[Federal Register Volume 64, Number 248 (Tuesday, December 28, 1999)]
[Rules and Regulations]
[Pages 72466-72474]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-33179]
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DEPARTMENT OF AGRICULTURE
Food and Nutrition Service
7 CFR Parts 210 and 245
RIN 0584-AB35
Direct Certification of Eligibility for Free and Reduced Price
Meals and Free Milk in Schools
AGENCY: Food and Nutrition Service, USDA.
ACTION: Final rule.
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SUMMARY: This rule amends the regulations governing the determination
of eligibility for free and reduced price school meals under the
National School Lunch Program and School Breakfast Program or free milk
in schools participating in the Special Milk Program. The rule codifies
procedures that allow school food authorities and State agencies to
certify children eligible for free meals or free milk based on
information obtained directly from the appropriate State or local
agency administering the Food Stamp Program, the Food Distribution
Program on Indian Reservations or the Temporary Assistance for Needy
Families Program (previously the Aid to Families with Dependent
Children Program). This rule affects State agencies and participating
school food authorities and households. These amendments respond to
certain provisions in the Child Nutrition and WIC Reauthorization Act
of 1989, comments received on the proposed rule published on May 28,
1991 (56 FR 24033), and provisions in the Personal Responsibility and
Work Opportunity Reconciliation Act of 1996. These amendments are
intended to reduce administrative paperwork burdens, simplify the
certification process for free and reduced price benefits, and
facilitate the feeding of needy children.
EFFECTIVE DATE: These provisions are effective January 27, 2000.
FOR FURTHER INFORMATION CONTACT: Mr. Robert M. Eadie, Chief, Policy and
Program Development Branch, Child Nutrition Division, Food and
Nutrition Service, USDA, 3101 Park Center Drive, Room 1007, Alexandria,
Virginia 22302 or phone (703) 305-2620.
SUPPLEMENTARY INFORMATION:
What Is the Background of This Rule?
Section 323 of Public Law (Pub. L.) 99-500 (Oct. 18, 1986) added
section 9(b)(6) to the Richard B. Russell National School Lunch Act (42
U.S.C. 1751 et. seq.) (NSLA) to make children from food stamp
households and children from Aid to Families with Dependent Children
(AFDC) assistance units in States where the standard of eligibility for
the assistance did not exceed 130 percent of the Federal poverty level
automatically eligible for free meals or free milk. In keeping with
this provision, households have been permitted to list their food stamp
or AFDC case number on the free and reduced price application for
school meals or milk in lieu of providing detailed household size and
income information and a social security number for the adult household
member signing the application. The statute also specified that proof
of participation in the Food Stamp Program or the AFDC Program would be
sufficient to verify eligibility. The regulations implementing these
provisions are currently found at 7 CFR 245.5, 7 CFR 245.6 and 7 CFR
245.6a.
Subsequently, section 202(b)(1) of the Child Nutrition and WIC
Reauthorization Act of 1989, Pub. L. 101-147, enacted on November 10,
1989, amended section 9(b)(2)(C) of the NSLA to allow school food
authorities to certify children eligible for free or reduced price
lunches or breakfasts, without further application, by directly
communicating with the appropriate State or local agency to obtain
documentation that the children are members of either a household
receiving food stamps or an assistance unit receiving AFDC. This
certification process is commonly referred to as ``direct
certification.'' That provision also specified that school food
authorities that obtain such information shall use the information only
for the purpose of determining eligibility for participation in
programs under the NSLA and the Child Nutrition Act (42 U.S.C. 1771 et
seq.) (CNA). Additionally, a statement adopted by key members of the
House and Senate indicated their intent that school food authorities
should provide parents the opportunity to decide whether or not they
want their children to receive free meals by notifying parents that
their children are eligible for free meal benefits and asking them to
inform the school if they do not want their children to receive free
meals. (135 Cong. Rec. H 6866 (Oct. 10, 1989) and S 14027 (Oct. 24,
1989)). The legislative history further indicated that school officials
are to assume consent if they do not hear from the household within a
certain number of days as specified by the Secretary.
On May 28, 1991, we published a proposed rule at 56 FR 24033 to
amend 7 CFR part 245 to include direct certification. Moreover, we
proposed to extend the direct certification provisions to include
certification for free milk under the Special Milk Program operated in
schools to maintain consistency between the school meal programs and
the Special Milk Program in schools. Other institutions participating
in the Special Milk Program are not authorized to use direct
certification, because the statute limited direct certification to
school food authorities. Further, although the law provided that the
food stamp information or information provided under the AFDC Program
may be used to determine eligibility for free or reduced price meals,
under the proposed rule and this final rule, we deleted the references
to reduced price meals because children who are members of food stamp
households or members of households certified eligible for AFDC are
automatically eligible only for free meal benefits under section
9(b)(6) of the NSLA.
We received fifty comments on the proposed rule during the 60-day
public comment period. The majority viewed direct certification as a
burden reduction measure and as a means to reach greater numbers of
children. Please note that the May 28, 1991, rule also proposed to make
the agreement
[[Page 72467]]
between the State agency and institutions operating the child nutrition
programs and the school food authority's free and reduced price policy
statement permanent documents. We addressed the permanency of the
agreement and policy statement under a separate rulemaking published on
September 20, 1999 at 64 FR 50735. This final rule addresses the direct
certification provisions.
Is There Still an AFDC Program?
Since publication of the proposed rule, section 103 of the Personal
Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA)
(Pub. L. 104-193) replaced the AFDC Program, the Job Opportunities and
Basic Skills Program and the Emergency Assistance Program with a block
grant program under part A of title IV of the Social Security Act.
Section 109(g) of PRWORA also made a conforming amendment to sections
9(b)(2)(C)(ii)(II) and (b)(6)(A)(ii) of the NSLA to remove references
to AFDC and insert in its place, ``the State program funded under part
A of title IV of the Social Security Act that the Secretary determines
complies with standards established by the Secretary that ensure that
the standards under the State program are comparable to or more
restrictive than those in effect on June 1, 1995.'' The new program is
generally known as Temporary Assistance for Needy Families (TANF),
although some States call the program by another name.
