[Federal Register Volume 63, Number 222 (Wednesday, November 18, 1998)]
[Rules and Regulations]
[Pages 63969-63975]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-30753]
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Rules and Regulations
Federal Register
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Federal Register / Vol. 63, No. 222 / Wednesday, November 18, 1998 /
Rules and Regulations
[[Page 63969]]
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DEPARTMENT OF AGRICULTURE
Food and Nutrition Service
7 CFR Part 246
RIN 0584-ACO2
Special Supplemental Nutrition Program for Women, Infants and
Children (WIC): Implementation of WIC Mandates of Public Law 103-448,
the Healthy Meals for Healthy Americans Act of 1994 and Public Law 103-
227, the Pro-Children Act of 1994
AGENCY: Food and Nutrition Service, USDA.
ACTION: Final rule.
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SUMMARY: This final rule amends regulations governing the Special
Supplemental Nutrition Program for Women, Infants and Children (WIC) to
incorporate certain nondiscretionary provisions of the Healthy Meals
for Healthy Americans Act of 1994, enacted on November 2,1994, the Pro-
Children Act of 1994, enacted on August 31, 1994, the Cash Management
Improvement Act of 1990, enacted on October 24, 1990, and the Personal
Work Responsibility and Reconciliation Act of 1996, enacted on August
22, 1996. The provisions in this final rule include: prohibiting
smoking in WIC facilities; increasing by one the family size of an
otherwise income ineligible pregnant woman for purposes of determining
WIC eligibility; allowing State agencies to deem income eligible
pregnant women presumptively eligible (for a period not to exceed 60
days) without a determination of nutritional risk; increasing the
national breastfeeding promotion and support expenditure; and providing
WIC services at more Community and Migrant Health Centers and Indian
Health Service facilities. These provisions are intended to strengthen
services to participants, increase State agency flexibility and promote
good health practices.
DATES: This rule is effective January 19, 1999.
FOR FURTHER INFORMATION CONTACT: Barbara Hallman, Supplemental Food
Programs Division, Food and Nutrition Service, USDA, 3101 Park Center
Drive, Room 542, Alexandria, Virginia 22302, (703) 305-2730.
SUPPLEMENTARY INFORMATION:
Executive Order 12866
This final rule has been determined to be significant and was
reviewed by the Office of Management and Budget (OMB) under Executive
Order 12866.
Regulatory Flexibility Act
This final rule has been reviewed with regard to the requirements
of the Regulatory Flexibility Act (5 U.S.C. 601-612). Pursuant to that
review, Shirley R. Watkins, Under Secretary for Food, Nutrition and
Consumer Services, has certified that this rule will not have a
significant economic impact on a substantial number of small entities.
This rule provides State and local agencies with greater flexibility:
(1) in a certification process, (2) in the use of funds recovered as a
result of violations in the food delivery system, and (3) the
administration of their infant formula rebate contracts and management
of their food funds. However, the economic impact on program operations
will not be significant.
Paperwork Reduction Act
This final rule imposes no new reporting or recordkeeping
requirements that are subject to OMB for review in accordance with the
Paperwork Reduction Act of 1995 (44 U.S.C. 3507). The information
collection burden for this final rule was previously approved under OMB
#0584-0043.
Executive Order 12372
The Special Supplemental Nutrition Program for Women, Infants and
Children (WIC) is listed in the Catalog of Federal Domestic Assistance
Programs under 10.557 and is subject to Executive Order 12372, which
requires intergovernmental consultation with State and local officials
(7 CFR part 3015, subpart V, and 48 FR 29114 June 24, 1983).
Executive Order 12988
This final 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 which
conflict with its provisions, or which would otherwise impede its full
implementation. This rule is not intended to have retroactive effect
unless so specified in the DATES paragraph of this preamble. Prior to
any judicial challenge to the application of the provisions of this
rule, all applicable administrative procedures must be exhausted.
Public Law 104-4
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Pub.L.
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
Food and Nutrition Service 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 Food and
Nutrition Service to identify and consider a reasonable number of
regulatory alternatives and adopt the least costly, more cost-effective
or least burdensome alternative that achieves the objectives of the
rule.
This rule contains no Federal mandates (under the regulatory
provisions of Title II of the UMRA) for State, local, and tribal
governments or the private sector of $100 million or more in any one
year. Thus today's rule is not subject to the requirements of sections
202 and 205 of the UMRA.
