[Federal Register Volume 62, Number 84 (Thursday, May 1, 1997)]
[Rules and Regulations]
[Pages 23613-23620]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-11350]
========================================================================
Rules and Regulations
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains regulatory documents
having general applicability and legal effect, most of which are keyed
to and codified in the Code of Federal Regulations, which is published
under 50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by the Superintendent of Documents.
Prices of new books are listed in the first FEDERAL REGISTER issue of each
week.
========================================================================
Federal Register / Vol. 62, No. 84 / Thursday, May 1, 1997 / Rules
and Regulations
[[Page 23613]]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF AGRICULTURE
Food and Consumer Service
7 CFR Part 226
RIN 0584-AC07
Child Nutrition and WIC Reauthorization Act of 1989 and Other
Amendments
AGENCY: Food and Consumer Service, USDA.
ACTION: Interim rule, with request for comments.
-----------------------------------------------------------------------
SUMMARY: This interim rule incorporates changes to the Child and Adult
Care Food Program (CACFP) as required by the Child Nutrition and WIC
Reauthorization Act of 1989, the Child Nutrition Improvement Act of
1992, and the Older Americans Act Amendments of 1992. These changes
consist of making one change and one clarification to the requirements
governing participation of adult day care centers in the CACFP;
changing the basis for making commodities available to State agencies;
clarifying the rules governing the participation of for-profit centers
in the CACFP; and making two specific technical adjustments in the
CACFP regulations. This interim rule also clarifies that households
participating in the Food Distribution Program on Indian Reservations
(FDPIR) are categorically eligible as free meal recipients under the
CACFP. These changes are intended to reduce administrative burdens at
the Federal, State, and local levels.
DATES: This rule is effective June 2, 1997. To be assured of
consideration, comments must be postmarked on or before June 30, 1997.
ADDRESSES: Comments should be addressed to Mr. Robert M. Eadie, Chief,
Policy and Program Development Branch, Child Nutrition Division, Food
and Consumer Service, United States Department of Agriculture, 3101
Park Center Drive, Room 1006, Alexandria, Virginia 22302. All written
submissions will be available for public inspection at this location,
Monday through Friday, 8:30 a.m.-5:00 p.m.
FOR FURTHER INFORMATION CONTACT: Mr. Robert M. Eadie or Mr. Edward
Morawetz at the above address or by telephone at (703) 305-2620.
SUPPLEMENTARY INFORMATION:
Executive Order 12866
This interim rule has been determined to be significant and was
reviewed by the Office of Management and Budget under Executive Order
12866.
Regulatory Flexibility Act
This rule has been reviewed with regard to the requirements of the
Regulatory Flexibility Act (5 U.S.C. 601-612). The Administrator of the
Food and Consumer Service has certified that this rule will not have a
significant economic impact on a substantial number of small entities.
This rule will effect State agencies, certain types of institutions in
the CACFP, and households participating in both the FDPIR and the
CACFP, by simplifying and/or clarifying the rules governing their CACFP
participation. The Administrator has determined that these effects do
not constitute a significant economic impact.
Executive Order 12372
The Child and Adult Care Food Program is listed in the Catalog of
Federal Domestic Assistance under No. 10.558 and is subject to the
provisions of Executive Order 12372, which requires intergovernmental
consultation with State and local officials (7 CFR Part 3015, Subpart V
and final rule-related notice at 48 FR 29114, June 24, 1983).
Executive Order 12988
This interim rule has been reviewed under Executive Order 12988,
Civil Justice Reform. This rule is intended to have preemptive effect
with respect to any State or local laws, regulations or policies that
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'' section of this preamble.
Prior to any judicial challenge to the provisions of this rule or the
application of its provisions, all available administrative procedures
must be exhausted. In the Child and Adult Care Food Program, the
administrative procedures are set forth under the following
regulations: (1) Institution appeal procedures in 7 CFR Sec. 226.6(k);
and (2) Disputes involving procurement by State agencies and
institutions must follow administrative appeal procedures to the extent
required by 7 CFR 226.22 and 7 CFR Part 3015.
Information Collection
In accordance with the Paperwork Reduction Act of 1995, this Notice
announces the Food and Consumer Service's (FCS) intention to request
Office of Management and Budget (OMB) review of the proposed
adjustments to be made to the information collections for the Child and
Adult Care Food Program (CACFP) as a result of the interim rule, Child
Nutrition and WIC Reauthorization Act of 1989 and Other Amendments.
To be assured of consideration, comments must be received by June
30, 1997.
Comments concerning the information collection aspects of this
interim rule should be sent to Mr. Robert Eadie at the address listed
in the ADDRESS section of this preamble. Commenters are asked to
separate their information collection requirements from their comments
on the remainder of the interim rule.
Comments are invited on: (a) whether the proposed collection of
information is necessary for the proper performance of the functions of
the agency, including whether the information will have practical
utility; (b) the accuracy of the agency's estimate of the burden of the
proposed collection of information including the validity of the
methodology and assumptions used; (c) ways to enhance the quality,
utility and clarity of the information to be collected; and (d) ways to
minimize the burden of the collection of information on those who are
to respond, including through the use of appropriate automated,
electronic, mechanical, or other technological collection techniques or
other forms of information technology.
The title, description, and respondent description of the
information collections are shown below with an estimate of the annual
reporting and recordkeeping burdens. Included in the estimate is the
time for reviewing
[[Page 23614]]
instructions, searching existing data sources, gathering and
maintaining the data needed, and completing and reviewing the
collection of information.
Title: 7 CFR Part 226, Child and Adult Care Food Program.
OMB Number: 0584-0055.
Expiration Date: April 30, 1997.
Type of request: Revision of existing collection.