Thus, the automatic eligibility provisions and direct certification
provisions that applied to AFDC households now apply to households
certified eligible to participate in TANF in States in which the
Secretary has determined that the standards under the State's TANF
program are ``comparable to or more restrictive than those in effect
[for AFDC] on June 1, 1995.'' We asked State agencies to notify the
appropriate Food and Nutrition Service (FNS) regional office, in
writing, whether the new program in their State is comparable to or
more restrictive than their AFDC Program that was in effect on June 1,
1995, and indicate the information used to make the comparison. We also
asked State agencies to inform FNS when there is a change that would no
longer make households participating in TANF automatically eligible for
free school meals. This final rule amends Sec. 245.11(g) to include
these requirements.
In States in which the State standards for TANF are comparable to
or more restrictive than those for the AFDC program that was in effect
on June 1, 1995, school officials may determine free meal or milk
eligibility based on a TANF case number in lieu of detailed household
size and income information and may also directly certify children in
TANF households. Additionally, proof of participation in TANF is
sufficient to satisfy any verification of eligibility efforts.
This rule also makes a number of changes throughout parts 210 and
245 to replace the term ``AFDC'' with the term ``TANF.'' Additionally,
although not proposed, this rule removes the definition, ``AFDC
assistance unit'' in Sec. 245.2(a-1) and adds a new definition ``TANF''
at Sec. 245.2(k). To avoid confusion, when describing the proposed
rule, we will use TANF rather than AFDC as if TANF had been proposed.
The change from AFDC to TANF is required by PRWORA and is
nondiscretionary. Additionally, in accordance with the NSLA, the change
in programs will not affect current policies and provisions relating to
automatic free meal eligibility in States in which the new program is
comparable to or more restrictive than the AFDC program it replaced.
Therefore, the FNS Administrator has determined that taking comments on
this change is unnecessary in accordance with 5 U.S.C. 553.
How Is ``Documentation'' Defined?
Section 245.2(a-4) currently defines ``documentation'' as the
completion of specific information on a free and reduced price
application. For direct certification, we proposed to amend
Sec. 245.2(a-4) to include (1) a list of names of children, (2) a
statement certifying that the children are members of households
currently certified to receive food stamps or TANF benefits, (3)
information in sufficient detail to match the children attending
schools in the school food authority with the names of children
identified as currently certified to receive food stamps or TANF
benefits, (4) the signature of the official of the food stamp or TANF
office, and (5) the date. Proposed Sec. 245.6(b) also included these
documentation provisions.
Several commenters were concerned that the proposed definition of
documentation implies that the only way direct certification may be
accomplished is through a computer match. They believed that
flexibility is needed in the regulation to allow a variety of ways to
``directly certify'' in addition to a computer match. Other commenters
suggested that the definition be rewritten to include a notice of
eligibility originating from the food stamp/TANF office that is brought
to the school by the household. Commenters stated that if this method
were used, there would be no need for the school to provide households
with a notice of approval and information about the opportunity to
decline benefits, as required under proposed Sec. 245.6(c)(1), since
households would take the notice to the school only if they wanted
benefits for their children.
The goal of direct certification is to reduce paperwork burdens
while maintaining program integrity. We concur with commenters that
flexibility is needed in the direct certification process. The proposed
rule did not intend to limit direct certification to computer matches.
This final regulation amends proposed Secs. 245.2(a-4) (now
Sec. 245.2(a-3)) and 245.6(b) to make clear that school food
authorities and food stamp or TANF offices without sophisticated
computer systems may participate in direct certification. The
amendments allow a member of a food stamp household or TANF household
to deliver a letter or notice directly to the school containing the
required documentation, as long as the required information is
completed by officials from the food stamp or TANF office. In these
instances, the household member would be acting as a conduit of
information between the food stamp or TANF offices and the school, and
the household would not be required to submit any additional
information concerning eligibility.
One commenter suggested that we allow the food stamp or TANF office
to notify households of their eligibility for free meals or free milk
and include an abbreviated application for the household to complete
and return to the school. We wish to emphasize that this is allowed,
but is not considered a direct certification procedure. Rather, the
household would simply be submitting a variation on the school's
application. Requiring any kind of application is inconsistent with the
direct certification procedure, because the food stamp or TANF office
would not be able to certify that the information is accurate. Under
direct certification, information is obtained from the agency
administering the food stamp or TANF program.
Eight commenters maintained that the requirement that documentation
include the signature of a food stamp or TANF official is too
restrictive and that a signature may not always be available,
particularly in the case of computer matches. Several commenters
suggested that the requirement for a signature be expanded to include a
signed agreement between the food stamp/TANF office or a signature
facsimile like that produced
[[Page 72468]]
by a reproduction. We agree with these commenters. Therefore, this
final rule (Sec. 245.2(a-3)(2)) specifies that the requirement for the
signature of the food stamp or TANF official who certifies that the
child is a member of a food stamp household or TANF household may be
fulfilled with a copy of the individual's signature.
The proposed rule would have required documentation in sufficient
detail to match the names of the children identified as receiving food
stamp or TANF benefits with the names of children attending school in
the school food authority. Two commenters believed that no further
information beyond children's names and addresses is necessary, and one
commenter asked that we more clearly define ``sufficient detail.'' We
did not define the exact type of identifiers that would be required
because we still believe that officials in the school food authority
can best determine appropriate identifiers. Therefore, this final rule
continues to allow school food authorities to determine which
identifiers they will use. However, because several children in a large
school may have similar or nearly similar names, we emphasize that it
is essential that documentation include some type of specific
identifying information that is available to both the school and the
food stamp or TANF office to ensure that benefits are directed to the
correct children. This information may include children's addresses,
parents' names, birth dates, or other types of information, including
social security numbers.
What About the Distribution of Letters/Notices and Applications to
Households About the Availability of Free and Reduced Price School
Meals or Free Milk?
