[Federal Register Volume 59, Number 48 (Friday, March 11, 1994)]
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From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-5569]
Federal Register / Vol. 59, No. 48 / Friday, March 11, 1994 /
[[Page Unknown]]
[Federal Register: March 11, 1994]
VOL. 59, NO. 48
Friday, March 11, 1994
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DEPARTMENT OF AGRICULTURE
Food and Nutrition Service
7 CFR Part 246
RIN No. 0584-AB13
Special Supplemental Food Program for Women, Infants, and
Children (WIC): Coordination Rule: Mandates of the Child Nutrition and
WIC Reauthorization Act of 1989
AGENCY: Food and Nutrition Service, USDA.
ACTION: Final rule.
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SUMMARY: This final rule amends regulations governing the Special
Supplemental Food Program for Women, Infants, and Children (WIC) to
comply with the mandates of sections 123 and 213 of the Child Nutrition
and WIC Reauthorization Act of 1989 enacted on November 10, 1989. This
final rule contains both funding and nonfunding provisions. The major
nonfunding provisions in this final rule include: Extending adjunct or
automatic income eligibility to certain family members; enhancing
outreach efforts and program access; defining breastfeeding and
establishing breastfeeding promotion activities; referring and
providing participants with information about other health and welfare
programs; permitting State agencies the option to establish alternative
means of issuing food instruments, such as mailing them to
participants; and, reducing the frequency with which State agencies
must review their local agencies. This final rule also incorporates
other legislative mandates, such as, Governmentwide debarment and
suspension (nonprocurement) requirements, a drug-free workplace, and
new restrictions on lobbying.
DATES: This rule is effective on March 11, 1994, except that the
nondiscretionary funding provisions set forth in Sec. 246.14 and
Sec. 246.16 were, by law, effective October 1, 1989. State agencies
shall implement all other provisions no later than October 1, 1994.
FOR FURTHER INFORMATION CONTACT: Barbara Hallman, Chief, Policy and
Program Development Branch, Supplemental Food Programs Division, Food
and Nutrition Service, USDA, 3101 Park Center Drive, room 542,
Alexandria, VA 22302, (703) 305-2746.
SUPPLEMENTARY INFORMATION:
Classification
Executive Order 12866
This final rule is issued in conformance with Executive Order
12866.
Regulatory Flexibility Act
This rule has been reviewed with regard to the requirements of the
Regulatory Flexibility Act (5 U.S.C. 601-612). Pursuant to that review,
the Administrator of the Food and Nutrition Service (FNS) has
determined that this final rule will not have a significant impact on a
substantial number of small entities. State and local agencies will be
most affected because of the additional program administration and
education requirements. However, some program administration
requirements have also been reduced by this rule. The net effect on
State and local agencies is expected to be minimal. Participants and
applicants will also be affected by simplified application and benefits
issuance procedures.
Paperwork Reduction Act
The reporting and recordkeeping requirements established in the
proposed rulemaking of July 9, 1990 in Secs. 246.4, 246.6, 246.7,
246.11 and the reductions in the reporting and recordkeeping
requirements set forth in Secs. 246.11 and 246.19 were reviewed and
approved by the Office of Management and Budget under Control Number
0584-0043 in accordance with the Paperwork Reduction Act of 1980 (44
U.S.C. 3505). No changes in the reporting/recordkeeping burden for the
sections cited above have been incorporated into the final rule.
All existing reporting and recordkeeping requirements in
Secs. 246.14 and 246.16 for funding activities have been incorporated
into this final rule, and no changes in burden hours for those
activities are reflected in this final rule. The requirements for these
sections have been approved by OMB for use through November 30, 1995
under OMB control number 0584-0043. This final rule, however, does
impose on WIC State and local agencies one additional reporting and
recordkeeping requirement of documenting both direct and in-kind
expenditures for breastfeeding promotion and support.
As required by section 3504(h) of the Paperwork Reduction Act of
1980, the Department submitted to the Office of Management and Budget
(OMB) for its review the information reporting and recordkeeping
requirement of documenting both direct and in-kind expenditures for
breastfeeding promotion and support. This reporting and recordkeeping
requirement has been approved by OMB for use through August 31, 1995
under OMB control number 0584-0427.
Organizations and individuals desiring to submit comments regarding
any aspect of these information collection requirements, including
suggestions for reducing the burdens, should direct them to the
Director, Supplemental Food Programs Division, (address above) and to
the Office of Information and Regulatory Affairs, OMB, room 3208, New
Executive Office Building, Washington, DC 20503, Attn: Laura Oliven,
Desk Officer for the Food and Nutrition Service.
Executive Order 12372
The Special Supplemental Food Program for Women, Infants and
Children (WIC) is listed in the Catalog of Federal Domestic Assistance
Programs under 10.557 and is subject to Executive Order 12372, which
requires intergovernmental consultation with State and local officials
(7 CFR part 3015, subpart V, and 48 FR 29114 (June 24, 1983)).
Executive Order 12778
This final rule has been reviewed under Executive Order 12778,
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 ``Effective Date'' paragraph 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 WIC Program, the
administrative procedures are as follows: (1) Local agencies and
vendors--State agency hearing procedures issued pursuant to 7 CFR
246.18; (2) applicants and participants--State agency hearing
procedures issued pursuant to 7 CFR 246.9; (3) sanctions against State
agencies (but not claims for repayment assessed against a State agency)
pursuant to 7 CFR 246.19--administrative appeal in accordance with 7
CFR 246.22; and (4) procurement by State or local agencies--
administrative appeal to the extent required by 7 CFR 3016.36.
Good Cause Determinations
This final rule incorporates several new statutory requirements
from Public Law 101-147 which were not contained in a prior proposed
rule. These are nondiscretionary funding provisions which revise the
methodology for determining the amount of funds available for NSA,
require that a portion of these funds be used for breastfeeding
promotion and support, permit conversion of food funds to NSA funds
under certain specified circumstances, provide optional spend forward
authority to State agencies, and establish timelines for allocation and
reallocation of funds. In light of the nondiscretionary nature of these
requirements, and since the legislatively mandated effective date of
these requirements was October 1, 1989, the Administrator of the Food
and Nutrition Service has found, in accordance with 5 U.S.C. 553(b),
that prior notice and comment are impracticable, unnecessary and
contrary to the public interest, and that good cause exists for
publishing revisions to Sec. 246.16 without prior notice and comment.
Two additional changes which were not proposed are contained in
this final rule. First, this final rule incorporates in Sec. 246.2
reference to the existing requirements of the non-discretionary
department-wide rule governing lobbying which applies to WIC. This new
reference merely incorporates existing, non-discretionary provisions of
7 CFR part 3018, ``New Restrictions on Lobbying,'' into WIC Program
regulations. Second, current Sec. 246.7(c)(2)(v) contains a non-
inclusive list of references of non-discretionary provisions of Federal
law which prohibit certain benefits paid under other Federal programs
from being considered as income for the WIC Program. This final rule
renumbers that section as Sec. 246.7(d)(2)(iv)(c), and amends it to
update it with additional references to other non-discretionary income
exclusions. With respect to these revisions, the Administrator of the
Food and Nutrition Service has found, pursuant to 5 U.S.C. 553(b), that
prior notice and comment are impracticable, unnecessary and contrary to
the public interest, and that good cause exists for publishing these
revisions without prior notice and comment.
Background
Public Law 101-147, the Child Nutrition and WIC Reauthorization Act
of 1989, enacted on November 10, 1989, amended a wide range of WIC
Program functions in such areas as income eligibility determinations;
program outreach, referral and access; coordination; breastfeeding
promotion; and food delivery systems. Therefore, on July 9, 1990, the
Department published a proposed rule (55 FR 28033) addressing primarily
the discretionary and nondiscretionary mandates of Public Law 101-147
that were unrelated to funds utilization and allocation. These
provisions have been commonly referred to as the ``nonfunding''
provisions of Public Law 101-147. Also included in the proposed rule
were references to requirements in Department-wide rules which apply to
WIC: Uniform Administrative Requirements for Grants and Cooperative
Agreements to State and Local Governments, 7 CFR part 3016, and
Governmentwide Debarment and Suspension (Non-Procurement) Requirements
and Government Requirements for a Drug-Free Workplace, 7 CFR part 3017.
Several nonfunding provisions were issued in separate rulemakings, as
noted below.
The proposed rule provided for a 30-day comment period, which ended
on August 8, 1990. Forty-seven comment letters were received on the
proposed rule from a variety of sources, including State and local
agencies and health professionals, advocacy groups and other public
interest groups, and the general public.
The Department has given all comments careful consideration in the
development of this final rule and would like to thank all commenters
who responded to the proposal. In addition, subsequent meetings with
various State and local agency staff on this rule provided a forum for
staff to more fully discuss the concerns and recommendations made in
their comment letters. Such discussions and individual comments on the
proposed rule, which provided a detailed and thorough analysis of
issues, were invaluable to the Department in developing this final
rule. A summary of these meetings is contained in the Department's
rulemaking record.
Although the proposed rule contained both discretionary and
nondiscretionary nonfunding provisions of Public Law 101-147, State
agencies were encouraged to focus on and direct their comments to the
discretionary provisions of the law. In addition, the Department has
worked with WIC State agencies to voluntarily implement the provisions
designated as nondiscretionary, including those provisions proposed
verbatim from the law. These legislative provisions required no further
interpretation on the part of the Department as to how State and local
agencies would implement them. While all provisions addressed in the
proposal will be discussed further, those which are discretionary will
be addressed in greater detail.
The proposed rulemaking published by the Department did not include
any of the funding provisions mandated by Public Law 101-147 because
the Department intended to publish these requirements in a separate
rulemaking. However, because the law requires several nondiscretionary
revisions to the WIC Program funds allocation procedures which preclude
the Department from exercising discretion in their implementation, the
Department has included these funding provisions in this final rule.
As indicated previously, these funding provisions include: (1)
Revising the methodology for determining the amount of funds available
for NSA, (2) requiring that at least $8 million of the NSA funds must
be spent on breastfeeding promotion and support, (3) permitting, under
certain circumstances, the conversion of food funds to funds to support
NSA and an option for States to spend forward up to 3 percent of their
food grants into the succeeding fiscal year, and (4) establishing
timelines for the allocation and reallocation of funds. These
provisions cannot be modified in response to public comment because the
legislative language is explicit regarding implementation of these
provisions. Because these provisions result in significant changes to
Sec. 246.16 of the WIC Program regulations, the Department is revising
and republishing Sec. 246.16(a) through (k), redesignated in this final
rule as paragraphs (a) through (i), in its entirety. In addition and as
required by law, these provisions were effective on October 1, 1989 and
were reflected in grants to State agencies since Fiscal Year 1990.
This final rule also incorporates into Sec. 246.7 of the WIC
Program regulations references to various cash payments which are
required by statute to be excluded from consideration as income for
Federal assistance programs. Further, due to the addition of these
references and other changes necessary to incorporate adjunct income
eligibility requirements, newly designated paragraph (d) in Sec. 246.7
has been revised and republished in its entirety in this final rule.
Department-wide rules implementing new Governmentwide lobbying
restrictions, 7 CFR part 3018, are also included in this final rule. In
addition, OMB Circular A-90, ``Cooperating with State and Local
Governments to Coordinate and Improve Information Systems'' has been
replaced by OMB Circular A-130. Therefore, all references to Circular
A-90 have been revised to reference OMB Circular A-130.
Several nonfunding provisions of Public Law 101-147 were
implemented in previous rulemakings. Therefore, they were not included
in the proposed rule of July 9, 1990 and are not addressed in this
final rule. First, the provision that State agencies be given the
option to certify and provide program benefits to incarcerated persons
(sections 123(a)(4)(A)(iv) and 123(a)(4)(E)) were published in an
interim rule on December 14, 1989 (54 FR 51289) and in a final rule on
August 5, 1992 (57 FR 34500). On February 1, 1990 (55 FR 3385), a final
rule was published which implemented two nondiscretionary benefit-
related provisions of section 123(a)(2) of Public Law 101-147--
automatic WIC income eligibility for fully eligible current recipients
of Food Stamps, AFDC, and/or Medicaid benefits, and the State agency
option to exclude military off-base housing allowance payments from an
applicant's countable income for purposes of determining WIC income
eligibility. Finally, the requirements of sections 123(a)(3)(D) and
123(a)(4)(A)(i)(II) of the law regarding the provision of information
on, and coordination with, substance abuse counseling and treatment
services were included in a separate proposed rule issued on March 30,
1990 (55 FR 11946). This rule was issued in its final form on February
26, 1993 at 58 FR 11497.
Following is a discussion of each provision, as proposed, comments
received on the proposed rule, an explanation of the provisions set
forth in this final rule, and a discussion of several nondiscretionary
provisions, including four basic areas of funding provisions in Public
Law 101-147, which have been incorporated into this final rule.
1. References to 7 CFR Part 3016
Until the publication of the final rule entitled ``Uniform
Administrative Requirements for Grants and Cooperative Agreements to
State and Local Governments'' on March 11, 1988 (53 FR 8044), the
requirements for grants and cooperative agreements were set forth in 7
CFR part 3015. This rule was promulgated to establish consistency and
uniformity among some 23 Federal agencies in the administration of
grants to, and cooperative agreements with, State and local governments
and federally-recognized Indian tribal governments. The final rule was
published as 7 CFR part 3016, replacing part 3015 for most grants and
subgrants to these government entities, including WIC grants, effective
October 1, 1988. Therefore, as proposed, this final rule would change
all references to 7 CFR part 3015 contained in part 246 to ``7 CFR part
3016.''
2. Breastfeeding Provisions (Secs. 246.2, 246.3(e)(4), 246.11(c)(2),
246.11(c)(3), 246.11(c) (5)-(6) and (8), and 246.14(c)(10))
Public Law 101-147 established a number of mandates relative to
breastfeeding. The significant number of provisions in Public Law 101-
147 concerning breastfeeding promotion and support activities, and the
level of detail with which most of these provisions are addressed,
clearly demonstrate strong Congressional support for breastfeeding
promotion and support efforts in the WIC Program. This strong support,
in turn, reflects nutritional science and medical opinion that
breastfeeding offers significant nutritional and health benefits to
infants.
The Department shares this belief and has always actively
encouraged the promotion and support of breastfeeding as the optimal
method of infant feeding. Program regulations already contain a number
of provisions in support of breastfeeding. Furthermore, the Department
has taken non-regulatory actions in this area, including the
development of publications to help local agency staff teach
participants about breastfeeding; participation in cooperative efforts
with other Federal agencies and organizations to promote breastfeeding,
such as the USDA Breastfeeding Promotion Consortium which meets semi-
annually; and the award of grants for projects on breastfeeding, such
as the funding of a WIC Breastfeeding Promotion Study and Demonstration
to identify, evaluate, and demonstrate approaches to promote
breastfeeding effectively in WIC and, more recently, the award of
grants to test the effectiveness of breastfeeding incentives in eight
locations. The provisions regarding breastfeeding contained in Public
Law 101-147 will serve to strengthen the emphasis in current
regulations by focusing more attention on the promotion and support of
breastfeeding activities at both the State and local levels. State and
local agencies are encouraged to expand their efforts to increase the
incidence and duration of breastfeeding among WIC participants.
This final rule amends the regulations to include nondiscretionary
provisions (many of which have already been implemented by State
agencies) which: (1) Require that the State agency include in its
annual plan of operation and administration a plan to promote
breastfeeding and to coordinate WIC operations with local programs for
breastfeeding promotion, (2) require each State agency to designate an
agency staff member to coordinate breastfeeding promotion efforts, (3)
require that the State agency provide training to persons providing
breastfeeding promotion and support, (4) authorize the purchase of
breastfeeding aids by State and local agencies as an allowable
administrative expense, (5) require that the State agency provide
breastfeeding promotion materials in languages other than English, and
(6) establish a requirement that of the funds set aside for nutrition
services and administration, at least $8 million must be spent in the
area of breastfeeding promotion and support. This $8 million set-aside
is discussed in further detail in section 11 of this preamble. This
final rule also revises the regulations to implement the discretionary
breastfeeding provisions, which are: (1) Definition of
``breastfeeding,'' (2) breastfeeding promotion and support standards,
and (3) annual evaluation of breastfeeding promotion and support
efforts.
a. Definition of ``Breastfeeding'' (Sec. 246.2). Section 123(a)(6)
of Pub. L. 101-147 adds a new section 17(h)(4)(A) to the Child
Nutrition Act (CNA) of 1966 to require the Secretary, in consultation
with the Secretary of Health and Human Services, to develop a
definition of ``breastfeeding'' for the purpose of the WIC Program.
Accordingly, the Department asked the Committee on Breastfeeding
Promotion of the National Association of WIC Directors (NAWD),
representatives from USDA and the Maternal and Child Health Bureau in
the Department of Health and Human Services (DHHS), and other experts
on breastfeeding, to provide input on developing a national definition
of breastfeeding. The NAWD Committee recommended that ``breastfeeding''
be defined as ``the provision of mother's milk to her infant on the
average of at least once a day.'' The DHHS concurred with this
recommended definition for WIC Program purposes.
Except as may otherwise be specified, this definition would be
consistently applicable to all aspects of the WIC Program, including
the evaluation of promotional efforts and the determination of
categorical eligibility as a breastfeeding woman. The definition also
recognizes that any breastfeeding, even if only on an average of once a
day, provides some immunological and nutritional benefits which would
otherwise not be provided to an infant, as well as significant
psychological benefits, including assisting the transition to
motherhood, and assisting the formation of strong bonds between the
mother and her infant.
It is the Department's belief that a result of successful
breastfeeding promotion should be a serious commitment to breastfeeding
on the part of mothers so that breastfeeding will be the rule rather
than the exception. The Department also acknowledges that any amount of
breastfeeding should be encouraged. Partial breastfeeding supplemented
by formula feeding is preferable to no breastfeeding at all. Therefore,
the Department proposed the following definition of ``breastfeeding''
be added to Sec. 246.2: ``the practice of feeding a mother's breastmilk
to her infant(s) on the average of at least once per day.''