Abstract: The interim rule, Child Nutrition and WIC Reauthorization
Act of 1989 and Other Amendments, incorporates changes as required by
the Child Nutrition and WIC Reauthorization Act of 1989, the Child
Nutrition Improvement Act of 1992, and the Older Americans Act
Amendments of 1992.
Collection of Information: Commodity Assistance.
Section 226.5 contains an information collection requirement. As
required by the Paperwork Reduction Act of 1995 (44 U.S.C. 3507 (d)),
the Department has submitted a copy of this section to OMB for its
review.
Donation of Commodities: (Child Care Program).
The formula for making entitlement commodity determinations is
changing from ``current year'' to ``preceding year'' data. The
Department will, at the end of each school year, compare the number of
lunches and suppers actually served in the State during that school
year to the number served in the preceding year and adjust the State's
commodity entitlement accordingly for the subsequent school year.
The information collected includes the number of institutions
participating in CACFP that request commodities. The Department uses
this information to do advance planning in order to provide for the
timely purchase and distribution of commodities. Preference for
commodities and a list of recipients are each collected once each year
from each State agency. Annual reporting burden for this collection of
information is estimated to average 5 hours for each response for 53
State agencies. Thus, the total annual reporting burden for this
collection is 265 hours, and remains unchanged by this interim
regulation.
Collection of Information: Title XX Reimbursement Claims.
Sections 226.6, 226.10, 226.11, and 226.15 contain information
collection requirements. As required by the Paperwork Reduction Act of
1995 (44 U.S.C. 3507 (d)), the Department has submitted a copy of these
sections to OMB for its review.
State Agency Administrative Responsibilities: (Child Care Program).
The CACFP eligibility criteria for private for-profit child care
centers is being changed to permit such centers to participate if at
least 25 percent of their enrolled children, or 25 percent of their
licensed capacity, whichever is less, are title XX recipients. This
provision would help make centers which serve a large number of part-
time title XX children eligible to participate in CACFP.
The information to be collected includes documentation from title
XX centers that are currently providing services for which they receive
compensation under title XX of the Social Security Act, and
certification that not less than 25 percent of enrolled children or 25
percent of licensed capacity, whichever is less, are title XX
beneficiaries. It also includes the review, and approval or denial, of
applications for participation, the processing of claims for
reimbursement, and the maintenance of documentation to support the
claim. This documentation is submitted by centers once each year and
reviewed by the State agency. Annual recordkeeping burden for this
collection of information is estimated to average 8 hours for each
response for 1,742 institutions. The annual reporting burden is
estimated to average 33 hours for each of the 53 State agencies, and
2.3 hours for each of 1,742 institutions. Thus, the annual
recordkeeping burden for this collection is 13,936 hours for
institutions, and the reporting burden is 1,749 hours for State
agencies and 4,007 for institutions.
Collection of Information: Adult Day Care.
Section 226.19a contains an information collection requirement. As
required by the Paperwork Reduction Act of 1995 (44 U.S.C. 3507 (d)),
the Department has submitted a copy of this section to OMB for its
review.
Adult Day Care Center Provisions: (Adult Day Care Program).
This provision extends eligibility to adults attending adult day
care centers, but who reside in group living arrangements. This is
consistent with current program policy.
The collection of information includes documentation to support
that reimbursement is claimed for meals served in centers which serve
individuals that are functionally impaired or 60 years of age or older
in a group, either inside their homes or in a group living arrangement.
Annual recordkeeping burden for this collection of information is
estimated to average 8 hours for each response for 1,025 institutions,
and the annual reporting burden is estimated to average 2.3 hours for
each response for 1,025 institutions. Thus, the total annual
recordkeeping burden for this collection is estimated to be 8,200
hours, and the total annual reporting burden is estimated to be 2,358.
Collection of Information: Technical Clarification Provision.
Sections 226.2 and 226.23 contain information collection
requirements. As required by the Paperwork Reduction Act of 1995 (44
U.S.C. 3507 (d)), the Department has submitted a copy of these sections
to OMB for its review.
Free and Reduced-price meals: (Child Care Program).
This provision provides categorical eligibility to CACFP
participants who also participate in FDPIR. Such households would not
need to submit income information on their application in order to
receive free and reduced price benefits. Indication that they
participate in FDPIR is sufficient.
Implementation of this provision would reduce the reporting burden
for free and reduced-price eligibility determination by 1,200 hours.
Total burden hours in interim rule:
Reporting--8,379
Recordkeeping--22,136
Good Cause
This rule implements substantive and technical changes mandated by
statutory amendments to Section 17 of the National School Lunch Act (42
USC 1766) which do not provide the Secretary with any discretion in
their implementation. Thus, the rule is non-discretionary. For this
reason, the Administrator of the Food and Consumer Service has
determined that, in accordance with 5 USC 553, prior notice and comment
is unnecessary and contrary to public interest. Since the rule merely
implements cited statutory provisions, it constitutes an interpretive
rule for which notice and comment are not required by 5 USC 553. The
rule further implements one technical clarification regarding
categorical eligibility for FDPIR participants. The Administrator of
the Food and Consumer Service has determined that, in accordance with 5
USC 553, prior notice and comment on this technical clarification is
contrary to the public interest and that good cause exists for making
this rule effective thirty days from the date of publication.
Background
On November 10, 1989, the Child Nutrition and WIC Reauthorization
Act of 1989 (Pub. L. 101-147) made several changes to Section 17 of the
National School Lunch Act (NSLA) (42 U.S.C. 1766). In addition to
changing the name of the Program to the Child and Adult Care Food
Program (CACFP) in Section 105(a), Pub. L. 101-147 included
[[Page 23615]]
provisions which: (1) simplified the free and reduced price application
process; (2) established a one-third daily Recommended Dietary
Allowance (RDA) nutritional requirement for lunches served in adult day
care centers; (3) made additional administrative funds available to
family day care home sponsors to reach children located in low-income
or rural areas; (4) permitted State agencies to allow biennial
applications by institutions; (5) allowed governors to designate a
separate State agency to administer only the adult portion of the
CACFP; (6) changed the basis for making commodities available to State
agencies; and (7) made two miscellaneous technical changes.