Section 9(b)(2)(B) of the NSLA and current Sec. 245.5(a)(1) require
school food authorities to distribute free and reduced price meal or
free milk applications and letters announcing the availability of
benefits to parents/guardians of all children in attendance at the
school at the beginning of the school year. We recognized, however,
that there could be confusion and duplication if households with
children directly certified for free meals or free milk later receive
these applications and letters. To avoid this confusion and possible
overlapping of activity, we proposed to amend Secs. 245.5(a)(1) and
245.6(b)(3) to exempt school food authorities that implement direct
certification from the requirement to send the notice or letter and
application to those households determined eligible under direct
certification. Rather, these households would receive a notice that
their children had been determined eligible for free meals or free milk
by direct certification. We cautioned that school food authorities that
do not distribute the letter and application in such a way as to
prevent overt identification of children determined eligible under
direct certification would have to distribute the letter and
application to all households.
One commenter suggested that the distribution of the letter to
households and the application be limited to households of children who
were eligible for benefits the previous year. All other households
would receive a letter notifying them that applications are available
and explaining how an application may be obtained, if necessary.
According to this commenter, this procedure would greatly reduce
paperwork. Another commenter advised that the proposed provision
created a burden since the school food authority would have to
personalize the distribution of letters/notices and applications and
the notices of eligibility under direct certification. According to
this commenter, the best use of the direct certification provision
would be to reach children whose parents/guardians did not complete an
application. Therefore, the letters or notices and applications should
continue to be distributed to all households. School officials could
then use direct certification after the application process to increase
participation among eligible children whose households did not apply
for school meals or milk. Two other commenters believed that it would
be difficult to prevent overt identification unless direct
certification is done prior to the new school year.
We believe that distributing the notice or letter and application
only to households with children who were eligible the prior year and
only notifying all other households of how to obtain an application
would be contrary to the statute. Section 9(b)(2)(B) of the NSLA
requires that applications be distributed to all parents or guardians
of children in attendance at the school. We believe when a school food
authority uses direct certification to supplement the application
process that the notice of eligibility satisfies this requirement. The
intent of the provision is to simplify the certification process.
Neither the proposal nor this final rule prohibits the distribution of
applications to households with children who are directly certified.
Rather, this is just one implementation option. Therefore, school
officials have a great deal of flexibility in deciding how to use
direct certification. For these reasons, we are adopting the provision
regarding the distribution of letters and applications as proposed.
This provision is found at Sec. 245.5(a)(1) and Sec. 245.6(b)(2).
Must the State Agency Approve of School Food Authorities' Use of
Direct Certification?
Proposed Sec. 245.6(b) specifies that school food authorities may
implement direct certification with State agency approval. Two
commenters objected to the need for State agency approval because this
implies that the State agency could decide to approve or disapprove
school food authorities' use of direct certification. We agree with
these commenters. Section 9 (b)(2)(C)(ii) of the NSLA specifically
gives the option of implementing the direct certification provision to
school food authorities, although State agencies may assume this
responsibility for their school food authorities or otherwise assist in
the direct certification process. Therefore, we have removed the
proposed reference to State agency approval from Sec. 245.6(b) in this
final rule. However, as with the distribution and acceptance of
applications, State agencies are responsible for the manner in which
direct certification is implemented. Therefore, this final rule amends
Sec. 245.10(a)(3) to stipulate that a school food authority's
procedures for direct certification must be made a part of its
permanent policy statement, which may be amended as necessary.
Must Households Be Notified That They Have Been Directly Certified?
Under current Sec. 245.6(b) and proposed Sec. 245.6(c)(1), all
households that submit applications for free and reduced price meals or
free milk must be promptly notified of the approval or denial of their
application for benefits. Households whose applications are denied,
however, must be notified in writing. They also must be provided with
information about how to appeal the determination and how to reapply
should their circumstances change. Proposed Sec. 245.6(c)(1) further
specified that households with children determined eligible based on
direct certification be provided with the following information in
writing: (1) That the household does not have to complete a free and
reduced price application at this time to establish the children's
eligibility; (2) that the household must notify the school if they do
not want their children to receive free meal or milk benefits; and (3)
that the household must notify the school when they are no longer
eligible for food stamps or TANF for their children.
[[Page 72469]]
Additionally, under the proposal, school officials would have to
discontinue benefits as soon as possible if notified by the household
that they do not want benefits for their children. Moreover, should the
household subsequently notify school officials that they are no longer
eligible for food stamps or TANF for their children, school officials
would follow the notice procedures specified in Sec. 245.6a(e). The
notice informs the household that their free meal benefits will stop 10
days from the date the notice is sent and contains other pertinent
information, such as appeal procedures. The household would also be
informed that if it wishes to continue to receive free or reduced price
benefits for its children, the household must complete an application
giving household size and detailed income information.
A few commenters misinterpreted the notification requirements in
proposed Sec. 245.6(c)(1). They believed that the proposed rule
expanded the notification requirements to require written notification
of eligibility status to all households. We would like to clarify that,
although we encourage school food authorities to notify all households
in writing of the approval of their applications, school officials are
required to provide written notification only to households approved
under direct certification and to households who are denied benefits.
For households determined eligible based on an application, school food
authorities may provide notification in another manner, for example, by
telephone or with the issuance of a free or reduced price ticket. The
proposed regulation did not change this option.
We proposed that school food authorities notify households
certified eligible under direct certification through written
notification for the following reasons. First, because the household
does not submit an application, the household could be confused when
the child automatically receives free meals. Second, unless the
household is specifically advised not to submit an application, it is
likely to do so, which undermines the value of direct certification.
Finally, a written notification is the only means to inform households
that they may decline the benefits.
We recognize, however, that if households are provided a written
document by the food stamp or TANF office to take to the school, a
notice from the school notifying them of their eligibility may not be
necessary. Additionally, the submission of the document by the
household makes it clear that the household wishes to receive benefits.
Thus, this final rule amends Sec. 245.6(c)(1) to provide an exception
to the written notification requirement. The school food authority is
not required to provide a written notice of eligibility to households
that transmit the documentation provided by the food stamp or TANF
office to the school.
Must Households Be Notified That They Can Decline Benefits?