Background
Section 204 of Public Law 103-448, the Healthy Meals for Healthy
Americans Act of 1994, enacted on November 2, 1994, reauthorized the
Special Supplemental Nutrition Program for Women, Infants and Children
(WIC). The statutory authorities for a wide range of WIC Program
functions in areas such as income eligibility determinations,
[[Page 63970]]
program outreach, referral and access, coordination, breastfeeding
promotion, program operations, and cost containment were amended by
section 204. In addition, section 1043 of Pub.L. 103-227, the Pro-
Children Act of 1994, enacted on August 31, 1994, prohibits smoking
within any indoor facility owned or leased or contracted for by an
entity that receives Federal funds for the provision of regular or
routine health care or day care, or early childhood development (Head
Start) services. WIC Program clinics are included among the services
covered by this legislation. These provisions serve the interests of
the President and Congress by improving coordination among programs,
promoting positive pregnancy outcomes and healthy babies, and reducing
administrative burdens for State and local agencies. In addition,
section 724(e)(1)(B)(i) of Pub.L. 104-193, the Personal Responsibility
and Work Opportunity Reconciliation Act of 1996, made a further
amendment regarding coordination with other programs and section 4 of
Pub.L. 101-453, the Cash Management Improvement Act of 1990, made a
change requiring States to pay the United States interest on advances
of Federal funds. These provisions are all nondiscretionary. Further,
State agencies have already been informed that these provisions may be
implemented prior to the issuance of amendments to the program
regulations. For these reasons, the Under Secretary for Food, Nutrition
and Consumer Services has determined that, in accordance with 5 U.S.C.
553 prior notice and comment is unnecessary and contrary to the public
interest. Since this rule merely codifies the cited statutory
provisions, it also constitutes an interpretive rule for which notice
and comment are not required by 5 U.S.C. 553.
1. Definition of Nutritional Risk--246.2
Section 204(a) of Public Law 103-448 amended section 17(b)(8)(B) of
the Child Nutrition Act of 1966 (42 U.S.C. 1786(b)(8)(B)) (CNA) to
change the legislative categorization of alcoholism and drug abuse from
predisposing nutritional risk conditions to conditions that directly
affect the nutritional health of a person. This reclassification is
consistent with new nutrition and health knowledge, and better
represents the classification of these conditions currently used by
States. As a result, homelessness and migrancy now become the only
specific legislative examples of conditions that predispose persons to
inadequate dietary patterns or nutritionally related medical conditions
in the CNA. Accordingly, the definition of nutritional risk in Section
246.2 has been revised to reflect these changes.
2. Prohibition on Smoking in WIC Clinics Provision--246.6(b)(4)
Sections 1043 (b) and (d) of Pub. L. 103-227, the Pro-Children Act
of 1994, require that after December 26, 1994, smoking shall not be
permitted in any indoor facility, or portion thereof, that is owned,
leased, or contracted for by any person that receives Federal funds for
children's services funded under certain programs administered by the
U.S. Department of Health and Human Services, the U.S. Department of
Education, and the U.S. Department of Agriculture. Section 1042(2) of
the Act defines ``children's services'' as: the provision on a routine
or regular basis of health, day care, education, or library services;
WIC clinics are specifically identified in the Act as ``children's
services''. The definition of ``person'' includes State and local
agencies as well as corporations and individuals. Additionally, fiscal
year 1996, 1995 and 1994 appropriations acts for the WIC Program
contained provisions prohibiting the use of appropriated funds to pay
administrative expenses of WIC clinics that had no announced policy
prohibiting smoking within the space used to carry out the Program. The
no-smoking provision in Pub. L. 103-227 is intended to protect children
under the age of 18 from exposure to environmental tobacco smoke while
they are receiving education, library, day care, health care, and early
childhood development services in indoor facilities. The
Administration's goal in implementing this legislative requirement
reflects a strong health protection policy regarding smoking and
environmental tobacco smoke exposure.
In response to the legislative provisions contained in Pub. L. 103-
227, section 246.6 is amended to require all local agency agreements to
contain a provision prohibiting smoking in the space used to carry out
the WIC Program during the time any aspect of WIC services are
performed. The smoking prohibition applies to the portion of the
facility used for WIC Program services. If that portion of the building
is simultaneously used for other purposes, such as community activities
or privately sponsored events, smoking must be prohibited at these
other events as well. This change to the regulations merely formalizes
the current policy directive, which all State agencies have been
operating under since fiscal year 1994. That directive prohibits the
allocation of nutrition service and administrative funds to any WIC
clinic that does not prohibit smoking within the space used for WIC
services during the time the services are being performed. This
regulation therefore merely codifies the current policy, and places no
additional burden on State or local agencies.
