[Federal Register Volume 59, Number 66 (Wednesday, April 6, 1994)] [Unknown Section] [Page 0] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: 94-8117] [[Page Unknown]] [Federal Register: April 6, 1994]![]()
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TR06AP94.075 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