Several commenters addressed the possibility that households may
decline free benefits. A few commenters did not believe that school
food authorities should have to advise households that they may decline
benefits, because this requirement is burdensome and expensive. Rather,
they suggested that the names of all children certified under direct
certification should be placed on the roster. Then if households really
do not want meals for their children, the child can decline to pick up
meal tickets. If households later decide that they do want free meals,
the benefits are still available for the child without the need for the
household to apply. One commenter asked for clarification of the type
of documentation necessary to substantiate that households have
declined benefits. Another commenter recommended that the number of
days a school food authority has to terminate benefits after the
household has notified the school that they do not want free benefits
be a local decision. Finally, several commenters noted that they have
concerns about providing benefits prior to consent, but most agreed
that households will appreciate not having to complete another form to
receive free meal or milk benefits for their children.
As noted previously, Congress intends that households are notified
of their children's eligibility under direct certification and that
they are given the opportunity to decline benefits. We do not believe
it is sufficient to put this responsibility with the child by allowing
the child to decline to pick up a ticket or token. Additionally we
believe that a household's right to decline benefits must be honored by
the school as expeditiously as possible. Therefore, in
Sec. 245.6(c)(1), the final rule maintains the proposed requirement to
terminate benefits if the household indicates they do not want these
benefits.
With respect to the method the household uses to decline benefits,
the ideal method would be for the school to request that the household
return the notice of eligibility under direct certification with an
indication that the household does not want free benefits. However, if
the household verbally declines benefits, this should be documented and
be available for review. We are only mandating that the school maintain
documentation for households that decline benefits, but not stipulating
the form of that documentation. If the household notifies the school
that it does not want benefits, a notice of adverse action is not
needed. However, in accordance with Sec. 210.7(c)(1)(ii), the school
must make the change as soon as possible, but no later than 10
operating days from the date it receives the household's notification.
In response to commenters who expressed concern about providing
benefits prior to consent, we agree that this creates a potentially
sensitive situation. Our experiences to date, however, indicate that
households' refusals of benefits are rare, and we believe the
participation of eligible children should not be delayed for this
reason.
What Happens When a Household Notifies the School That They Are No
Longer Eligible for Food Stamps or TANF Benefits?
When the household or the State or local agency administering the
Food Stamp or TANF Program notifies the school that the household is no
longer eligible for the Food Stamp or TANF program, Sec. 245.6(c)(1) of
this final rule requires the school food authority to follow the
procedures in Sec. 245.6a(e) Adverse action and inform the household
that they must submit an application with income information to
establish continued eligibility. The children must be provided free
benefits during the 10-day advance notice of the pending change and
through the appeal process.
What Records Must Be Kept?
The recordkeeping provisions in Sec. Sec. 210.9(b)(17), 215.7(d)(8)
and 220.7(e)(14) require school food authorities to maintain free and
reduced price applications on file for 3 years after the end of the
fiscal year to which they pertain. Thus, we proposed to amend
Sec. 245.6(b) to require that school food authorities maintain the
documentation obtained from the food stamp/TANF office for 3 years,
because this documentation substantiates children's eligibility for
benefits in lieu of the free and reduced price application. Consistent
with other recordkeeping requirements, this information also shall be
maintained beyond the 3 year period for as long as required to resolve
issues raised if the school is audited. Only one commenter addressed
this provision, and this commenter concurred with the 3 year retention
provision. This final rule
[[Page 72470]]
maintains the 3 year requirement, although it can now be found at
Sec. 245.6(e).
We would like to remind readers that, when documentation
substantiating eligibility determinations under direct certification is
maintained at the school food authority level, the documentation must
be retrievable by school. This is currently specified in
Sec. 210.9(a)(18).
Are There Any Confidentiality Concerns?
Proposed Sec. 245.6(b)(2) specified that school food authorities
must maintain the confidentiality of information obtained under the
direct certification process. Such information could be used solely for
the determination of eligibility for free meal or milk benefits.
Nine commenters addressed the issue of confidentiality of
information under direct certification. For the most part, these
commenters believed that school officials should be allowed to use the
information obtained under direct certification for other purposes,
such as for free books or vocational education. Four commenters stated
that school food authorities should be allowed to add a release to the
notice of eligibility sent to households, giving parents the option of
allowing school officials to use the eligibility information for other
purposes. One commenter believed that the release more appropriately
should be included on the application households complete to receive
food stamp or TANF benefits. This option would assure recipients that
their personal information does not move from agency to agency without
their knowledge or consent. Finally, one commenter asked that school
officials be allowed to use aggregate data for school purposes which
benefit the child.
Section 202(b)(1) of Pub. L. 101-147 amended section 9(b)(2)(C) of
the NSLA to specify that school food authorities may use the
information obtained directly from food stamp/TANF offices only for the
purpose of determining eligibility for participation in programs under
the NSLA and the CNA. However, section 108 of Pub. L. 103-448 further
amended section 9(b)(2)(C) of the NSLA to allow limited use or
disclosure of any information obtained from the free and reduced price
application or information obtained from food stamp or TANF officials.
We provided guidance on the use and disclosure of information about
children eligible for free and reduced price meals in December 1998. A
proposed rule on the issue will be published soon. Therefore,
Sec. 245.6(b)(1) of this final rule specifies that information about
the child or household obtained directly from food stamp or TANF
officials must be kept confidential and may only be used to determine
free meal or milk eligibility or as otherwise permitted under section 9
of the NSLA.
How does Direct Certification Affect the Verification of
Eligibility Requirement?
Current Sec. 245.6a(a) requires school food authorities to verify a
sample of approved applications. Under the proposed Sec. 245.6a(a)(5),
eligibility determinations based on direct certification obtained
directly from the food stamp or TANF office would not be subject to
this verification requirement. Although several commenters agreed that
determinations made under direct certification should not be included
in the verification requirement, one commenter believed that these
certifications should still be counted as part of the universe for the
purpose of calculating the sample size. We made this proposal because
the client certification process for food stamps and TANF is more
detailed than the process for applying for free/reduced price meal
benefits and consequently may eliminate some of the need for
verification.