3. Service to Pregnant Women Provisions--246.7(d)(1)(iv),
246.7(d)(1)(v), 246.7(d)(2)(vii), 246.7(e)(1)(iii)
a. Family Size Provision
Section 204(c)(1) of Pub. L. 103-448 amended Section 17(d) of the
CNA to add a new subparagraph section 17(d)(2)(C), which extends WIC
eligibility for certain pregnant women. The provision stipulates that
an income-ineligible pregnant woman satisfies income guidelines if the
guidelines would be met by increasing the number of individuals in her
family by one individual. Although the law states that the family size
of the pregnant woman is to be increased by ``one,'' we do not believe,
in cases where the pregnant woman is expecting multiple births, that
Congress intended to totally preclude counting such multiple births. As
such, section 246.7(d)(2)(vii) is amended to allow the family size of a
pregnant woman to be increased by the number of embryos or fetuses in
utero. This provision allows the WIC Program to use the same definition
of family size currently used by the Department of Health and Human
Services' (DHHS) Medicaid Bureau, thereby improving coordination
between the WIC and Medicaid Programs. It also results in certain women
having access to the health benefits of WIC during pregnancy who
previously would have had to wait for the birth of their babies to be
eligible.
The legislation does not specifically address whether the same
income eligibility determination process can be used for the pregnant
woman's other family members, who may also apply for WIC services.
However, it is impractical and administratively burdensome to require
two different income-screening procedures, based on categorical status,
for one family. To do so forces a WIC local agency to activate the
adjunctive eligibility process unnecessarily because the local agency
would have to first refer the family members to the Medicaid Program
for certification, and then ask the family members to return to the WIC
Program so that they may be determined as adjunctively income eligible
for WIC. Therefore, in situations where the family size has been
increased for a
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pregnant woman, the same increased family size may also be used for any
of her categorically eligible family members.
In rare instances, the consideration of unborn children in this
manner may conflict with an applicant's cultural, personal, or
religious beliefs. In recognition of these issues, the regulation
requires State agencies to allow such applicants to waive the automatic
increase in family size.
b. Certification Prior to Documentation of Nutritional Risk
Program regulations permit categorically eligible applicants to be
certified for WIC benefits only if, in addition to meeting residency
and income requirements, they are determined to be at nutritional risk.
In order to determine nutritional risk, height, weight, and bloodwork
must be obtained. Many State agencies have expressed concerns regarding
the availability of bloodwork data for pregnant women at the time of
their application. In some cases, State or local agencies may not have
the essential equipment or staff onsite to perform the bloodwork
assessment. In these situations, the agencies usually have to contract
out for that service, or refer the women to health centers and/or
providers to obtain the necessary data. State agencies also reported
that the bloodwork data requirement has resulted in barriers to
participation for pregnant women. They also reported that this
requirement could, in fact, be an impediment to enrollment of eligible
pregnant women early in pregnancy. Early enrollment is an important
program objective, as well as a legislative requirement.
In response to concerns related to improved and expedited access to
program benefits for pregnant women, section 204(c)(2) of Pub.L. 103-
448, amended section 17(d)(3)(B) of the CNA to allow State agencies to
consider pregnant women who are income eligible for the WIC Program to
be presumed to be nutritionally at risk and thus eligible to
participate in the program. These women may be certified immediately
without the results of a nutritional risk evaluation. The law requires
that a nutritional risk evaluation be completed, however, not later
than 60 days from the date the pregnant woman is certified for
participation. The law stipulates that, if the subsequent assessment
determines that the woman does not meet nutritional risk criteria, her
certification terminate on the date of the determination. The joint
statement of explanation accompanying S.1614 (Congressional Record,
October 6, 1994, S14454) clarifies the positions of the Senate
Committee on Agriculture, Nutrition and Forestry and the House
Committee on Education and Labor on this provision concerning
presumptive eligibility for pregnant women. The Committees expressed
their view that the dietary risk assessment be performed before--or as
soon as possible after--the presumptively eligible pregnant woman
begins receiving WIC benefits. Local agencies thus should strive to
complete the dietary assessment at certification. Ideally, local
agencies should complete the full nutrition risk assessment at
certification or at the earliest possible date thereafter. This allows
the WIC staff to begin to offer appropriate counseling on program
nutrition and diet, as well as complete, appropriate health care
referrals at the earliest opportunity. This information also is
invaluable in developing an appropriate food package.
