance with the 
Paperwork Reduction Act of 1980 (44 U.S.C. 3507).

Executive Order 12372

    The Special Supplemental Food Program for Women, Infants, and 
Children (WIC) is listed in the Catalog of Federal Domestic Assistance 
Programs under 10.557 and is subject to Executive Order 12372, which 
requires intergovernmental consultation with State and local officials 
(7 CFR part 3015, subpart V, and 48 FR 29114 June 24, 1983).

Executive Order 12778

    This proposed rule has been reviewed under Executive Order 12778, 
Civil Justice Reform. This proposed rule is intended to have preemptive 
effect with respect to any State or local laws, regulations or policies 
which conflict with its provisions or which would otherwise impede its 
full implementation. This rule is not intended to have retroactive 
effect unless so specified in the EFFECTIVE DATE paragraph of this 
preamble. Prior to any judicial challenge to the application of the 
provisions of this rule, all applicable administrative procedures must 
be exhausted. In the WIC Program, the administrative procedures are as 
follows: (1) Local agencies and vendors--State agency hearing 
procedures issued pursuant to 7 CFR 246.18; (2) applicants and 
participants--State agency hearing procedures issued pursuant to 7 CFR 
246.9; and (3) sanctions against State agencies (but not claims for 
repayment assessed against a State agency) pursuant to 7 CFR 246.19--
administrative appeal in accordance with 7 CFR 246.22; and (4) 
procurement by State and local agencies--administrative appeal to the 
extent required by 7 CFR 3016.36.

References

    1. Chavin, Kristal, Seabron, and Guigli; The Reproductive 
Experience of Women Living in Hotels for the Homeless in New York 
City; New York State Journal of Medicine, 1987.
    2. National Advisory Council on Maternal, Infant, and Fetal 
Nutrition, 1992 Biennial Report on the Special Supplemental Food 
Program for Women, Infants, and Children (WIC) and on the Commodity 
Supplemental Food Program (CSFP).
    3. 1992 Recommendations of the National Advisory Council on 
Migrant Health; Farmworkers Health for the Year 2000.
    4. Technical Paper No. 12 prepared for USDA/FNS by Awal Dad 
Khan; Homeless Mothers and Children: What is the Evidence for 
Nutritional Risk?, 1991.