We do not believe that direct certifications should be included in
the formula when determining the number of applications which must be
verified because under direct certification, there is no school meal or
milk application and, therefore, nothing to select for verification.
Consequently, the result of the commenter's suggestion would be to
artificially inflate the number of applications to verify by including
a large number of determinations not currently subject to verification.
For these reasons, we did not accept this suggestion. We do note,
however, that local officials may always verify more than the minimum
number of applications and could elect to adopt this suggestion at the
local level.
Are There Any Technical Amendments?
Subsequent to the publication of the proposed rule, we determined
that households that participate in the Food Distribution Program on
Indian Reservations (FDPIR) should be categorically eligible for free
school meals or free milk. The FDPIR is authorized by Section 4(b) of
the Food Stamp Act of 1977. Under this section, eligible households may
elect to participate in either the Food Stamp Program or the FDPIR, but
may not participate in both programs at the same time. Thus, since
eligible households are afforded the option to participate in either
program and may switch from one program to the other, we believe that
households participating in FDPIR should be treated the same as if they
were participating in the Food Stamp Program. Therefore, when applying
for free and reduced price meals for their children, a household
participating in the FDPIR may submit the child's name, their FDPIR
case number or an equivalent identifier used by FDPIR and the signature
of an adult household member to establish free meal or free milk
eligibility. Additionally, documentation of participation in FDPIR is
adequate to verify eligibility for free meals or free milk. In lieu of
free and reduced price applications, the direct certification
procedures described in this rulemaking may be extended to households
certified to receive benefits under FDPIR.
To implement categorical eligibility for households participating
in FDPIR, this rulemaking adds a definition of FDPIR to Sec. 245.2.
This rule will also add a reference to FDPIR to all provisions
affecting food stamp and TANF households. We notified State agencies of
our interpretation that the categorical eligibility and direct
certification provisions extend to children from households
participating in FDPIR through policy memoranda dated January 3, 1992
and August 27, 1992. We believe that this action is technical in nature
and that prior notice and comment would be unnecessary and contrary to
the public interest. For these reasons, the Administrator of the Food
and Nutrition Service has determined, in accordance with 5 U.S.C.
553(b) and (d), that good cause exists to waive the solicitation of
public comments prior to codifying these amendments.
This rulemaking also corrects an omission in section 245.6a(a),
which specifies the minimum number of applications that school
officials must verify. In accordance with that paragraph, school
officials using the focused sampling technique must verify a minimum of
the lesser of 1 percent or 1000 applications selected from non-food
stamp households claiming income within a specified amount and the
lesser of one half of 1 percent or 500 applications of food stamp
households that provide a case number. When Pub. L. 99-500 mandated the
categorical eligibility of TANF households, we inadvertently neglected
to amend section 245.6a(a) to include applications from households that
provide an TANF case number when determining sample sizes. This rule
corrects that omission and also references FDPIR. This correction is
technical in nature and does not result in a substantive change.
[[Page 72471]]
Proposed Sec. 245.6(c) included a provision that school officials
may seek verification of eligibility and that school officials would
take the income and frequency information provided by the household and
calculate the household's total current income. This section also set
forth the criteria under which school officials would approve
households for free and reduced price meals or free milk. Three
commenters suggested that the statement regarding verification appeared
to be inappropriately placed in Sec. 245.6(c). We concur with this
observation and note that when the regulation implementing the
Coordinated Review Effort was published in the Federal Register on July
17, 1991 (56 FR 32920), this statement was moved to Sec. 245.6a(a),
Verification requirements. Secondly, a final rule establishing
requirements for free and reduced price applications published on July
24, 1991, (56 FR 33857) eliminated the requirement for households to
indicate the frequency with which they receive individual income
amounts, such as monthly, weekly, every 2 weeks and etc. Households are
asked to report their monthly income by household member and source of
the income. Accordingly, the language in Sec. 245.6 of this final rule
reflects this change.
Executive Order 12866
This final rule was determined non significant for purposes of
Executive Order 12866 and therefore has not been reviewed by the Office
of Management and Budget.
Public Law 104-4
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Pub.
L. 104-4, establishes a requirement 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 prepares a written statement,
including a cost-benefit analysis. This is done for proposed and final
rules that have ``Federal mandates'' which may result in expenditures
of $100 million or more in any one year by State, local, or tribal
governments, in the aggregate, or by the private sector. When this
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. It must then adopt the
least costly, most cost-effective or least burdensome alternative that
achieves the objectives of the rule.
This rule contains no Federal mandates of $100 million or more in
any one year (under regulatory provisions of Title II of the UMRA) for
State, local, and tribal governments or the private sector. Thus, this
rule is not subject to the requirements of sections 202 and 205 of the
UMRA.
Regulatory Flexibility Act
This rule has been reviewed with regard to the requirements of the
Regulatory Flexibility Act (5 U.S.C. 601 through 612). The
Administrator of the FNS has certified that this rule will not have a
significant economic impact on a substantial number of small entities.
Most affected by this rulemaking will be State agencies and school food
authorities. This rulemaking will increase administrative options for
those entities and help streamline the overall free and reduced price
eligibility administrative process.
Executive Order 12988
This final rule has been reviewed under Executive Order 12988,
Civil Justice Reform. This final rule is intended to have preemptive
effect with respect to any State or local laws, regulations or policies
which conflict with its provisions or which would otherwise impede its
full implementation. This rule is not intended to have retroactive
effect unless so specified in the EFFECTIVE DATE section of this
preamble. Prior to any judicial challenge to the provisions of this
rule or the application of its provisions, all applicable
administrative procedures must be exhausted. In the National School
Lunch Program, School Breakfast Program and Special Milk Program the
administrative procedures are set forth under the following
regulations: (1) School food authority appeals of State agency findings
as a result of an administrative review must follow State agency
hearing procedures established pursuant to 7 CFR 210.18(q) and
220.14(e); school food authority appeals of FNS findings as a result of
an administrative review must follow FNS hearing procedures as
established pursuant to 7 CFR 210.30(d)(3) and 220.14(g); and (3) State
agency appeals of State Administrative Expense fund sanctions (7 CFR
235.11(b)) must follow the FNS Administrative Review Process
established pursuant to 7 CFR 235.11(f).