The majority of commenters addressing the definition of
``breastfeeding'' supported the provision as proposed. Therefore, in
view of the comments received and the Department's previous
consultation with the National Association of WIC Directors, and the
Secretary of the Department of Health and Human Services, including the
Centers for Disease Control (CDC), the definition of ``breastfeeding''
in this final rule remains unchanged from the proposed rule.
b. Designation of breastfeeding coordinator (Sec. 246.3(e)(4)).
Section 123(a)(6) of Pub. L. 101-147 amends section 17(h)(4)(C) of the
CNA of 1966 to require each State agency ``to designate an agency staff
member to coordinate breastfeeding promotion efforts identified in the
State plan of operation and administration.'' Therefore, the Department
proposed in its July 9, 1990 rulemaking to add the breastfeeding
promotion coordinator position to the list of State staffing
requirements set forth in Sec. 246.3(e)(4).
One commenter addressed this issue and recommended that the
Department specify the staffing standards per caseload as well as the
duties and responsibilities of a breastfeeding coordinator. It was the
intent of the Department to allow the State agency the flexibility
under this provision to delineate the duties and responsibilities of
the breastfeeding coordinator in its State. However, the Department
strongly urges State agencies to make breastfeeding promotion and
education duties the first priority for this position. Other duties,
may be assigned to this position, but should be related to nutrition
services if at all possible. In this way a breastfeeding coordinator
will have the flexibility to perform duties specific to the needs of
the particular State. Accordingly, the Department is adopting the
provision as proposed.
c. Training for breastfeeding promotion (Sec. 246.11(c)(2)).
Section 123(a)(6) of Public Law 101-147 adds a new section 17(h)(4)(D)
to the CNA of 1966 requiring the State agency ``to provide training on
the promotion and management of breastfeeding to staff members of local
agencies who are responsible for counseling (WIC) participants * * *
concerning breastfeeding.'' Therefore, the proposed rule added a new
sentence at the end of Sec. 246.11(c)(2) of the current WIC Program
regulations to require State agencies to provide training on the
promotion and management of breastfeeding to local agency staff.
The majority of commenters approved this provision as proposed. One
commenter approved the provision but indicated that additional funds
would be needed to provide such training to local agency staff.
Congress has already augmented the existing requirement that States
expend at least one-sixth of their nutrition services and
administration (NSA) grants on nutrition education by mandating in
Public Law 101-147 a targeted expenditure nationally of at least $8
million for the promotion and support of breastfeeding among WIC
participants. The Department has issued a policy memorandum which
clarifies that salary and benefit expenses of staff and non-WIC staff
to deliver/attend training on breastfeeding promotion and support have
been and continue to be allowable breastfeeding promotion and support
expenditures. Accordingly, the proposed modification of
Sec. 246.11(c)(2) is adopted without changes.
d. Provision of non-english breastfeeding materials
(Sec. 246.11(c)(3)). Section 17(f)(14)(A) of the CNA of 1966 has long
required State agencies to provide nutrition education materials to
local agencies in languages other than English in areas where a
substantial number of low-income households speak other languages.
Section 123(a)(4)(D) of Public Law 101-147 amends section 17(f)(14)(A)
of the CNA of 1966 specifically to add breastfeeding promotion
materials and instruction to this requirement.
The Department proposed to revise Sec. 246.11(c)(3) of the
regulations to require that the State agency ``identify or develop
resources and educational materials, including breastfeeding promotion
and instruction materials, for use in local agencies, taking reasonable
steps to include materials in languages other than English, in areas
where a significant number or proportion of the population needs the
information in a language other than English, considering the size and
concentration of such population, and where possible, the reading level
of the participants.''
One commenter responded affirmatively to the provision. This
commenter, however, recommended these materials be developed at the
Federal level. The Department may develop some materials to assist
State agencies in meeting this requirement. However, such action on the
part of the Department does not alleviate the obligation imposed by
this legislation on State agencies to produce or provide such materials
for their WIC participants.
State agencies should note that the joint statement of explanation
accompanying H.R. 24 (Congressional Record, October 10, 1989, H6863)
clarifies that Congress does not expect State agencies to develop and
produce all such materials on their own in cases where private entities
have donated a sufficient supply of materials which include correct,
complete, and up-to-date information. Furthermore, the Department
believes that any printed information, either about breastfeeding,
nutrition education, or the application/certification process itself,
should reflect, where possible, the reading level of WIC participants,
regardless of the language used. Accordingly, the final rule retains
the requirement as proposed.
e. Breastfeeding promotion and support standards and evaluation
(Sec. 246.11(c)(5)-(6) and (8)). Section 123(a)(3)(C) of Public Law
101-147 adds a new section 17(e)(2) to the CNA of 1966 mandating that
the Department ``prescribe standards to ensure that adequate * * *
breastfeeding promotion and support are provided.''
The Department requested the assistance of National Association of
WIC Directors' (NAWD) Committee on Breastfeeding Promotion in
developing and prescribing the breastfeeding promotion standards
required by Public Law 101-147. The standards/requirements recommended
by this Committee were based on a position paper previously developed
by NAWD on Breastfeeding Promotion, and reflect the concern of NAWD
that requirements such as these be general in nature. In its July 9,
1990 proposed rule, the Department proposed to add the following
requirements in new Secs. 246.11(c)(8)(i)-(iv): (1) The State agency
shall develop a policy that creates a positive clinic environment which
endorses breastfeeding as the preferred method of infant feeding; (2)
Each local agency shall designate a staff person to coordinate
breastfeeding promotion and support activities; (3) The State and local
agency shall incorporate task-appropriate breastfeeding promotion and
support training into orientation programs for new staff involved in
direct contact with WIC clients, and; (4) The State agency shall
develop a plan to ensure that women have access to breastfeeding
promotion and support activities during the prenatal and postpartum
periods.
New section 17(e)(2) of the CNA of 1966 also mandates that States
annually evaluate breastfeeding promotion and support activities,
including the views of participants concerning the effectiveness of the
nutrition education and breastfeeding promotion and support they
received. Section 246.11(c)(5) of the WIC regulations currently
requires that WIC State agencies perform and document annual
evaluations of nutrition education activities, which have always
encompassed breastfeeding promotion. Because existing program
regulations already contained annual nutrition education evaluation
requirements, the Department proposed some minor modifications to
existing Secs. 246.11 (c)(5) and (c)(8) to emphasize that breastfeeding
education and promotion are to be included in these evaluations.
A few commenters who addressed these proposed changes opposed the
annual review requirement for breastfeeding promotion and support and
recommended the frequency of this review activity be revised to be
consistent with the biennial review of local agencies as required in
Public Law 101-147.
Because language in Public Law 101-147 requires that evaluations of
breastfeeding promotion and support activities be performed annually by
State agencies, this provision must be retained as proposed. However,
as indicated above, this annual evaluation, for most States, will not
be a new requirement, because most if not all have included it as a
part of the currently required nutrition education evaluation. For
those that have not, it is likely to be a simple extension of the
evaluation currently being performed annually of nutrition education
activities, and likely entails utilizing the same assessment tool
currently used to evaluate nutrition education activities, such as a
survey. Furthermore, during management evaluation reviews which must be
conducted at least biennially, as set forth in Sec. 246.19(b)(3) of
this final rule, State agencies are required to monitor compliance with
all aspects of program operation including whether local agencies are
complying with the nutrition education and breastfeeding promotion and
support activities required by Sec. 246.11(c)(8).
Therefore, in this final rule, Sec. 246.11 (c)(5), (c)(6), and
(c)(8) are adopted as proposed. In addition to the assessment of
participants' views concerning the effectiveness of nutrition education
and breastfeeding promotion and support they received, the Department
would encourage all State agencies to include in their evaluation an
assessment of the outcomes of nutrition education and breastfeeding
promotion and support, including the incidence and duration of
breastfeeding.
f. Breastfeeding aids as an allowable administrative expense
(Sec. 246.14(c)(10)). Section 123(a)(6) of Public Law 101-147 adds a
new section 17(h)(4)(B) to the CNA of 1966 mandating that the
Department ``authorize the purchase of breastfeeding aids by State and
local agencies as an allowable expense under nutrition services and
administration.'' To implement this legislative mandate, a new
Sec. 246.14(c)(10), which includes ``breastfeeding aids'' as allowable
administrative costs, was proposed to be added by the Department in its
proposed rulemaking. Accordingly, the proposed rule would allow, but
would not require, State agencies to purchase, and authorize their
local agencies to purchase, breastfeeding aids with WIC NSA funds.
Although commenters generally supported the provision as proposed,
several suggested that more detail be added on the breastfeeding aids
which may be considered allowable costs. FNS believes the detailed
discussion in the preamble to the proposed rule adequately addressed
this subject. It has also issued additional guidance through its
regional offices in a January 17, 1991 policy memorandum entitled,
``Allowable Costs for the Promotion and Support of Breastfeeding and
the Reporting of Allowable Nutrition Services Expenditures.''
However, in this final rule a new paragraph (c)(10) has been
modified to state that allowable NSA costs include ``the cost of
breastfeeding aids which directly support the initiation and
continuation of breastfeeding.'' This is consistent with the preamble
of the proposed rule and policy issued by the Department, that
breastfeeding aids include, but are not limited to, devices such as
breast pumps, breastshells, and nursing supplementers, which directly
support the initiation and continuation of breastfeeding.
Breast pumps, including manual, battery-operated, or electric
models, are used to express breast milk for storage and later use or to
relieve over-fullness. Breastshells (i.e., breastshields and breast
cups) are used for correcting inverted nipples. A pregnant woman with
this problem is usually encouraged to start wearing such a device as
early in pregnancy as possible. If the problem continues after the
infant is born, it may be necessary to wear the aid between
breastfeedings. Nursing supplementers are small tubes which are taped
against the mother's body through which infant formula or other
nourishment is expressed as the infant breastfeeds. This permits the
mother to supplement breastfeeding when the supply of breastmilk is
insufficient to meet the infant's nutritional needs without resorting
to bottlefeeding. Avoiding the use of a bottle for supplementary
feeding eliminates possible confusion for the infant who is learning
how to breastfeed.
Other devices or aids, such as nursing pads or nursing bras, which
also directly support the initiation and continuation of breastfeeding,
may also be purchased with NSA funds. However, State and local agencies
should weigh the benefits of providing this more marginal equipment,
which provides less direct support for the initiation and continuation
of breastfeeding, against the importance of management functions and
participant benefits (e.g., nutritional counseling) that could
otherwise be provided or enhanced with the NSA funds. The Department
recommends that States establish very specific policy for local
agencies regarding what, if any, types of breastfeeding aids may be
purchased so that the most efficient use is made of NSA funding
resources. While all of the devices or aids mentioned in this section
are Federally allowable expenses, the Department recommends that States
restrict the use of administrative funds to aids or devices without
which breastfeeding for particular participants would be overly
difficult, e.g., breastshells, nursing supplementers, and breastpumps.
However, items and aids for breastfeeding that go beyond the scope of
the WIC Program would not be allowable costs.
3. Adjunct or Automatic WIC Income Eligibility (Secs. 246.2 and
246.7(d)(2)(vi))
Section 123(a)(2) of Public Law 101-147 amended section 17(d)(2)(A)
of the CNA of 1966 to provide adjunct (i.e., automatic) WIC income
eligibility to the following individuals applying for program benefits:
(1) Recipients of Food Stamps, Aid to Families with Dependent Children
(AFDC), or Medicaid Program benefits, and (2) a member of a family
which contains an AFDC recipient or a pregnant woman or infant
receiving Medicaid.
The intent of Congress in passing this provision was to reduce the
administrative burden on local agency WIC staff in the income
determination process, expedite an applicant's entry into the program
thereby removing potential barriers to program participation, and
result in increased referrals from WIC to other health and social
service programs (H.R. Rep. No. 101-194, p. 11-12).
Final regulations were published on February 1, 1990 at 55 FR 3385
to implement the nondiscretionary, benefit-related provision of
extending adjunct income eligibility to ``fully'' eligible recipients
of Food Stamps, AFDC, or Medicaid Program benefits. However, that final
rule left several issues outstanding including presumptive eligibility,
definition of ``family'' for adjunct purposes, and the length of the
certification periods. These and other issues were addressed in the
proposed rule.
Before discussing the proposed and final provisions in this area
and the comments received on the proposed rule, several facts regarding
adjunct income eligibility are important to restate. First, this
provision provides only automatic income eligibility. Persons who are
determined income eligible for WIC must still meet the other prong of
WIC eligibility and be determined at nutritional risk before they can
participate in the WIC Program and receive benefits.
Secondly, in accordance with the language of Public Law 101-147,
which specifically cites programs conducted under Federal law, these
provisions apply only to recipients of the Federal AFDC, Medicaid, and
Food Stamp Programs. A few States are administering programs financed
solely by State funds that operate like and parallel the Federal AFDC
or Medicaid programs. In addition, some States have chosen to extend
Medicaid program benefits with State funds to pregnant women and
infants who have incomes above 185 percent of poverty. Persons
participating in such state-administered programs cannot be determined
or classified as adjunctively income eligible for the WIC Program on
that basis. As discussed in further detail below, however, some of
these individuals may, at the State agency's discretion, be determined
automatically income eligible for WIC based on participation in certain
State-administered programs if the State program has income limits at
or below the WIC Program income guidelines, as set forth in newly
redesignated Sec. 246.7(d)(2)(vi)(B) of this final rule (previously set
forth in Sec. 246.7(c)(2)(vii)). This provision has been in the WIC
regulations since 1981.
Third, while the legislation states that ``recipients'' of AFDC,
Medicaid, or Food Stamp benefits or a member of a family which contains
a recipient of certain programs are adjunctively income eligible for
WIC, ``recipients'' in this context and as intended in this rule are
individuals who have been certified or determined eligible to receive
benefits from one or more of these programs. It would not be feasible
to base adjunct income eligibility status for WIC on whether an
individual actually receives AFDC, Medicaid, or Food Stamp benefits at
the time of WIC application. For example, an individual may be
certified as eligible to receive Medicaid benefits but at the time he/
she applies for WIC benefits is not in need of or has not sought
Medicaid services. Section 246.7(d)(2)(vi)(A) has been modified by this
final rule to clarify this point.
Fourth, individuals are required to document that they are
certified as eligible to receive AFDC, Medicaid, or Food Stamp Program
benefits. This requirement was first established in the final rule
published in the Federal Register on February 1, 1990 at 55 FR 3385.
Such documentation would include, for example, a participant's program
identification card, or notice of program eligibility. State agencies
may also, if they have the capability, assist applicants in obtaining
such documentation through use of available means such as an online
access data system. Some of the State's program identification cards
may not provide the data necessary to confirm that the individual is
currently certified as eligible to receive program benefits. State
agencies should ensure that the documentation required sufficiently
confirms that a WIC applicant is currently certified as eligible to
participate in any one of these programs.
Note that for both Medicaid and AFDC, a recipient is an individual.
This is not the case in the Food Stamp Program. Food Stamp benefits are
for household units. Thus, a Food Stamp ``recipient'' may be one
individual or a group of individuals who are determined eligible for
benefits. Accordingly, some Food Stamp recipients may not have
documentation to confirm that they are certified as eligible to receive
food stamp benefits. They may only have documentation which identifies
that the head of the household and other unnamed family members are
certified as eligible to receive benefits. In such cases, State
agencies should require the WIC applicant to document that the person
named as the head of the household for Food Stamp purposes is certified
as eligible to receive Food Stamp benefits, and that the WIC applicant
resides with the individual named as the Food Stamp head of household,
or provide other similar documentation which proves that the applicant
is certified as eligible to receive Food Stamp benefits.
a. Definition of ``Family'' for members of families that contain an
AFDC recipient or a pregnant woman or infant receiving assistance under
the Medicaid program (Secs. 246.2 and 246.7(d)(2)(vi)). As mentioned
previously, the legislation extends adjunct income eligibility for WIC
to an individual who is a member of a family which contains an AFDC
recipient or a member of family in which a pregnant woman or infant
receives Medicaid. The purpose of this provision is to ensure that
family members of AFDC and certain Medicaid participants, who might not
themselves be AFDC or Medicaid participants, would be determined
adjunctively income eligible for WIC. Consider, for example, a family
unit which includes a pregnant woman and a 2-year old child. The
pregnant woman participates in the Medicaid Program; however, the child
does not qualify. By including family members as adjunctively income
eligible for WIC, Public Law 101-147 extends automatic WIC income
eligibility to the child, as well as to its mother. This provision also
serves to facilitate closer coordination between WIC and other health
and welfare programs that serve the same population and thereby
streamlines administrative procedures.
Prior to issuing a proposed rule on this provision, USDA considered
the development of a new definition of ``family'' that was consistent
across WIC, Medicaid and AFDC. After discussion with Federal Medicaid
and AFDC Program counterparts, however, there was some concern that use
of any one of the Federal programs' definitions of family for purposes
of this provision might exclude, in some rare situations, an individual
as adjunctively income eligible for WIC who in effect may have been
considered or counted as a family member in one of these programs. AFDC
and Medicaid approach the concept of ``family'' in a significantly
different manner from each other and from WIC. The AFDC and Medicaid
``families''--referred to in these programs as ``budget units'' or
``filing units''--may be composed exclusively of persons directly
receiving the program benefit or may include recipients and non-
recipients. Additional persons who contribute to the economic unit may
be excluded from consideration in these programs because they are not
related to the applicant by blood, marriage, or some other form of
legal relationship. In contrast, Sec. 246.2 of the WIC regulations
defines ``family'' as ``a group of related or nonrelated individuals
who are living together as one economic unit * * *'' FNS Instruction
803-3, Rev. 1, dated April 1, 1988, reiterates this regulatory
definition. It considers persons as members of a single family, or
economic unit, when their ``production of income and consumption of
goods and services are related.''
In addition, use of the equivalents of ``family'' in AFDC and
Medicaid for purposes of determining adjunct income eligibility in WIC
would require either (1) that the WIC applicant provide information on
the persons who were considered to be family members for AFDC or
Medicaid; (2) WIC authorities to be charged with the responsibility for
obtaining such information from these other programs; or (3) WIC staff
master the complex eligibility determination procedures of these
programs so that, working with the WIC applicant, they could,
independent of the other programs, reestablish the composition of the
applicant's AFDC or Medicaid ``family'' for WIC purposes. These
alternatives would impose significant unnecessary burdens on the
applicant and/or the program involved. Such procedures would increase
the administrative complexity of the programs and adversely impact on
the delivery of benefits to participants, and would, therefore, be in
direct opposition to Congressional intent.
