[Federal Register Volume 78, Number 213 (Monday, November 4, 2013)]
[Proposed Rules]
[Pages 65890-65903]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-25922]
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Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
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Federal Register / Vol. 78, No. 213 / Monday, November 4, 2013 /
Proposed Rules
[[Page 65890]]
DEPARTMENT OF AGRICULTURE
Food and Nutrition Service
7 CFR Part 245
[FNS-2011-0027]
RIN 0584-AE16
National School Lunch Program and School Breakfast Program:
Eliminating Applications Through Community Eligibility as Required by
the Healthy, Hunger-Free Kids Act of 2010
AGENCY: Food and Nutrition Service, USDA.
ACTION: Proposed rule.
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SUMMARY: This rule proposes to amend the eligibility regulations for
free and reduced price meals under the National School Lunch Program
(NSLP) and School Breakfast Program (SBP) to codify the statutory
provision that establishes the community eligibility provision, a
reimbursement option for eligible local educational agencies and
schools that wish to offer free school meals to all children in high
poverty schools without collecting household applications. This
proposed rule reflects statutory requirements that were implemented
through policy guidance following enactment of the Healthy, Hunger-Free
Kids Act of 2010 (HHFKA). Implementation of this proposed rule would
align the regulations with the statutory provision that establishes
administrative and operational requirements for State agencies, local
educational agencies, and schools.
DATES: To be assured of consideration, comments on this proposed rule
must be received by January 3, 2014.
ADDRESSES: The Food and Nutrition Service (FNS), USDA, invites
interested persons to submit written comments on this proposed rule.
Comments must be submitted through one of the following methods:
Preferred method: Comments on the provisions in this rule
must be received on or before January 3, 2014 to be assured of
consideration. Go to http://www.regulations.gov. Follow the online
instructions for submitting comments.
Mail: Mailed comments on this proposed rule must be
postmarked on or before January 3, 2014 to be assured of consideration.
Send mailed comments to William Wagoner, Policy and Program Development
Branch, Child Nutrition Division, Food and Nutrition Service,
Department of Agriculture, 3101 Park Center Drive, Room 1212,
Alexandria, Virginia 22302-1594.
Comments sent by other methods will not be accepted. All comments
sent by the methods listed above will be included in the record and
will be made available to the public. Please be advised that the
substance of the comments and the identity of the individuals or
entities submitting the comments will be subject to public disclosure.
FNS will make the comments publicly available on the Internet via
http://www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: William Wagoner or Marisol Aldahondo,
Policy and Program Development Branch, Child Nutrition Division, Food
and Nutrition Service, USDA, 3101 Park Center Drive, Room 1212,
Alexandria, Virginia 22302; telephone: (703) 305-2590.
SUPPLEMENTARY INFORMATION:
Background
Section 104(a) of the HHFKA (Pub. L. 111-296) amended section
11(a)(1) of the Richard B. Russell National School Lunch Act (NSLA) (42
U.S.C. 1759a(a)(1)) by adding a new subparagraph (F) to establish the
community eligibility provision, also known as the community
eligibility option. The community eligibility provision is a 4-year
reimbursement alternative for high poverty local educational agencies
(LEAs) and schools participating in the NSLP and SBP. It is intended to
improve access to free school meals in eligible high poverty LEAs and
schools, and eliminate the administrative burden associated with
collecting household applications.
This proposed rule would amend the regulations in Sec. 245.9,
Special Assistance Certification and Reimbursement Alternatives, to
include the community eligibility provision. In addition, this rule
would make minor editorial changes in the current regulations for all
special assistance provisions to achieve consistency.
Currently, Sec. 245.9 uses the term ``school food authority'' for
the provisions 1, 2 and 3. For the community eligibility provision,
however, the NSLA uses the term ``local educational agency'', which is
a broader entity in a school district that often includes or performs
school food authority functions in addition to those unrelated to
administration of the Child Nutrition Program. Therefore, this proposed
rule refers to the ``local educational agency'' as defined in Sec.
245.2 to describe the requirements for the provisions 1, 2 and 3, and
the community eligibility provision. This editorial change does not
indicate a change in the regulatory requirements for the provisions 1,
2 and 3, nor how these special assistance provisions are monitored. For
example, counting and claiming responsibilities for the Provision 2
schools would continue to be the responsibility of the school food
authority.
To use community eligibility, eligible LEAs and schools would be
required to have a minimum percentage of identified students, who are
students certified for free meals through means other than individual
household applications (e.g., students directly certified through the
Supplemental Nutrition Assistance Program (SNAP)) in the school year
prior to implementing the provision, as required by Sections
11(a)(1)(F)(i) and (ii) of the NSLA, as amended. In addition, in
accordance with Section 11(a)(1)(F)(ii), LEAs and schools would serve
free lunches and breakfasts to all students, and cover with non-Federal
funds any costs of providing free meals to all students that exceed the
Federal reimbursement. As provided for in Section 11(a)(1)(F)(vi), no
household applications for free and reduced price meals would be
collected because meal reimbursement would be based on claiming
percentages derived from the identified student percentage, as provided
for in Section 11(a)(F)(iii) and (iv). The claiming percentages used in
the first year would be valid for a period of four school years but
could be increased in the second, third or fourth year if the
identified student percentage rises. An eligible LEA would be able to
elect the community eligibility provision on behalf of a single school,
a select group of schools, or all schools under its jurisdiction, in
accordance with Section 11(a)(1)(F)(ii)(I).
[[Page 65891]]
FNS has phased in the community eligibility provision over a three
year period as required by the amendments made by HHFKA to Section
11(a)(a)(F)(viii) and (ix) of the NSLA. Community eligibility was made
available in eligible LEAs and schools in three States (Illinois,
Kentucky and Michigan) starting with the school year beginning July 1,
2011. An additional four States (Ohio, New York, District of Columbia,
and West Virginia) were added for the school year beginning July 1,
2012. Four more States (Florida, Georgia, Maryland and Massachusetts)
were added for the school year beginning July 1, 2013. Community
eligibility will be available nationwide to all eligible LEAs and
schools for the school year beginning July 1, 2014.
This proposed rule mirrors the memoranda on community eligibility
issued by FNS during the phased-in implementation. As required by the
law, FNS issued guidance within 90 days of enactment of the HHFKA to
implement the statutory requirements for community eligibility (see
memorandum SP 23-2011 dated March 15, 2011). Additional memoranda
followed to further explain the statutory requirements. State and local
operators must continue to follow FNS memoranda and guidance on
community eligibility, as applicable, while the rulemaking process is
under way.
The following memoranda (available on the FNS Web site at http://www.fns.usda.gov/cnd/governance/policy.htm) address the community
eligibility requirements established in section 11(a)(1)(F) of the
NSLA, as amended:
Memorandum SP 23-2011 (March 15, 2011), Community
Eligibility Option: Guidance and Process for Selection of States for
School Year 2011-2012.
Memorandum SP 12-2012 (February 9, 2012), Community
Eligibility Option: Guidance and Procedures for Selection of States for
School Year 2012-2013 (Includes Frequently Asked Questions).
Memorandum SP 24-2012 (April 10, 2012), Interim Review
Guidance for States with Local Educational Agencies Electing the
Community Eligibility Option.
Memorandum SP 15-2013 (December 7, 2012), Community
Eligibility Option: Guidance and Procedures for Selection of States for
School Year 2013-2014 (includes Frequently Asked Questions).
[cir] Attachment A: Information for State Agency Participation.
[cir] Attachment B: Monthly Federal Reimbursement Estimator.