Background

    There have never been specific, direct regulatory barriers or 
prohibitions to the participation of the homeless or migrants in the 
WIC Program. Both before and since the enactment of the Hunger 
Prevention Act of 1988 (Pub. L. 100-435), the Food and Nutrition 
Service (FNS) has actively promoted service to homeless and migrant 
populations. Further, particular attention has long been focused in the 
Child Nutrition Act of 1966, as amended (42 U.S.C. 1771 et seq.), on 
the needs of special populations, e.g. migrants and Native Americans. 
Section 17(f)(19) of the Child Nutrition Act of 1966, 42 U.S.C. 
1786(F)(19), requires that not less than nine-tenths of 1 percent of 
the sums appropriated any fiscal year for special supplemental food 
programs be available for services to eligible members of migrant 
populations.
    In an interim and a final rule on participation of homeless 
individuals in WIC, published in December 1989 and August 1992, 
respectively, the Department defined the term ``homeless individual'' 
based upon the definition provided legislatively in section 212(a) of 
the Hunger Prevention Act, Public Law 100-435 (42 U.S.C. 1786(b)(15)). 
This term identifies those otherwise eligible residents of specified 
overnight facilities who must be granted access to WIC when caseload is 
available, provided such facilities meet conditions insuring that 
residents, and not the facilities, benefit from the WIC Program.
    The August 1992 final rule, 57 FR 34500 (August 5, 1992), amended 
the WIC regulations to require State agencies to include in their State 
Plans of Program Operation and Administration a description of how they 
will provide Program benefits to and meet the special nutrition 
education needs of homeless individuals (7 CFR 246.4(a) (6) and (9), 
respectively) and disseminate information about program availability 
and eligibility to organizations serving the homeless (7 CFR 
246.4(a)(7)). The August 1992 final rule amended 7 CFR 246.10(f)(1) to 
allow States, upon approval by FNS, to make substitutions for foods 
normally required in the food package in order to accommodate the 
special circumstances of the homeless. Further, the August 1992 final 
rule amended 7 CFR 246.10(f) (2) and (3) to require that competent 
professional authorities take into account the special needs and 
problems of homeless individuals when prescribing supplemental foods.
    FNS has also shared with State WIC agencies successful initiatives 
and targeting strategies employed by other States to facilitate 
participation of homeless and migrant persons in the WIC Program. A 
number of State agencies have established local agency clinics and WIC 
certification offices in hotels and facilities which house homeless and 
migrant families. Other States have held statewide training sessions 
for their local WIC agencies to educate them about the special problems 
most frequently encountered by homeless individuals, and how WIC can 
help to alleviate some of these problems.
    According to a 1986 report to Congress by the U.S. House of 
Representatives' Committee on Government Operations, families, 
especially those composed of women and children, are the fastest 
growing segment of the homeless population nationwide (report cited by 
the National Advisory Council on Maternal, Infant, and Fetal Nutrition, 
1992 Biennial Report to Congress on WIC and CSFP (Commodity 
Supplemental Food Program)). Although the homeless have not been well 
studied relative to other population groups, several studies have 
indicated that the homeless and migrants are predisposed to 
inadequacies in their diets and in the medical care they receive. 
Homeless infants and children appear to be at higher risk of low 
birthweight and malnutrition. (Chavkin, Kristal, Seabron, and Guigli, 
1987). Studies have also found that a correlation exists between 
homelessness in women and a general lack of prenatal care and poor 
pregnancy outcomes. Homelessness may also impede access to health care 
services and other public assistance programs. Moreover, evidence 
indicates that homeless children have high rates of delayed 
immunization, a higher risk of exposure to infectious diseases, and 
higher rates of emotional and developmental problems. (Khan, 1991).
    Because of the difficulty in conducting research on the homeless, 
most studies have focused on the sheltered homeless. The risks to 
unsheltered homeless mothers and children are likely to be somewhat 
greater.
    A recent study indicates that migrants suffer most if not all of 
the conditions identified above afflicting the homeless. (Farmworkers 
Health for the Year 2000, 1992 Recommendation of the National Advisory 
Council on Migrant Health). In addition, testimony before the National 
Advisory Council on Migrant Health of the Department of Health and 
Human Services (DHHS) suggests that a lack of permanent housing also 
predisposes migrants to higher rates of infant mortality than the 
general population.
    Over the years, FNS has incorporated into the WIC Program 
regulations various provisions with the expressed purpose of addressing 
the unique circumstances of migrant farmworkers. State plans are 
required to include information on how the State intends to provide 
program benefits to eligible migrant farmworkers and their families; 
State agencies' nutrition education goals and action plans must include 
a description of the methods that will be used to meet the special 
nutrition education needs of migrant farmworkers and their families; 
and, States must provide expedited processing services to special 
nutritional risk groups such as migrant farmworkers and their families.
    Because of the increased risks associated with homelessness and 
migrancy, the National Advisory Council on Maternal, Infant, and Fetal 
Nutrition recommended in its 1992 Report to the President and Congress 
that section 17(b)(8) of the Child Nutrition Act of 1966, 42 U.S.C. 
1786(b)(8), be amended to include homelessness and migrancy as 
predisposing nutritional risk conditions for the WIC Program. Congress 
and the President accepted this recommendation and, as manifested in 
section 204 of the Child Nutrition Amendments of 1992, Public Law 102-
342, specifically identified homelessness and migrancy as predisposing 
nutritional risk conditions for purposes of WIC Program eligibility.