In order to establish a proposed adjunct income eligibility
procedure which effectively results in an expedited income
determination process for such applicants and limits administrative
burden on local agencies, as intended by Congress, the Department
proposed to expand the definition of ``family'' in Sec. 246.2 of the
regulations solely for use in establishing WIC adjunct income
eligibility.
The Department proposed in its rulemaking to use a definition of
``family'' that would not require the Food Stamp, AFDC or Medicaid
Program to report information to WIC authorities. Nor would it require
the WIC applicant to secure additional information from these programs.
As proposed, the definition of ``family'' in Sec. 246.2 was revised to
provide that, for purposes of determining WIC adjunct or automatic
income eligibility only, ``family'' would be defined as persons living
together, except that residents of an institution could not be
considered members of a single family. WIC Program authorities could
easily apply this definition with minimal burden on applicants. The
Department believed that this proposed definition would not exclude any
person who would have been encompassed by the AFDC and Medicaid
concepts of ``family.''
The majority of commenters addressing this issue opposed the
provision. They objected to different definitions being applied to
three types of applicants--adjunct income eligibles, applicants not
adjunctively income eligible, and homeless persons--and indicated that
such variation would create a ``double standard'' for eligibility and
confusion for WIC clinic staff. In addition, they indicated that
individuals may make manipulations in their household compositions or
family members, i.e., request AFDC or Medicaid recipients to move in
with them, in order to gain WIC adjunct income eligibility status.
Other commenters approved the provision with modifications. For
example, one commenter expressed concern with the fact that the
definition, as proposed, did not address how a foster child should be
counted, and recommended the definition incorporate current policy
which counts a foster child as a family of one. Several commenters
concurred with the definition as proposed as long as the Department's
ultimate goal was to move towards a single definition.
In view of the concerns raised by commenters and the intent of
Congress that the Department establish an expedited process yet limit
the administrative burden on WIC local agencies, the Department has
decided in this final rule to use the WIC Program's current definition
of ``family'' for adjunct income eligibility purposes. Therefore, no
change is necessary in this final rule to the regulatory text.
The Department agrees with commenters that (1) the definition as
proposed is broad and would bring into the WIC Program a number of
persons who may not otherwise be income eligible for program benefits,
and (2) the use of a common definition of ``family'' for adjunct and
nonadjunct applicants in order to determine WIC income eligibility is
preferable in order to ensure limited administrative burden on WIC
local agencies. As reflected by commenters, merely living with an
individual who has been determined eligible to receive AFDC or a
pregnant woman or infant eligible for Medicaid benefits should not
necessarily be the sole factor in determining what family members will
also be deemed adjunctively income eligibility for WIC. The Department
would like to note that the proposed definition of ``family'' for
adjunct purposes was an attempt to account for any slight effect that
might result from variation between the WIC Program's definition of
``family'' and the budgetary or filing unit used by the AFDC and
Medicaid Programs. However, after further review, the Department
believes that using the current WIC definition of ``family'' for
adjunct income eligibility purposes would encompass all, or virtually
all persons that were considered in the budgetary or filing unit for
AFDC or Medicaid, and which are categorically eligible for WIC.
For purposes of determining under Sec. 246.7(d)(2)(vii) which
family members must also be deemed adjunctively income eligible for
WIC, and as set forth in the current WIC Program regulations,
Sec. 246.2, ```Family' means a group of related or nonrelated
individuals who are living together as one economic unit, except that
residents of a homeless facility or an institution shall not all be
considered as members of a single family.'' Therefore, those family
members, categorically eligible for WIC, who would be adjunctively
income eligible are (as is currently the case in WIC) those
individuals, related or nonrelated, who usually (although not
necessarily) live together and share income and resources with an
individual who has been certified eligible to receive AFDC or a
pregnant woman or infant who has been certified as eligible to receive
Medicaid benefits. Further, in response to commenter concerns, the
Department would like to emphasize and clarify how this definition
applies to foster children. As set forth in FNS Instruction 803-3, Rev.
1, a foster child who is the legal responsibility of a welfare or other
agency is considered a family of one. Therefore, a foster child who
remains the legal responsibility of the State and is certified as
eligible to receive AFDC or Medicaid (if the foster child is an
infant), can never confer adjunct income eligibility to family members.
Only the foster child would be adjunctively income eligible for WIC.
The Department also proposed to revise Sec. 246.7(d)(2)(vii) of the
regulations to implement the legislative mandate that a person who
documents that he/she is a member of a family which includes an AFDC
recipient or a pregnant woman or an infant who receives Medicaid shall
be determined adjunctively income eligible for WIC. No commenters
addressed this issue. In this final rule, this paragraph has been
renumbered as (d)(2)(vi)(A)(2) and has also been modified slightly to
eliminate potential confusion by replacing the word ``receives'' with
the phrase ``is certified eligible to receive.'' This change is
explained fully in Section 3 of this preamble, above, and is intended
to include persons who are currently certified as eligible for Medicaid
or AFDC although they are not currently participating in those
programs.
The remainder of this provision remains as proposed. It retains the
requirement that an applicant seeking adjunct eligibility must
document, at a minimum, that the family member is certified as eligible
to receive such benefits and that the family member resides with the
applicant. Examples of documentation to confirm that a family member is
certified as eligible to participate in AFDC or Medicaid is also
addressed previously in this preamble. Documentation that the WIC
applicant resides with the individual certified as eligible to receive
such benefits need not be extensive. Such documentation would include,
for example, a letter or envelope addressed to the family member who
participates in, for example, AFDC, which matches the WIC applicant's
address, or a program identification card or notice of eligibility
which includes the family member's name and address and matches the WIC
applicant's address.
As set forth in newly designated Sec. 246.7(d)(2)(vi)(B) of this
final rule, State agencies continue to have the option to accept, as
evidence of income within Program guidelines, documentation of the
applicant's participation in State administered programs that routinely
require documentation of income, provided that those programs have
income eligibility guidelines at or below the State agency's WIC
Program income guidelines. This section had been redesignated as
Sec. 246.7(d)(2)(x) in the proposed rule. It has again been renumbered
in this final rule.
As set forth in Public Law 101-147, section 123(a)(2) of the law
revises section 17(d)(2) of the CNA of 1966 to specify that persons who
are at nutritional risk shall be eligible for the WIC Program if the
individual meets WIC's maximum income limit (which in the law is
prescribed as the limit prescribed for the National School Lunch
Program Act for free and reduced price meals), or receives food stamps,
AFDC, or Medicaid benefits, or is a member of a family that receives
AFDC or in which a pregnant woman or an infant receives Medicaid.
Therefore, as set forth in the law, persons determined adjunctively
income eligible for WIC are not further required to meet WIC's maximum
income limit set at 185 percent of poverty. Accordingly, the Department
proposed in Sec. 246.7(d)(2)(x) that persons who are adjunctively
income eligible shall not be subject to these income limits. No
comments were received on this proposed provision. Therefore, in this
final rule, the Department has retained the provision as proposed,
however, it has been redesignated as Sec. 246.7(d)(2)(vi)(C). State
agencies should be aware that there are cases where an adjunctively
income eligible individual's family income can actually exceed the
income limit of 185 percent of poverty. For example, in the Medicaid
Program, some States employ what is known as the ``Katie Beckett'' or
``TEFRA'' option to serve disabled children who in the past would have
been institutionalized but now live at home. These children are deemed
income eligible for Medicaid without regard to the income of the
parents. However, as set forth in the law, participation in Medicaid
(or one or more of the other programs described above) is the sole
factor in determining an applicant as adjunctively income eligible for
WIC benefits, assuming the applicant has elected to apply for WIC
benefits on this basis. The fact that a few such individuals may
actually have family incomes which exceed WIC guidelines is not
determinative in these instances.
b. Adjunct income eligibility for presumptively eligible recipients
of assistance under AFDC or Medicaid (Sec. 246.7(d)(2)(vi)). Adjunct
income eligibility for fully eligible recipients of Food Stamps and
assistance under AFDC and Medicaid was established in a final rule
published on February 1, 1990 at 55 FR 3385. That rulemaking did not
grant adjunct income eligibility to ``presumptively,'' or
provisionally, eligible recipients of AFDC or Medicaid who apply for
WIC. No similar presumptive eligibility provision exists in the Food
Stamp Program.
Presumptive eligibility essentially entails granting full AFDC
benefits to all or, at the option of the State, certain eligible
recipient categories, and limited Medicaid benefits to pregnant women
based on their categorical eligibility, before they have completed the
application process and have been determined fully eligible. Such
recipients are subsequently removed from the program if they are
determined to be ineligible once the application process has been
completed. In both the AFDC and Medicaid Programs, States have the
option to provide presumptive eligibility determinations. Currently,
approximately 30 States have opted to provide such determinations under
the Medicaid Program and approximately 13 States under the AFDC
Program. In the February 1, 1990 final rulemaking, the Department did
not permit these presumptively eligible recipients of the AFDC and
Medicaid Programs to be considered adjunctively income eligible for WIC
because the Department needed first to gather more information about
the meaning and implications of presumptive eligibility in these
programs.
Although, as indicated above, presumptively eligible AFDC and
Medicaid recipients may ultimately prove to be ineligible for these
programs, in actual practice, as confirmed with our Federal Medicaid
and AFDC counterparts, such persons characteristically prove to be
fully eligible upon completion of the eligibility determination
process. This is not, therefore, a frequent cause of persons ceasing to
be certified as eligible to receive benefits under these programs after
relatively brief periods of participation, and it is by no means the
only cause of early termination. Individuals may cease to be certified
as eligible to participate in AFDC, Medicaid, or the Food Stamp Program
at any time because these programs, for the most part, reassess
eligibility more frequently than the WIC Program. Furthermore, persons
may cease to be certified as eligible to receive benefits under these
programs for reasons entirely unrelated to changes in their income,
e.g., an AFDC recipient who neglects to submit the required monthly
reporting form may be terminated from the program. Even when persons
cease to be certified as eligible to receive benefits under these
programs because of increases in their income, the possibility remains
that they may still meet WIC income eligibility guidelines.
Therefore, the Department intended, as explained in the preamble of
its proposed rulemaking, that any WIC applicant determined
presumptively eligible for AFDC or Medicaid would also be considered
adjunctively income eligible for WIC. However, the proposed regulatory
language in Sec. 246.7(d)(2)(vii)(A) inadvertently did not specifically
mention presumptive eligibility.
The majority of commenters approved the Department's proposal to
extend WIC adjunct income eligibility to persons participating in AFDC
or Medicaid based on presumptive eligibility determinations. However,
several commenters recommended that the actual regulatory text be
revised specifically to grant WIC adjunct income eligibility status to
applicants determined presumptively eligible for AFDC or Medicaid.
Therefore, based on the comments received, this final rule, in
newly designated Sec. 246.7(d)(2)(vi)(A)(1), states that applicants who
are certified as eligible to receive Food Stamps, AFDC or Medicaid, or
applicants who are presumptively eligible for AFDC or Medicaid, and
document such eligibility, shall be determined adjunctively income
eligible for WIC.
c. Cessation of food stamp, AFDC or medicaid benefits and its
impact on WIC certification periods and mid-certification
disqualification of adjunct income eligible participants
(Sec. 246.7(h)(1)). An additional issue which was addressed in the
Department's proposed rule is how to treat WIC participants who gain
adjunct income eligibility only to be subsequently determined
ineligible for Food Stamps, AFDC or Medicaid, and the impact, if any,
such a determination should have on these individuals' WIC
certification periods. Currently, WIC local agencies are required to
make a WIC income eligibility determination at the time of initial
application and subsequent applications. The standard certification
period is 6 months, though pregnant women may be certified for the term
of their pregnancies and up to 6 weeks postpartum, and State agencies
may opt to certify infants who are under six months of age for a period
extending to their first birthday. However, in Sec. 246.7(g) of the
current WIC regulations and under current WIC policy, if a reassessment
of program eligibility is performed mid-certification and the
individual is determined ineligible, the local agency must disqualify
the individual in the middle of a certification period. Examples of
situations which might trigger a reassessment include a change in
income reported by a participant, rehiring of temporarily laidoff
workers and validated citizen complaints of eligibility violations. If
the State agency has reason to believe that a participant may no longer
be income-eligible, prudent management would dictate the need to
conduct a reassessment. However, WIC participants are not required to
report income changes during certification periods nor are local
agencies required to inquire about such changes. State agencies have
been informed that they may wish to establish formal policies for when
it is appropriate to conduct a mid-certification reassessment.
As discussed earlier in section 3.b. of this preamble, there are a
variety of reasons why persons may cease to be certified as eligible to
participate in one or more benefit programs that confer adjunct income
eligibility for WIC, many of which do not signal a change in financial
status. To require in these regulations that adjunctively income
eligible WIC participants must report cessation of benefits in any one
of these programs during their WIC certification periods would be
inconsistent with current policy regarding the reporting of income
changes for other WIC participants.
Therefore, the Department proposed in its rulemaking to allow State
agencies to confer adjunct income eligibility for the entire WIC
certification period to persons who, at the time of application for
WIC, were either recipients of Food Stamps, Medicaid, or AFDC, or were
members of families which contain an AFDC recipient or a pregnant woman
or an infant who receives Medicaid. In the proposed rule, a statement
was added to newly designated Sec. 246.7(h)(1) to the effect that the
State agency need not, during a certification period, reassess the
income eligibility of a person who has been enrolled in WIC based on
adjunct income eligibility.
While the majority of commenters approved the proposal that
adjunctively income eligible participants be given a full certification
period, some commenters opposed the proposed change in the regulations.
Although the intent of the proposal was to confer equal treatment for
adjunct and nonadjunct income eligible participants by ensuring such
participants are provided a full certification period, several
commenters noted that the proposed regulatory language change to the
mid-certification disqualification requirements resulted in and
reflected inequitable treatment. In effect, nonadjunct participants
could be disqualified mid-certification while participants adjunctively
income eligible for WIC were guaranteed continued participation
regardless of income changes during the certification period. Such
commenters recommended the regulatory language be revised to reflect
consistent mid-certification reassessment policy regardless of the
method used to initially determine an individual's income eligibility
for WIC.
Therefore, in response to these concerns, the Department has
clarified these issues in this final rule. First, no change is
reflected in this final rule concerning WIC certification periods. All
participants, including those determined adjunctively income eligible
or income eligible under the State option set forth in newly designated
Sec. 246.7(d)(2)(vi)(B) would be subject to the certification periods
set forth in newly designated Sec. 246.7(g)(1), except in those cases
where State policy permits shorter certification periods in certain
circumstances, as permitted in newly designated Sec. 246.7(g)(1)(v).
Secondly, newly designated Sec. 246.7(h)(1) has been revised with
regard to mid-certification disqualification action. State agencies
shall continue to ensure that local agencies disqualify an individual
during a certification period if, on the basis of a reassessment of WIC
eligibility, the individual is determined ineligible. In addition,
newly designated paragraph (h)(1) has been revised to clarify the
procedures to be followed in the case of participants who at the time
of certification were determined adjunctively income eligible (or
income eligible under the State option) for WIC. As set forth in this
paragraph, an individual determined adjunctively income eligible or
eligible under the State option, shall not be disqualified mid-
certification solely on the basis of a determination that they (or
where applicable for adjunct eligibility purpose, a member of their
family) are no longer certified as eligible to participate in AFDC,
Medicaid, Food Stamps, or another qualified State-administered program
(as permitted in Sec. 246.7(d)(2)(vi)(B)). As discussed above, such
participants or a family member or members may no longer be certified
as eligible to participate in any one of these programs for reasons
entirely unrelated to their income status. In addition, while the WIC
participant may have been determined adjunctively income eligible for
WIC due to certified eligibility for Medicaid but may have been
recently terminated from the Medicaid Program, such an individual could
be certified as eligible to participate in AFDC and/or Food Stamps.
Therefore, such an individual would continue to be classified as an
adjunct income eligible WIC participant and would not be disqualified
mid-certification.
Therefore, as set forth in paragraph (h)(1) of this final rule,
State agencies are required to ensure that local agencies disqualify
such an individual during a certification period if, on the basis of a
reassessment of Program eligibility he/she is no longer deemed
adjunctively income eligible (or income eligible under the State
option), and after utilizing standard income screening procedures
employed for other WIC applicants, such an individual does not meet
income criteria. Any mid-certification reassessment of an adjunct
income eligible participant must first involve a determination of
whether the individual (1) is certified as eligible to participate in
at least one of the programs which triggers adjunct income eligibility
or (2) is a member of a family which contains an individual certified
as eligible to receive AFDC or a pregnant woman or an infant is
certified as eligible to receive Medicaid or (3) is participating in a
qualified State-administered program, if the State agency has chosen to
implement this option. If none of the conditions exist, the
reassessment process would proceed with the usual income screening
procedures used for individuals not adjunctively income eligible for
the Program. If, utilizing these procedures, the individual is no
longer income eligible, he/she must be disqualified or terminated from
the program mid-certification. Such procedures ensure equal treatment
of any WIC participant if his/her eligibility is reassessed mid-
certification. The distinction in this final rule is that the process
used to reassess an adjunctively income eligible participant must be
approached differently in order to ensure an equitable determination of
continued eligibility. Just as there is not a requirement for reporting
income changes during the certification period, adjunctively income
eligible participants are not required to report changes in their
status which may effect the basis for their eligibility during the
certification period.
4. State Plan Requirements (Sec. 246.4(a))
a. Enhanced outreach. In recognition of the importance of enrolling
women in WIC as early in their pregnancy as possible, section
123(a)(4)(A)(ii) of Public Law 101-147 amends section 17(f)(1)(C)(vii)
of the CNA of 1966 to require that the State agency's outreach plan
include ``emphasis on reaching and enrolling eligible women in the
early months of pregnancy, including provisions to reach and enroll
eligible migrants.'' This legislation adds an emphasis on outreach and
also specifically refers to migrants as a target population. Therefore,
the Department proposed to revise Sec. 246.4(a)(7) of the regulations
to require a description in the State plan of how the State intends to
emphasize contacting and enrolling eligible women in the early months
of pregnancy and migrants through its outreach efforts. One commenter
responded to this proposal by recommending additional resources be
provided State agencies to reach potentially eligible migrants.