Congressional explanatory statements on Pub. L. 101-147 (Cong. Rec.
S14021, October 24, 1989) also requested that Program regulations be
amended to reduce to three visits per year the number of facility
visits required of school-sponsored after-school care. This request
will be addressed in a separate rulemaking at a later date.
On August 14, 1992, the Child Nutrition Improvement Act of 1992
(Pub. L. 102-342) amended Section 17(a) of the NSLA (42 U.S.C.
1766(a)). Pursuant to the amendment made in Pub. L. 102-342, any
private for-profit child care center providing nonresidential day care
services may participate in the CACFP if it receives compensation under
title XX of the Social Security Act (42 U.S.C. 1397, et seq.) for at
least 25 percent of its eligible enrolled children or 25 percent of its
licensed capacity, whichever is less.
On September 15, 1992, the Older Americans Act Amendments of 1992
(Pub. L. 102-375) amended Section 17 of the NSLA (42 U.S.C. 1766). This
amendment allows institutions to participate in the CACFP if they
provide adult day care services to functionally impaired adults or to
individuals sixty years of age or older in a group setting outside of
their home or their group living arrangements, on a less than 24-hour
basis.
In response to the above-referenced legislative provisions, the
Department published a final rule on January 16, 1990 (55 FR 1376) that
changed the Program name from the ``Child Care Food Program'' to the
``Child and Adult Care Food Program''. The Department also published a
final rule on July 14, 1993 (58 FR 37847) on a meal pattern to be used
in adult day care centers participating in CACFP. The adult meal
pattern rule contains the requirement found in Section 105(b)(3)(A) of
Pub. L. 101-147 that lunches served in adult day care centers provide
approximately one-third of the Recommended Dietary Allowances to
participating individuals. Finally, the Department has issued a
separate rule, regarding provisions set forth in Pub. L. 101-147
related to the content and processing of free and reduced price
applications in both the CACFP and the Summer Food Service Program for
Children.
This interim rule incorporates in the CACFP regulations other
provisions from Pub. L. 101-147, Pub. L. 102-342, and Pub. L. 102-375
relating to the CACFP. In addition, this interim rule incorporates one
clarifying provision to the CACFP regulations: categorical free meal
eligibility to households participating in the FDPIR.
1. Alternate State Agencies for Adult Day Care
Section 105(b)(3)(B) of Pub. L. 101-147 amended Section 17(o)(6)
(42 U.S.C. 1766(o)(6)) of the NSLA to allow the Governor of a State to
designate a State agency, other than the existing CACFP State agency,
to administer the adult day care component of the CACFP. This change in
the statute recognizes that, in some instances, another State-level
agency may be more cognizant of or capable of meeting the needs of
adults in day care programs due to a long-standing relationship with
the adult day care community and prior administration of other Federal
programs for the elderly.
Accordingly, this interim rule amends Section 226.2 by expanding
the definition of ``State agency'' to include a State agency other than
the existing CACFP State agency, designated by the Governor, to
administer the adult day care component of the CACFP.
2. Commodity Assistance
Section 6(e) of the National School Lunch Act (42 U.S.C. 1755(e))
establishes a per-meal commodity or cash-in-lieu of donated commodity
assistance rate for lunches served under the National School Lunch
Program. Section 17(h)(1) of the Act (42 U.S.C. 1766(h)(1)) authorizes
payment of that rate to States for each lunch and supper served by
institutions participating in the CACFP. Prior to the enactment of Pub.
L. 101-147, the value of commodities donated to each State for any
school year was, by law, calculated by multiplying the number of
lunches and suppers served in CACFP institutions in that State during
the current school year by the rate for commodities established for
that school year. The Department must do considerable advance planning
in order to provide for the timely purchase and distribution of
commodities. Since it cannot know the actual number of lunches and
suppers served until well after the school year is over, it was
difficult under the previous system for the Department to accurately
forecast and purchase commodities for the CACFP.
Congress recognized this problem and in Section 131(b) of Pub. L.
101-147 amended Section 17(h) of the NSLA (42 U.S.C. 1766(h)) to change
the method of calculating commodity assistance. The effect of this
change is that for the CACFP, the value of commodity assistance for
institutions participating in the CACFP will now be calculated by
multiplying the number of lunches and suppers served in participating
institutions during the preceding school year by the current-year rate
for commodities. At the end of each school year, the Department must
determine the actual number of lunches and suppers served during that
year, compare the actual number served in that year with the number
served during the preceding year, and adjust commodity entitlements
upwards or downwards, as necessary. The Department will make such
adjustments in the next school year.
This provision does not affect the payment of cash-in-lieu of
commodities. State agencies electing to receive cash-in-lieu of
commodities for the CACFP will continue to receive payments based upon
the number of meals actually served during the current school year.
Section 17(h) of the NSLA establishes entitlement for cash-in-lieu of
commodities, and payment is made on an ongoing basis as part of the
reimbursement claiming process.
The preamble to the FCS Final Rule ``Cash in Lieu of Donated Foods
and Donation of Foods for Use in the United States, Its Territories and
Possessions and Areas Under Its Jurisdiction'' (published at 58 FR
39113 (July 22, 1993) includes an in-depth discussion of the amendment
made to Section 6(e)(1) of the NSLA by Section 131(a)(1) of Pub. L.
101-147, which changed the base for calculating commodity assistance.