In addition to issuing the above guidance, FNS has worked with the
phase-in States to provide individual assistance and guidance. FNS has
also conducted a number of webinars and monthly conference calls for
the phase-in States.
FNS will evaluate participation in the community eligibility
provision and the impact on eligible LEAs and schools in States
selected during the phase-in period. Data collection began in fall,
2012 and the final report will be completed in December, 2013. FNS
expects the community eligibility provision to improve access to school
meals in high poverty areas, reduce administrative burden, and increase
program efficiency by utilizing readily available and current data to
certify eligible students for meal benefits.
This proposed rule would amend the regulations in Sec. 245.9,
Special assistance certification and reimbursement alternatives, by
redesignating several paragraphs to add a new paragraph (f) and a new
paragraph (l) for the community eligibility requirements. For
consistency in the regulatory text, the proposed rule refers to the
``local educational agency'' to describe the requirements for
provisions 1, 2 and 3, and the community eligibility provision.
Community Eligibility Definitions
For purposes of community eligibility, the proposed rule at Sec.
245.9(f)(1) defines the terms ``enrolled students'', ``identified
students'' and ``identified student percentages'' as follows:
Enrolled Students
Under the proposal, the term ``enrolled students'' would mean
students who are enrolled in and attending schools participating in the
community eligibility provision and who have access to at least one
meal service daily. Half-day students who have access to either
breakfast or lunch would be included in the count of enrolled students.
Students who do not have access to either breakfast or lunch due to the
times they are attending school would not be included in the count of
enrolled students.
Identified Students
Under this proposed rule, the term ``identified students'' would
mean low-income children who are certified for free school meals
without the use of a household application. Section 11(a)(1)(F)(i), as
amended by HHFKA, defines identified students as ``students certified
based on documentation of benefit receipt or categorical eligibility as
described in Sec. 245.6a(c)(2)'' of Program eligibility regulations in
7 CFR part 245. This refers to students directly certified for free
meals through documentation provided by the following programs:
Supplemental Nutrition Assistance Program (SNAP);
Temporary Assistance to Needy Families (TANF);
Food Distribution Program on Indian Reservations (FDPIR);
and
Medicaid (in States and LEAs participating in an FNS
demonstration project to test the potential for direct certification
with Medicaid).
The term identified students would also include the following
students, as defined in Sec. 245.2:
Homeless children as defined under section 725(2) of the
McKinney-Vento Homeless Assistance Act (42 U.S.C. 11434a(2));
Runaway and homeless youth served by programs established
under the Runaway and Homeless Youth Act (42 U.S.C. 5701);
Migrant children as defined under section 1309 of the
Elementary and Secondary Education Act of 1965 (20 U.S.C. 6399);
Foster children certified through means other than a
household application;
Children enrolled in a Federally-funded Head Start Program
or a comparable State funded Head Start Program or pre-kindergarten
program;
Children enrolled in an Even Start Program; and
Non-applicant students approved by local education
officials, such as a principal, based on available information.
Identified Student Percentage
This proposed rule would define the term ``identified student
percentage'' as the percentage determined by dividing the number of
``identified students'' as of a specified period of time by the number
of ``enrolled students'' as of the same period of time and multiplying
the quotient by 100.
[[Page 65892]]
[GRAPHIC] [TIFF OMITTED] TP04NO13.000
For a group of schools, the identified student percentage would be
calculated by taking the total of the identified students for that
group of schools and dividing that total by the total student
enrollment for that group of schools. Only schools that are in the same
LEA would be grouped together for purposes of determining community
eligibility.
Implementation
The proposed rule at Sec. 245.9(f)(2) would allow LEAs to elect
the community eligibility provision for all schools or for certain
schools meeting the eligibility criteria on or after July 1, 2014.
Eligible LEAs and schools may operate the community eligibility
provision for one or more 4-year cycles. Extensions are discussed
further in this preamble under the heading New 4-year Cycles.
Eligibility Criteria
To participate in the community eligibility provision, LEAs (other
than a residential child care institution, as that term is set forth in
the definition of ``School'' in Sec. 210.2) and schools would be
required to meet the requirements of Sec. 245.9(f)(3), i.e., meet the
minimum identified student percentage requirements, participate in both
the NSLP and SBP, and comply with all community eligibility provision
procedures, as set forth in Sec. 245.9(f)(4) of the proposed rule.
To be eligible for community eligibility, an LEA or school would be
required to have an identified student percentage of at least 40
percent based on data as of April 1st of the prior school year. This
percentage reflects both the number of identified students and the
number of enrolled students as of April 1 of prior school year data.
Section 11(a)(1)(F)(viii)(II) of the NSLA, as amended, authorizes
the Department to establish a threshold that is less than 40 percent
for each school year beginning on or after July 1, 2014. However, the
Department does not intend to lower the threshold for school year 2014-
2015. The Department would consider data from the final community
eligibility evaluation, along with program operational data and
experience from nationwide implementation in determining if a future
change to the threshold is warranted. Any future change to the
threshold would be communicated in advance of implementation, through
the Federal Register.
Schools already offering free meals under Provision 2 or Provision
3 would be able to elect the community eligibility provision, and
schools under Provision 1 would also be able to convert to this
provision. The conversion could take place during base or non-base
years as long as the State or the LEA is able to demonstrate that the
minimum identified student percentage threshold is met as of April 1 of
the prior school year. Provision 1 schools in Puerto Rico and the
Virgin Islands, where a statistical survey procedure is allowed in lieu
of eligibility determinations, would be able to participate in the
community eligibility provision. For those schools, updated direct
certification data would be needed to determine the current percentage
of identified students and all other requirements of the proposed rule
would need to be met.
Community Eligibility Provision Procedures
This rule at Sec. 245.9(f)(4) outlines proposed community
eligibility provision procedures. The procedures include election
deadline, State agency approval, service of meals at no charge,
household applications, meal claiming percentages, multiplier factor,
cost differential, new 4-year cycles, and grace years.
Election Deadline
Under proposed Sec. 245.9(f)(4)(i), any LEA intending to elect the
community eligibility provision for the following year for some or all
of its schools would be required to submit to the State agency
documentation demonstrating that the LEA or school meets the minimum
identified student percentage threshold, as described earlier under
Eligibility criteria. Such documentation would include, at a minimum,
the counts of identified and enrolled students, as of April 1 of the
prior school year. LEAs would be required to submit documentation no
later than June 30 to begin community eligibility in the school year
beginning July 1.
State Agency Review
Prior to authorizing an LEA to participate in community eligibility
provision for some or all of its schools, Sec. 245.9(f)(4)(ii) of the
proposed rule would require the State agency to review the identified
student percentage documentation submitted by the LEA to ensure the LEA
or school meets the minimum identified student percentage, participates
in both the NSLP and SBP, and has a record of administering the meal
program in accordance with program regulations, as indicated by the
most recent administrative review.
While the decision to participate in the community eligibility
provision rests with the LEA, the State agency is responsible for
providing technical assistance and assuring continued program
integrity. Thus, the State agency would be required to confirm the
LEA's eligibility to participate in the community eligibility
provision.
Meal Counts and Meals at No Charge
Under Sec. 245.9(f)(4)(iii) of the proposal, the LEA would be
required to ensure participating schools offer free reimbursable
breakfasts and free reimbursable lunches to all students in
participating schools during the 4-year cycle and count the number of
reimbursable breakfasts and lunches served to students daily.