Executive Order 12372
This rule affects the School Breakfast Program, National School
Lunch Program and Special Milk Program, which are listed in the Catalog
of Federal Domestic Assistance under Nos. 10.553, 10.555 and 10.556,
respectively. These programs are subject to the provisions of Executive
Order 12372, which requires intergovernmental consultation with State
and local officials. (See 7 CFR part 3015, subpart V and final rule-
related notice at 48 FR 29112, June 24, 1983.)
Information Collection
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C.
3501-3520), the reporting and recordkeeping requirements included in
this rule have been approved by the Office of Management and Budget
(OMB) for parts 210 and 245 under control numbers 0584-0006 and 0584-
0026, respectively.
List of Subjects
7 CFR Part 210
Grant programs--education, Grant programs--health, Infants and
children, Nutrition, Penalties, Reporting and recordkeeping
requirements, School breakfast and lunch programs, Surplus agricultural
commodities.
7 CFR Part 245
Civil rights, Food assistance programs, Grant programs--social
programs, Grant programs--health, Infants and children, Milk, Reporting
and recordkeeping requirements, School breakfast and lunch programs.
Accordingly, 7 CFR parts 210 and 245 are amended as follows:
PART 210--NATIONAL SCHOOL LUNCH PROGRAM
1. The authority citation for part 210 continues to read as
follows:
Authority: 42 U.S.C. 1751-1760, 1779.
Sec. 210.9 [Amended]
2. In Sec. 210.9(b)(18), remove the words ``Food Stamp or the Aid
to Families with Dependent Children Programs'' at the end of the first
sentence and add the words ``Food Stamp Program, Food Distribution
Program for Households on Indian Reservations (FDPIR) or Temporary
Assistance for Needy Families (TANF)'' in their place.
3. In Sec. 210.18:
a. Revise paragraph (g)(1)(i)(A)(4); and
b. Amend the last sentence of paragraph (g)(1)(i)(B) by removing
the words ``food stamp or AFDC'' and add in their place the words
``food stamp, Food Distribution Program for Households on Indian
Reservations (FDPIR) or Temporary Assistance for Needy Families
(TANF)''.
The revision reads as follows:
Sec. 210.18 Administrative reviews.
* * * * *
(g) Critical areas of review. * * *
(1) Performance Standard 1 (All free, reduced price and paid
lunches claimed
[[Page 72472]]
for reimbursement are served only to children eligible for free,
reduced price and paid lunches, respectively; and are counted,
recorded, consolidated and reported through a system which consistently
yields correct claims.) * * *
(i) * * *
(A) * * *
(4) In the case where children are determined eligible for free
lunches based on documentation from the local food stamp, Food
Distribution Program on Indian Reservations (FDPIR) or Temporary
Assistance for Needy Families (TANF) office which certifies that the
children are currently members of households receiving benefits under
the Food Stamp Program, FDPIR or TANF, determine that the certification
from the Food Stamp Program, FDPIR or TANF is official; all the
information required under Sec. 245.6 of this part is complete; and
such children were enrolled in the school under review during the
review period.
* * * * *
PART 245--DETERMINING ELIGIBILITY FOR FREE AND REDUCED PRICE MEALS
AND FREE MILK IN SCHOOLS
1. The authority citation for part 245 is revised to read as
follows:
Authority: 42 U.S.C. 1772, 1773, 1779; and 42 U.S.C. 1751-60.
2. In Sec. 245.2:
a. Remove paragraph (a-1) and redesignate paragraphs (a-2), (a-3)
and (a-4) as paragraphs (a-1), (a-2) and (a-3), respectively.
b. Revise newly redesignated paragraph (a-3);
c. Redesignate paragraph (b-1) as paragraph (b-2) and add a new
paragraph (b-1);
d. Redesignate paragraph (k) as paragraph (l) and add a new
paragraph (k); and
e. Revise the last sentence of newly designated paragraph (l).
The revisions and additions read as follows:
Sec. 245.2 Definitions.
* * * * *
(a-3) Documentation means:
(1) The completion of a free and reduced price school meal or free
milk application which includes:
(i) For households applying on the basis of income and household
size, names of all household members; income received by each household
member, identified by source of the income (such as earnings, wages,
welfare, pensions, support payments, unemployment compensation, and
social security and other cash income); the signature of an adult
household member; and 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
(ii) For a child who is a member of a food stamp, FDPIR or TANF
household: the child's name and appropriate food stamp or TANF case
number or FDPIR case number or other identifier; and the name and
signature of an adult household member; and
(2) In lieu of completion of the free and reduced price
application, information obtained from the State or local agency
responsible for the Food Stamp Program, FDPIR or TANF which includes
the name of the child; a statement certifying that the child is a
member of a currently certified food stamp, FDPIR or TANF household;
information in sufficient detail to match the child attending school in
the school food authority with the name of the child certified as a
member of a food stamp, FDPIR or TANF household; the signature or a
copy of the signature of the individual authorized to provide the
certification on behalf of the Food Stamp, FDPIR or TANF office, as
appropriate; and the date. When the signature is impracticable to
obtain, such as in a computer match, other arrangements may be made to
ensure that a responsible official can attest to the data.
* * * * *
(b-1) FDPIR means the food distribution program for households on
Indian reservations operated under part 253 of this title.
* * * * *
(k) TANF means the State funded program under part A of title IV of
the Social Security Act that the Secretary determines complies with
standards established by the Secretary that ensure that the standards
under the State program are comparable to or more restrictive than
those in effect on June 1, 1995. This program is commonly referred to
as Temporary Assistance for Needy Families, although States may refer
to the program by another name.
(l) * * * However, if a food stamp or TANF case number or a FDPIR
case number or other identifier is provided for a child, verification
for such child shall only include confirmation that the child is
included in a currently certified food stamp, TANF or FDPIR household.