Pub. L. 101-147 has an identical effect on the calculation of commodity
assistance for both the NSLP and the CACFP. As noted in this preamble,
at the Department's discretion, it may make current year adjustments
for significant variations in the number of reimbursable meals served.
Generally, the Department will exercise this discretion only in
exceptional circumstances.
Accordingly, this interim rulemaking amends Section 226.5(b) by
changing the basis for entitlement commodity determinations from
``current year'' to
[[Page 23616]]
``preceding year'' data and by establishing a process under which the
Department will, at the end of each school year, compare the number of
lunches and suppers actually served in the State during that school
year to the number served in the preceding year and adjust the State's
commodity entitlement accordingly for the subsequent school year.
3. Title XX Reimbursement Claims
Section 17(a) of the NSLA (42 U.S.C. 1766(a)) previously allowed
the participation of a proprietary title XX child care center ``if such
organization receive[d] compensation under such title for at least 25
percent of the children for which the organization provides such
nonresidential day care services.'' Section 202 of Pub. L. 102-342
amended this provision to permit a private for-profit center to
participate in CACFP if it receives title XX compensation for at least
25 percent of its enrolled children, or 25 percent of its licensed
capacity, whichever is less.
This provision assists proprietary centers in situations where 25
percent or more of their licensed capacity is used by title XX
recipients, but the actual number of title XX recipients is less than
25 percent of the total number of children enrolled. For example, a
private for-profit day care center has a licensed capacity of 100 and
an enrollment of 125, of which 25 are title XX children. Enrollment
exceeds licensed capacity because a number of children are in part-time
care, and the actual number of children in attendance at any one time
never exceeds licensed capacity. The center is eligible to participate
in the CACFP because 25 percent of the center's licensed capacity (25/
100) consists of title XX children. Similarly, a private for-profit
center has a licensed capacity of 100 and an enrollment of 75, of which
20 are title XX children. The center is eligible to participate in the
CACFP because 27 percent of the center's enrollment (20/75) consists of
title XX children. In both examples, the lesser of the two numbers--
enrollment or licensed capacity--was chosen as a basis for determining
CACFP eligibility.
Pub. L. 102-342 did not amend Section 17(o) of the NSLA, which
permits a private for-profit adult day care center to participate in
the CACFP only if at least 25 percent of its enrolled eligible
participants are title XIX or XX beneficiaries.
Accordingly, this rulemaking amends Sections 226.2, 226.6, 226.10,
226.11, 226.15, 226.17, and 226.19 by changing the CACFP eligibility
criteria for private for-profit child care centers to permit such
centers to participate if at least 25 percent of their enrolled
children, or 25 percent of their licensed capacity, whichever is less,
are title XX recipients.
4. Adult Day Care
Section 811(a) of Pub. L. 102-375 amended Section 17(o)(2)(A)(i) of
the NSLA (42 U.S.C. 1766(o)(2)(A)(i)) to affirm that approved centers
may claim reimbursement for meals served to individuals where the
centers provide day care services to functionally impaired adults or
individuals 60 years of age or older in a group, either outside their
home or outside their group living arrangement. This includes meals
served in a group living arrangement.
The purpose of adult day care, as stated by Congress in the
Conference Report (H. Rept. 100-427) on the Older American Act
Amendments of 1987, is to ``. . . assist its participants to remain in
the community, enabling families and other care givers to continue
caring for an impaired individual at home.'' This report evinces
Congress's intent that CACFP benefits be available to individuals who
attend adult day care while remaining in the community. Accordingly, we
believe it is consistent with Congressional intent to define
individuals remaining in the community as those residing in their own
homes (whether alone or with spouses, children or guardians) or in
group living arrangements. Group living arrangements include
residential communities, which may or may not be subsidized by federal,
State or local funds, but which are private residences housing an
individual or a group of individuals who are primarily responsible for
their own care and who maintain a presence in the community, but who
may receive on-site monitoring. The law's addition of group living
arrangements to this section of the NSLA does not require a change in
previous FCS policy; rather, it confirms that policy.
Under this policy, the Department has interpreted the term ``group
living arrangement'' to exclude residential institutions because the
residents of such institutions no longer remain in the community or
reside with family members or other caregivers who would benefit from
the respite that adult day care services provide. Examples of such
excluded residential institutions would be hospitals, nursing homes,
asylums for the mentally ill or for persons with mental or physical
disabilities, convalescent homes, apartment complexes designed only for
the functionally impaired that provide meals and full-time care,
hospices, and assisted living retirement facilities.
The Department also believes it necessary to emphasize that each
adult day care center must maintain records that document that
qualified adult day care participants reside in their own homes
(whether alone or with spouses, children or guardians) or in group
living arrangements as newly defined in Section 226.2.
Accordingly, this rulemaking amends Sections 226.2 and 226.19a to
make clear that adult day care centers may receive meal reimbursement
under the CACFP if they provide day care services to qualified persons
in a group setting, either outside their homes or their group living
arrangement and must document each participant's living arrangement.
5. Technical Clarification Provision
This provision clarifies that households participating in the FDPIR
are ``categorically eligible'' to receive free meals in the CACFP. In
accordance with Section 9(b)(6) of the NSLA (42 U.S.C. 1758(b)(6)),
households receiving food stamps under the Food Stamp Act of 1977, as
amended (7 U.S.C. 2011, et seq.) (FSA) are ``categorically eligible''
to receive free meals under the Child Nutrition Programs. The FDPIR is
authorized by Section 4(b) of the FSA. Under that section, eligible
households may alternatively elect to participate in the FDPIR. Because
eligible households must meet similar criteria to those required for
food stamp eligibility, and since the FDPIR is authorized under the
FSA, households electing to participate in the FDPIR fall within the
NSLA's classification of people ``categorically eligible'' for free
meals in the CACFP.