Definition of Homelessness/Migrancy

    As previously stated, the current definition of a ``homeless 
individual'' in the WIC regulations is based on the legislative 
definition provided in section 212(a) of the Hunger Prevention Act, 
Public Law 100-435 (42 U.S.C. 1786 (b)(15). Specifically, 7 CFR 246.2 
defines a ``homeless individual'' as ``a woman, infant or child who 
lacks a fixed and regular nighttime residence; or whose primary 
nighttime residence is: A supervised publicly or privately operated 
shelter (including a welfare hotel, a congregate shelter, or a shelter 
for victims of domestic violence) designated to provide temporary 
living accommodation; an institution that provides a temporary 
residence for individuals intended to be institutionalized; a temporary 
accommodation in the residence of another individual; or a public or 
private place not designed for, or ordinarily used as, a regular 
sleeping accommodation for human beings.''
    The Department believes this definition, along with its current 
migrant farmworker definition, should accommodate all individuals 
Congress intended to include in their references to homelessness and 
migrancy in section 204 of the Child Nutrition Amendments of 1992, 
Public Law 102-342.
    While Congress has specifically defined the term ``homeless 
individual'' for the WIC Program, section 17 of the Child Nutrition Act 
of 1966 does not contain a definition for the terms ``migrant'' or 
``migrancy.'' However, section 17 uses the terms ``migrant'' (e.g. 
section 17(f)(1)(c)(iv)) and ``migrant farmworker'' (e.g. section 
17(d)(4)(B)). The Department has interpreted Congress' references to 
migrants in section 17 to mean only migrant farmworkers and the latter 
term is currently defined at CFR 246.2. However, before assuming that 
its migrant farmworker definition was sufficient to apply to all 
Congressional references to the term migrant, the Department examined 
the definition of migrant(s) as used by other public and private 
organizations and agencies concerned with migrants and migrant 
services. In each case, some reference was made to the agricultural or 
seasonal nature of migrancy and movement of individuals for 
agricultural employment purposes. Based on this comparative analysis, 
the Department considered its current definition of migrant farmworker 
adequate to accommodate all of Congress' references and uses of the 
term migrancy as set forth in section 204 of the Child Nutrition 
Amendments of 1992.

WIC Priority System

    The current WIC nutritional risk priority system was designed to 
ensure that persons at greatest health and nutritional risk are served 
first with available program funds. The priority system therefore 
follows a logical order of progression to determine priority for 
service. Applicants with documented nutritionally related medical 
conditions are served first, followed by those at nutritional risk due 
to inadequate dietary patterns. Finally, and as a State agency option, 
previously certified participants whose nutritional status might 
regress without continued provision of supplemental foods are certified 
in Priority VII.
    Under this proposal, State agencies would be required to include in 
Priority VII pregnant, breastfeeding or postpartum women, infants, and 
children who are certified at nutritional risk solely because of their 
homelessness or migrancy. State agencies may also continue to use 
Priority VII to identify certified participants who might regress in 
nutritional status without continued provision of supplemental foods. 
The placement in Priority VII of individuals certified solely due to 
homelessness or migrancy should not be viewed as diminished concern for 
these individuals. Rather, such a placement reflects the Department's 
obligation to serve persons with the greatest medical and/or 
nutritional needs first. Priority VII will only be used to classify 
those individuals who are homeless or migrants and have no other 
documented medical or nutritional risk. These are individuals who 
previously would not have otherwise qualified for WIC Program benefits 
due to lack of nutritional risk.
    Given the facts revealed in the aforementioned studies, there is a 
high likelihood that homeless and migrant individuals are already being 
served by the WIC Program by virtue of their nutritional risk(s). 
Proposed Priority VII will serve as a safety net for homeless or 
migrant individuals who are not otherwise eligible due to a lack of 
documented nutritional or medical risk conditions. However, like any 
other eligible applicant, a homeless or migrant individual may be 
placed in a higher priority if her/his nutritional/health assessment by 
a competent professional warrants a higher placement in the priority 
system. For example, a homeless or migrant individual whose nutritional 
risk assessment reveals the presence of anemia would be placed in a 
higher priority category than a homeless or migrant person with no 
other documented nutritional risk condition who would be placed in 
Priority VII. This is in keeping with the aforementioned system of 
prioritizing WIC service based on documented nutritionally or medically 
related conditions. Priority VII is the logical placement for homeless 
and migrant individuals with no documented nutritional risks who 
qualify for the program due solely to homelessness or migrancy.
    The Department does not intend for Priority VII to be used by 
States as an administrative shortcut in certifying homeless and migrant 
individuals. The Department expects that homeless and migrant 
applicants will receive all the normal and necessary health assessments 
that are routinely performed to determine the presence of a medical or 
nutritional risk which would determine their proper priority placement, 
and assist in identifying other health and social services to which 
such individuals may be referred.
    The Department recognizes that this proposed regulation might 
require some States to modify their current reporting systems to 
accommodate the revised Priority VII. As such, the Department intends 
to provide an implementation period adequate to incorporate the 
necessary system modifications.
    The Department notes that while Congress has found homelessness and 
migrancy to be conditions predisposing individuals to nutritional 
risks, and this determination has been recognized by the placement of 
these individuals in a WIC nutritional risk category, alcoholism and 
drug abuse, similarly recognized by Congress in section 17(b)(8), have 
not been accorded similar treatment by the Department. The Department 
believes the distinction is warranted. Over the past several years, the 
health and medical communities have come to accept alcoholism or drug 
addiction, in and of itself, as a nutritionally related medical 
condition sufficient to warrant placement in one of the first three 
priorities in 7 CFR 246.7(e)(4). The Department does not believe that 
the same can be said for homelessness and migrancy. Recognizing that 
most State agencies classify individuals suffering from alcoholism or 
drug addiction as a Priority I, based on recent medical research, the 
Department is considering seeking a technical correction to the WIC 
legislation to remove alcoholism and drug addiction from the examples 
of ``predisposing'' nutritional risk conditions. This change would thus 
recognize these conditions as independent nutritionally related medical 
conditions in the law, thereby adjusting legislative language to 
reflect current medical knowledge.