Household Applications
Under proposed Sec. 245.9(f)(4)(iv), an LEA would not be permitted
to collect applications for free and reduced price school meals on
behalf of children in schools participating in the community
eligibility provision. Any LEA seeking to obtain socio-economic data
from students would be required to develop, conduct and fund this
effort totally separate from and not under the auspices of the NSLP and
SBP. Because costs associated with obtaining the socio-economic data
would not be allowable Program costs, nonprofit school food service
account funds could not be used for this purpose.
Based on feedback from the States implementing the community
eligibility provision during the phase-in period, the absence of socio-
economic data is cited as the largest barrier to electing the
provision. Currently, LEAs use aggregate, non-identifying, eligibility
information collected from school meals applications as a socio-
economic indicator for multiple purposes, including funding formulas
for Federal and State education programs. Program regulations in 7 CFR
Part 245 allow the use of aggregate, non-identifying information for
such purposes, and also allow the use of individual student eligibility
by authorized persons for specific purposes.
Consistent with discussions the Department has had with the U.S.
[[Page 65893]]
Department of Education (DoE), DoE is developing guidance on how to use
data collected without applications through community eligibility to
determine the distribution of Title I funds to schools, which preserves
the burden reduction intent of community eligibility. However, Title I
is not the only assistance funding that uses NSLP socio-economic data,
as LEAs may rely on this data for the distribution of other services to
children or areas in high need.
Before an LEA decides to collect separate applications to obtain
socio-economic data, the State agency child nutrition staff is
encouraged to work with State funding experts to assess the need for
school meal program application data, and to identify alternate sources
of socio-economic data. Replacing the collection of socio-economic data
through NSLP with another collection system is contrary to the
statutory goal of reducing paperwork for households and schools through
community eligibility. If the LEA determines that it is absolutely
necessary to collect socio-economic data to assist with the
disbursement of other education-related funds, such application process
would be developed and managed totally separate from the School
Nutrition Programs, and not under the auspices of the National School
Lunch Program. It is expected that the form/request for household
information for non-Program purposes would clarify its purpose, and
affirmatively state that receipt of school meal benefits would not be
affected by a household's decision to complete and return the form/
request.
Free and Paid Claiming Percentages
Under proposed Sec. 245.9(f)(4)(v), reimbursement for breakfasts
and lunches meeting Program requirements would be based on free and
paid claiming percentages applied to the total number of reimbursable
lunches and breakfasts served, respectively, each month. To determine
the free claiming percentage, LEAs would multiply the identified
student percentage by a multiplier factor of 1.6, as required by the
NSLA. If the product of this calculation exceeds 100 percent, the free
claiming percentage is capped at 100 percent. The difference between
the free claiming percentage and 100 percent represents the paid
claiming percentage. Because community eligibility schools do not
collect household applications for school meals, the multiplier factor
of 1.6 is intended to estimate the number of free and reduced price
meals that would had been served at the participating school based on
income eligibility and categorical eligibility if applications were
collected.
Multiplier Factor
Consistent with section 11(a)(1)(F)(vii) of the NSLA, as amended,
the multiplier factor is 1.6, until otherwise determined by the
Secretary. For each school year beginning on or after July 1, 2014, the
law allows the Secretary to change the multiplier factor to a number
between 1.3 and 1.6, and to apply a different multiplier factor for
different schools or LEAs. However, schools electing community
eligibility would maintain the same multiplier factor for an entire 4-
year cycle. This proposed provision is found at Sec. 245.9(f)(4)(vi).
Although the amendments to the NSLA made by HHFKA would allow the
Secretary to change the multiplier factor on July 1, 2014, the
Department does not intend to change it for school year 2014-2015. The
Department would consider data from the final community eligibility
evaluation, along with program operational data and experience from
nationwide implementation in determining if a future change to the
multiplier factor is warranted. Any change to the multiplier factor
would be communicated in advance of implementation, through the Federal
Register.
Selection of the Identified Student Percentage
In the first year of a 4-year cycle, the LEA would use the
identified student percentage as of April 1 of the prior school year.
In the second, third, and fourth year of the cycle, the LEA would have
discretion to use either (a) the identified student percentage from the
year prior to year 1 of the four-year cycle or (b) the identified
student percentage from the preceding year, whichever is higher. For
example, if an LEA elects community eligibility for the school year
2014-2015, the selection would be as follows:
For Year 1 (SY 2014-2015): percentage as of April 1, 2014
(school year prior to implementing the community eligibility
provision);
For Year 2 (SY 2015-2016): percentage as of April 1, 2014 or
April 1, 2015;
For Year 3 (SY 2016-2017): percentage as of April 1, 2014 or
April 1, 2016; and
For Year 4 (SY 2017-2018): percentage as of April 1, 2014 or
April 1, 2017.
Due to variations in the point in time for monthly updates in State
and local systems, under this proposed rule the identified student
percentage must be representative of the identified students and the
student enrollment as of April 1. Updates could be done before or after
April 1 to account for differences in operational procedures, but the
data would have to be representative of this date. For example, if a
State or local direct certification system provides monthly updates of
directly certified students on the 5th of each month, data from the
April 5 updates may be used to develop the identified student
percentage if it is representative of April 1.
Calculating the Claiming Percentages
As stated earlier, the LEA would multiply the applicable identified
student percentage by a factor of 1.6 to calculate the free claiming
percentage. The difference between the free claiming percentage and 100
percent represents the paid claiming percentage. An example of
calculating the free and paid claiming percentages used for Year 1
follows:
Year 1 (School Year July 1, 2014-June 30, 2015):
Identified student percentage as of April 1, 2014 (school year prior
to Year 1): 45%
Identified student percentage x multiplier factor: 45% x 1.6 = 72%
Free claiming percentage: 72%
Paid claiming percentage (100% minus the free claiming percentage):
28%
The claiming percentages used in Year 1 would be valid for the 4-
year community eligibility cycle. However, in the second, third and
fourth year, the identified student percentage may be calculated each
year (as discussed earlier) to determine if an increase has occurred
from the year prior to the first year of community eligibility. An LEA
or school may re-calculate its claiming percentages in the second,
third or fourth year to reflect the higher identified student
percentage. As shown in the next example, if the identified student
percentage rises in the second, third or fourth year, there would be a
corresponding increase in the free claiming percentage and decrease in
the paid claiming percentage.
Year 2 (School Year July 1, 2015-June 30, 2016):
Identified student percentage (as of April 1, 2014) used for school
year prior to Year 1: 45%
Identified student percentage as of April 1, 2015: 47%
Identified student percentage x multiplier factor: 47% x 1.6 = 75.2%
Free claiming percentage: 75.2%
Paid claiming percentage (100% minus the free claiming percentage):
24.8%
Calculating the Claim for Reimbursement
Under the proposal, the LEA would determine the number of free
lunches to claim for reimbursement by multiplying
[[Page 65894]]
the free claiming percentage by the total number of reimbursable
lunches served. To determine the number of paid lunches to claim for
reimbursement, the LEA would multiply the paid claiming percentage by
the total number of reimbursable lunches served. Similar calculations
are made to determine the number of free and paid breakfasts to claim
for reimbursement.
Non-Federal Funding Sources
The proposed rule at Sec. 245.9(f)(4)(vii) would require the LEA
or school to pay, with funds from non-Federal sources, the difference
between the cost of serving lunches and breakfasts at no charge to all
participating children and Federal reimbursement. This is consistent
with the existing requirements for Provision 2 and 3, the other two
reimbursement alternatives available under Sec. 245.9. The use of non-
Federal funds would be necessary if the total amount of Federal
reimbursement through the community eligibility provision does not
cover the costs of serving all students free meals. Consistent with
regular Program administration, funds other than Federal reimbursement
available to the nonprofit school food service account would be used to
make up the difference. Such funds generally include other school food
service revenue such as revenue from a la carte sales, etc. The non-
Federal funds used for community eligibility would have to be allocated
for this purpose and could not be assigned to meet other Federal
requirements.