While the law uses the word ``terminate'' in connection with the
necessary action when a pregnant woman is later found not to meet the
nutritional risk criteria, what is really happening is that the
pregnant woman is being found ineligible for the program. Accordingly,
this action will be treated like an initial determination. That is,
while the pregnant woman must be given an opportunity to appeal the
action, as required under section 246.7(j)(5), there is no requirement
of 15 days notice of the action as for suspensions and most
disqualifications (under section 246.7(j)(6)) and for the expiration of
certification periods (under section 246.7(j)(8)). Nor will the
pregnant woman be able to receive benefits while awaiting the fair
hearing decision. Section 246.9(g) will continue to require benefits
pending resolution of the fair hearing only for those participants who
timely appeal an action under section 246.7(j)(6).
Further, if the nutritional risk evaluation is not completed within
the 60-day timeframe, the pregnant woman's participation may not be
extended beyond the initial 60-day certification period. However, as
set forth in section 246.7(j)(8) for all cases of the expiration of a
certification period, the pregnant woman must be notified not less than
15 days before the expiration of the period that the certification
period is about to expire. Similarly, pregnant women who appeal the
expiration of their certification may not receive WIC benefits while
awaiting the fair hearing decision. The regulations are amended at
section 246.7(e)(1)(iii) to reflect these legislative provisions.
4. Coordination of WIC and Medicaid Program Provisions--246.4(a)(8)
Section 204(e) of Pub.L. 103-448 amended section 17(f)(1)(C)(iii)
of the CNA to require coordination between the WIC Program and State
Medicaid Programs, including Medicaid programs that use coordinated
care providers under a contract entered into under section 1903(m) or a
waiver granted under section 1915 (b) of the Social Security Act (42
U.S.C. 1396 b(m) or 1396n(b)).
Soon after enactment of Pub.L. 103-448, section 729(e)(1)(B)(i) of
Pub.L. 104-193, the Personal Responsibility and Work Opportunity
Reconciliation Act of 1996 (Pub.L. 104-193), amended section
17(f)(1)(C)(iii) of the CNA to replace the listing of specific programs
with which WIC must coordinate with a plan to coordinate WIC operations
with other services or program that may benefit participants in, or
applicants for, the program. As such, the State agency now determines
which services or programs it will coordinate with to meet the specific
needs of its participants and applicants. Section at 246.4(a)(8) is
amended to reflect this later change. Although no longer required by
law, the Department strongly encourages State agencies to continue to
coordinate with Medicaid managed-care providers to ensure that WIC
participants have access to medical benefits, thereby improving their
health status.
5. WIC Services at Community and Migrant Health Centers--
246.4(a)(8) and 246.7(b)(3)
Section 204(u) of Pub.L. 103-448 amended section 17(j) of the CNA
to require that the Secretary of Agriculture and the Secretary of the
Department of Health and Human Services establish and carry out an
initiative to provide WIC services at substantially more community and
migrant health centers. The legislation stipulates that the initiative
shall include: (1) Activities to improve the coordination of WIC and
health care services at facilities funded by the Indian Health Service
(IHS); and (2) the development and implementation of strategies to
ensure that, to the maximum extent feasible, new community and migrant
health centers and other federally-supported health care facilities
established in medically underserved areas provide WIC services. The
law further stipulates that the initiative may also include: (1)
Outreach and technical assistance for State and local agencies and the
facilities named above; (2)
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demonstration projects in selected States or local areas; and (3) other
activities as the Secretaries find appropriate.
This mandate also reinforces opportunities for the WIC Program,
community and migrant health centers and IHS facilities to further
implement mutual objectives that are consistent with this legislation.
The objectives are: (1) To increase coordination and co-location of WIC
with Community and Migrant Health Centers and with IHS facilities; (2)
to ensure that newly constructed, federally supported health facilities
are coordinated with WIC State agencies to maximize service
integration; improve access to health care for participants of all
three programs, especially underserved, vulnerable, and hard-to-reach
potential eligibles; and (3) to enlist the support of primary care
personnel at health centers and IHS clinics and WIC personnel to
reinforce health messages such as breastfeeding promotion, immunization
screening and delivery, drug abuse education and referrals. The WIC
Program will benefit from this initiative through improved access to
health care for WIC participants as well as by expansion of
opportunities for newly co-located clinic sites to accommodate rapidly
increasing WIC participation levels. Projected participation levels are
more likely to be met with increased facility infrastructure capacity
for WIC. In addition, community and migrant health centers and IHS
facilities may benefit from increased co-location and coordination with
WIC by enhancing service utilization by clients seeking a one-stop,
health care shopping opportunity. In compliance with this legislative
provision, this rule amends section 246.7(b)(3) to require that, where
feasible, State agencies provide WIC services at community and migrant
health centers, Indian Health Services facilities, and other federally
supported health care facilities established in medically underserved
areas.