This final rule retains the provision as proposed. In response to
the commenter's recommendation, the Department notes that through the
overall increases in the amount of NSA funding provided to State
agencies as a result of increases in program funds appropriated by
Congress and the increased percentage of the appropriation which is
allocated as NSA funds as a result of Public Law 101-147, State
agencies will receive more NSA funds to carry out the activities
required by this provision to reach and enroll migrants.
b. Plans to promote breastfeeding. Section 123(a)(4)(A)(i) of
Public Law 101-147 amends section 17(f)(1)(C)(iii) of the CNA of 1966
to require that State plans include a plan to coordinate WIC operations
with ``local programs for breastfeeding promotion.'' Because
coordination between WIC and other programs is already covered in
Sec. 246.4(a)(8) of program regulations, the Department proposed to
modify this paragraph to include breastfeeding promotion.
Further, section 123(a)(4)(A)(iv) of Public Law 101-147 amends
section 17(f)(1)(C)(xi) of the CNA of 1966 to require that the State
agency describe in its State plan the manner in which it intends to
provide nutrition education ``and promote breastfeeding.''
Nutrition education goals and action plans are currently addressed
in Sec. 246.4(a)(9). Therefore, the Department proposed in its
rulemaking to revise Sec. 246.4(a)(9) of the WIC regulations to
include, as part of the State's description of its nutrition education
goals and action plans, a description of the methods that would be used
to promote breastfeeding.
No comments were received on these proposed provisions. Therefore,
this final rule retains the provision as proposed.
WIC Program regulations (Sec. 246.11(e)(1)) have long required
State and local agencies to encourage all pregnant participants to
breastfeed unless contraindicated for health reasons. The breastfeeding
promotion and support provisions of Public Law 101-147 therefore serve
to reinforce and intensify efforts by WIC Program staff to encourage
breastfeeding.
c. WIC benefits for foster children. Section 123(a)(4)(A)(ii) of
Public Law 101-147 added a new paragraph (viii) to section 17(f)(1)(C)
of the CNA of 1966, requiring State agencies to describe in their State
plans how they will provide program benefits ``to infants and children
under the care of foster parents, protective services, or child welfare
authorities, including infants exposed to drugs perinatally.''
Accordingly, the Department proposed to add a new Sec. 246.4(a)(20)
to the WIC regulations to incorporate this legislative mandate.
The majority of commenters addressing this issue approved the
provision, as proposed, but suggested modifications. One commenter
recommended that the Department develop a method of allowing WIC staff
access to such a child's medical records in order to determine
nutritional risk. Another commenter recommended that the Department
require Federally-funded State child social service programs to
coordinate with WIC. While the Department is currently involved in
coordination efforts with numerous Federal health and social service
programs, we would encourage State agencies to initiate discussions
with their State counterparts administering such programs in order to
bring about the suggested actions and coordination efforts within the
State. With regard to both recommendations, we would encourage State
agencies to enter into written agreements with health and welfare
programs serving foster children, as provided in Sec. 246.26(d) of the
WIC regulations pertaining to confidentiality. Such written agreements
provide an effective mechanism to encourage coordination of services
and the sharing of information for eligibility and outreach purposes.
Because these comments do not necessitate changes in the provision
as proposed, the Department is adopting it without changes.
In explaining the provision, Senator Leahy noted (Congressional
Record, August 3, 1989, S10021-2) that Congress intended that
implementation of this provision would entail State or local WIC
agencies contacting foster care and protective service agencies and
providing them with written information about the WIC Program. It would
then be up to the foster care and protective service agencies to make
this information available to their clients.
In regard to a clarification requested by a commenter, this
outreach effort and provision of WIC materials would include agencies
serving foster children in group settings. Because such group settings
would be considered only temporary arrangements, they would fall under
the very broad definition of homeless facilities used in the WIC
Program. As such, this clarification of policy was recently issued by
the Department as guidance to States in implementing the final homeless
regulations published in the Federal Register on August 5, 1992 (57 FR
34500).
d. Improved access for employed persons and rural-area residents.
Most local WIC clinics are located where WIC participants are
concentrated within their service delivery areas, and are organized to
take and process WIC applications during ``normal'' business hours.
This may pose problems for WIC applicants and participants who are
employed and cannot always take time off from their jobs long enough to
complete the application/certification process or participate in
nutrition education activities, and for applicants and participants who
reside in rural areas which may be a considerable distance away from
the nearest WIC local agency or clinic. Similar problems are
encountered by these two groups of participants when they need to make
subsequent trips to the local WIC office to pick up their food
instruments.
Section 123(a)(4)(A)(iv) of Public Law 101-147 focuses attention on
this issue by adding a new section 17(f)(1)(C)(x) to the CNA of 1966
requiring State agencies to describe in their State plans how they will
``improve access to the program for participants and prospective
applicants who are employed, or who reside in rural areas, by
addressing their special needs through the adoption or revision of
procedures and practices to minimize the time participants and
applicants must spend away from work and the distances that
participants and applicants must travel, including appointment
scheduling, adjustment of clinic hours, clinic locations, or mailing of
multiple vouchers.'' Therefore, a new Sec. 246.4(a)(21) was proposed by
the Department with the intent to reiterate this legislative mandate.
Of those commenters addressing this issue, the majority either
opposed the provision or approved the provision but expressed some
concerns. Some commenters expressed concern with staffing the clinic
for late hours, and in one commenter's opinion such action would place
too much demand on local agencies to change clinic hours which could
result in clinic closings. Several commenters noted that additional
funds would be needed to hire additional staff and provide clinic
security for extended or after-hours operation.
It should be noted that this State plan requirement addressing
improved program access for employed applicants and residents of rural
areas is flexible. As proposed, the Department inadvertently used
language in the regulatory text which implied that a State's plan to
improve program access for employed individuals or individuals who
reside in rural areas must include appointment scheduling, adjustment
of clinic hours and/or locations and alternate means of delivery of
benefits. This inadvertent error may have generated the concerns raised
by commenters. As noted above, the legislative language did not specify
that all of these procedures must be implemented, but rather cited
several examples of procedures which might be implemented. In other
words, a State agency may choose to implement procedures to adjust
clinic hours and/or locations, but may prefer not to implement
alternative procedures for delivery of benefits, such as mailing
vouchers. The intent of this legislative provision is to ensure State
agencies take some action to recognize and accommodate the special
needs of employed persons and those living in rural areas. Therefore,
the proposed Sec. 246.4(a)(21) has been modified to clarify that at
least one of the procedures/practices contained in this paragraph must
be implemented, but that each State agency has the option of choosing
which one. State agencies are encouraged, but not required, to
implement more than one of these procedures/practices. In addition,
this provision has been revised to incorporate the legislative
requirement, as discussed below in Section 6.d. of the preamble, that
each State agency must adopt policies to require local agencies to
schedule appointments for adult individuals applying or reapplying for
the WIC Program for themselves or on behalf of others who are employed,
if the local agencies do not currently do so.
While several commenters raised valid security and staffing
concerns with adjusting clinic hours, there are alternatives available
that achieve the goal of improved Program access without significant
resource or security implications. For example, if extended evening
hours are not feasible in all local agencies, the agencies might
consider closing clinic offices early one day during the week and
providing Saturday morning clinic hours. Local agencies might also
provide ``early-bird'' morning services. In this way, both the security
and staffing issues may have a minimal impact on the feasibility of
implementing this procedure. Another option is to establish smaller
satellite facilities that are open a half day to one day a week for
purposes of certification and food instrument issuance that rotate
throughout the local agency's ``catchment area'' in which hard to reach
participants live.
e. Conforming state plan amendments and related provisions. The
proposed rule contained amendments to conform WIC Program regulations
to ensure compliance with certain existing, Department-wide or
government-wide requirements of general applicability. The first of
these are the conforming amendments to State Plan requirements
contained in Secs. 246.24(a) (22) and (23). They concern the
Department's requirements, set-forth in 7 CFR part 3017, on debarment
and suspension and maintenance of a drug-free workplace. In addition,
Sec. 246.6(b), which contains the requirements for agreements entered
by the State agency with local agencies, was amended in the proposed
rule to reflect the debarment and suspension provisions in 7 CFR part
3017. This final rule further amends it to incorporate by reference any
applicable restrictions on the use of Federal funds for lobbying which
are contained at 7 CFR part 3018. The substance of these provisions is
more fully discussed in section 20 of this preamble.
In addition, as discussed in section 10 of this preamble, Public
Law 101-147, as set forth in the Department's proposed rulemaking and
these final regulations (Sec. 246.12(r)(8)), authorizes State agencies
to issue food instruments to participants through means other than
direct participant pick-up. As set forth in this final rule in
Sec. 246.4(a)(21), a State agency which chooses to issue food
instruments through alternative means must include a description of
this system in its State Plan and describe measures to ensure the
integrity of program services, such as nutrition education and health
care/social services linkages, and fiscal accountability. In addition,
as required by Sec. 246.12(r)(8) of this final rule, if a State agency
opts to mail WIC food instruments, it must provide justification, in
the description of the alternative issuance system in its State Plan,
for mailing WIC food instruments to areas where food stamps are not
mailed.
5. Outreach/Certification in Hospitals (Sec. 246.6(f))
A number of local agencies operate the WIC Program within a
hospital, or have cooperative arrangements with an area hospital to
certify WIC applicants. Such arrangements enable eligible newborn
infants to begin receiving WIC benefits from the earliest possible
date, and facilitate enrollment of at-risk mothers who may not have
been eligible during pregnancy immediately after the birth of their
child. Section 123(a)(4)(B) of Public Law 101-147 builds upon existing
local agency/hospital WIC relationships by adding a new section
17(f)(8)(D) to the CNA of 1966 to require each local agency which
either operates a WIC Program within a hospital or has a cooperative
arrangement with one or more hospitals to ``advise potentially eligible
individuals that receive inpatient or outpatient prenatal, maternity,
or postpartum services, or accompany a child under the age of 5 who
receives well-child services, of the availability of Program
benefits.'' The legislation also requires that local agencies, ``to the
extent feasible, provide an opportunity for individuals who may be
eligible to be certified within the hospital for participation in the
program.''
The Department proposed to add a new paragraph (f) to Sec. 246.6 to
state that a local agency which has such an arrangement with a hospital
would be required to enter into a written agreement with the hospital
incorporating the provisions of the legislative mandate. This agreement
would, in turn, be appended to the State agency's agreement with the
local agency. No requirement exists for local WIC agencies which do not
operate the program in a hospital or through a cooperative agreement
with a hospital to establish such an arrangement.
An overwhelming majority of commenters opposed the provision as
proposed. The main concern expressed by commenters was the Department's
proposal that local agencies enter into written agreements with
hospitals. Several commenters indicated that such an agreement could
potentially jeopardize existing arrangements and cooperative efforts
local agencies have established with many hospitals and would be
unnecessarily prescriptive.
Based on commenters' concerns, the Department has deleted in this
final rule the requirement that local agencies enter into written
agreements with hospitals. The remainder of Sec. 246.6(f) is adopted as
proposed. As set forth in this paragraph, the State agency is required
to ensure that each local agency operating the program within a
hospital and/or that has a cooperative arrangement with a hospital
advises potentially eligible individuals that receive inpatient or
outpatient prenatal, maternity, or postpartum services, or that
accompany a child under the age of 5 who receives well-child services,
of the availability of program services. In addition, to the extent
feasible, individuals who may be eligible to be certified for WIC
within the hospital should be provided such an opportunity.
6. Program Referral and Access (Sec. 246.7(b))
In response to mandates of Public Law 101-147 which place increased
emphasis on improving access to the WIC Program and referrals to other
health-related or public assistance programs, the Department proposed
to add a new paragraph (b) to Sec. 246.7. The specific proposed
requirements regarding improved program access and referral, including
comments received and changes made in this final rule, are discussed in
detail below.
a. Providing written information on other programs to WIC
applicants/participants. Section 123(a)(3)(D) of Public Law 101-147
adds a new section 17(e)(3)(A) to the CNA of 1966 which requires State
agencies to ``ensure that written information concerning food stamps,
the program for aid to families with dependent children under part A of
title IV of the Social Security Act, and the child support enforcement
program under part D of title IV of the Social Security Act is provided
on at least 1 occasion to each adult participant in and each applicant
for the program.'' The Department proposed to implement this
requirement by adding a new subparagraph (1) in newly designated
Sec. 246.7(b).
While the majority of commenters approved the provision as
proposed, many of these commenters recommended various changes to the
regulatory text or questioned the intent of the provision as discussed
in the preamble to the proposed rule. First, several commenters
recommended that such information be provided to one adult member in
any family as opposed to ``each adult participant in and each applicant
for the program.'' Commenters noted that as proposed, the requirement
could result in multiple copies of the same materials being provided to
different household members, including children, in the same family.
One commenter recommended the provision of materials be extended to
adult caretakers. Secondly, several commenters recommended such
information be provided to applicants and participants ``on at least
one occasion'' as required by law and not once each certification
period as noted in the proposed preamble.
Based on commenters' concerns, Sec. 246.7(b)(1) has been modified
to require State agencies to ensure that written information concerning
the Food Stamp, Aid to Families with Dependent Children and the Child
Support Enforcement Programs is provided on at least one occasion to
``adult participants and adult individuals applying for the WIC Program
for themselves or on behalf of others.'' Because Congress did not
intend this provision to result in an inordinate administrative burden,
the Department believes that providing one adult member or caretaker of
a household with the required information is sufficient and meets the
intent of Congress.
In addition, while the proposed rule did not specifically define
the phrase ``on at least one occasion,'' the Department suggested in
the preamble that the requirement should mean at each certification or
recertification. However, based on commenters' concerns that this
suggestion went beyond the intent of Congress, the Department wishes to
make clear that State agencies have the flexibility to define what ``on
at least one occasion'' means. It may be defined as only at the initial
application or at each application or reapplication. Since these
comments arose only in connection with the proposed preamble, this
portion of Sec. 246.7(b)(1) is being adopted as proposed.
State agencies may find that a routine distribution at every
application is actually administratively easier or less burdensome than
distribution only at initial application. Also, household circumstances
can change dramatically in a 6-month period. For example, some
applicants and participants who received the information at the initial
WIC application visit may not have contacted one of these programs
because they felt their circumstances at that point in time did not
necessitate seeking other types of assistance. However, 6 months later
at a subsequent WIC application visit, the family's circumstances may
warrant contacting other assistance programs. Therefore, the
availability of such program information at the reapplication visit
would assist the family in seeking additional services. Further, a
program's requirements can change from year to year, in which case WIC
applicants and participants should be apprised or updated regarding
these changes. While the State agency must require local agencies to
provide this information on one occasion, it should consider such
factors when determining if more frequent distribution is appropriate.
In addition, a statement of explanation agreed on by the House and
Senate to accompany H.R. 24 makes it clear that this requirement can be
satisfied by providing a fact sheet which contains basic information
about these programs and the addresses and phone numbers of local
offices where low-income families can apply (Congressional Record,
October 10, 1989, H6863). Further, WIC agencies are not required to
document in each WIC participant's or applicant's file that the fact
sheet was provided, as this would unnecessarily increase paperwork
burdens for local WIC agency staff.
Finally, it is not the intent of this provision to require WIC
agencies to develop and create fact sheets on other assistance
programs. WIC State and/or local agencies are encouraged to consult
with their State and/or local counterparts administering the Food
Stamp, AFDC and Child Support Enforcement Programs to ascertain the
existence and availability of program fact sheets for dissemination in
WIC clinics. State and/or local agencies may simply need to duplicate
copies of a fact sheet or materials developed by another assistance
program.
The Department wishes to reiterate that this final rule attempts to
minimize the administrative and paperwork burden associated with
providing information to Program applicants concerning the Food Stamp,
AFDC, Medicaid, and Child Support Enforcement Programs. However, the
Department believes very strongly that WIC's role in providing
referrals to other health and social service programs is critical to
WIC's mission to promote and protect the health and well-being of at-
risk women, infants, and children. Therefore, the Department fully
expects State and local agencies to aggressively promote and pursue
appropriate referrals on behalf of their clients and, as appropriate,
institute measures to determine whether clients have in fact made
contact with other service providers.
b. Referrals to Medicaid. Section 123(a)(3)(D) of Public Law 101-
147 adds a new section 17(e)(3)(B) to the CNA of 1966 requiring State
agencies to ``provide each local WIC agency with materials showing the
maximum income limits, according to family size, applicable to pregnant
women, infants, and children up to age 5 under the medical assistance
program established under title XIX of the Social Security Act (in this
section referred to as the `medicaid program').'' In addition, a new
section 17(e)(3)(C) is added to the CNA by the same section of Public
Law 101-147 to require that local agencies, in turn, ``provide to
individuals applying for the program under this section, or reapplying
at the end of their certification period, written information about the
Medicaid program and referral to such program or to agencies authorized
to determine presumptive eligibility for such program, if such
individuals are not participating in such program and appear to have
family income below the applicable maximum income limits for the
program.'' In the proposed rule, the Medicaid referral provisions were
addressed by adding a new subparagraph (2) to newly designated
Sec. 246.7(b).
The majority of commenters approved the provision as proposed.
Therefore, the proposed rule is adopted with two minor clarifications
the Department feels are needed. First, this final rule clarifies in
the regulatory text that information about the Medicaid Program must be
provided to ``adult individuals applying and reapplying for the WIC
Program for themselves or on behalf of others.'' This clarification is
intended to ensure that duplicative materials are not provided to
multiple family members applying for the program, which the Department
believes was not intended by Congress. This is also consistent with the
revision made in this final rule to newly designated Sec. 246.7(b)(1)
regarding the provision of written information on the Food Stamp, AFDC
and Child Support Enforcement Programs. State and local agencies should
note, however, that Congress specified in the law that information on
the Medicaid Program must be provided to individuals at the time of
application and reapplication. In addition, the joint statement of
explanation accompanying H.R. 24 further supports this requirement by
directing State agencies to provide local agencies with ``the
information necessary to conduct such referrals, including * * * the
appropriate agency where the participant or applicant could apply for
Medicaid'' (Congressional Record, October 10, 1989, H6863). Thus, this
final rule retains reference to providing this information to those
both applying and reapplying to the WIC Program.