When considering whether to participate in community eligibility,
LEAs and schools should consider the participation level (e.g.,
individual school, group of schools within the LEA, or the entire LEA),
the anticipated level of Federal reimbursement, and the non-Federal
resources available.
New 4-Year Cycle
Under Sec. 245.9(f)(4)(viii) of the proposal, participating LEAs
or schools that meet the identified student percentage of 40 percent as
of April 1 in Year 4 of the 4-year cycle would be able, with the State
agency's concurrence, to immediately begin another 4-year cycle after
the initial cycle concludes. For example, schools that elect community
eligibility beginning July 1, 2014 would have to meet the 40 percent
threshold as of April 1, 2018 to qualify for another 4-year cycle. The
identified student percentage as of April 1, 2018 would be used to
calculate the claiming percentages for Year 1 of the new cycle.
Grace Year
Under Sec. 245.9(f)(4)(ix) of this proposed rule, participating
LEAs and schools that fall within 10 percentage points lower than the
established threshold of 40 percent as of April 1 in Year 4 of the 4-
year cycle, would be allowed to continue community eligibility for a
grace year (one year outside of the 4-year cycle). At least a 30
percent identified student percentage would be required to qualify for
a grace year. Reimbursement for schools in a grace year would be based
on the identified student percentage as of April 1 in year 4 of the
current 4-year cycle. For example, the claiming percentages for
participating schools in a grace year would be calculated as follows:
Year 4 identified student percentage as of April 1, 2018: 35%
Identified student percentage x multiplier factor: 35% x 1.6 = 56%
Free claiming percentage: 56%
Paid claiming percentage: 44%
LEAs or schools that reach the required 40 percent threshold of
identified students as of April 1 of the grace year would be able to
begin a new community eligibility 4-year cycle in the following school
year. Those that do not meet the threshold as of April 1 of the grace
year would be required to return to regular Program administration,
including collecting household applications in the following school
year.
Notification and Reporting Requirements
Section 11(a)(1)(F)(x) of the NSLA, as amended, includes several
provisions which, in concert, encourage State agencies to promote and
disseminate information about community eligibility. Under the statute,
State agencies are required to publish a list of schools and notify
eligible or potentially eligible LEAs of the community eligibility
provision no later than May 1. In order for the State agency to meet
the publication and notification deadline, the proposal would require
the list of schools and the notification of eligible or potentially
eligible LEAs to occur no later than April 15. The April 15 deadline is
intended to give State agencies enough time to obtain and post the
required information within the period specified by the law. The
proposed deadlines and requirements are discussed in more detail below
and appear in the proposed regulatory text under paragraphs Sec.
245.9(f)(5) through (f)(8).
List of Schools
To assist State agencies in disseminating information about
community eligibility, Sec. 245.9(f)(5) of this proposal would require
LEAs to submit to the State agency by April 15, a list of schools
eligible or potentially eligible for the community eligibility
provision. The State agency may exempt LEAs from this requirement if
the State agency already collects this information. The lists would be
required to include:
Schools with an identified student percentage of at least
40 percent;
Schools with an identified student percentage of at least
30 percent but less than 40 percent; and
Schools that are currently in the fourth year community
eligibility with an identified student percentage of at least 30
percent but less than 40 percent.
The above lists of schools may be obtained by the State agency at
any time during the current school year, but not later than April 15.
Since this requirement is intended as part of a public notification and
outreach effort, local and State agencies would be permitted to use
data reflecting either the identified student percentage or direct
certifications as a percentage of enrollment, as an indicator of
potential eligibility or eligibility. LEAs or State agencies are
encouraged to use existing data sources to meet this requirement. For
example, data collected through the frequent matching activities with
the Supplemental Nutrition Assistance Program may be used to fulfill
the notification requirements. Additional information regarding
notification data is discussed in this preamble under the heading
Notification data.
Notification of Local Educational Agencies
Under Sec. 245.9(f)(6) of the proposal, State agencies would be
required to notify eligible or potentially eligible LEAs by April 15,
of their status for community eligibility and the procedures to elect
this reimbursement option. Based on the most current identified student
data available district wide, States agencies would notify:
LEAs with an identified student percentage of at least 40
percent district wide, of the opportunity to elect community
eligibility in the subsequent year; the estimated cash assistance the
LEA would receive, e.g., a blended per meal rate; and the procedures to
participate in community eligibility;
LEAs with an identified student percentage that is less
than 40 percent district wide but greater than or equal to 30 percent,
that they may be eligible to
[[Page 65895]]
participate in community eligibility in the subsequent year if they
meet the eligibility requirements set forth in Sec. 245.9 (f)(3) of
this proposal;
LEAs currently using community eligibility district wide,
of the options available in establishing claiming percentages for next
school year; and
LEAs currently in year 4 with an identified student
percentage district wide that is less than 40 percent but greater than
or equal to 30 percent, of the grace year eligibility. The LEAs would
also be notified of the estimated cash assistance they would receive
during the grace year, and the procedures to maintain eligibility and
election.
State agencies are encouraged to use existing data to effect the
LEA notification requirement. For example, State agencies are able to
determine each LEA's identified student percentage based on the FNS-
742, School Food Authority Verification Summary Report. This
information is submitted to the State agency by March 1. With this
information, State agencies could readily notify eligible and
potentially eligible LEAs of their status for the community eligibility
provision.
Public Notification Requirements
Section 11(a)(1)(F)(x) of the NSLA, as amended, requires each State
agency to publish the list of schools described previously under List
of schools, and to submit to the Department the list of LEAs receiving
notices as described previously under Notification of local educational
agencies.
This proposed rule at Sec. 245.9(f)(7) would require State
agencies to make both the list of schools and the list of LEAs readily
accessible on the State agency Web site in a format prescribed by FNS.
FNS intends to develop a template for State agencies to use in
displaying the required information.
In lieu of having the State agencies submit the list of LEAs to the
Department for publication, the FNS intends to develop a Community
Eligibility Provision Web site which would link to the applicable
portion of the State agencies' Web sites that identify both the list of
schools and the list of LEAs.
Notification Data
The proposed rule, at Sec. 245.9(f)(8), would require State
agencies and LEAs to obtain data reflective of the current school year
when identifying schools and LEAs that are eligible or near eligible
for community eligibility. State agencies and LEAs would be required to
use the identified student percentage, as defined in the proposed Sec.
245.9(f)(1).
As mentioned earlier, LEA-wide identified student percentage data
are readily available as both the numbers of identified students and
enrolled students are collected and reported on the FNS-742, School
Food Authority Verification Summary Report. However, school-specific
data may not be as readily available to the State agency.
If school-specific identified student data are not readily
available, State agencies would be permitted to use the number of
direct certifications as a proxy for identified students when
identifying schools to notify, as required under proposed Sec.
245.9(f)(5). To calculate the identified student percentage using proxy
data, divide the number of students directly certified through the
Supplemental Nutrition Assistance Program and other assistance
programs, if applicable, by the number of enrolled students.