List of Subjects in 7 CFR Part 246

    Food assistance programs, Food donations, Grant programs--Social 
programs, Indians, Infants and children, Maternal and child health, 
Nutrition, Nutrition education, Public assistance programs, WIC, Women.

    For the reasons set forth in the preamble, 7 CFR part 246 is 
proposed to be amended as follows:

PART 246--SPECIAL SUPPLEMENTAL FOOD PROGRAM FOR WOMEN, INFANTS AND 
CHILDREN

    1. The authority citation for part 246 continues to read as 
follows:

    Authority: 42 U.S.C. 1786.

    2. In Sec. 246.4, paragraph (a)(11)(i) is revised to read as 
follows:


Sec. 246.4  State Plan.

    (a) * * *
    (11) * * *
    (i) Certification procedures, including a list of specific 
nutritional risk criteria by priority level which cites conditions and 
indices to be used to determine a person's nutritional risk, the State 
agency's income guidelines for Program eligibility, and any adjustments 
to the participant priority system made pursuant to Sec. 246.7(e)(4) to 
accommodate high-risk postpartum women or the inclusion of previously 
certified persons who might regress in nutritional status without 
continued provision of supplemental foods in Priority VII.
* * * * *
    3. In Sec. 246.7, the introductory text of paragraph (e)(4) and 
paragraph (e)(4)(vii) are revised to read as follows:


Sec. 246.7  Certification of participants.

* * * * *
    (e) * * *
    (4) Nutritional risk priority system. The competent professional 
authority shall fill vacancies which occur after a local agency has 
reached its maximum participation level by applying the following 
participant priority system to persons on the local agency's waiting 
list. Priorities I through VII shall be utilized in all States. The 
State agency may, at its discretion, expand Priority VII to include 
previously certified participants who might regress in nutritional 
status without continued provision of supplemental foods. The State 
agency may set income or other sub-priority levels within any of these 
seven priority levels. The State agency may expand Priority III, IV, or 
V to include high-risk postpartum women.
* * * * *
    (vii) Priority VII. Pregnant, breastfeeding and postpartum women, 
infants, and children who are at nutritional risk solely because of 
homelessness or migrancy and, at State agency option in accordance with 
the provisions of paragraph (e)(1)(iii) of this section, previously 
certified participants who might regress in nutritional status without 
continued provision of supplemental foods.
* * * * *
    Dated: March 25, 1994.
William E. Ludwig,
Administrator, Food and Nutrition Service.
[FR Doc. 94-8117 Filed 4-5-94; 8:45 am]
BILLING CODE 3410-30-U