Accordingly, this rulemaking amends Sections 226.2 and 226.23 to
make clear FDPIR participants are ``categorically eligible'' to receive
free meals in the CACFP.
6. Miscellaneous Technical Amendments
For purposes of Section 17 of the NSLA, Section 310 of Pub. L. 101-
147 redefined the existing term ``handicapped children'' to now be
defined as ``children with handicaps'' (42 U.S.C. 1766(a)). In
addition, the term ``Internal Revenue Code of 1954'' was redefined to
reflect the latest version of the Code, which was published in 1986.
Accordingly, this rule removes the reference to ``handicapped
children'' in the definition of a ``child care center'' at Section
226.2 and replaces it with ``children with handicaps.'' In addition, it
removes the reference to ``mentally or physically handicapped persons''
in the definition of ``children'' at Section 226.2
[[Page 23617]]
and replaces it with ``persons with mental or physical handicaps.''
Finally, references to the Internal Revenue Code at Sections 226.15(a),
226.17(b)(2), 226.19(b)(2), and 226.19a(b)(4) are updated.
List of Subjects in 7 CFR Part 226
Day care, Food assistance programs, Grant programs--health, infants
and children, Surplus agricultural commodities.
Accordingly, the Department is amending 7 CFR Part 226 as follows:
PART 226--CHILD AND ADULT CARE FOOD PROGRAM
1. The authority citation for Part 226 continues to read as
follows:
Authority: Secs. 9, 11, 14, 16, and 17, National School Lunch
Act, as amended (42 U.S.C. 1758, 1759a, 1762a, 1765 and 1766).
2. In Sec. 226.2:
a. Paragraph (a) of the definition of Adult day care center is
amended by adding the words ``or a group living arrangement'' after
``homes''.
b. The definition of Child care center is amended by removing the
words ``handicapped children'' and adding in their place the words
``children with handicaps''.
c. Paragraph (c) of the definition of Children is amended by
removing the words ``mentally or physically handicapped persons'' and
adding in their place the words ``persons with mental or physical
handicaps''.
d. The definition of Documentation is revised.
e. A new definition of FDPIR household is added in alphabetical
order.
f. The definition of Free meal is revised.
g. A new definition of Group living arrangement is added in
alphabetical order.
h. The definition of Proprietary Title XX center is revised.
i. The definition of State agency is amended by adding a new
sentence to the end of the paragraph.
j. The definition of Verification is amended by revising the fourth
sentence.
The additions and revisions specified above read as follows:
Sec. 226.2 Definitions.
* * * * *
Documentation means:
(a) The completion of the following information on a free and
reduced-price application:
(1) Names of all household members;
(2) Income received by each household member, identified by source
of income (such as earnings, wages, welfare, pensions, support
payments, unemployment compensation, social security and other cash
income);
(3) The signature of an adult household member; and
(4) The social security number of the adult household member who
signs the application, or an indication that he/she does not possess a
social security number; or
(b) For a child who is a member of a food stamp or FDPIR household
or an AFDC assistance unit, ``documentation'' means the completion of
only the following information on a free and reduced-price application:
(1) The name(s) and appropriate food stamp, FDPIR or AFDC case
number(s) for the child(ren); and
(2) The signature of an adult member of the household; or
(c) For a child in a tier II day care home who is a member of a
household participating in a Federally or State supported child care or
other benefit program with an income eligibility limit that does not
exceed the eligibility standard for free and reduced-price meals:
(1) The name(s), appropriate case number(s) and name of qualifying
program(s) for the child(ren); and
(2) The signature of an adult member of the household; or
(d) For an adult participant who is a member of a food stamp or
FDPIR household or is an SSI or Medicaid participant, as defined in
this section, ``documentation'' means the completion of only the
following information on a free and reduced-price application:
(1) The name(s) and appropriate food stamp or FDPIR case number(s)
for the participant(s) or the adult participant's SSI or Medicaid
identification number, as defined in this section; and
(2) The signature of an adult member of the household.
* * * * *
FDPIR household means any individual or group of individuals which
is currently certified to receive assistance as a household under the
Food Distribution Program on Indian Reservations.
* * * * *
Free meal means a meal served under the Program to a participant
from a family that meets the income standards for free school meals; or
to a child who is automatically eligible for free meals by virtue of
food stamp, FDPIR or AFDC recipiency; or to an adult participant who is
automatically eligible for free meals by virtue of food stamp or FDPIR
recipiency or is a SSI or Medicaid participant. Regardless of whether
the participant qualified for free meals by virtue of meeting one of
the criteria of this definition, neither the participant nor any member
of their family shall be required to pay or to work in the food service
program in order to receive a free meal.
* * * * *
Group living arrangement means residential communities which may or
may not be subsidized by federal, State or local funds but which are
private residences housing an individual or a group of individuals who
are primarily responsible for their own care and who maintain a
presence in the community but who may receive on-site monitoring.
* * * * *
Proprietary Title XX center means any private, for profit center:
(a) Providing nonresidential child care services for which it
receives compensation from amounts granted to the States under title XX
of the Social Security Act, and in which title XX child care
beneficiaries constitute no less than 25 percent of enrolled eligible
participants or licensed capacity, whichever is less, during the
calendar month preceding initial application or annual reapplication
for Program participation; or,
(b) Providing nonresidential adult day care services for which it
receives compensation from amounts granted to the States under title XX
of the Social Security Act and in which adult beneficiaries were not
less than 25 percent of enrolled eligible participants during the
calendar month preceding initial application or annual reapplication
for Program participation.
* * * * *
State agency * * * This also may include a State agency other than
the existing CACFP State Agency, when such agency is designated by the
Governor of the State to administer only the adult day care component
of the CACFP.