If direct certification counts are used in the identified student
percentage calculation to meet the proposed notification requirements,
the data must be clearly identified as data not fully reflective of the
number of identified students. Further, if the data are not
representative of April 1 of the current school year, the data must
include a notation that the data are intended for informational
purposes and do not confer eligibility for community eligibility. This
proposed provision is found in Sec. 245.9(f)(8) of the proposed
regulation.
Other Uses of the Free Claiming Percentage
As required in Sec. 245.9(f)(9) of the proposed regulation, when
community eligibility is in place in all or a group of schools in an
LEA, an individual school's eligibility for other Child Nutrition
Programs, such as Fresh Fruit and Vegetable Program, Child and Adult
Care Food Program, Summer Food Service Program, Afterschool Snacks, and
Seamless Summer Option, would be determined by the school's free
claiming percentage (as discussed earlier in the rule under the heading
Free and Paid Claiming Percentages). No household applications would be
required. Institutions or sites in the boundaries of the individual
community eligibility school would be permitted to use the school's
free claiming percentage (identified student percentage multiplied by
1.6) to determine area eligibility under these programs.
Record Retention
Under the proposal, LEAs and schools would be required to keep
documentation and records related to methodology used to calculate the
identified student percentage (for each school year if applicable) and
meet existing recordkeeping requirements in Parts 210, 220 and 245.
Failure to maintain records would result in the State agency requiring
the LEA and/or school(s) to return to standard meal counting and
claiming procedures because the level of reimbursement could not be
justified. This provision is found at Sec. 245.9(h)(3).
Administrative Reviews of Community Eligibility Schools
When conducting the administrative reviews of community eligibility
schools, the State agency must verify the identified student percentage
used during the year in which a review is conducted. In addition, the
State agency must review the documentation and records from each year
used to establish the identified student percentage. Applicable
provisions in Sec. 210.18 and FNS guidance must be followed when
reviewing schools using community eligibility. This proposed provision
is found at Sec. 245.9(i). Additional information on administrative
review procedures will be provided under a separate proposed
rulemaking.
Ending Use of Community Eligibility
Existing regulations at Sec. 245.9(i) sets forth requirements for
Provision 1, 2, and 3 schools wishing to return to standard meal
counting and claiming procedures. Provision 1, 2, and 3 schools may
return to standard notification, certification and counting procedures
at any time if standard procedures better suit the school's Program
needs. The LEA must notify the State agency of the return to standard
procedures.
Under section 11(a)(1)(F)(ii)(II) of the NSLA, as amended, a
participating LEA or school would be able to cease community
eligibility and return to standard notification, certification and
counting procedures for the following year by notifying the State
agency not later than June 30.
The proposed rule at Sec. 245.9(j) would consolidate the existing
and new requirements for all special assistance LEAs and schools, i.e.,
LEAs and schools participating in Provision 1, 2, 3 or community
eligibility. Under the proposal, special assistance LEAs or schools
would be able to cease a special provision option and return to
standard notification, certification and counting procedures at any
time during the school year. The LEA would be required to notify the
State agency prior to the change and seek State agency guidance and
concurrence to resume standards
[[Page 65896]]
procedures. To return to standard procedures in the next school year,
the LEA would notify the State agency no later than June 30.
Transferring a Student's Eligibility for Free Meals Under the Special
Assistance Provisions
This proposed rule at Sec. 245.9(l) would ensure that students
transferring from a community eligibility school, or a special
provision school, to a school using standard counting and claiming
procedures in the same LEA continue to receive free meals for up to 10
operating days. This is intended to avoid interruption in nutrition
benefits for a student while the receiving school is determining
individual eligibility status. For transfers between LEAs, the
receiving LEA may also choose to provide the transferred student free
meals for up to 10 operating days.
LEA Best Practices
To implement community eligibility successfully and encourage all
children to benefit from universal free school meals, LEAs are
encouraged to:
Consider and plan for potential issues surrounding the
absence of individual free and reduced price data for other education
purposes and communicate with those impacted.
Inform students and parents that free meals (breakfast and
lunch) will be offered to all enrolled students under the community
eligibility provision.
Implement the community eligibility provision in a way
that results in full student participation and not in overt-
identification of low-income students;
Communicate effectively to all students and households the
nutrition benefits of school meals; and
Be aware of potential overt identification issues when
offering a la carte foods.
Procedural Matters
Executive Order 12866 and Executive Order 13563
This proposed rule has been reviewed by the Office of Management
and Budget (OMB) in conformance with Executive Order 12866 and has been
determined to be Not Significant.
Regulatory Impact Analysis
This rule has been designated as not significant by the Office of
Management and Budget; therefore, no Regulatory Impact Analysis is
required.
Regulatory Flexibility Act
This rule has been reviewed with regard to the requirements of the
Regulatory Flexibility Act of 1980 (5 U.S.C. 601-612). Pursuant to that
review it has been certified that this proposed rule would not have a
significant economic impact on a substantial number of small entities.
This proposed rule would establish an alternative reimbursement option
for LEAs and schools in high poverty areas, and would eliminate the
requirement to collect free and reduced price household applications in
participating schools during the period of participation in the
community eligibility provision. Therefore, FNS does not expect that
the proposed rule will have a significant economic impact on small
entities.
Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and tribal
governments and the private sector. Under section 202 of the UMRA, the
Department generally must prepare a written statement, including a cost
benefit analysis, for proposed and final rules with Federal mandates'
that may result in expenditures to State, local or tribal governments,
in the aggregate, or to the private sector, of $100 million or more in
any one year. When such a statement is needed for a rule, Section 205
of the UMRA generally requires the Department to identify and consider
a reasonable number of regulatory alternatives and adopt the least
costly, most cost effective or least burdensome alternative that
achieves the objectives of the rule.
This proposed rule does not contain Federal mandates (under the
regulatory provisions of Title II of the UMRA) that would result in
expenditures for State, local, or tribal governments or the private
sector of $100 million or more in any one year. Thus, the rule is not
subject to the requirements of sections 202 and 205 of the UMRA.
Executive Order 12372
The NSLP and SBP are listed in the Catalog of Federal Domestic
Assistance Programs under 10.555 and 10.553, respectively. For the
reasons set forth in the final rule in 7 CFR part 3015, subpart V, and
related Notice (48 FR 29115, June 24, 1983), these programs are
included in the scope of Executive Order 12372, which requires
intergovernmental consultation with State and local officials. The
Child Nutrition Programs are federally funded Programs administered at
the State level. FNS headquarters and regional office staff engage in
ongoing formal and informal discussions with State and local officials
regarding Program operational issues. This structure of the Child
Nutrition Programs allows State and local agencies to provide feedback
that contributes to the development of meaningful and feasible Program
requirements.
Executive Order 13132
Executive Order 13132 requires Federal agencies to consider the
impact of their regulatory actions on State and local governments.
Where such actions have federalism implications, agencies are directed
to provide a statement for inclusion in the preamble to the regulations
describing the agency's considerations in terms of the three categories
called for under Section (6)(b)(2)(B) of Executive Order 13121.
1. Prior Consultation With State Officials
FNS headquarters and regional offices have formal and informal
discussions with State agency officials on an ongoing basis regarding
the Child Nutrition Programs and policy issues. Prior to drafting this
proposed rule, FNS held several conference calls and webinars with the
State agencies to discuss the phased-in implementation of the community
eligibility provision as prescribed by the HHFKA. FNS also shared
information with State officials at national, regional and state level
conferences. These opportunities allowed for exchange of information
that aided in the development of this proposed rule. Issues identified
during the phased-in implementation of the community eligibility
provision were also taken into consideration.