3. In Sec. 245.5:
a. Revise the first sentence of paragraph (a)(1) introductory text;
b. Remove the reference to ``Sec. 245.2(a-4)'' in paragraph
(a)(1)(iii), and add a reference to ``Sec. 245.2(a-3) in its place;
c. Revise paragraphs (a)(1)(iv) and (a)(1)(vi).
The revisions read as follows:
Sec. 245.5 Public announcement of the eligibility criteria.
(a) * * *
(1) Except as provided in Sec. 245.6(b), a letter or notice and
application distributed on or about the beginning of each school year,
to the parents of all children in attendance at school. * * *
* * * * *
(iv) An explanation that households with children who are members
of currently certified food stamp, FDPIR or TANF households may submit
applications for these children with the abbreviated information
described in Sec. 245.2(a-3);
* * * * *
(vi) An explanation that households receiving free or reduced price
benefits must notify school officials during the school year of any
decreases in household size and any increases in income of over $50 per
month or $600 per year (or a lesser amount if established by the State)
or, in the case of households that provided a food stamp or TANF case
number or a FDPIR case number or other identifier to establish
eligibility for free meals or free milk for a child, of any termination
of benefits for such children under the Food Stamp, FDPIR or TANF
Programs.
* * * * *
4. In Sec. 245.6:
a. Revise the section heading;
b. Revise the seventh sentence of introductory paragraph (a);
c. Revise paragraph (a)(1);
d. Redesignate paragraph (b) introductory text, paragraphs (b)(1)
and (b)(2) and paragraph (c) as paragraph (c) introductory text,
paragraphs (c)(2) and (c)(3) and paragraph (d) respectively;
e. Add new paragraphs (b) and (c)(1);
f. Revise newly redesignated paragraph (c) introductory text; and
g. Add a new paragraph (e).
The additions and revisions read as follows:
Sec. 245.6 Certification of children for free and reduced price meals
and free milk.
(a) * * * However, if application is being made for a child who is
a member of a food stamp, FDPIR or TANF household, the application
shall enable the household to provide the appropriate food stamp or
TANF case number or FDPIR case number or other identifier in lieu of
names of all household members, household income information and social
security number. * * *
(1) ``Section 9 of the National School Lunch Act requires that,
unless your
[[Page 72473]]
child's food stamp case number/FDPIR case number or other identifier or
TANF case number is provided, you must include the social security
number of the adult household member signing the application or
indicate that the household member signing the application does not
have a social security number. Provision of a social security number is
not mandatory, but if a social security number is not given or an
indication is not made that the signer does not have such a number, the
application cannot be approved. The social security number may be used
to identify the household member in carrying out efforts to verify the
correctness of information stated on the application. 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, TANF or FDPIR office 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 prove the amount of income received. These efforts
may result in a loss or reduction of benefits, administrative claims or
legal actions if incorrect information is reported.'' State agencies
and School Food Authorities shall ensure that the notice complies with
section 7 of Pub. L. 93-579 (Privacy Act of 1974); and
* * * * *
(b) Direct certification. In lieu of determining eligibility based
on information provided by the household on the free and reduced price
meal or milk application specified in paragraph (a) of this section,
school food authorities may determine children eligible for free meals
or milk based on documentation obtained from the appropriate State or
local agency responsible for the administration of the Food Stamp
Program, FDPIR and/or the TANF Program, hereafter referred to as direct
certification. The documentation for direct certification shall include
the information specified in Sec. 245.2(a-3)(2). The food stamp, FDPIR
or TANF office may provide school officials with a list which includes
all required documentation, or documentation may be obtained through a
computerized match in which computerized lists of names of children
from food stamp, FDPIR or TANF households and other identifying
information are matched against a list of names and other identifying
information of schoolchildren. When computer matches are used or the
signature of the food stamp, FDPIR or TANF official is otherwise
impracticable to obtain, the signature of the food stamp, FDPIR or TANF
official is not required. However, other arrangements must be made to
ensure that a responsible official can attest to the data.
Additionally, the food stamp, FDPIR and/or TANF office may provide food
stamp, FDPIR and/or TANF households with individual notices which
contain all required documentation. The household may then transmit the
notice to the school.
(1) Information about the child or the household obtained directly
from the food stamp, FDPIR or TANF office must be kept confidential and
shall be used solely for the purpose of determining the child's
eligibility for school meal or milk benefits, or as otherwise permitted
by section 9 of the National School Lunch Act.
(2) School food authorities are not required to provide the letter
specified in Sec. 245.5(a) to the parents of children who are eligible
for free meals under paragraph (b) of this section when the school food
authorities distribute the letters or notices with application forms
and the notice to households concerning eligibility for benefits under
direct certification, specified in paragraph (c)(1) of this section,
through the mail, individualized student packets, or other method which
prevents the overt identification of children eligible for direct
certification.
(c) Determination of eligibility. Prior to the processing of
applications or the completion of direct certification procedures for
the current school year, children from households with approved
applications or documentation of direct certification on file from the
preceding year may be served reimbursable free and reduced price meals
or free milk. However, applications and documentation of direct
certification from the preceding year may be used to determine
eligibility only during the 30 operating days following the first
operating day at the beginning of the school year, or during a
timeframe established by the State agency, provided that any State
agency timeframe does not exceed the 30 operating day limit. The school
food authority must take the income information provided by the
household on the application and calculate the household's total
current income. When a household submits an application containing
complete documentation, as specified in Sec. 245.2(a-3)(1)(i), and the
household's total current income is at or below the eligibility limits
specified in the Income Eligibility Guidelines, the children in that
household must be approved for free or reduced price benefits, as
applicable. When a household submits an application containing the
required food stamp, FDPIR or TANF documentation, as specified in
Sec. 245.2(a-3)(1)(ii), the children in that household must be approved
for free benefits. Additionally, when the school food authority obtains
documentation from the State or local agency responsible for the
administration of the Food Stamp Program, FDPIR and/or TANF Program
that children are members of currently certified food stamp, FDPIR or
TANF households, as specified in Sec. 245.2(a-3)(2), the school food
authority must approve such children for free benefits without
applications from the households.