These changes are intended to improve access to health care for WIC
participants, and will make WIC more accessible to high-risk
populations served at community and migrant health centers, IHS
facilities and other federally supported health care facilities
established in medically underserved areas provide supplemental foods
and nutrition education under the special supplemental nutrition
program. The Department will supplement these regulatory requirements
with numerous other promotional activities designed to facilitate
increased co-location and coordination between WIC and these service
providers. These efforts include a cataloging of site locations, the
development of a best practices guide, and continued provision of
infrastructure and other funding and support that facilitate improved
WIC access to eligible persons also being served in IHS facilities,
community and migrant health centers, and other federally health care
supported facilities established in medically underserved areas provide
supplemental foods and nutrition education under the special
supplemental nutrition program.
6. Income Eligibility Guidelines Provision Section--
246.7(d)(1)(iii)
Section 204(g) of Pub.L. 103-448 amended Section 17(f)(18) of the
CNA to allow State agencies to implement annual WIC income eligibility
guidelines concurrently with the implementation of annual income
eligibility guidelines under the Medicaid Program established under
Title XIX of the Social Security Act (42 U.S.C. 1396 et seq.). Section
17(f)(18) was subsequently redesignated as section 17(f)(17) by section
729(e)(10) of Pub.L. 104-193. Congress' purpose in allowing this
concurrent implementation is to facilitate closer coordination between
the programs and ease Program access for applicants. Section
246.7(d)(1)(iii) is amended accordingly. State agencies that choose not
to coordinate implementation with the Medicaid guidelines must
implement the amended WIC income eligibility guidelines not later than
July 1 of each year.
7. Priority Consideration for Migrant Populations--
246.7(f)(2)(iii)(A)
Section 204(f) of Pub.L. 103-448 amended section 17(f)(3) of the
CNA to require State agencies to ensure local agencies provide priority
consideration to serving migrant participants who are residing in the
State for a limited period of time. Current WIC regulations already
address this legislative change at section 246.7(f)(2)(iii)(A).
8. Breastfeeding Promotion and Support Activities--246.14(c)(1)
Section 123(a)(6) of Pub.L. 101-147 amended section 17(h)(3) of the
CNA to earmark $8 million annually in State agency Nutrition Services
and Administration (NSA) grants for the promotion and support of
breastfeeding among WIC mothers. Section 204(l) of Pub.L. 103-448
further amended section 17(h)(3) to establish a new formula for
determining the minimum national breastfeeding promotion and support
expenditure. The new formula increased the national annual minimum
expenditure from $8 million to an amount equal to $21 per pregnant and
breastfeeding woman participating in the WIC Program nationwide, based
on the average number of pregnant women and breastfeeding women
participating during the last three months for which the Department has
final data. Beginning on October 1, 1996, and each October 1
thereafter, this per participant amount will be adjusted for inflation
using the same index that is used for NSA funds. The Department
applauds Congress' support for breastfeeding as the optimal method of
infant feeding.
To ease transition in fiscal year 1995, section 17(h)(3)(F)
provided that State agencies could spend the same amount it expended
for breastfeeding promotion and support expenditures in fiscal year
1994, in lieu of meeting the $21 per pregnant and breastfeeding woman
minimum. This provision allowed those State agencies that were unable
to meet the $21 per pregnant and breastfeeding woman target immediately
to gradually move in that direction.
Section 17(h)(3)(G) provided a similar allowance for fiscal year
1996, except that the State agency must expend more than the amount
expended in fiscal year 1995 for breastfeeding promotion and support
and must have the Secretary's approval. All State agencies were
required to expend the minimum $21 per pregnant and breastfeeding woman
for breastfeeding promotion and support expenditure beginning in fiscal
year 1997. Because the transition period is now past and the new
formula is mandatory, this final rule only reflects the new formula and
not the transition period exceptions for fiscal years 1995 and 1996.
This rule amends section 246.14(c)(1) to reflect the new formula.
9. Standards for the Collection of Breastfeeding Data--246.25(b)(3)
Section 204(m) of Pub.L. 103-448 and section 729(g)(1)(A) of Pub.L.
104-193 amended section 17(h)(4) of the CNA to require the development
of standards for the collection of breastfeeding data. The legislation
requires that not later than 1 year after the date of enactment, the
Secretary must develop uniform requirements for collection of data
regarding the incidence and duration of breastfeeding among
participants in the program. The Department, after consulting with the
National Association of WIC Directors, has developed the breastfeeding
data specifications. This information will be collected as part of the
biennial reporting in section 246.25(b)(3).