2. Nature of Concerns and the Need To Issue This Rule
State agencies identified the absence of non-identifying household
information for other education related purposes, such as Title I
funding allocation, as an issue. The HHFKA does not allow LEAs and
schools to collect household applications for free and reduced price
meals while participating in the community eligibility provision. This
alternative reimbursement option is designed to increase access to
school meals while maximizing the use of existing information and
eliminating the burden associated with collecting household
applications.
3. Extent to Which the Department Meets Those Concerns
FNS has considered the concerns raised by stakeholders. We have
attempted to balance the statutory requirement prohibiting the use of
[[Page 65897]]
household applications for the purpose of identifying students eligible
for free and reduced price meals in the community eligibility provision
with the reported need of LEAs and schools to access household
information for other education-related purposes. The preamble to this
rule explains that LEAs and schools are allowed to develop alternative
methods to collect household socio-economic data and lists a few
restrictions intended to ensure that such collection of data is
conducted separately from the NSLP and SBP. In addition, FNS has
communicated with the Department of Education on several occasions, and
with the Federal Communication Commission to provide information to
assist them in the development of their community eligibility guidance
materials related to funding distribution under their assistance
programs.
Executive Order 12988
This proposed rule has been reviewed under Executive Order 12988,
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 and timely implementation. This rule is not intended to have
retroactive effect unless so specified in the Effective Dates section
of the final rule. Prior to any judicial challenge to the provisions of
the final rule, appeal procedures in Sec. 210.18(q) and Sec.
235.11(f) of this chapter must be exhausted.
Executive Order 13175
Executive Order 13175 requires Federal agencies to consult and
coordinate with Tribes on a government-to-government basis on policies
that have Tribal implications, including regulations, legislative
comments or proposed legislation, and other policy statements or
actions that have substantial direct effects on one or more Indian
Tribes, on the relationship between the Federal Government and Indian
Tribes, or on the distribution of power and responsibilities between
the Federal Government and Indian Tribes. In spring 2011, FNS offered
five opportunities for consultation with Tribal officials or their
designees to discuss the impact of the Healthy, Hunger-Free Kids Act of
2010 on Indian tribes or Indian Tribal governments. FNS followed up
with a conference call on February 13, 2013, and has scheduled
additional calls for May 22, 2013; August 21, 2013; and November 6,
2013. These consultation sessions have provided and will continue to
provide the opportunity to address Tribal concerns related to school
meals. No concerns about the community eligibility provision have been
expressed by the Indian Tribal governments.
The impact of this proposed rule on Tribal members is expected to
be positive. The community eligibility provision facilitates access to
free school meals in high-need LEAs and schools, and enhances program
efficiency by eliminating the need to collect household applications.
Providing free meals to all students through community eligibility
would support Tribal efforts to reduce obesity and diabetes in their
communities by providing nutritional balanced meals and helping
children develop healthful eating habits early in life.
USDA will respond in a timely and meaningful manner to all Tribal
government requests for consultation concerning this rule and will
provide additional venues, such as webinars and teleconferences, to
host collaborative conversations with Tribal officials or their
designees concerning ways to improve this rule in Indian country. We
are unaware of any current Tribal laws that could be in conflict with
the proposed rule. We request that commenters address any concerns in
this regard in their responses.
Civil Rights Impact Analysis
FNS has reviewed this proposed rule in accordance with Department
Regulation 4300-4, ``Civil Rights Impact Analysis,'' to identify any
major civil rights impacts the rule might have on children on the basis
of age, race, color, national origin, sex, or disability. A careful
review of the rule's intent and provisions revealed that this proposed
rule is not intended to reduce a child's ability to participate in the
National School Lunch Program, School Breakfast Program, Fresh Fruit
and Vegetable Program, or Special Milk Program. The community
eligibility provision provides all children enrolled in and attending
the eligible schools access to free school meals.
Paperwork Reduction Act
The Paperwork Reduction Act of 1995 (44 U.S.C. Chap. 35; see 5 CFR
Part 1320), requires that the Office of Management and Budget (OMB)
approve all collections of information by a Federal agency from the
public before they can be implemented. Respondents are not required to
respond to any collection of information unless it displays a current,
valid OMB control number. This collection is a revision of a currently
approved collection for Determining Eligibility for Free and Reduced
Price Meals, OMB control 0584-0026 (7 CFR Part 245). The
current approval for the information collection burden associated with
7 CFR Part 245 expires on April 30, 2016. This revision consists of the
proposed rule, National School Lunch Program and School Breakfast
Program: Eliminating Applications through Community Eligibility as
Required by the Healthy, Hunger-Free Kids Act of 2010. The proposed
rule is intended to improve school meal program access for low-income
children and reduce paperwork for households and program
administrators. The current collection burden inventory for Determining
Eligibility for Free and Reduced Price Meals is 965,645. This revision
will reduce reporting burden by 6,571 hours and increase recordkeeping
burden by 80 hours for an overall reduction of 6,491 hours, resulting
in a total collection burden inventory of 959,154 hours. These changes
are contingent upon OMB approval under the Paperwork Reduction Act of
1995. When the information collection requirements have been approved,
FNS will publish a separate action in the Federal Register announcing
OMB's approval.
Written comments on the information collection in this proposed
rule must be received by February 3, 2014.
Send written comments to the Office of Information and Regulatory
Affairs, OMB, Attention: Desk Officer for FNS, Washington, DC 20503.
Please also send a copy of your comments to Margaret Applebaum, Program
Analysis and Monitoring Branch, Child Nutrition Division, 3101 Park
Center Drive, Room 640, Alexandria, VA 22302. For further information,
or for copies of the information collection requirements, please
contact Margaret Applebaum at the address indicated above. Comments
will also be accepted through the Federal eRulemaking Portal. Go to
http://www.regulations.gov, and follow the online instructions for
submitting comments electronically.
Comments are invited on: (1) Whether the proposed collection of
information is necessary for the proper performance of the Agency's
functions, including whether the information will have practical
utility; (2) the accuracy of the Agency's estimate of the proposed
information collection burden, including the validity of the
methodology and assumptions used; (3) ways to enhance the quality,
utility and clarity of the information to be collected; and (4) ways to
minimize the burden of the collection of information on those who are
to respond, including
[[Page 65898]]
use of appropriate automated, electronic, mechanical, or other
technological collection techniques or other forms of information
technology.
All responses to this notice will be summarized and included in the
request for Office of Management and Budget (OMB) approval, and will
become a matter of public record.
Title: National School Lunch Program and School Breakfast Program:
Eliminating Applications through Community Eligibility as Required by
the Healthy, Hunger-Free Kids Act of 2010.
OMB Number: 0584-0026.
Expiration Date: April 30, 2016.
Type of Request: Revision of a currently approved collection.
Abstract: The Food and Nutrition Service administers the National
School Lunch Program, the School Breakfast Program, and the Special
Milk Program as mandated by the Richard B. Russell National School
Lunch Act (NSLA), as amended (42 U.S.C. 1751, et seq.), and the Child
Nutrition Act of 1966, as amended (42 U.S.C. 1771, et seq.). As
provided in 7 CFR Part 245, schools participating in these meal
programs must make free and reduced price meals available to eligible
children.
This rule proposes to amend the eligibility regulations for free
and reduced price meals under the National School Lunch Program (NSLP)
and School Breakfast Program (SBP) to codify the statutory provision
that establishes the community eligibility provision, a reimbursement
option for eligible local educational agencies (LEAs) and schools that
wish to offer free school meals to all children in high poverty schools
without collecting household applications for a period of four years.