* * * * *
Verification * * * However, if a food stamp, FDPIR or AFDC case
number is provided for a child, verification for such child shall
include only confirmation that the child is included in a currently
certified food stamp or FDPIR household or AFDC assistance unit; or,
for an adult participant, if a food stamp or FDPIR case number or SSI
or Medicaid assistance identification number is provided, verification
for such participant shall include only confirmation that the
participant is included in a currently certified food stamp or FDPIR
household or is a current SSI or Medicaid participant.
* * * * *
[[Page 23618]]
3. In Sec. 226.5, paragraph (b) is revised to read as follows:
Sec. 226.5 Donation of commodities.
* * * * *
(b) The value of such commodities donated to each State for each
school year shall be, at a minimum, the amount obtained by multiplying
the number of reimbursable lunches and suppers served in participating
institutions in that State during the preceding school year by the rate
for commodities established under section 6(e) of the Act for the
current school year. Adjustments shall be made at the end of each
school year to reflect the difference between the number of
reimbursable lunches and suppers served during the preceding year and
the number served during the current year, and subsequent commodity
entitlement shall be based on the adjusted meal counts. At the
discretion of FCS, current-year adjustments may be made for significant
variations in the number of reimbursable meals served. Such current-
year adjustments will not be routine and will only be made for unusual
problems encountered in a State, such as a disaster that necessitates
institutional closures for a prolonged period of time. CACFP State
agencies electing to receive cash-in-lieu of commodities will receive
payments based on the number of reimbursable meals actually served
during the current school year.
4. In Sec. 226.6:
a. Paragraph (b)(8) is revised.
b. Paragraph (c)(11) is revised.
The revisions specified above read as follows:
Sec. 226.6 State agency administrative responsibilities.
* * * * *
(b) * * *
(8) For proprietary title XX child care centers, submission of
documentation that they are currently providing nonresidential day care
services for which they receive compensation under title XX of the
Social Security Act, and certification that not less than 25 percent of
enrolled children or 25 percent of licensed capacity, whichever number
is less, in each such center during the most recent calendar month were
title XX beneficiaries. In the case of title XIX or title XX adult day
care centers, submission of documentation that they are currently
providing nonresidential day care services for which they receive
compensation under title XIX or title XX of the Social Security Act,
and certification that not less than 25 percent of enrolled adult
participants in each such center during the most recent calendar month
were title XIX or title XX beneficiaries;
* * * * *
(c) * * *
(11) The claiming of Program payment for meals served by a
proprietary title XX child care center during a calendar month in which
less than 25 percent of enrolled children or 25 percent of licensed
capacity, whichever number is less, were title XX beneficiaries. In the
case of an adult day care center, the claiming of Program payment for
meals served by a proprietary title XIX or title XX center during a
calendar month in which less than 25 percent of enrolled adult
participants were title XIX or title XX beneficiaries.
* * * * *
5. In Sec. 226.10, paragraph (c) is revised to read as follows:
Sec. 226.10 Program payment procedures.
* * * * *
(c) Claims for Reimbursement shall report information in accordance
with the financial management system established by the State agency,
and in sufficient detail to justify the reimbursement claimed and to
enable the State agency to provide the final Report of the Child and
Adult Care Food Program (FCS 44) required under Sec. 226.7(d). In
submitting a Claim for Reimbursement, each institution shall certify
that the claim is correct and that records are available to support
that claim. Independent proprietary title XX child care centers shall
submit the number and percentage of the enrolled participants, or the
licensed capacity receiving title XX benefits for the month claimed for
months in which not less than 25 percent of the enrolled children or 25
percent of licensed capacity, whichever is less, were title XX
beneficiaries. Sponsoring organizations of such child care centers
shall submit the number and percentage of the enrolled children or
licensed capacity, whichever is less, receiving title XX benefits for
each center for the claim. Sponsoring organizations of such centers
shall not submit claims for child care centers in which less than 25
percent of the enrolled children and licensed capacity were title XX
beneficiaries for the month claimed. Independent proprietary title XIX
or title XX adult day care centers shall submit the percentages of
enrolled adult participants receiving title XIX or title XX benefits
for the month claimed for months in which not less than 25 percent of
enrolled adult participants were title XIX or title XX beneficiaries.
Sponsoring organizations of such adult day care centers shall submit
the percentage of enrolled adult participants receiving title XIX or
title XX benefits for each center for the claim. Sponsoring
organizations of such centers shall not submit claims for adult day
care centers in which less than 25 percent of enrolled adult
participants were title XIX or title XX beneficiaries for the month
claimed.
* * * * *
6. In Sec. 226.11, paragraph (b) and the introductory text of
paragraph (c) are revised to read as follows:
Sec. 226.11 Program payments for child care centers, adult day care
centers and outside-school-hours care centers.
* * * * *
(b) Each child care institution shall report each month to the
State agency the total number of meals, by type (breakfasts, lunches,
suppers, and supplements), served to children, except that such reports
shall be made for a proprietary title XX center only for calendar
months during which not less than 25 percent of enrolled children, or
25 percent of licensed capacity, whichever is less, were title XX
beneficiaries. Each adult day care institution shall report each month
to the State agency the total number of meals, by type (breakfasts,
lunches, suppers, and supplements), served to adult participants,
except that such reports shall be made for a proprietary title XIX or
title XX center only for calendar months during which no less than 25
percent of enrolled adult participants were title XIX or title XX
beneficiaries.
(c) Each State agency shall base reimbursement to each child care
institution on the number of meals, by type, served to children
multiplied by the assigned rates of reimbursement, except that
reimbursement shall be payable to proprietary title XX child care
centers only for calendar months during which not less than 25 percent
of enrolled children, or 25 percent of licensed capacity, whichever is
less, were title XX beneficiaries. Each State agency shall base
reimbursement to each adult day care institution on the number of
meals, by type, served to adult participants multiplied by the assigned
rates of reimbursement, except that reimbursement shall be payable to
proprietary title XIX and title XX adult day care centers only for
calendar months during which not less than 25 percent of enrolled adult
participants were title XIX or Title XX beneficiaries. In computing
reimbursement, the State agency shall either:
* * * * *
7. In Sec. 226.15:
[[Page 23619]]
a. Paragraph (a) is amended by removing ``1954'' and adding
``1986'' in its place.
b. Paragraph (b)(6) is revised.