[[Page 63973]]
10. Use of Recovered Program Funds in Year Collected--246.14(e)
Section 246.14(e) of the WIC regulations allows the State agency to
retain funds collected through (a) the recovery of claims assessed
against food vendors or (b) funds not paid to food vendors as a result
of reviews of food instruments prior to payment. However, Federal
guidelines on refunds limited State agencies in their use and retention
of vendor collections (Title 7, section 5.4.B.1., of the General
Accounting Office's Manual for the Guidance of Federal Agencies). This
guidance provides that ``unless otherwise authorized by law, refunds
should be deposited to the credit of the appropriation account
initially charged with the overpayment.'' This prohibition from using
vendor collections to offset food costs in a year other than the year
of the initial obligation was problematic. State agencies reported that
they frequently did not receive funds collected from vendors until
after closeout of the year in which the initial obligation of funds
occurred. As a result, they were required to remit most of their vendor
collections to FNS for reallocation rather than receiving the
opportunity to use these funds to offset their own WIC Program's food
costs. Section 204(h) of Pub.L. 103-448 amended section 17(f) of the
CNA of 1966 to provide that ``a State agency may use funds recovered as
a result of violations in the food delivery system in the year in which
the funds are collected for the purpose of carrying out the program.''
This legislative provision overrides the General Accounting Office's
guidance, and permits State agencies to use vendor collections received
after the source fiscal year is closed out to offset program
expenditures from the year in which collected. In addition, the
legislation expands the purposes for which vendor collections may be
used to include any program cost, rather than being restricted to food
costs. Regulations at 246.14(e) are amended to reflect these
legislative changes.
11. Prohibition on Interest Liability to Federal Government on
Rebate Funds--246.15(a)
Section 4 of the Cash Management Improvement Act of 1990 (CMIA)
(Pub.L. 101-453) amended 31 U.S.C. 6503(c) to require States to pay the
United States interest on advances of Federal funds. This change became
effective November 1992. Section 6503(d) of Title 31 of the U.S. Code
and implementing regulations at 31 CFR Part 205 require an annual
reconciliation of interest earned by States on advances of Federal
funds and interest lost to States as a result of being forced to use
their own funds in anticipation of receiving Federal funds. Congress,
through Pub.L. 103-448, has provided an exception to this requirement,
however, for receipts earned by WIC State agencies for rebates from
infant formula and other foods. Section 204(p) of Pub.L. 103-448
amended section 17(h)(8)(J) of the CNA to stipulate that State agencies
shall not incur any interest liability to the Federal government on
rebate funds from infant formula and other foods, provided that all
interest earned by the State is used for program purposes. Section
246.15(a) is revised to conform with the applicable provisions of the
CMIA, and the specific WIC exemptions of the Pub.L. 103-448.
12. Funds for Technical Assistance and Research Evaluation
Projects--246.16(a)(6)
Section 17(g)(5) of the CNA, as reflected at section 246.16(a)(6)
of the WIC regulations, states that up to one-half of 1 percent of the
sums appropriated for each fiscal year, not to exceed $5,000,000, shall
be available to the Secretary for evaluating program performance,
evaluating health benefits, providing technical assistance to improve
State agency administrative systems, preparing the biennial
Participation Report to Congress described in section 246.25(b)(3), and
administering pilot projects, including projects designed to meet the
special needs of migrants, Indians, and rural populations. Section
204(k) of Pub.L. 103-448 amended 17(g)(5) of the CNA to expand the
purposes to include technical assistance and research projects of the
programs under section 17. The effect of adding the reference to
``programs under this section'' was to extend the permissible use of
these funds to listed activities as they relate to the WIC Farmers'
Market Nutrition Program authorized under section 17(m) of the CNA.
Section 246.16(a)(6) is amended accordingly to reflect this legislative
change.
13. Spendback Funds--246.16(b)(3)(i)
Section 246.16(b)(3)(i) of the WIC regulations reflects the
provision in section 17(i)(3)(A)(i) of the CNA that not more than 1
percent of the funds allocated to a State agency for food costs
incurred in any fiscal year may be expended by the State agency for
food costs incurred in the preceding fiscal year. Section 204(s) of
Pub.L. 103-448 amended sections 17(i)(3)(A)(i) and 17(i)(3)(H) of the
CNA to increase the maximum spendback authority from 1 percent of the
total food funds to 3 percent of the total food funds, with the
Secretary's approval. A State agency may be permitted to expend not
more than 3 percent of the amount of funds allocated to a State for
supplemental foods for a fiscal year for expenses incurred for
supplemental foods during the preceding fiscal year, if the Secretary
determines that there was a significant reduction in the State's infant
formula cost containment savings that resulted in the State not being
able to at least maintain its level of participation. Section
246.16(b)(3)(i) is amended to reflect the increase in the percentage of
spendback authority as per this provision.