Second, the proposed regulatory language has been revised to
clarify that referrals to the Medicaid Program include the referral of
infants and children to the appropriate agency in the area authorized
to determine eligibility for early and periodic screening, diagnostic,
and treatment (EPSDT) services. EPSDT services are authorized under
title XIX of the Social Security Act and are a component of and
provided under the Medicaid Program. In addition, the proposed
requirement has been revised to clarify that it includes the referral
of pregnant women to the appropriate entity in the area authorized to
determine presumptive eligibility for the Medicaid Program, if the
State has chosen to make such determinations. As mentioned previously,
based on current data, approximately 30 States have opted to provide
presumptive eligibility determinations under the Medicaid Program.
Several clarifications are necessary regarding this requirement
since it was misunderstood by some commenters. First, the requirement
to refer individuals to the Medicaid Program applies only to
individuals seeking WIC benefits who do not currently participate in
the Medicaid Program. Therefore, the effects of implementing this
provision could be minimal if a large majority of WIC applicants and
participants already participate in the Medicaid Program. Second, while
Medicaid eligibility is based on various factors, including citizenship
and alien status, it is not the intent of this provision that WIC local
agency staff become experts in Medicaid eligibility and screen WIC
applicants based on various Medicaid eligibility factors, including for
example, whether such individuals are U.S. citizens. Such extensive
screening procedures would be outside the intent and scope of this
requirement and are not the responsibility of WIC local agencies in
implementing this provision.
As reflected in this requirement, the determination by local clinic
staff of whether to refer an individual to Medicaid would entail a
comparison of the family income, as determined for WIC income
eligibility purposes, to the State Medicaid Program's maximum income
limits according to family size, supplied by the WIC State agency to
its local agencies. One factor which local clinic staff need to
consider, however, in performing this comparison is that Medicaid by
law counts a pregnant woman as if the child were born and living with
her, whereas by law the WIC Program does not count the child. For
example, a pregnant woman applies for WIC benefits and her family size,
which includes herself and her spouse, is a two-person household for
WIC income eligibility purposes. In performing the comparison of this
family's potential Medicaid eligibility, this household's income should
be compared to a family size of three persons on the State's Medicaid
income eligibility scale.
Further, as indicated by Congress, it is not the intent that such
referrals to Medicaid by local WIC agencies be documented in each
individual's WIC file. Moreover, as indicated above in Section 6.a. of
this preamble, the requirement to provide Medicaid information can be
met by use of a simple fact sheet, and it is not the intent of this
provision to require WIC agencies to develop and create a fact sheet on
the Medicaid Program. WIC State and/or local agencies are encouraged to
consult with their State and/or local Medicaid counterparts to
determine the existence and availability of program fact sheets for
dissemination in WIC clinics. State and/or local agencies may simply
need to duplicate copies of a fact sheet or materials developed by the
State's Medicaid Program. Although Congress envisioned minimal
administrative burden on State and local agencies in providing
applicants/participants with information about other assistance
programs, the Department believes, as stated above, that the referral
of WIC applicants and participants to other health and welfare programs
is a vital WIC function and critical to the WIC Program's mission to
promote and protect the health and well-being of at-risk women,
infants, and children.
c. Referrals to other food assistance programs when WIC is fully
enrolled. Section 123(a)(4)(F) of Public Law 101-147 adds a new
paragraph 17(f)(19) to the CNA of 1966 which requires each local agency
to ``provide information about other potential sources of food
assistance in the local area to individuals who apply in person to
participate in the program under this section, but who cannot be served
because the program is operating at capacity in the local area.'' The
Department proposed to incorporate this legislative mandate in the WIC
regulations by adding a new subparagraph (3) to newly designated
Sec. 246.7(b) of the regulations.
No comments were received on this specific requirement, and the
Department is retaining this provision with one minor change to clarify
that the information need only be provided to adults who apply or
reapply for themselves or on behalf of others. This eliminates
duplicative and unnecessary distribution of this information to infants
or children. If individuals cannot be served because the program is
operating at capacity in the local area, local agencies shall provide
to individuals applying or reapplying for the program for themselves,
or on behalf of others, information about other potential sources of
food assistance in the local area. Such potential sources of food
assistance would include, but are not limited to, food banks, food
pantries, and soup kitchens which provide emergency or immediate food
assistance, as well as more structured food assistance programs such as
the Food Stamp Program, the Commodity Supplemental Food Program where
available, the Emergency Food Assistance Program, and/or the Food
Distribution Program on Indian Reservations (FDPIR), as appropriate.
Information and referrals provided under this section need not be
documented in participant files.
d. Scheduled appointments for employed participants and applicants.
Most local agencies utilize an appointment system for the WIC
application/certification process. However, in some local agencies,
particularly the smaller ones, persons wishing to apply for WIC are
seen on a first-come, first-served basis. This type of intake system
creates a particular hardship for the employed applicant or participant
who must take time off from work in order to be certified for WIC, and
may be required to wait a long time for service at the clinic if a
number of clients are in line ahead of her. In order to facilitate
participation of working families in WIC, section 123(a)(4)(F) of
Public Law 101-147 adds a new Section 17(f)(20)(B) to the CNA of 1966
requiring local agencies that do not routinely schedule certification
appointments to ``schedule appointments for each employed individual
seeking to apply or be recertified for participation in such program so
as to minimize the time each such individual is absent from the
workplace due to such application or request for recertification.''
Therefore, the Department proposed to incorporate the requirement that
local agencies schedule appointments for employed WIC applicants/
participants through the addition of a new Sec. 246.7(b)(4). The
majority of commenters supported the provision as proposed. This final
rule retains the requirement as proposed, but clarifies, consistent
with the preceding referral provisions, that this requirement applies
to adult applicants seeking to apply or reapply for themselves or on
behalf of others.
7. Contacting Pregnant Women Who Miss Certification Appointments
(Sec. 246.7(b)(5))
Section 123(a)(4)(F) of Public Law 101-147 adds a new section
17(f)(20)(A) to the CNA of 1966 requiring the State agency to adopt a
policy that would ``require each local agency to attempt to contact
each pregnant woman who misses an appointment to apply for
participation in the program, in order to reschedule the appointment,
unless the phone number and the address of the woman are unavailable to
such local agency.''
The statement of explanation agreed upon by the House and Senate
which accompanied H.R. 24 provides specific guidance regarding how this
mandate should be implemented. First, Congress did not envision that
compliance would entail ``elaborate efforts'' by the local agency;
rather, ``a brief phone call or the mailing of a post card would
suffice'' (Congressional Record, October 10, 1989, H6863). Second,
although the legislation does not require that an effort be made to
contact the pregnant woman who has missed an appointment if the local
agency lacks her address and phone number, Congress expressed the view
that ``local agencies should get her phone number (and/or the address)
when a pregnant woman makes an appointment. This should become a
routine part of making appointments for pregnant women, * * * (if it) *
* * is not already'' (Congressional Record, October 10, 1989, H6863).
The Department believes that this is, in fact, standard practice at
most local agencies.
In commenting on this provision at the time S. 1484 was introduced,
Senator Leahy indicated that it ``applies at the initial certification
interview only. It does not apply to missed appointments for picking up
WIC vouchers or to missed appointments at recertification''
(Congressional Record, August 3, 1989, S10018).
Pursuant to the direction of Congress that follow-up contacts be
made, but that the process not be labor-intensive (Congressional
Record, October 10, 1989, H6863), the Department proposed to add a new
paragraph (b)(5) in Sec. 246.7 which required each local agency to
contact each pregnant woman who misses her first appointment to apply
for participation in the Program in order to reschedule the
appointment. In addition, the Department proposed that each local
agency, at the time of initial contact, would be required to request an
address and telephone number where the pregnant woman could be reached.
Without this requirement, it would be difficult for local agencies to
conduct the Congressionally mandated follow-up with pregnant women who
miss their first certification appointment, and the Congressional
intent of promoting early program intervention for these women would be
thwarted. In addition, the Department proposed several minimum
procedures to comply with the legislative requirement. First, if the
applicant failed to attend her first certification appointment, the
local agency would be required to attempt to contact her by telephone
or mail. If she is contacted by phone, she must be offered one
additional certification appointment. Second, if the applicant could
not be reached by telephone and initial contact is by mail, the local
agency would be required to send the applicant one card or letter
requesting that the applicant contact the local agency for a second
appointment.
The majority of commenters supported these proposed requirements
and indicated that it is essential that the program facilitate the
certification of this high-risk population. Several commenters focused
their concerns on the proposed minimum procedural requirements. One of
these commenters indicated that follow-up calls are ineffective due to
nonworking numbers, recordings, and frequent moves by some individuals,
and further noted that there is no consensus such calls increase the
show rate. Some commenting State agencies recommended the Department
provide State and local agencies with the flexibility to determine
procedurally how to implement the provision. They indicated that other
types of follow-up procedures could produce more effective show rates.
For example, a local agency could schedule an appointment and provide
an alternate appointment in a followup postcard. Applicants would be
instructed to call if the scheduled appointment was unacceptable. These
commenters emphasized that local agencies should have the option to use
a reminder (before the appointment) and/or follow-up system. They
indicated the postcard and reminder system and calling the day before
the appointment are effective procedures.
While the Department must require compliance with the legislative
mandate to contact pregnant women who miss their initial certification
appointment, the Department does have flexibility to modify in this
final rule the minimum procedural requirements to accomplish this
mandate. Therefore, based on commenters' concerns, proposed paragraph
(b)(5) has been modified in this final rule to only require that each
local agency must attempt to contact each pregnant woman who misses her
first appointment to apply for participation in the Program in order to
reschedule the appointment. As noted above, Congress intends this
requirement to apply at the initial certification interview only and
does not apply to missed appointments for WIC voucher pick up or to
missed appointments at subsequent applications. In order to facilitate
such an attempt to contact these women if an initial certification
appointment is missed, this final rule retains the requirement, from
the proposed rule, that local agencies must request an address and
telephone number of each pregnant woman at the time of the initial
contact.
As requested by commenters, the specific procedures for
implementing this requirement have been deleted from this final rule.
It is the responsibility of State and/or local agencies to determine
appropriate procedures and they should be addressed in each State's
procedure manual. In developing such procedures, State and/or local
agencies should consider those addressed in the proposed rule,
commenters' recommendations as noted above and any first-hand
experiences in attempting to contact applicants in order to minimize
no-show rates. As suggested by commenters, the Department also
encourages, but does not require, local agencies to send out a reminder
notice prior to the certification appointment, especially where there
is a long lag time between the initial contact and the date of the
appointment. Such a precaution could reduce the number of missed
initial appointments requiring follow-up action.
8. Prior Notification to Participants for Termination Due to Funding
Shortages (Sec. 246.7(h)(2))
Section 246.7(g)(2) in current regulations (redesignated
Sec. 246.7(h)(2) in the proposed rulemaking) permits a State agency to
discontinue program benefits to certified participants in the event
that it experiences funding shortages which would warrant taking such
action. Because such a step would constitute an adverse action against
a participant, section 123(a)(4)(C)(ii) of Pub. L. 101-147 adds a new
section 17(f)(9)(B) to the CNA of 1966 requiring State agencies in this
situation to first issue a notice to affected participants identifying
``the categories of participants whose benefits are being suspended or
terminated due to the shortage.'' The Department proposed to add this
requirement in a new paragraph (j)(9) in Sec. 246.7.
Current regulations require State agencies to provide 15 days
advance notification of disqualification. To maintain consistency with
the statutory language, the Department proposed that the first sentence
of redesignated Sec. 246.7(j)(6) (formerly Sec. 246.7(i)(6)) be revised
to indicate that 15 days advance notice must be given in cases of
suspension, as well as disqualification.
No comments were received on these proposed provisions. Therefore,
the Department is retaining these requirements as proposed. As
discussed in the proposed rule preamble, State agencies would be able
to define the ``categories'' of participants to be terminated or
suspended in a variety of ways, given the alternative methods available
to them to achieve the necessary reduction in costs through mid-
certification disqualifications. Further, as discussed in Section 6.c.
of this preamble, Sec. 246.7(h)(3) of the final rule requires local
agencies to provide referrals to other food assistance programs when
their caseloads are full. State agencies may wish to advise their local
agencies to provide similar referrals to WIC participants who are
disqualified or suspended due to a funding shortage.
9. Documentation of Nutrition Education in a Master File
(Sec. 246.11(e)(4))
Nutrition education has always been an integral component of the
WIC Program. Any nutrition education provided to WIC participants has
always been required by regulations to be documented in each WIC
participant's casefile. However, many nutrition education activities,
especially those directed toward children or involving considerable
dialogue (such as food preparation demonstrations), lend themselves to
group activities. In such cases, individual casefile documentation
becomes an administrative hardship for the local agency staff.
Therefore, section 213(a)(1) of Public Law 101-147 adds a new Section
17(e)(5) to the CNA of 1966 which alleviates this paperwork requirement
by allowing local agencies to ``use a master file to document and
monitor the provision of nutrition education services (other than the
initial provision of such services) to individuals that are required,
under standards prescribed by the Secretary, to be included by the
agency in group nutrition education classes.'' The law applies the
master file documentation option to nutritional education contacts,
after the first such contact during a certification period, which are
provided, per Departmental mandate, to persons in groups. However,
because of the wide variety of both the nutrition education services
that can be provided to WIC participants and the techniques and
strategies appropriate for providing these various services, the
Department does not dictate terms and conditions under which subsequent
nutrition education contacts could be provided in a group setting.
The Department proposed to revise Sec. 246.11(e)(4) to comply with
this legislative requirement by permitting local agencies to document
nutrition education contacts, except for initial contacts, in a
participant master file when such contacts are provided in a group
setting. Further, proposed Sec. 246.11(e)(4) provided that should a
participant miss (no-show or refusal) a nutrition education
appointment, the local agency is required, for purposes of monitoring
and further education efforts, to document this fact in the
participant's file, or, at the local agency's discretion, in a master
file, in the case of a second or subsequent missed contact where the
nutrition education was offered in a group setting.
The majority of comments approved this provision as proposed. They
indicated that this provision would help to reduce and eliminate the
current paperwork burden, thus allowing more time on actual nutrition
education. Therefore, this final rule retains the provision, as
proposed.
With regard to this requirement, State agencies may not prohibit a
local agency from exercising the option to document nutrition education
in a master file, as permitted in these final regulations. First, as
designated by Congress in Public Law 101-147, this is a paperwork
reduction burden provision. Secondly, the legislative language
specifically refers to ``Each local agency * * *'' when addressing the
option to use a master file. For State agencies to prohibit local
agencies from exercising this option would be in direct violation of
the Congressional intent of this provision.
One commenter recommended the Department suggest mechanisms for
effective monitoring of the provision when implemented by local
agencies. The Department will address this issue in guidance materials
which will be issued to assist State agencies with this task.
10. Alternatives to Participant Pick-Up for Issuance of WIC Food
Instruments (Secs. 246.7(f)(2)(iv), 246.7(h)(1)(ii) and 246.12(r)(8))
Section 213(a)(2)(A)(ii) of Public Law 101-147 adds a new section
17(f)(7)(B) to the CNA of 1966 allowing States to provide for the
delivery of WIC food instruments ``to any participant who is not
scheduled for nutrition education counseling or a recertification
interview through means, such as mailing, that do not require the
participant to travel to the local agency to obtain the food
instruments.'' This section of the law also requires State agencies to
describe any plans for issuance of vouchers by mail in its State Plan.
Further, the law states that the Department may disapprove a State plan
with respect to issuance of WIC vouchers by mail ``in any specified
jurisdiction or part of a jurisdiction within a State only if the
Secretary finds that such issuance would pose a significant threat to
the integrity of the program * * *''.
By including the alternative issuance provision in Public Law 101-
147, Congress intended to broaden the authority of State agencies to
deliver food benefits to participants. Problems of convenience,
transportation, and accessibility to the local agency can be addressed
by use of alternative means of issuance of WIC food instruments. In
addition, alternative means of issuance of WIC food instruments can
significantly alleviate clinic congestion and keep participants as well
as applicants from having to wait for long periods of time at local
agencies. Local agency staffs would also be freed by use of other
issuance alternatives to spend more time on certification and nutrition
education activities, including high-risk contacts.
As indicated above, however, Congress did impose certain
restrictions on the issuance of food instruments through alternative
means. First, the method may not, in the judgment of the Department,
pose a significant threat to the integrity of the program. The concept
of program integrity encompasses both the quality and coordination of
the full range of program services--supplemental foods, nutrition
education, and health care referrals--and fiscal accountability.
Congress specifically stressed the former aspect of program integrity
by stipulating that food instruments may not be mailed to participants
who are scheduled for a certification interview or for a nutrition
education contact. Applicants must be seen when they enter the program
in order to provide referrals and to ensure integration into the health
care system with which WIC is coordinated.
Under current WIC regulations (Sec. 246.12(r)(8)(i)-(ii)) and in
accordance with guidelines established by the State agency, local
agencies have had the authority to mail food instruments on a case-by-
case basis to individual participants in specific circumstances which
make direct pick-up infeasible, e.g., illness or imminent childbirth.
State agencies have also had the authority to permit the mailing of
food instruments on a local agency-wide basis in response to specific
temporary conditions, e.g., inclement weather or damage to a bridge
that is a critical transportation link. In such circumstances,
certification appointments and nutrition education have been
rescheduled and food instruments mailed.
The new legislation expands the authority of States to mail food
instruments. Therefore, in order to comply with the legislative
mandate, the Department proposed to revise Sec. 246.12(r)(8) to expand
State agency authority to implement alternative issuance systems
through means other than direct pick-up, such as mailing food
instruments, provided that direct pick-up must be required of
participants when scheduled for nutrition education or for an
appointment to determine whether participants are eligible for a second
or subsequent certification period. The Department further proposed
that the State agency may provide the issuance of food instruments
through means, such as mailing, to specified categories of participants
in specified areas. However, as proposed and per the mandate of Public
Law 101-147, State agencies would be required by the new
Sec. 246.4(a)(21) (discussed in Section 4.d. of this preamble) to
describe in their State plans any alternative food instrument
distribution policies and systems. Further, for conformity, the
reference to Sec. 246.12(r)(8)(i) and (ii) in Sec. 246.7(f)(2)(iv) was
proposed to be changed to Sec. 246.12(r)(8).