Eligibility to participate in the provision is based on an identified
student percentage (ISP) derived from the claiming percentages of
students eligible for free meals who are not subject to verification as
prescribed in section Sec. 245.6a(c)(2). Participating LEAs and
schools will receive meal reimbursement based on the ISP derived from
the claiming percentages.
This collection obtains information on LEAs and schools that fall
in one of the following categories of the community eligibility
provision: Eligible to participate (ISP 40% or greater), nearly
eligible (ISP between 30-40%), currently electing (ISP 40% or greater),
or grace year eligible (in fourth year with ISP between 30-40%) and
State agencies that must make the information collected publically
available. For those eligible and electing to participate in the
provision, this collection also eliminates certain LEA and household
reporting and administrative burdens associated with applications for
free and reduced price meals.
This proposed rule is requesting a revision in the burden hours. As
a result of program changes, the revisions result in an overall
reduction of 6,491 hours from current approved burden (decrease of
6,571 reporting burden and slight increase of 80 hours of recordkeeping
burden).
The average burden per response and the annual burden hours for
reporting and recordkeeping are explained below and summarized in the
charts which follow.
Affected Public: Individuals/Households, Local Educational
Agencies, and State Agencies
Estimated Number of Respondents: 8,278,357
Estimated Number of Responses per Respondent: 2.21
Estimated Total Annual Responses: 18,322,111
Estimated Time per Response: 0.258
Estimate Total Annual Burden on Respondents: 959,154
Current OMB Inventory: 965,645
Difference (Burden Revisions Requested): -6,491
Refer to the following tables for estimated total annual reporting
and recordkeeping burden per each type of respondent:
Estimated Annual Recordkeeping Burden for 0584-0026, Determining Eligibility for Free and Reduced Price Meals, 7 CFR 245
--------------------------------------------------------------------------------------------------------------------------------------------------------
Estimated Average Average Difference
Section number of Frequency of annual burden per Annual Previous due to
respondents response responses response burden hours total hours rulemaking
--------------------------------------------------------------------------------------------------------------------------------------------------------
Recordkeeping (State Agencies)
--------------------------------------------------------------------------------------------------------------------------------------------------------
State Agencies review and 245.9(f)(4)(ii)...... 56 9 500 0.080 40 0 40
confirm LEAs eligibility to
participate in provision.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Recordkeeping (Local Education Agency)
--------------------------------------------------------------------------------------------------------------------------------------------------------
LEAs maintain documentation 245.9(h)(3).......... 500 1 500 0.080 40 0 40
related to methodology used
to calculate the identified
student percentage and
determine eligibility.
Total Recordkeeping Burden for ..................... 556 1.80 1000 12.5 80 ............ ............
Proposed Rule.
Total Existing Recordkeeping ..................... ............ ............ ............ ............. 6,059 ............ ............
Burden for Part 245.
Total Recordkeeping Burden for ..................... ............ ............ ............ ............. 6,139 ............ ............
Part 245 with Proposed Rule.
--------------------------------------------------------------------------------------------------------------------------------------------------------
[[Page 65899]]
Estimated Annual Reporting Burden for 0584-0026, Determining Eligibility for Free and Reduced Price Meals, 7 CFR 245
--------------------------------------------------------------------------------------------------------------------------------------------------------
Estimated Average Average Difference
Section number of Frequency of annual burden per Annual Previous due to
respondents response responses response burden hours total hours rulemaking
--------------------------------------------------------------------------------------------------------------------------------------------------------
Reporting (State Agencies)
--------------------------------------------------------------------------------------------------------------------------------------------------------
State agency notify LEAs of 245.9(f)(6).......... 56 85 4769 0.050 239 0 239
their community eligibility
status as applicable.
State agency to make 245.9(f)(7).......... 56 1 56 0.017 1 0 1
publically available the
names of LEAs and schools
receiving notifications.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Reporting (Local Education Agency)
--------------------------------------------------------------------------------------------------------------------------------------------------------
LEAs submit to State agency 245.9(f)(4)(i)....... 500 1 500 0.033 17 0 17
documentation of acceptable
identified student percentage
of LEA/school electing the
provision.
LEA submit to State agency for 245.9(f)(5).......... 5,159 1 5,159 0.0167 86 0 86
publication a list of
potentially eligible schools
and their eligibility status;
unless otherwise exempted by
State agency.
LEAs amend free and reduced 245.9(g)(1).......... 500 1 500 0.250 125 0 125
policy statement and certify
that schools meet eligibility
criteria.
LEAs notify households of 245.6(c)(6)(i)....... 20,358 306 6,231,886 0.02 124,638 125,148 -510
approval of meal benefit
applications.
LEAs must notify households in 245.6(c)(6)(ii)...... 20,358 145 2,942,097 0.020 58,842 62,574 -3,732
writing that children are
eligible for free meals based
on direct certification and
that no application is
required.
LEAs provide written notice to 245.6(c)(7).......... 20,358 17 345,256 0.020 6,905 7,092 -187
each household of denied
benefits.
LEA must enter into written 245.6(j)............. 20,358 1 20,358 0.166 3,379 3,462 -83
agreement with the agency
receiving children's free and
reduced price eligibility
information.
LEAs must determine sample 245.6a(c)............ 20,358 1 20,358 0.330 6,718 6,883 -165
size of households to verify
eligibility.
LEAs notify households of 245.6a(f)............ 20,358 12 249,531 0.250 62,383 62,574 -191
selection for verification.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Reporting (Household)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Households complete 245.6(a)............. 8,236,529 1 8,236,529 0.070 576,557 578,343 -1,786
application form for free or
reduced price meal benefits.
Households assemble written 245.6a(a)(7)(i)...... 189,235 1 189,235 0.500 94,617 95,000 -383
evidence for verification of
eligibility and send to SFA.
Households cooperate with 245.6a(a)(7)(ii)..... 1,892 1 1,892 0.167 316 317 -1
collateral contacts for
verification of eligibility.
Total Reporting Burden for ..................... 8,256,943 2 18,248,125 0.051 934,823 ............ ............
Proposed Rule.
Total Existing Reporting ..................... ............ ............ ............ ............. 959,586 ............ ............
Burden for Part 245.
Total Reporting Burden ..................... ............ ............ ............ ............. (6,571) ............ ............
Decrease for Part 245.
Total Reporting Burden for ..................... ............ ............ ............ ............. 953,015 ............ ............
Part 245 with Proposed Rule.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Summary of Burden (OMB 0584-0026) 7 CFR 245
------------------------------------------------------------------------
------------------------------------------------------------------------
TOTAL NO. RESPONDENTS................................... 8,278,357
AVERAGE NO. RESPONSES PER RESPONDENT.................... 2.213
TOTAL ANNUAL RESPONSES.................................. 18,322,111
[[Page 65900]]
AVERAGE HOURS PER RESPONSE.............................. 0.258
TOTAL BURDEN HOURS FOR PART 245 WITH REVISIONS.......... 959,154
CURRENT OMB INVENTORY FOR PART 245...................... 965,645
DIFFERENCE (BURDEN REVISIONS REQUESTED)................. (6,491)
------------------------------------------------------------------------
E-Government Act Compliance
FNS is committed to complying with the E-Government Act to promote
the use of the Internet and other information technologies to provide
increased opportunities for citizen access to Government information
and services and for other purposes.
List of Subjects
7 CFR Part 245
Civil rights, Food assistance programs, Grant programs--education,
Grant programs--health, Infants and children, Milk, Reporting and
recordkeeping requirements, School breakfast and lunch programs.