List of Subjects in 7 CFR Part 246
Administrative practice and procedure, Civil rights, Food
assistance programs, Food donations, Grant programs--health, Grant
programs--social programs, Indians, Infants and children, Maternal and
child health, Nutrition, Nutrition education, Penalties, Public
assistance programs, Reporting and recordkeeping requirements, WIC,
Women.
For reasons set forth in the preamble, 7 CFR part 246 is amended as
follows:
PART 246--SPECIAL SUPPLEMENTAL NUTRITION PROGRAM FOR WOMEN,
INFANTS, AND CHILDREN
1. The authority citation for Part 246 continues to read as
follows:
Authority: 42 U.S.C. 1786.
2. In Sec. 246.2, the definition of Nutritional risk is revised to
read as follows:
Sec. 246.2 Definitions.
* * * * *
Nutritional risk means:
(a) Detrimental or abnormal nutritional conditions detectable by
biochemical or anthropometric measurements;
(b) Other documented nutritionally related medical conditions;
(c) Dietary deficiencies that impair or endanger health;
(d) Conditions that directly affect the nutritional health of a
person, including alcoholism or drug abuse; or
(e) Conditions that predispose persons to inadequate nutritional
patterns or nutritionally related medical conditions, including, but
not limited to, homelessness and migrancy.
* * * * *
3. In Sec. 246.4, paragraph (a)(8) is revised to read as follows:
Sec. 246.4 State Plan.
(a) * * *
[[Page 63974]]
(8) A description of how the State agency plans to coordinate
program operations with other services or programs that may benefit
participants in, or applicants for, the program.
* * * * *
4. In Sec. 246.6, paragraphs (b)(4) through (b)(9) are redesignated
as (b)(5) through (b)(10). A new paragraph (b)(4) is added to read as
follows:
Sec. 246.6 Agreements with local agencies.
* * * * *
(b) * * *
(4) Prohibits smoking in the space used to carry out the WIC
Program during the time any aspect of WIC services are performed.
* * * * *
5. In Sec. 246.7:
a. Paragraphs (b)(3) through (b)(5) are redesignated as paragraphs
(b)(4) through (b)(6), and a new paragraph (b)(3) is added;
b. Paragraph (d)(1)(iii) is revised;
c. Paragraphs (d)(2)(vii) and (d)(2)(viii) are redesignated as
paragraphs (d)(2)(viii) and (d)(2)(ix), and a new paragraph (d)(2)(vii)
is added;
d. Paragraph (e)(1)(iii) is redesignated as paragraph (e)(1)(iv),
and a new paragraph (e)(1)(iii) is added.
The revisions and additions read as follows:
Sec. 246.7 Certification of participants.
* * * * *
(b) * * *
(3) State agencies shall provide WIC services at community and
migrant health centers, Indian Health Services facilities, and other
federally health care supported facilities established in medically
underserved areas to the extent feasible.
* * * * *
(d) * * *
(1) * * *
(iii) Implementation of the income guidelines. On or before July 1
each year, each State agency shall announce and transmit to each local
agency the State agency's family size income guidelines, unless changes
in the poverty income guidelines issued by the Department of Health and
Human Services do not necessitate changes in the State or local
agency's income guidelines. The State agency may implement revised
guidelines concurrently with the implementation of income guidelines
under the Medicaid program established under Title XIX of the Social
Security Act (42 U.S.C. 1396 of et seq.). The State agency shall ensure
that conforming adjustments are made, if necessary, in local agency
income guidelines. The local agency shall implement (revised)
guidelines not later than July 1 of each year for which such guidelines
are issued by the State.
(2) * * *
(vii) Income eligibility of pregnant women. A pregnant woman who is
ineligible for participation in the program because she does not meet
income guidelines shall be considered to have satisfied the income
guidelines if the guidelines would be met by increasing the number of
individuals in her family by the number of embryos or fetuses in utero.
The same increased family size may also be used for any of the pregnant
woman's categorically eligible family members. The State agency shall
allow applicants to waive this increase in family size.