(1) Notice of approval. The school food authority must promptly
notify the household of their children's eligibility and provide them
the benefits to which they are entitled. Households approved for
benefits based on documentation provided by the appropriate State or
local agency responsible for the administration of the Food Stamp
Program, FDPIR or TANF Program must be notified, in writing, that their
children are eligible for free meals or free milk, that households must
contact the school when their children are no longer eligible for food
stamp, FDPIR or TANF benefits, and that no application for free and
reduced price school meals is required at this time. The notice of
eligibility must also inform households that they must notify the
school if they do not want their children to receive free benefits.
When the household transmits the notice of eligibility containing the
above information and the documentation provided by the food stamp,
FDPIR or TANF office to the school, the school food authority is not
required to provide a separate notice of eligibility. Children from
households that notify the school that they do not want free benefits
must have their benefits discontinued as soon as possible. Any
notification from the household declining benefits must be documented
and maintained on file, in accordance with paragraph (e) of this
section. Additionally, a school food authority that is notified by the
household that they are no longer eligible to receive food stamp, FDPIR
or TANF benefits must follow the procedures specified in
Sec. 245.6a(e), and inform the household that it must submit an
application with income information to establish continued eligibility.
* * * * *
[[Page 72474]]
(e) The school food authority must maintain documentation
substantiating eligibility determinations on file for 3 years after the
date of the fiscal year to which they pertain, except that if audit
findings have not been resolved, the documentation must be maintained
as long as required for resolution of the issues raised by the audit.
5. In Sec. 245.6a,
a. Amend the seventh sentence of paragraph (a) by removing the
words ``of food stamp households that provided food stamp case
numbers'' and add the words ``of food stamp, FDPIR or TANF households
that provided a food stamp or TANF case number or FDPIR case number or
other identifier'' in their place;
b. Revise paragraph (a)(2)(i);
c. Revise the second sentence of paragraph (a)(2)(iv);
d. Revise the fourth sentence of paragraph (a)(2)(v);
e. Revise the heading and first three sentences of paragraph
(a)(3);
f. Add a sentence at the end of paragraph (a)(5); and
g. Revise the second sentence of paragraph (b)(3).
The revisions and addition read as follows:
Sec. 245.6a Verification requirements.
(a) * * *
(2) Notification of selection. * * *
(i) Section 9 of the National School Lunch Act requires that unless
the child's food stamp case number/FDPIR case number or other
identifier or TANF case number is provided, households selected for
verification must provide the social security number of each adult
household member;
* * * * *
(iv) * * * These verification efforts may be carried out through
program reviews, audits, and investigations and may include contacting
a food stamp, FDPIR or TANF office to determine current certification
for receipt of these benefits, contacting the State employment security
office to determine the amount of benefits received and checking
documentation produced by household members to prove the amount of
income received. * * *
(v) * * * Selected households must also be informed that, in lieu
of any information that would otherwise be required, they can submit
proof of current food stamp, FDPIR or TANF certification as described
in paragraph (a)(3) of this section to verify the free meal eligibility
of a child who is a member of a food stamp, FDPIR or TANF household. *
* *
(3) Food stamp, FDPIR or TANF recipients. On applications where
households have furnished food stamp or TANF case numbers or FDPIR case
numbers or other identifiers, verification shall be accomplished either
by confirming with the local food stamp, FDPIR, or TANF office that
each child, for whom application was made and a case number or other
identifier was provided, is a member of a currently certified food
stamp, FDPIR or TANF household; or by obtaining from the household a
copy of a current ``Notice of Eligibility'' for the Food Stamp Program,
FDPIR or TANF Program or equivalent official documentation issued by
the food stamp, FDPIR or TANF office which confirms that the child is a
member of a currently certified food stamp, FDPIR or TANF household. An
identification card for either program is not acceptable as
verification unless it contains an expiration date. If it is not
established that the child is a member of a currently certified food
stamp, TANF or FDPIR household, the procedures for adverse action
specified in paragraph (e) of this section must be followed. * * *
* * * * *
(5) * * * Verification of eligibility is not required of households
when the determination of eligibility was based on documentation
provided by the State or local agency responsible for the
administration of the Food Stamp Program, FDPIR or TANF Program, as
described in Sec. 245.6(b).
(b) Sources of information. * * *
(3) Agency records. * * * Information concerning income, household
size, or food stamp, FDPIR, or TANF eligibility maintained by other
government agencies to which the State agency, school food authority or
school can legally gain access may be used to confirm a household's
income, size, or receipt of benefits. * * *
* * * * *
6. In Sec. 245.10, revise paragraph (a)(3) to read as follows:
Sec. 245.10 Action by School Food Authorities.
(a) * * *
(3) The specific procedures the school food authority will use in
accepting applications from families for free and reduced price meals
or for free milk. Additionally, if the school food authority has opted
to determine eligibility for children from food stamp, FDPIR or TANF
households based on documentation obtained from the State or local
agency responsible for the Food Stamp, FDPIR or TANF Program, in lieu
of an application, the school food authority shall include the specific
procedures it will use to obtain the required documentation.
Additionally, school food authorities that have implemented direct
certification and that must provide households a notice of eligibility,
as specified in Sec. 245.6(b), must also include in their policy
statement a copy of the notice to households regarding their children's
eligibility under the direct certification provision.
* * * * *
6. In Sec. 245.11, add a new paragraph (g) to read as follows:
Sec. 245.11 Action by State agencies and FNSROs.
* * * * *
(g) The State agency must notify FNS whether the TANF Program in
their State is comparable to or more restrictive than the State's Aid
to Families with Dependent Children Program that was in effect on June
1, 1995. Automatic eligibility and direct certification for TANF
households is allowed only in States in which FNS has been assured that
the TANF standards are comparable to or more restrictive than the
program it replaced. State agencies must inform FNS when there is a
change in the State's TANF Program that would no longer make households
participating in TANF automatically eligible for free school meals.
Dated: December 16, 1999.
Samuel Chambers, Jr.,
Administrator, Food and Nutrition Service.
[FR Doc. 99-33179 Filed 12-27-99; 8:45 am]
BILLING CODE 3410-30-U