The revision specified above reads as follows:
Sec. 226.15 Institution provisions.
* * * * *
(b) * * *
(6) For each proprietary title XX child care center, documentation
that it provides nonresidential day care services for which it receives
compensation under title XX of the Social Security Act, and
certification that not less than 25 percent of the enrolled children,
or 25 percent of the licensed capacity, whichever is less, during the
most recent calendar month were title XX beneficiaries. For each
proprietary title XIX or title XX adult day care center, documentation
that it provides nonresidential day care services for which it receives
compensation under title XIX or title XX of the Social Security Act,
and certification that not less than 25 percent of the adult
participants enrolled during the most recent calendar month were title
XIX or title XX beneficiaries. Sponsoring organizations shall provide
documentation and certification for each proprietary title XIX or title
XX center under its jurisdiction.
* * * * *
Sec. 226.17 Amended
8. In Sec. 226.17:
a. Paragraph (b)(2) is amended by removing ``1954'' and adding
``1986'' in its place.
b. The second sentence of paragraph (b)(4) is amended by adding the
words ``, or 25 percent of licensed capacity, whichever is less,''
after the word ``children'' the third time it appears.
Sec. 226.19 Amended
9. In Sec. 226.19:
a. Paragraph (b)(2) is amended by removing ``1954'' and adding
``1986'' in its place.
b. The third sentence of paragraph (b)(5) is amended by adding the
words ``or 25 percent of licensed capacity, whichever is less,'' after
``children'' the third time it appears.
10. In Sec. 226.19a:
a. The first sentence of paragraph (b)(3) is amended by adding the
words ``or a group living arrangement'' after ``home''.
b. The first sentence of paragraph (b)(4) is amended by removing
``1954'' and adding ``1986'' in its place.
c. Paragraph (b)(10) is amended by adding a new sentence to the end
of the paragraph.
The addition specified above reads as follows:
Sec. 226.19a Adult day care center provisions.
* * * * *
(b) * * *
(10) * * * Finally, each adult day care center shall maintain
records which document that qualified adult day care participants
reside in their own homes (whether alone or with spouses, children or
guardians) or in group living arrangements as defined in Sec. 226.2.
11. In Sec. 226.23:
a. The second sentence of paragraph (c)(2) is amended by adding the
words ``or FDPIR'' after the words ``food stamp'' each time they
appear.
b. The fifth and seventh sentences of paragraph (d) are amended by
adding the words ``or FDPIR'' after the words ``food stamp'' each time
they appear.
c. The sixth sentence of paragraph (e)(1)(i) is amended by adding
the words ``or FDPIR'' after the words ``food stamp'' each time they
appear.
d. Paragraph (e)(1)(ii)(F) is amended by adding to the first
sentence ``, FDPIR'' after the words ``food stamp'' and by revising the
seventh sentence.
e. Paragraph (e)(1)(iii)(E) is amended by adding to the first
sentence the words ``or FDPIR'' after the words ``food stamp'' and by
revising the seventh sentence.
f. Paragraph (e)(1)(iv) is revised.
g. The introductory text of paragraph (e)(1)(v) and paragraph
(e)(1)(v)(A) are amended by adding the words ``or FDPIR'' after the
words ``food stamp'' each time they appear.
h. Paragraph (e)(1)(v)(B) is revised and the undesignated text
following the paragraph is removed.
i. Paragraphs (e)(2)(vii)(A) and (e)(2)(vii)(B) are revised.
j. Paragraph (h)(2)(i) is amended by revising the second sentence.
k. Paragraph (h)(2)(iii)(A) is revised.
l. Paragraph (h)(2)(iii)(D) is amended by adding the words
``FDPIR,'' between the words ``or'' and ``AFDC''.
m. Paragraph (h)(2)(iv) is revised.
n. Paragraph (h)(2)(v)(A) is revised.
o. Paragraph (h)(2)(v)(C) is amended by revising the second
sentence.
p. Paragraph (h)(2)(vi) is amended by adding the word ``FDPIR,''
between the words ``stamps,'' and ``AFDC''.
The revisions specified above read as follows:
Sec. 226.23 Free and reduced-price meals.
* * * * *
(e)(1) * * *
(ii) * * *
(F) * * * These verification efforts may be carried out through
program reviews, audits, and investigations and may include contacting
employers to determine income, contacting a food stamp, Indian tribal
organization or welfare office to determine current certification for
receipt of food stamps, FDPIR or AFDC benefits, contacting the State
employment security office to determine the amount of benefits
received, and checking the documentation produced by household members
to prove the amount of income received. * * *
* * * * *
(iii) * * *
(E) * * * These verification efforts may be carried out through
program reviews, audits and investigations and may include contacting
employers to determine income, contacting a food stamp, Indian tribal
organization or welfare office to determine current certification for
receipt of food stamps or FDPIR benefits, contacting the issuing office
of SSI or Medicaid benefits to determine current certification for
receipt of these benefits, contacting the State employment security
office to determine the amount of benefits received, and checking the
documentation produced by household members to provide the amount of
income received. * * *
* * * * *
(iv) If they so desire, households applying on behalf of children
who are members of food stamp or FDPIR households or AFDC assistance
units may apply for free meal benefits under this paragraph rather than
under the procedures described in paragraph (e)(1)(ii) of this section.