Use of an alternative means of issuance, such as mailing food
instruments, in no way reduces the State and local agency's
responsibility to ensure accountability for issuance and receipt of
food instruments, as required by Sec. 246.12(l) of current regulations.
Therefore, this was an issue which was addressed by the Department in
the preamble to its proposed rulemaking. The Department indicated that
State agencies which opted to distribute food instruments by mail would
be expected to ensure that the food instruments do, in fact, reach the
intended persons. In order to monitor non-participation, the State
agency instead would need to trace food instruments not redeemed back
to participant files. Therefore, the Department proposed to revise
Sec. 246.7(h)(1)(ii) to specify that non-redemption of food instruments
for a number of consecutive months would be a basis for
disqualification.
Mailing by certified mail, return receipt requested, was a method
identified in the preamble to the proposed rule that should be
considered by State agencies to ensure accountability for issuance and
receipt of food instruments by participants. Commenters were asked, in
response to the proposed rule, to suggest other means of ensuring
accountability in alternate issuance systems which could be shared as
guidance to State and local agencies in the preamble to the final rule.
The majority of commenters overwhelmingly opposed the proposed
provision in Sec. 246.7(h)(1)(ii) whereby participants could be
disqualified for failure to redeem food instruments for a number of
consecutive months if such instruments were provided by the State
agency by means other than direct pick-up. Commenters viewed this
requirement as creating an undue administrative burden on State and
local agencies to track unredeemed food instruments in such cases. In
addition, commenters indicated that such a requirement was not feasible
given the timeframe which exists before data are available to State
agencies on non-redemption. Commenters also indicated that the
provision, as proposed, created a different requirement for WIC food
instruments mailed versus those instruments picked up at the clinic.
Several commenters noted that if a State agency can ensure delivery,
there is no need to require the tracking of redemption data for such
participants.
With regard to the proposed revision to Sec. 246.12(r)(8), which
provides State agencies with the option to implement alternative means
of delivery of WIC food instruments other than by means of direct pick-
up, the majority of commenters approved the provision but offered
comments regarding their experiences with mailing of food instruments
or recommendations on the method which should be used to mail the food
instruments to participants. Those supporting the provision indicated
that implementation of this option would reduce transportation and
accessibility barriers to WIC services.
Of those approving the provision but suggesting modifications, one
commenter recommended that State agencies be given discretion in
procedural implementation, and another commenter recommended the
Department delete the reference to mailing food instruments to
``specified categories of participants in specified areas'' because
this created limitations on a State agency's implementation of the
provision. One commenter viewed the proposed preamble discussion as
contradictory and recommended the Department clarify the relationship
between this new provision and policy which has been in existence
regarding the circumstances in which food instruments may be mailed.
The majority of commenters responded to the request in the preamble
to the proposed rule for suggestions of methods State agencies may want
to consider in the mailing of food instruments to ensure accountability
and receipt of the food instruments by participants. Several commenters
recommended that food instruments should not be sent certified mail due
to the expense.
They recommended that food instruments mailed should be sent first
class, but that the following phrase should be added on the envelope:
``Do Not Forward, Return to Sender'' or ``Do Not Forward, Address
Correction Requested.'' One commenter recommended that for security
purposes the name of the clinic should be deleted from the return
address. The Department will provide State agencies with additional
guidance in this area, using experience gained and effective techniques
utilized by WIC State agencies which currently mail WIC food
instruments in limited circumstances and the experience and knowledge
gained by States in mailing food stamps in the Food Stamp Program.
Based primarily on comments received on Sec. 246.12(r)(8) of the
proposed rulemaking, the Department has made the following changes in
this final rule. First, based on comments received on the Department's
proposed revision to Sec. 246.7(h)(1)(ii) regarding mid-certification
disqualification for failure of participants to redeem mailed food
instruments for a specified number of consecutive months, the
Department has modified this requirement in this final rule. The intent
of the proposed revision was to establish a mid-certification
disqualification policy for participants mailed food instruments which
would be comparable to disqualification due to failure on the part of
participants to pick up their WIC food instruments. Therefore, in this
final rule, Sec. 246.7(h)(1)(ii) has been revised to state that a
participant may be disqualified mid-certification for failure to obtain
food instruments or supplemental foods for a number of consecutive
months, as specified by the State agency, evidenced by indicators such
as failure to pick up supplemental foods or food instruments,
nonreceipt of food instruments as evidence by return of mailed
instruments, or failure to have an electronic benefit transfer (EBT)
card revalidated to authorize the purchase of supplemental foods. As
set forth in this final rule, this requirement ensures similar
treatment of all participants, regardless of the method in which they
may receive or obtain authorization to purchase supplemental foods,
including the mailing of food instruments or use of an EBT system as
alternative issuance systems.
Second, for clarification purposes, paragraph (r)(8) has been
revised to include reference to an EBT system as an example of an
alternative WIC food instrument issuance system. An EBT system has been
pilot-tested by one WIC State agency, who is currently in the process
of developing an expanded demonstration project. Other State agencies
have also shown an interest in this type of issuance system.
Third, as requested by commenters, a reference in the proposed rule
to what appeared to be limitations on the mailing of food instruments
to only ``specified categories of participants in specified areas'' has
been deleted in this final rule. Therefore, this paragraph allows State
agencies the option to provide for the issuance of food instruments
through an alternative means, such as EBT or mailing to any
participant, except when participants are scheduled for nutrition
education or for an appointment to determine whether participants are
eligible for a second or subsequent certification period, unless FNS
determines that such action would jeopardize the integrity of program
services or program accountability.
Fourth, Sec. 246.12(r)(8) has been revised to specify that if a
State agency opts to mail WIC food instruments, it must provide
justification, as part of the description of its alternative issuance
system in its State plan, as required in Sec. 246.4(a)(21) of this
final rule, for mailing WIC food instruments to areas where food stamps
are not mailed. In assessing the impact on program integrity and
accountability, WIC State agencies and FNS will review Food Stamp
Program experience in mailing food stamps. Some States do not mail food
stamps either statewide or to certain areas due to the probability of
or experienced high mail issuance losses. As of Fiscal Year 1992,
approximately 11 States have chosen not to implement a mail issuance
system for food stamps. Some States, however, that have implemented
mail issuance systems may only mail food stamps to certain areas of the
State. A decision by a State not to mail food stamps could be based on,
for example, the probability of or experienced high mail issuance
losses, the use of an EBT system in some areas, or other reasons which
may be unrelated to mail issuance losses.
WIC State agencies and FNS must review such decisions on the part
of States in determining if it is appropriate to mail WIC food
instruments to such areas. Close coordination on this issue with State
Food Stamp Program staff will be necessary. For example, WIC State
agencies will need to determine whether a State has chosen not to mail
food stamps or to mail only to certain areas, the reason(s) why such
decision(s) were made, and if food stamps are being mailed, the dollar
value of current mail issuance losses in the State's Food Stamp
Program. In approving a WIC State agency's plan to mail to areas where
food stamps are not mailed, FNS will not approve a plan in which all
WIC participants would be mailed food instruments in an area where food
stamps are not mailed due to the probability of or experienced high
mail issuance losses. However, FNS may approve, for example, a State
agency's plan to mail WIC food instruments in an area where food stamps
are not mailed due to reasons unrelated to mail issuance losses.
Fifth, in this final rule, paragraph (r)(8) further provides that
State agencies which opt to mail food instruments must establish and
implement a system which ensures the return of food instruments to the
State or local agency if the participant no longer resides or receives
mail at the address to which the food instruments were mailed.
Inclusion of this requirement is intended to reflect a balance between
responding to commenters' concerns that the Department permit greater
flexibility in the procedural implementation of this requirement and
the Department's concern, that such procedures ensure program
accountability for the issuance and receipt of mailed food instruments.
While some commenters viewed the tracking of unredeemed mailed food
instruments as an administrative burden, good program management
dictates a reconciliation of food instruments, as required in
Sec. 246.12(n)(1), which includes reconciling food instruments issued
to food instruments redeemed, unredeemed, lost, stolen and voided.
Currently, while alternative means of issuance present certain
advantages of convenience for participants and local agencies, these
same advantages can be achieved through modifications of the
participant pick-up system. Section 246.12(r)(7) of current regulations
permits State agencies to give the participant up to a 3-month supply
of food instruments at one time. Thus through this multiple-issuance
strategy, States can reduce to two the number of times the participant
must visit the WIC local agency during the standard 6-month
certification period. The new statutory provision regarding alternative
means of issuance would not change the number of personal appearances
required per certification period.
In any event, the Department would not recommend that State
agencies reduce the participant's frequency of visits to the local
agency merely for reasons of local agency convenience, independent of
consideration for the quality of service to participants.
In addition, a commenter requested clarification on the
relationship of this new legislative provision to what has been
permitted by the Department in the past in terms of mailing food
instruments. In the past, mailing of food instruments was permitted
only to meet specific needs on a case-by-case basis. The new provision
would permit a State agency to continue their current policy of mailing
food instruments on a case-by-case basis or expand its use of mailing
food instruments. For example, a State agency could continue to permit
a nutrition education or a certification appointment to be rescheduled
if extenuating circumstances exist, e.g., illness, inclement weather,
and authorize the mailing of that month's food instruments. A
participant who may have been scheduled for a certification visit could
be mailed food instruments due to inclement weather as long as the
mailed food instruments represent no more than a one-month extension to
the participant's certification period, as permitted by the current
Sec. 246.7(f)(3) which is newly designated as Sec. 246.7(g)(3) in this
final rule. The certification appointment (or nutrition education
session) must be scheduled during the next issuance cycle and the
participant must be required to pick up WIC food instruments at the
time of her rescheduled visit.
State agencies which decide to mail food instruments may want to
consider which groups of participants (based either categories or on
location) are most in need of this service and least in need of regular
direct contact with WIC staff. For example, mailing might be
appropriate for lower risk participants in a sparsely populated rural
area where they must travel great distances to reach their WIC clinic,
and for working families. Mailing might be less appropriate for
pregnant women, for whom regular interface with clinic staff--and the
health care system which may be on WIC clinic premises--can contribute
significantly to positive pregnancy outcomes. In the final analysis,
State agencies must weigh the benefits of participant convenience and
reduced administrative burden against the benefit of frequent contact
with participants and the goal of balanced, coordinated delivery of
services, which is facilitated through such contact. Furthermore, the
State agency will need to assess which local agency service area(s) are
more appropriate locations for mailing of food instruments. It is not
likely to be appropriate, given numerous factors which must be
considered, including program integrity and accountability, for a State
agency to establish a policy of mailing food instruments to all
participants statewide.
The Department will carefully scrutinize plans for alternative
issuance of food instruments through the State plan review process and
monitor the effects of implementation during management evaluations in
order to ensure that alternative issuance systems do not jeopardize the
quality of program services or fiscal accountability.
As discussed in Section 4.d. of this preamble, State agencies
opting to implement an alternative WIC food instrument issuance system
must describe this system in its State plan, as required by Public Law
101-147 and addressed in Secs. 246.4(a)(21) and 246.12(r)(8) of this
final rule.
11. Nutrition Services and Breastfeeding Promotion (Secs. 246.14(c)(1)
and 246.16(b)(2))
This final rule revises Program regulations to incorporate certain
non-discretionary funding requirements of Public Law 101-147, which are
described below. Although not previously proposed, this final rule
incorporates these non-discretionary changes in Secs. 246.14(c)(1) and
246.16(b)(2).
Prior to the enactment of Public Law 101-147, section 17(h)(1) of
the CNA of 1966 required that not less than one-sixth of the funds
expended by each State agency for NSA costs be used for nutrition
education activities, but there was no requirement that any portion of
this amount be used specifically for promotion and support of
breastfeeding among WIC mothers. Section 123(a)(6) of Public Law 101-
147 recognizes the importance of breastfeeding by creating a new
section 17(h)(3)(A)(i)(II) of the CNA of 1966.
This new section earmarks $8 million in State agency NSA grants for
the promotion and support of breastfeeding among WIC mothers. The
mandated utilization of this $8 million, and its relationship to the
existing one-sixth NSA requirement are described below.
The earmarked $8 million is the amount of NSA funds that, at a
minimum, must be expended to support and promote breastfeeding. These
funds are intended to be used to promote increases in the number of
breastfeeding mothers and the length of time that these mothers
breastfeed. As noted above in this preamble in section 2.f.,
breastfeeding aids are allowable administrative expenses, as set forth
in Sec. 246.14(c)(10) of this final rule. In addition, this final rule
revises Sec. 246.14(c)(1) to specify that in addition to the cost of
nutrition education, the cost of breastfeeding promotion and support
activities which meet the requirements of Sec. 246.11 are allowable
nutrition services and administration costs.
In addition, this final rule revises Sec. 246.14(c)(1) to specify
that each State agency's target share of the $8 million expenditure
requirement will be determined by the State agency's average monthly
number of pregnant and breastfeeding WIC participants as a percentage
of the average monthly number of pregnant and breastfeeding
participants in the WIC Program in all State agencies. These targets
will be announced at the same time that final grants for the fiscal
year are announced. As discussed further in section 16 of this
preamble, in this final rule, Sec. 246.16(b)(2) has been revised to
indicate that the grant levels will be issued in a timely manner.
As set forth in Sec. 246.14(c)(1) of this final rule, the $8
million expenditure target for breastfeeding promotion and support
provided by section 123(a)(6) of Public Law 101-147 is an augmentation
of the amount of funds State agencies must spend on nutrition education
and related activities as specified in newly-amended section
17(h)(3)(A)(i) of the CNA of 1966. The total spending requirement for
nutrition education, including breastfeeding promotion and support, is
one-sixth of the amount of NSA funds allocated to the State agency for
nutrition education in general, plus the State agency's proportionate
share of the $8 million targeted specifically for breastfeeding
promotion support. Of this aggregate amount, the targeted amount is the
minimum which must be spent on breastfeeding promotion and support.
However, total spending on breastfeeding promotion and support may
exceed this minimum, since funds from the one-sixth allocation may be
used for additional breastfeeding promotion and support, or for other
nutrition education purposes.
The following is a simplified example of how NSA funds, the one-
sixth spending requirement for nutrition education and related services
and targeted amounts for breastfeeding promotion and support are
calculated for a particular State:
Total NSA Expenditures.......................................... $600
Proportionate Share of $8 Million (targeted for breastfeeding
promotion and support only).................................... 10
\1/6\ Nutrition Education Requirement (may include additional
breastfeeding promotion and support)........................... 100
Aggregate sum of \1/6\ and Proportionate Share (total
expenditure requirement for nutrition education and
breastfeeding promotion and support)........................... 110
-------
Total remaining funds for other NSA......................... 490
As allowed by section 123(a)(6) of Public Law 101-147 and as set
forth in Sec. 246.14(c)(1) of this final rule, State agencies are
permitted, subject to approval by the Department, to spend less than
their identified breastfeeding support and promotion target amount if:
(a) The State agency so requests, and (b) the request is accompanied by
documentation that other resources will be used to conduct nutrition
education activities at a level commensurate with the level at which
such activities would be conducted if the target share amount were
expended. State agencies may also request permission to spend less than
the amount earmarked for nutrition education if they can, similarly,
document that other resources are being used to meet the requirement.
These other resources include in-kind services provided by volunteer
private organizations and professionals, or other State and local
personnel. Section 246.14(c)(1) has also been modified to clarify that
State agencies should submit documentation of other resources to be
used in lieu of NSA funds to the appropriate WIC regional office for
advance approval. If a State agency does not have such documentation
approved, and its nutrition education and breastfeeding promotion and
support expenditures are less than the required amount of expenditures,
the Department will issue a claim for the difference.
12. Funding Authorizations--Secs. 246.16(a)(1) and 246.16(a)(6)
Section 123(a)(5) of Public Law 101-147 amends section 17(g)(1) of
the CNA of 1966 to change the funding authorization for the WIC Program
to include a specific provision that allows appropriations 1 year in
advance of the beginning of the fiscal year in which the funds become
available for disbursement to the States. If appropriations are enacted
for a year in advance, this would enable State agencies to know total
grant funds for the current fiscal year and the next fiscal year. This
provision previously existed for the WIC Program and appeared in
section 3 of the National School Lunch Act. It has now been
specifically referenced in the WIC authorizing legislation. Therefore,
this final rule revises Sec. 246.16(a) to add a new paragraph (a)(1) to
incorporate this provision.
Section 123(a)(5)(D) of Public Law 101-147 amends section 17(g)(5)
(as redesignated by section 123(a)(5)(B)) of the CNA of 1966 to expand
funding for studies and demonstration projects. It permits the
Secretary to use one-half of 1 percent (not to exceed $5 million) for
evaluation and demonstration purposes, which is an increase from the
previous statutory limit of $3 million. Section 246.16(b)(1) of the
current regulations has been redesignated as Sec. 246.16(a)(6) in this
final rule and revised to address the Secretary's authority to increase
the amount of funds used for studies and demonstration projects.
13. Nutrition Services and Administration (NSA) Funding--
Sec. 246.16(c)(2)
Administrative costs associated with the WIC Program were formerly
referred to as administrative and program services costs. Public Law
101-147 has changed the name of these costs to ``nutrition services and
administration (NSA) costs''. Therefore, the definition of
``Administrative and program services costs'' in Sec. 246.2 has been
removed and replaced with a definition of ``Nutrition services and
administration costs.'' In addition, all other references within part
246 to ``administrative and program services'' costs or funds have been
revised accordingly.
During the past few years, WIC Program participation has increased
substantially in States that have implemented measures to lower WIC
food costs. This increase in participation, as well as additional
Program requirements in areas such as drug abuse education and
referral, prevention and detection of vendor abuse, improved management
information systems at the State and local level, improved program
access for rural areas and the working poor, improved nutrition
services and more effective Program coordination, had been increasingly
difficult to accomplish within existing limits on funds set for NSA.