PART 245--DETERMINING ELIGIBILITY FOR FREE AND REDUCED PRICE MEALS
AND FREE MILK IN SCHOOLS
0
1. The authority citation for 7 CFR Part 245 continues to read as
follows:
Authority: 42 U.S.C. 1752, 1758, 1759a, 1772, 1773, and 1779.
0
2. In Sec. 245.6, amend paragraph (b)(1)(v) by adding a third sentence
at the end of the paragraph to read as follows.
Sec. 245.6 Application, eligibility and certification of children for
free and reduced price meals and free milk.
* * * * *
(b) * * *
(1) * * *
(v) * * * Local educational agencies or schools electing the
community eligibility provision under Sec. 245.9(f), are required to
conduct direct certification only in the year prior to the first year
of a cycle or, if seeking to update the identified student percentage
in the second, third or fourth year of a cycle.
* * * * *
0
3. In Sec. 245.9:
0
a. Redesignate paragraph (k) as paragraph (m) and redesignate
paragraphs (f) through (j) as paragraphs (g) through (k);
0
b. Add new paragraphs (f) and (l);
0
c. Revise newly redesignated paragraphs (g), (i), (j) and (k);
0
d. Revise the introductory text for newly redesignated paragraph (h)
and add paragraph (h)(3);
0
e. Remove the words ``school food authority'' whenever they appear in
Sec. 245.9 and add, in their place, the words ``local educational
agency'';
0
f. Remove the words ``school food authorities'' whenever they appear in
Sec. 245.9 and add, in their place, the words ``local educational
agencies'';
0
g. Remove the words ``school food authority's'' whenever they appear in
Sec. 245.9 and add, in their place, the words ``local educational
agency's'';
0
h. Remove the words ``paragraph (g)'' whenever they appear in Sec.
245.9 and add, in their place, the words ``paragraph (h)'';
0
i. Remove the words ``paragraphs (g) and (h)'' whenever they appear in
Sec. 245.9 and add, in their place, the words ``paragraphs (h) and
(i)''; and
0
j. Remove the words ``paragraph (k)'' whenever they appear in Sec.
245.9 and add, in their place, the words ``paragraph (m)''.
The revisions and additions read as follows:
Sec. 245.9 Special assistance certification and reimbursement
alternatives.
* * * * *
(f) Community eligibility. The community eligibility provision is a
4-year reimbursement option for eligible high poverty local educational
agencies and schools. Under this provision, a local educational agency
may participate for all schools in the local educational agency or for
only some schools. Participating local educational agencies must offer
free breakfasts and lunches for 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 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. The term identified
students also includes a homeless child, a migrant child, a runaway
child or a Head Start Child, 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 or for certain schools
meeting the requirements of this section beginning on or after July 1,
2014. 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, local educational agencies (other than
a residential child care institution, as that term is set forth in the
definition of ``School'' in Sec. 210.2) and schools must meet the
eligibility criteria set forth in this paragraph.
(i) Minimum identified student percentage. A local educational
agency or school must have an identified student percentage of at least
40 percent, as of April 1 of the school year prior to participating in
the community eligibility provision, unless otherwise specified by FNS.
(ii) Lunch and breakfast program participation. A local educational
agency or school must participate in the National School Lunch Program
and School Breakfast Program, under Parts 210 and 220 of this title.
(iii) Compliance. A local educational agency or school must comply
with the procedures and requirements specified
[[Page 65901]]
in paragraph (f)(4) of this section to participate in the community
eligibility provision.
(4) Community eligibility provision procedures.
(i) Election deadline. A local educational agency that intends to
elect the community eligibility provision for the following year for
all schools or on behalf of certain schools must submit to the State
agency documentation demonstrating the LEA 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 prior school year.
(ii) State agency concurrence. A local educational agency must
obtain State agency concurrence to elect the community eligibility
provision.
(iii) Meals at no charge. A local educational agency must ensure
participating schools offer free reimbursable breakfasts and lunches 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 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 socio-
economic data from children receiving free meals under this section
must develop, conduct and fund this effort totally separate from and
not under the auspices of the National School Lunch Program and 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, or as
otherwise specified by FNS. 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, 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 first year of community eligibility.
(B) To determine the number of lunches to claim for reimbursement,
multiply the free claiming percentage 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 and paid breakfasts to claim for reimbursement, respectively.
(vi) Multiplier factor. A 1.6 factor 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. The local educational agency of a school
participating in community eligibility must pay, with funds from non-
Federal sources, the difference between the cost of serving lunches and
breakfasts at no charge to all participating children and Federal
reimbursement.
(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 of the fourth year of the previous cycle. If
the local educational agency or school meets the eligibility criteria
set forth in paragraph (f)(3) of this section, a new 4-year cycle may
begin, subject to State agency concurrence.
(ix) Grace year. A local educational agency or school in the fourth
year of a community eligibility cycle with an identified student
percentage of less than 40 percent but equal to or greater than 30
percent as of April 1 may continue using community eligibility for a
grace year that is outside of the 4-year cycle. If the local
educational agency or school regains the 40 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 or
school does not regain the required threshold as of April 1 of the
grace year, it 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 or school
as of April 1 of the fourth year of the previous cycle by the 1.6
factor, or the factor as otherwise established by FNS.
(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 40
percent;
(ii) Schools with an identified student percentage that is less
than 40 percent but greater than or equal to 30 percent; and
(iii) Schools currently in year 4 of the community eligibility
provision with an identified student percentage that is less than 40
percent but greater than or equal to 30 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 40 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,
e.g., a blended per meal rate; and the procedures to participate in
community eligibility.
(ii) Local educational agencies with an identified student
percentage that is less than 40 percent district wide but greater than
or equal to 30 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 40
percent but greater than or equal to 30 percent, of the grace year
eligibility.
(7) Public notification requirements. By May 1 of each school year,
the State agency must make the following
[[Page 65902]]
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 40 percent, schools with an identified student
percentage of less than 40 percent but greater than or equal to 30
percent, and schools currently in year 4 of the community eligibility
provision with an identified student percentage that is less than 40
percent but greater than or equal to 30 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 40 percent district wide, local
educational agencies with an identified student percentage that is less
than 40 percent district wide but greater than or equal to 30 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 40
percent but greater than or equal to 30 percent.
(8) Notification data. For purposes of fulfilling the requirements
in paragraphs (f)(5) and (f) (6), 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, or as otherwise established by
FNS guidance, 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 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:
* * * * *
(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. Such documentation must be made
available at any reasonable time for review and audit purposes.
(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, 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 procedures at any time during the school year or for the
following school year if standard procedures better suit the school's
program needs. 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 approval
regarding the restoration of standard operating procedures.
(2) Notify the public and meet the certification and verification
requirements of Sec. 245.6 and Sec. 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), (b), (c), (d), (e) and (f) of this
section are met. For the community eligibility provision, updated
direct certification data must be available to determine the identified
student percentage.
(l) Transferring eligibility for free meals. For student transfers
within a local educational agency, a student's access to free meals
under the special provisions specified in this section must be extended
by a receiving school operating under the standard counting and
claiming procedures for up to 10
[[Page 65903]]
operating school days. For student transfers between local educational
agencies, the free meals may be offered for up to 10 operating school
days at the discretion of the receiving local educational agency.
* * * * *
Dated: October 24, 2013.
Audrey Rowe,
Administrator, Food and Nutrition Service.
[FR Doc. 2013-25922 Filed 11-1-13; 8:45 am]
BILLING CODE 3410-30-P