In addition, households of children enrolled in tier II day care homes
who are participating in a Federally or State supported child care or
other benefit program with an income eligibility limit that does not
exceed the eligibility standard for free and reduced price meals may
apply under this paragraph rather than under the procedures described
in paragraph (e)(1)(ii) of this section. Households applying on behalf
of children who are members of food stamp or FDPIR households, AFDC
assistance units, or, for children enrolled in tier II day care homes,
other qualifying Federal or State program, shall be required to
provide:
(A) The names and food stamp, FDPIR, AFDC, or for tier II homes,
other case numbers of the child(ren) for whom automatic free meal
eligibility is claimed; and
(B) The signature of an adult member of the household as provided
for in paragraph (e)(1)(ii)(G) of this section. In accordance with
paragraph (e)(1)(ii)(F) of this section, if a case number is
[[Page 23620]]
provided, it may be used to verify the current certification for the
child(ren) for whom free meal benefits are claimed. Whenever households
apply for benefits for children not receiving food stamp, FDPIR, AFDC,
or for tier II homes, other qualifying Federal or State program
benefits, they must apply in accordance with the requirements set forth
in paragraph (e)(1)(ii) of this section.
(v) * * *
(B) The signature of an adult member of the household as provided
in paragraph (e)(1)(iii)(F) of this section. In accordance with
paragraph (e)(1)(iii)(G) of this section, if a food stamp or FDPIR case
number or SSI or Medicaid assistance identification number is provided,
it may be used to verify the current food stamp, FDPIR, SSI, or
Medicaid certification for the adult(s) for whom free meal benefits are
being claimed. Whenever households apply for benefits for adults not
receiving food stamp, FDPIR, SSI, or Medicaid benefits, they must apply
in accordance with the requirements set forth in paragraph (e)(1)(iii)
of this section.
(2) * * *
(vii) * * *
(A) In the case of households of enrolled children that provide a
food stamp, FDPIR or AFDC case number to establish a child's
eligibility for free meals, any termination in the child's
certification to participate in the Food Stamp, FDPIR or AFDC Programs,
or
(B) In the case of households of adult participants that provide a
food stamp or FDPIR case number or an SSI or Medicaid assistance
identification number to establish an adult's eligibility for free
meals, any termination in the adult's certification to participate in
the Food Stamp, FDPIR, SSI or Medicaid Programs.
* * * * *
(h) * * *
(2) * * *
(i) * * * However,
(A) If a food stamp, FDPIR or AFDC case number is provided for a
child, verification for such child shall include only confirmation that
the child is included in a currently certified food stamp or FDPIR
household or AFDC assistance unit; or
(B) If a food stamp or FDPIR case number or SSI or Medicaid
assistance identification number is provided for an adult, verification
for such adult shall include only confirmation that the adult is
included in a currently certified food stamp or FDPIR household or is
currently certified to receive SSI or Medicaid benefits.
* * * * *
(iii) * * *
(A) Section 9 of the National School Lunch Act requires that,
unless households provide the child's food stamp, FDPIR or AFDC case
number, or the adult participant's food stamp or FDPIR case number or
SSI or Medicaid assistance identification number, those selected for
verification must provide the social security number of each adult
household member;
* * * * *
(iv) Households of enrolled children selected for verification
shall also be informed that if they are currently certified to
participate in the Food Stamp, FDPIR, or AFDC Program they may submit
proof of that certification in lieu of income information. In those
cases, such proof shall consist of a current ``Notice of Eligibility''
for Food Stamp, FDPIR, or AFDC Program benefits or equivalent official
documentation issued by a food stamp, Indian Tribal Organization, or
welfare office which shows that the children are members of households
or assistance units currently certified to participate in the Food
Stamp, FDPIR, or AFDC Programs. An identification card for any of these
programs is not acceptable as verification unless it contains an
expiration date. Households of enrolled adults selected for
verification shall also be informed that if they are currently
certified to participate in the Food Stamp Program or FDPIR or SSI or
Medicaid Programs, they may submit proof of that certification in lieu
of income information. In those cases, such proof shall consist of:
(A) A current ``Notice of Eligibility'' for Food Stamp or FDPIR
benefits or equivalent official documentation issued by a food stamp,
Indian Tribal Organization, or welfare office which shows that the
adult participant is a member of a household currently certified to
participate in the Food Stamp Program or FDPIR. An identification card
is not acceptable as verification unless it contains an expiration
date; or
(B) Official documentation issued by an appropriate SSI or Medicaid
office which shows that the adult participant currently receives SSI or
Medicaid assistance. An identification card is not acceptable as
verification unless it contains an expiration date. All households
selected for verification shall be advised that failure to cooperate
with verification efforts will result in a termination of benefits.
(v) * * *
(A) Written evidence shall be used as the primary source of
information for verification. Written evidence includes written
confirmation of a household's circumstances, such as wage stubs, award
letters, letters from employers, and, for enrolled children, current
certification to participate in the Food Stamp, FDPIR or AFDC Programs,
or, for adult participants, current certification to participate in the
Food Stamp, FDPIR, SSI or Medicaid Programs. Whenever written evidence
is insufficient to confirm eligibility, the State agency may use
collateral contacts.
* * * * *
(C) * * * Information concerning income, family size, or food
stamp/FDPIR/AFDC certification for enrolled children, or food stamp/
FDPIR/SSI/Medicaid certification for enrolled adults, which is
maintained by other government agencies and to which a State agency can
legally gain access may be used to confirm a household's eligibility
for Program meal bene-
fits. * * *
* * * * *
Dated; April 10, 1997.
Mary Ann Keeffe,
Acting Under Secretary for Food, Nutrition, and Consumer Services.
[FR Doc. 97-11350 Filed 4-30-97; 8:45 am]
BILLING CODE 3410-30-U