Previously, section 17(h)(1) of the CNA of 1966 mandated that 20
percent of the funds appropriated for the WIC Program (less funds used
for evaluation and demonstrations) be made available for State agency
and local agency costs for NSA. There has been extensive discussion and
research to determine whether the 20 percent funding limitation for NSA
was an appropriate level to permit State and local programs to operate
the WIC Program. As mandated in section 8(c) of the Commodity
Distribution Reform Act and WIC Amendments of 1987 (Pub. L. 100-237),
the Department submitted to Congress in March 1989, a report entitled
Study of Funding for Nutrition Services and Program Administration in
the WIC Program. The report concluded that the WIC Program faced a
serious erosion of per participant administrative resources due to
significant participation increases. Among the solutions proposed was
the establishment of a base-level NSA grant per participant with an
appropriate inflation index. Public Law 101-147 amends section 17(h)(1)
of the CNA of 1966 to eliminate the 20 percent limitation for NSA
funding and, in lieu thereof, adopts a national guaranteed average
administrative grant per person to be used in determining the amount of
total funds available for NSA. As described below in a simplified
example, NSA funds will now be apportioned on a per-participant basis.
The amount available for NSA will be determined by the Department
based on the ratio of the national guaranteed average administrative
grant per person to the total projected cost per person. This ratio is
derived as follows. Once the national guaranteed average administrative
grant per person is calculated, the projected per participant food cost
is determined based on State agency reported food expenditure and
participation data. The national guaranteed average administrative
grant per person is then added to the projected food cost per
participant to estimate the total projected cost per person. The ratio
of the NSA cost per participant to the total cost per participant can
then be derived. This ratio determines the amount available for NSA. In
the following simplified example, 25 percent of the appropriation would
go to NSA since the guaranteed average administrative grant per person
represents 25 percent of the total projected cost per person.
Projected Food Cost/Person................................. $30-75%
Guaranteed Admin./Person................................... $10-25%
------------
Total Projected Cost/Person............................ $40-100%
Section 123(a)(6) of Public Law 101-147 also amends section
17(h)(1)(B)(ii) of the CNA of 1966 to change the method for determining
the inflation adjustment for NSA funding. Previously, the same
inflation adjustments were applied to both food benefit funds and NSA
funds. Many State agencies argued that inflationary increases in food
costs did not track with inflationary increases in salary and wage
costs. In the Study of Funding for Nutrition Services and Program
Administration in the WIC Program, it was shown that from Fiscal Year
1981 through Fiscal Year 1987 the average administrative expenditure
per person had risen by an average of 2.3 percent per year. This rate
of increase has been much lower than the 7 percent rate of inflation
for salaries during the same time period. Salaries constitute one of
the largest NSA costs. Approximately 70 percent of all NSA expenditures
are for salaries and related benefits. As State agencies can only
expend the Federal WIC funds granted to them, their expenditures could
not keep pace with inflation. In recognition of these NSA expenditure
trends, Congress determined that separate inflation indices were needed
for food and NSA funding, which are incorporated into revised
Sec. 246.16(c)(2).
a. National NSA Funding. Section 123(a)(6) of Public Law 101-147
amends section 17(h)(1) of the CNA of 1966 to guarantee funds
sufficient to provide a national average per participant grant for NSA.
As stipulated in such amendments, Sec. 246.16(c)(2) of this final rule
specifies that the national average per participant grant shall be
equal to the national average per participant grant for Fiscal Year
1987, adjusted to reflect annual inflation increases. The Fiscal Year
1987 figure is $8.24. Section 17(h)(1)(B)(ii) provides that the
adjustment for inflation for a current fiscal year will be made by
revising the national average per participant grant for NSA for Fiscal
Year 1987 to reflect the percentage change from the base year level in
the index for State and local government purchases. This index is
calculated using the implicit price deflator, and is published by the
Bureau of Economic Analysis of the Department of Commerce. It measures
the price increase of State and local government purchases including
compensation for employees and purchases of structures, durable goods
(such as equipment), nondurable goods (such as food, paper goods, and
clothing), and services.
The base year for the index, as established in section
17(h)(l)(B)(ii)(I), is the 12-month period ending June 30, 1986. It has
a value of 100. The inflation adjustment shall reflect the percentage
change between this base year value and the most recent estimate that
is available as of the start of a current fiscal year of the value of
such index for the 12-month period ending June 30 of the previous
fiscal year. The difference between the most recent estimate and the
base index of 100 is multiplied by $8.24 to establish a current year's
national average per participant grant. In any fiscal year, any
remaining funds after funds for NSA have been identified will be made
available for food benefits. These requirements are also incorporated
into revised Sec. 246.16(c)(2).
b. Allocations to state agencies. Section 123(a)(6) of Public Law
101-147 amends section 17(h)(2)(A) of the CNA of 1966 to require that
the formula for allocating NSA funding must be designed to take into
account the varying needs of each State, participation levels in each
State, a minimum grant amount, and other factors which promote proper,
efficient and effective program administration. Section 123(a)(6) of
Public Law 101-147 also amends section 17(h)(2)(A) of the CNA of 1966
to require that the funding formula must provide each State agency with
an estimate of participation and a per participant grant for NSA. The
NSA funding formula outlined in Sec. 246.16(c)(2) of the WIC Program
regulations as revised by this final rule reflects these requirements.
The Department is currently evaluating the funding formula contained in
Sec. 246.16 to ensure that the formula promotes proper, efficient and
effective program administration, and may undertake a future rulemaking
if modifications are necessary.
Public Law 101-147 also amends section 17(h)(2)(B)(i) to specify
that the total NSA grant level is the operational level for NSA costs
that a State agency is authorized to spend for any given fiscal year.
Section 246.16(c)(2)(iv) has been added to this final rule to reflect
this, as described below.
14. Nutrition Services and Administration Performance Standard--
Secs. 246.16(c)(2)(ii) and 246.16(e)
A new provision mandated by section 123(a)(6) of Public Law 101-
147, which amends section 17(h)(2)(B)(ii) of the CNA of 1966, provides
that the Secretary may reduce a State agency's NSA operational level if
its per participant expenditure for NSA is more than 15 percent higher
than its per participant NSA grant, without good cause. This will only
occur in those State agencies that fail to reach the Federally-
projected participation level. Guidelines for determining the
Federally-projected participation level are set forth in
Sec. 246.16(c)(3)(ii)(B) of the current regulations and redesignated as
Sec. 246.16(c)(2)(ii)(B) by this final rule.
In order to carry out revised section 17(h)(2)(B)(ii),
Sec. 246.16(e)(2)(ii) is revised to provide that if a State agency's
per participant expenditure exceeds its per participant grant by more
than 15 percent, the Secretary shall reduce the State agency's NSA
operational level in the subsequent fiscal year. In accordance with
section 17(h)(2)(B)(ii) however, a State agency may avoid a reduction
to its NSA operational level in the subsequent fiscal year by showing
good cause. Section 246.16(c)(2)(ii) is revised by this final rule to
permit a State agency to submit in writing a ``good cause''
justification for exceeding the 15 percent limit. Circumstances that
may meet the ``good cause'' criterion include, but are not limited to,
dramatic and unforeseen increases in food costs which result in an
inability to reach Federally-projected participation levels.
Section 246.16(e)(2)(ii) further requires justification for
exceeding the 15 percent limit to be submitted to the Department at the
time the State agency submits its closeout report for the applicable
fiscal year.
It should be noted that section 123(a)(6) of Public Law 101-147
amends section 17(h)(2)(B) of the CNA of 1966 to require that each
State agency's operational level for NSA be maintained, except when the
State agency's administrative expenditure per person exceeds its
administrative grant per person by more than 15 percent without good
cause. This precludes NSA grant reductions in concert with food grant
reductions pursuant to a State agency's failure to meet the 95 percent
standard for food expenditures contained in Sec. 246.16(e)(2) of the
current regulations. Therefore, this final rule amends
Sec. 246.16(e)(2)(i) to no longer require that a corresponding level of
NSA funds be deducted for failure to meet the 95 percent performance
standard for food expenditures.
15. Local Agency Funding--Sec. 246.16(d)
Section 123(a)(6) of Public Law 101-147 amends section 17(h)(6) of
the CNA of 1966 to require that State agencies develop local agency NSA
funding allocation standards taking into consideration factors such as
local agency staffing needs, population density, participation and the
availability of administrative support from other sources. Section
246.16(d)(2) of the current WIC Program regulations already includes
these funding allocation standards for local agencies. Although no
changes to this section have been made in this final rule, this section
is republished for the convenience of the reader.
However, section 123(a)(6) of Public Law 101-147 also amends
subsection 17(h) of the CNA of 1966 by adding paragraph (7) which
provides that State agencies are permitted to advance NSA funds to
local agencies following approval of ``(A) a new local agency; (B) a
new cost containment measure; or (C) a significant change in an
existing cost containment measure.'' Therefore, Sec. 246.16(d)(3) of
this final rule has been revised to incorporate this legislative
provision.
16. Cost Containment Cash Flow Provisions (Secs. 246.16(a)(3),
246.16(a)(4), 246.16(b)(2), 246.16(b)(3), 246.16(b)(4), and
246.16(b)(5))
In the past, some State agencies that have implemented infant
formula rebate systems have experienced cash flow problems. In some
rebate systems, a State agency receives payments from manufacturers
based on the number of units of the product purchased with WIC funds.
Cash flow problems have resulted because of the delay between the time
the State agency pays retail vendors for food instruments and the time
the State agency receives rebate payments from manufacturers.
To help alleviate these cash flow problems, new funding mechanisms
have been set forth in Public Law 101-147 for those State agencies that
have implemented an approved cost-containment measure. Section 17(i) of
the CNA of 1966 has been amended by section 123(a)(7)(C) by adding a
new paragraph (7) which authorizes State agencies with approved cost-
containment measures (defined in Sec. 246.2 as competitive bidding,
rebates, home delivery and direct distribution) to temporarily borrow
current fiscal year first quarter cash to defray fourth quarter
expenses from the prior fiscal year. Therefore, in this final rule
Sec. 246.16(b)(4) is redesignated as (b)(5) and this legislative
provision has been added in a new Sec. 246.16(b)(4). As further
required by section 17(i)(7), section 246.16(b)(4) requires that these
borrowed funds must be restored when the State agency receives the
rebate funds or other reimbursement resulting from its cost containment
measure. This provision is not an extension of the back-spending
authority which is a permanent transfer of funds that allows the State
agency to use current year food funds to pay prior year food
expenditures which is contained in section 17(i)(3)(A)(i) of the CNA of
1966 and Sec. 246.16(b)(3)(i) of the current regulations. In addition,
Sec. 246.16(b)(2) has been revised to specify that the Department will
issue final grant levels to State agencies in a timely manner.
In a further effort to reduce cash flow difficulties within a given
fiscal year due to approved cost containment measures, section
123(a)(5)(C) of Public Law 101-147 amends section 17(g) of the CNA of
1966 to require the initial allocation of appropriated funds to include
not less than \1/3\ of the appropriated funds and the second and third
quarter allocations to include not less than \1/4\ of appropriated
funds. This helps ensure that adequate cash is available in the early
part of the fiscal year to make payments to vendors while waiting for
rebate payments. Therefore, in this final rule a new Sec. 246.16(a)(3)
has been added to incorporate this legislative provision.
Further, section 123(a)(5)(C) of Public Law 101-147 amends section
17(g)(3)(C) of the CNA of 1966 to require that in the case of an
appropriation of not more than 4 months, such as a continuing
resolution, all appropriated amounts shall be allocated, except amounts
reserved by the Secretary to carry out the provisions in section
17(g)(5) of the CNA of 1966 (as reflected in Sec. 246.16(a)(6) of this
final rule). This exception provides that one-half of 1 percent, not to
exceed $5 million per fiscal year, shall be available to the Secretary
for program evaluation, technical assistance to State agencies
administration of pilot projects, and other specified purposes. This
requirement to fully allocate all other amounts not reserved to the
Secretary for these purposes is incorporated in a new Sec. 246.16(a)(4)
in this final rule.
It should be noted that while these provisions are helpful, they do
not solve all cash flow problems. State agencies with significant
rebate savings should institute management controls to avoid cash flow
problems and potentially disruptive funding shortfalls, particularly at
the end of the Federal fiscal year.
17. Allocation Timelines (Secs. 246.16(a)(2), 246.16(a)(4), and
246.16(a)(5))
Public Law 101-147 sets forth explicit deadlines for the allocation
of WIC Program funds. It is imperative that timely allocations are made
to State agencies, especially reallocation of unspent funds, to ensure
efficient and effective use of all program resources. Section
123(a)(5)(C) of Public Law 101-147 amends section 17(g)(2)(A)(i) of the
CNA of 1966 to provide that the initial allocation of funds to State
agencies must be made within 15 days of enactment of appropriating
legislation. Therefore, a new Sec. 246.16(a)(2) has been added in this
final rule to incorporate this provision. Subsequent allocations must
be made by the beginning of each quarter.
Newly added section 17(g)(2)(B) of the law further requires that
unused funds from a prior fiscal year that are identified by the end of
the first quarter of the current fiscal year (December 31) must be
recovered and reallocated not later than the beginning of the second
quarter of the fiscal year. That provision further states that unused
funds from a prior fiscal year identified after the end of the first
quarter must be reallocated on a timely basis. These provisions are set
forth in a new Sec. 246.16(a)(5) in this final rule.
18. Conversion of Food Funds to Nutrition Services and Administration
Funds (Secs. 246.16(b)(3), 246.16(f), and 246.16(h))
Under section 8 of the Commodity Distribution Reform Act and WIC
Amendments of 1987 (Pub. L. 100-237), which amended section 17(h)(5) of
the CNA of 1966, State agencies that implemented one of the four
designated cost containment measures, specifically defined as
competitive bidding, rebates, home delivery and direct distribution,
were authorized to convert food funds to cover allowable nutrition
services and administration expenditures related to increased
participation attributable to the resulting cost savings. The purpose
of conversion was to cover additional NSA expenses not funded by the
Department's NSA funding formula. The conversion authority pursuant to
Public Law 100-237 was exceedingly complicated and was focused on
accommodating sudden decreases in food costs resulting from newly
instituted cost containment measures.
Public Law 101-147 has simplified the conversion process. Section
123(a)(6) of Public Law 101-147 further amends section 17(h)(5)(A) of
the CNA of 1966 to provide that State agencies which, through
acceptable measures, increase participation beyond Federally-projected
participation levels can convert food funds to NSA funds necessary to
maintain that year's per participant grant for NSA to the extent that
such funds are needed to cover allowable NSA expenses. The Department
points out that unlike the prior conversion provision, new section
17(h)(5)(A) is based on participation increases accomplished through
``acceptable measures,'' not just the four designated cost containment
measures. Therefore, Sec. 246.16(f) of this final rule amends
Sec. 246.16(f) to provide that in addition to the cost containment
measures which were specified in Public Law 100-237 (i.e. competitive
bidding, rebates, direct distribution, and home delivery), ``acceptable
measures'' could include, but are not necessarily limited to,
curtailment of vendor abuse and increased breastfeeding promotion. It
is not possible to more fully specify in advance all acceptable
measures utilized to increase participation as many unforeseen
situations could occur. State agencies may not convert food funds if
participation increases are achieved through measures that are not in
the nutritional interests of participants or are not otherwise
allowable under program regulations. An example of an unacceptable
measure which increases participation is a reduction/modification in
the food package not related to the nutritional needs of participants.
The number of participants reported by the State agency will be
monitored by the Department and any significant increases in
participation must be satisfactorily explained by the State agency to
insure that increases were achieved through acceptable measures in
compliance with WIC Program regulations. The State agency does not have
to request prior approval to convert funds from food to NSA funds but
State agencies are strongly advised to seek guidance from the
Department if in doubt concerning conversion authority. Additionally,
State agencies are encouraged to plan expenditures and anticipate the
number of participants early so as not to convert food funds needed to
support anticipated caseload. Any State agency which has NSA
expenditures that exceed the limits of its conversion authority shall
have such excess expenditures disallowed. Section 246.16(h) of this
final rule describes this disallowance.
As the new procedure is a straight-forward mathematical process,
State agencies do not need prior Departmental approval to convert. At
the end of the fiscal year, the Department will reconcile the total
reported NSA expenditures to the total authorized spending level
(authorized NSA grant plus allowable conversions). Allowable
conversions will be determined based on the difference between the
Federally-projected participation for the year and the actual number of
participants served. The participation difference multiplied by the per
participant grant for NSA represents the allowable conversions.
As specified by section 123(a)(6) of Public Law 101-147, which
amends section 17(h)(5)(A)(ii) of the CNA of 1966, the maximum rate by
which food funds may be converted to NSA funds is the current year's
administrative per participant grant. This final rule revises
Sec. 246.16(f) to specify that the conversion will be determined after
the initial allocation (excluding partial year appropriations) by
dividing the current year administrative grant (inclusive of regional
discretionary funds) by the current year Federally-projected
participation level.
Section 123(a)(7) of Public Law 101-147 also amends the CNA of 1966
regarding spend forward of unspent funds. Previously, the term ``carry
forward'' was used to describe this procedure. In order to be
consistent with the CNA of 1966, we use the term ``spend forward'' in
this rule. Substantive modifications to the spend forward provisions
are explained below.
It is recognized that the process of program expansion is a gradual
one which must be preceded by adequate planning and staffing
adjustments, and must take place in a controlled manner consistent with
sound program management. Consequently, State agencies may not be able
to utilize all of the savings resulting from their food cost
containment measures as fast as such savings accrue. Recognizing these
factors, section 3(b) of Public Law 100-356 amended section 17(i)(3) of
the CNA of 1966 to permit a State agency implementing one of the four
cost containment measures identified in section 17(h)(5)(A) to spend
forward into the first fiscal year following the implementation of a
cost containment measure up to 5 percent of its food grant. This
provision was intended to allow State agencies the time to add
additional participants when a substantial amount of savings is
involved. Therefore, any cost containment measure in which savings
exceeded 5 percent of the State agency's food grant authorized the
State agency to spend forward up to 5 percent of its food grant. In the
second fiscal year following the implementation of its cost containment
system, the State agency was required to request permission from the
Department in order to spend forward food funds, up to a maximum of 5
percent of its food grant. The actual amount of funds spent forward-up
to this 5 percent limit was negotiable and ultimately depended on
Departmental discretion. In accordance with section 123(a)(7)(B) of
Public Law 101-147, amending section 17(i)(3)(D) of the CNA of 1966,
the 5 percent cap on the amount of food funds that may be spent forward
into the second fiscal year following implementation of an approved
cost containment system has been reduced to a maximum of 3 percent
beginning with Fiscal Year 1989 grants. However, State agencies no
longer have to request the permission of the Department to spend
forward these funds. This change allows State agencies to know in
advance the amount of food funds that can be spent forward which will,
in turn, facilitate better planning of expenditures for the following
year. The spend forward provision and the 3 percent cap requirement are
set forth in revised Sec. 246.16(b)(3) of this final rule.