* * * * *
(e) * * *
(1) * * *
(iii) A pregnant woman who meets income eligibility standards may
be considered presumptively eligible to participate in the program, and
may be certified immediately without an evaluation of nutritional risk
for a period up to 60 days. A nutritional risk evaluation of such woman
shall be completed not later than 60 days after the woman is certified
for participation. Under this subsequent determination process, if the
woman does not meet nutritional risk criteria, the woman shall be
determined ineligible and may not participate in the program after the
date of the determination. Notification of the ineligibility
determination shall be given in accordance with paragraph (j)(5) of
this section. In addition, if the nutritional risk evaluation is not
completed within the 60 day timeframe, the woman's participation shall
end when her initial certification period expires. As set forth in
paragraph (j)(8) of this section, notification must be given prior to
any expiration of the certification period.
* * * * *
6. In Sec. 246.14:
a. The second through the fifth sentences of the introductory text
of paragraph (c)(1) are revised, the sixth through the ninth sentences
are removed, and a new sixth sentence is added;
b. Paragraph (e) is revised.
The revisions read as follows:
Sec. 246.14 Program costs.
* * * * *
(c) * * *
(1) * * * During each fiscal year, each State agency shall expend,
for nutrition education activities and breastfeeding promotion and
support activities, an aggregate amount that is not less than the sum
of one-sixth of the amount expended by the State agency for costs of
NSA and an amount equal to its proportionate share of the national
minimum expenditure for breastfeeding promotion and support activities.
The amount to be spent on nutrition education shall be computed by
taking one-sixth of the total fiscal year NSA expenditures. The amount
to be spent by a State agency on breastfeeding promotion and support
activities shall be an amount that is equal to at least its
proportionate share of the national minimum breastfeeding promotion
expenditure as specified in paragraph (c)(1) of this section. The
national minimum expenditure for breastfeeding promotion and support
activities shall be equal to $21 multiplied by the number of pregnant
and breastfeeding women in the Program, based on the average of the
last three months for which the Department has final data. On October
1, 1996 and each October 1 thereafter, the $21 will be adjusted
annually using the same inflation percentage used to determine the
national administrative grant per person. * * *
* * * * *
(e) Recovery of vendor claims. The State agency may retain funds
collected through the recovery of claims assessed against food vendors
or funds not paid to food vendors as a result of reviews of food
instruments prior to payment. The State agency may use funds recovered
from vendors for food and/or nutrition services and administration
costs. Funds recovered as a result of violations in the food delivery
system of the program may be used for costs incurred in the year in
which the funds are collected, or in the year in which the initial
obligation of funds incurred. The State agency shall not credit any
vendor recoveries until after the vendor has had full opportunity to
correct or justify the error or apparent overcharge in accordance with
Sec. 246.12(r)(5)(iii). The State agency shall report vendor
collections to FNS through routine reporting procedures. The State
agency shall maintain documentation to support the amount and use of
funds retained under this paragraph by the State agency.
7. In Sec. 246.15, paragraph (a) is revised to read as follows:
Sec. 246.15 Program income other than grants.
(a) Interest earned on advances. Interest earned on advances of
Program funds at the State and local levels shall be treated in
accordance with the provisions of 31 CFR Part 205, which
[[Page 63975]]
implement the requirements of the Cash Management Improvement Act of
1990. However, State agencies will not incur an interest liability to
the Federal government on rebate funds for infant formula or other
foods, provided that all interest earned on such funds is used for
program purposes.
* * * * *
8. In Sec. 246.16, paragraphs (a)(6) and (b)(3)(i) are revised to
read as follows:
Sec. 246.16 Distribution of funds.
(a) * * *
(6) Up to one-half of 1 percent of the sums appropriated for each
fiscal year, not to exceed $5,000,000 shall be available to the
Secretary for the purpose of evaluating program performance, evaluating
health benefits, providing technical assistance to improve State agency
administrative systems preparing the biennial Participation Report to
Congress described in Sec. 246.25(b)(3), and administering pilot
projects, including projects designed to meet the special needs of
migrants, Indians, rural populations, and to carry out technical
assistance and research evaluation projects of this program and the WIC
Farmers' Market Nutrition Program.
(b) * * *
(3) * * *
(i) Not more than 1 percent of the amount of funds allocated to a
State agency for supplemental foods for a fiscal year may be expended
by the State agency for food costs incurred in the preceding fiscal
year. FNS may authorize a State agency to expend not more than 3
percent of the amount of funds allocated to the State agency for
supplemental foods for a fiscal year for expenses incurred for
supplemental foods during the preceding fiscal year, if FNS determines
that there has been a significant reduction in infant formula cost
containment savings that affected the State agency's ability to at
least maintain its participation level;
* * * * *
Dated: November 14, 1998.
Shirley R. Watkins,
Under Secretary for Food, Nutrition, and Consumer Services.
[FR Doc. 98-30753 Filed 11-17-98; 8:45 am]
BILLING CODE 3410-30-U