Section 3(a) of Public Law 100-356 added subparagraph (D) to
section 17(h)(5) of the CNA of 1966 to protect a State's administrative
grant per participant from declining more than 2 percent per year due
to increases in participation achieved through cost containment
measures. Section 123(a)(6) of Public Law 101-147 eliminates the 2
percent conversion protection. Since the basis for determining the
total amount of NSA funds is now directly related to expected
participation levels, it is no longer necessary to protect a State
agency from a sharp decrease in NSA funds related to unexpected
participation increases. Therefore, reference in Sec. 246.16(h) of the
current WIC regulations to the 2 percent conversion protection has been
deleted in this final rule.
19. Local Agency Review Requirement (Sec. 246.19(b)(3))
Section 213(a)(2)(B) of Public Law 101-147 adds a new section
17(f)(21) to the CNA of 1966 mandating that ``each State agency shall
conduct monitoring reviews of each local agency at least biennially.''
Prior to this final rule, Sec. 246.19(b)(3) of the regulations has
required State agencies to review all of its local agencies annually.
As explained in the July 9, 1990 proposed rule, the Department believes
it is appropriate to amend Sec. 246.19(b)(3) to reduce the frequency
required of local agency reviews. As proposed, the State agency would
be required to review each local agency under its jurisdiction not less
frequently than every other year. The State agency would continue to be
required to review the greater of 20 percent of the clinics in each
local agency or one clinic for each local agency it reviews. In
addition, the State agency would continue to have the authority to
conduct more frequent reviews.
The majority of commenters supported the proposed change and were
pleased with the flexibility afforded by this provision. One State
agency indicated it would continue yearly reviews of those local
agencies which may show marginal performance, but perform biennial
reviews on the majority of agencies. Two State agencies recommended a
revision to the regulatory text which permits State agencies to conduct
additional on-site reviews. They recommended that more frequent reviews
should be based on a State agency's determination that such reviews
were necessary in the interest of the efficiency and effectiveness of
the program instead of ``as it finds necessary.'' Therefore, based on
these comments and the legislative mandate that State agencies conduct
such reviews at least biennially, the Department has retained, in
Sec. 246.19(b)(3) of this final rule, the provision as proposed, except
that the last sentence regarding authority to conduct more frequent
reviews has been revised as recommended by commenters. As reflected in
the legislative mandate and as set forth in the regulatory text, State
agencies have the authority to conduct on-site monitoring reviews of
local agencies more frequently than biennially. As set forth in this
final rule, the State agency may conduct additional on-site reviews as
the State agency determines to be necessary in the interest of the
efficiency and effectiveness of the program.
20. Reference to Departmental Rule on Debarment and Suspension, Drug-
Free Workplace, and Lobbying Restrictions (Sections 246.2, 246.3(b) and
(c)(2), 246.4(a), 246.6(b), 246.24(a))
a. Nonprocurement debarment and suspension. Executive Order (E.O.)
12549, signed by the President on February 18, 1986, stipulated the
establishment of debarment and suspension procedures to protect the
integrity of nonprocurement programs funded by the Federal Government
and procurement contracts that equal or exceed $25,000 at the grantee
and sub-grantee levels. This action was taken to parallel the debarment
and suspension system already in place for Federal procurement
activities. In response to E.O. 12549, a final rule creating 7 CFR part
3017 was published in the Federal Register on January 30, 1989 (54 FR
4722).
The Department proposed in its rulemaking to add to the definition
section a reference to ``7 CFR part 3017'' which indicates that it is
the Department's common rule regarding Governmentwide Debarment and
Suspension (Nonprocurement). As proposed, Sec. 246.24(a), ``Procurement
and property management,'' was also amended to require compliance with
the mandates of 7 CFR part 3017.
The majority of commenters approved these provisions as proposed.
Because these provisions merely reference compliance with a pre-
existing regulatory mandate, the Department is retaining the provisions
as proposed in this final rule, except several clarifications. As
proposed, a new Sec. 246.4(a)(22) has been added to require the State
to include in its State Plan an assurance that, as clarified in this
final rule, each local agency and any subgrantees of the State agency
and/or local agencies are in compliance with the nonprocurement
debarment/suspension requirements of 7 CFR part 3017. In addition, this
final rule revises Sec. 246.6(b)(1), as proposed, to require as part of
the local agency agreement with the State agency, assurance that the
local agency complies with the debarment/suspension requirement of 7
CFR part 3017. In order to comply with these requirements, it is
incumbent on State and local agencies when contracting with, for
example, banks, consultants, and infant formula manufacturing companies
that they seek certifications from such entities attesting to the fact
that they have not been debarred or suspended. These requirements are
to be incorporated into any new contracts entered into with such
entities or any renewal of current awards. Such provisions would not be
required to be incorporated into any current contract or agreements
because, in some cases, such revisions could potentially render the
conditions set forth in the contracts null and void. Finally, the
proposed revision to Sec. 246.24(a) has been changed in this final rule
to clarify that State and local agencies in procuring supplies,
equipment, and other services shall ensure that their subgrantees
comply with the debarment and suspension requirements in 7 CFR part
3017.
b. Drug-free workplace requirements. A final rule expanding 7 CFR
part 3017 was published in the Federal Register on May 25, 1990 (55 FR
21679), addressing the Governmentwide Drug-Free Workplace Requirements
of the Drug-Free Workplace Act of 1988, Public Law 100-690, enacted on
November 18, 1988. The governmentwide drug-free workplace mandates in 7
CFR part 3017 require Federal grantees to certify that they will
provide and maintain drug-free workplaces as a condition of receiving
Federal grant assistance. These requirements apply only to direct
Federal grant agreements, i.e., to the State WIC agencies. The
Department's regulation, 7 CFR part 3017, implements the requirements
of Public Law 100-690, which became effective March 18, 1989. It states
that a Federal agency may not enter into a new grant agreement or renew
an existing agreement unless a drug-free workplace certification is
obtained from the grantee. The proposed rule preamble stated that
Federal/State WIC agreement forms were being revised to include such an
assurance, and that State agencies should sign the certification as an
addendum to their current Federal/State WIC agreement. Since
publication of the proposed rule, Federal/State WIC agreement forms
have been revised to include such an assurance. The forms contain two
check-off boxes. By checking off one box the grantee verifies that a
certification form is on file with the Department. If no certification
form has been submitted or if any changes have occurred since the
previous certification form was submitted, then a second box must be
checked and a certification form attached to the Federal/State
agreement. By signing the certification, the State agency agrees to
provide and maintain a drug-free workplace. The Department, in its
proposed rulemaking, incorporated this legislative mandate in the WIC
regulations by adding a new Sec. 246.4(a)(23), which requires WIC State
agencies to provide in their State plans an assurance of compliance
with the requirements of 7 CFR part 3017 regarding a drug-free
workplace, including a description of how they will provide and
maintain such a workplace. No comments were received on this specific
provision. Because the assurance is now included in the Federal/State
agreement, this final rule revises Sec. 246.4(a)(23) to delete the
assurance portion of the requirement from the State plan, but has
maintained the requirement for a description of the State agency's
plans to provide and maintain such a workplace. The assurance
requirement is moved by this final rule to Sec. 246.3(c)(2), which
provides the requirements for the Federal/State agreement.
c. Lobbying restrictions. Section 319 of the 1990 Appropriations
Act (31 U.S.C. 1352) of the Department of Interior and Related Agencies
(Pub. L. 101-121), enacted October 23, 1989, contains provisions which
prohibit the use of federal funds for lobbying for specific federal
awards and requires recipients of any federal grants, contracts, loans,
and cooperative agreements to disclose expenditures made with their own
funds for such purposes. Section 319 of that act also required the
Office of Management and Budget (OMB) to issue governmentwide guidance
for agency implementation of, and compliance with, these restrictions.
OMB's interim final governmentwide guidance published in the Federal
Register on December 20, 1989, became effective December 23, 1989. The
Department's final rule 7 CFR part 3018, implementing new restrictions
on lobbying, was published in the Federal Register on February 26, 1990
at 55 FR 6736. The OMB subsequently issued guidance on the common rule
in a June 12, 1990 memorandum to federal agencies which was published
as a Notice in the Federal Register on June 15, 1990 at 55 FR 24540.
Public Law 101-121 and 7 CFR part 3018 apply to WIC State and local
agencies and any entities the State or local agency contracts with,
including infant formula manufacturing companies, as long as each
covered action exceeds $100,000. According to 7 CFR part 3018, Indian
tribes or tribal organizations (Sec. 3018.105(l)) and any individual
Federal actions $100,000 or under (Sec. 3018.110) are excluded from the
lobbying restriction requirements. For grants, the $100,000 limit
applies to each fiscal year award, or the period of the grant if other
than the federal fiscal year. For contracts, the $100,000 limit applies
to each contract.
Section 3018.105(b) defines as ``covered actions,'' grants, loans,
cooperative agreements, or Federal contracts. Of these covered Federal
actions, only grants or contracts are likely to arise in the WIC
Program context.
Although the Department's proposed rule did not address the
legislative lobbying restrictions, reference to this nondiscretionary
requirement has been added in this final rule. A definition has been
added in this final rule for ``7 CFR part 3018,'' the Department's
Common Rule regarding Governmentwide Lobbying Restrictions, and other
appropriate references have been added which require compliance with 7
CFR part 3018.
21. Revision of References to OMB Circular A-90
OMB Circular A-90, which primarily addressed the Federal
responsibilities for oversight of grantee information systems, was
superseded by OMB Circular A-130 in 1986. Accordingly, the Department
had proposed to delete a reference to OMB Circular A-90 in
Sec. 246.24(a). However, OMB Circular A-130 continues to reference
requirements on state information systems. Therefore, references to the
new circular must be included in the WIC regulations and all references
to OMB Circular A-90 in Part 246 have been revised to reference OMB
Circular A-130 by this final rule.
22. Corrections to Program Information (Section 246.27) and Updating of
Information in Sec. 246.7(d)(2)(iv)(C)
As proposed, this final rule makes technical revisions to
Sec. 246.27 of the WIC Program regulations to reflect address changes
or corrections for the Northeast, Mid-Atlantic, Southeast, and Midwest
Regional Offices of the Food and Nutrition Service.
In addition, this final rule updates the non-inclusive list of
payments or benefits provided under other federal programs or acts
which are specifically excluded as income for WIC purposes and moves
the list to Sec. 246.7(d)(2)(iv)(C). It was formerly found in
Sec. 246.7(c)(2)(v).
List of Subjects in 7 CFR Part 246
Food assistance programs, Food donations, Grant programs--social
programs, Indians, Infants and children, Maternal and child health,
Nutrition, Nutrition education, Public assistance programs, WIC, Women.
For the reasons set forth in the preamble, 7 CFR part 246 is
amended to read as follows:
PART 246--SPECIAL SUPPLEMENTAL FOOD PROGRAM FOR WOMEN, INFANTS, AND
CHILDREN
1. The authority citation for part 246 continues to read as
follows:
Authority: 42 U.S.C. 1786.
2. In part 246, all references to ``7 CFR part 3015'' are revised
to read ``7 CFR part 3016''.
3. In part 246, all references to ``OMB Circular A-90'' are revised
to read ``OMB Circular A-130''.
4. In part 246, all references to ``administrative and program
services'' are revised to read ``nutrition services and
administration''.
5. In Sec. 246.2:
a. Definitions of ``Breastfeeding'', ``7 CFR part 3017'', ``7 CFR
part 3018'', and ``Nutrition Services and Administration (NSA) Costs''
are added in alphabetical order; and,
b. The definition of ``Administrative and Program Services Costs''
is removed.
The additions read as follows:
Sec. 246.2 Definitions.
* * * * *
Breastfeeding means the practice of feeding a mother's breastmilk
to her infant(s) on the average of at least once a day.
* * * * *
Nutrition Services and Administration (NSA) Costs means those
direct and indirect costs, exclusive of food costs, as defined in
Sec. 246.14(c), which State and local agencies determine to be
necessary to support Program operations. Costs include, but are not
limited to, the costs of Program administration, start-up, monitoring,
auditing, the development of and accountability for food delivery
systems, nutrition education and breastfeeding promotion and support,
outreach, certification, and developing and printing food instruments.
* * * * *
7 CFR part 3017 means the Department's Common Rule regarding
Governmentwide Debarment and Suspension (Non-procurement) and
Governmentwide Requirements for Drug-Free Workplace. Part 3017
implements the requirements established by Executive Order 12549
(February 18, 1986) and sections 5151-5160 of the Drug-Free Workplace
Act of 1988 (Pub. L. 100-690).
7 CFR part 3018 means the Department's Common Rule regarding
Governmentwide New Restrictions on Lobbying. Part 3018 implements the
requirements established by section 319 of the 1990 Appropriations Act
for the Department of Interior and Related Agencies (Pub. L. 101-121).
* * * * *
6. In Sec. 246.3:
a. The first sentence of paragraph (b) is revised.
b. The text of paragraph (c) is redesignated as paragraph (c)(1)
and is revised;
c. A new paragraph (c)(2) is added;
d. Paragraph (e)(4) is redesignated as paragraph (e)(5); and,
e. A new paragraph (e)(4) is added.
The revisions and additions read as follows:
Sec. 246.3 Administration.
* * * * *
(b) Delegation to State agency. The State agency is responsible for
the effective and efficient administration of the Program in accordance
with the requirements of this part; the Department's regulations
governing nondiscrimination (7 CFR parts 15, 15a and 15b); governing
administration of grants (7 CFR part 3016); governing nonprocurement
debarment/suspension and drug-free workplace (7 CFR part 3017); and
governing restrictions on lobbying (7 CFR part 3018); FNS guidelines;
and, instructions issued under the FNS Directives Management System. *
* *
(c) Agreement and State Plan. (1) Each State agency desiring to
administer the Program shall annually submit a State Plan and enter
into a written agreement with the Department for administration of the
Program in the jurisdiction of the State agency in accordance with the
provisions of this part.
(2) The written agreement shall include a certification/assurance
regarding drug-free workplace as required by 7 CFR part 3017, and, if
applicable, a certification regarding lobbying and a disclosure of
lobbying activities as required by 7 CFR part 3018.
* * * * *
(e) * * *
(4) A designated breastfeeding promotion coordinator, to coordinate
breastfeeding promotion efforts identified in the State plan in
accordance with the requirement of Sec. 246.4(a)(9) of this part. The
person to whom the State agency assigns this responsibility may perform
other duties as well.
* * * * *
7. In Sec. 246.4:
a. In paragraph (a)(2) and (a)(13), reference to ``administrative
funds'' is revised to read ``nutrition services and administration
funds'';
b. The first sentence of paragraph (a)(7) is revised;
c. Paragraphs (a)(8) and (a)(9) are revised;
d. In paragraph (a)(10), reference to ``Sec. 246.7(c)(2)(vi)'' is
revised to read ``Sec. 246.7(d)(2)(vii)'';
e. In paragraph (a)(11)(i), reference to ``Sec. 246.7(d)(4)'' is
revised to read ``Sec. 246.7(e)(4)'';
f. In paragraph (a)(19), an incorrect reference to
``Sec. 246.7(m)(1)(i)'' is revised to read ``Sec. 246.7(n)(1)(i)'';
and,
g. New paragraphs (a)(20)-(a)(23) are added.
The revisions and additions read as follows:
Sec. 246.4 State plan.
(a) * * *
(7) The State agency's plans, to be conducted in cooperation with
local agencies, for informing eligible persons of the availability of
Program benefits, including the eligibility criteria for participation,
the location of local agencies operating the Program, and the
institutional conditions of Sec. 246.7(n)(1)(i) of this part, with
emphasis on reaching and enrolling eligible women in the early months
of pregnancy and migrants. * * *
(8) A description of how the State agency plans to coordinate
program operations with special counseling services and other programs,
including, but not limited to, the Expanded Food and Nutrition
Education Program (7 U.S.C. 343(d) and 3175), the Food Stamp Program (7
U.S.C. 2011 et seq.), the Early and Periodic Screening, Diagnosis, and
Treatment Program (Title XIX of the Social Security Act), the Aid to
Families with Dependent Children (AFDC) Program (42 U.S.C. 601-615),
the Maternal and Child Health (MCH) Program (42 U.S.C. 701-709), the
Medicaid Program (42 U.S.C. 1396 et seq.), family planning,
immunization, prenatal care, well-child care, drug and other harmful
substance abuse counseling, treatment and education programs, child
abuse counseling, and local programs for breastfeeding promotion.
(9) The State agency's nutrition education goals and action plans,
including a description of the methods that will be used to provide
drug and other harmful substance abuse information, promote
breastfeeding, and to meet the special nutrition education needs of
migrant farmworkers and their families, Indians, and homeless persons.
* * * * *
(20) A plan to provide program benefits to unserved infants and
children under the care of foster parents, protective services, or
child welfare authorities, including infants exposed to drugs
perinatally.
(21) A plan to improve access to the program for participants and
prospective applicants who are employed or who reside in rural areas,
by addressing their special needs through the adoption or revision of
procedures and practices to minimize the time participants and
applicants must spend away from work and the distances participants and
applicants must travel. This shall include at least one of the
following procedures: appointment scheduling, adjustment of clinic
hours and/or locations, or the mailing of food instruments, provided,
however, that all State agencies shall include appointment scheduling
for employed adult individuals applying or reapplying for themselves or
on behalf of others if such appointments are not currently provided.
The State agency shall also describe any plans for issuance of food
instruments to employed or rural participants, or to any other segment
of the participant population, through means other than direct
participant pick-up, pursuant to Sec. 246.12(r)(8). Such description
shall also include measures to ensure the integrity of program services
and fiscal accountability.
(22) Assurance that each local agency and any subgrantees of the
State agency and/or local agencies are in compliance with the
requirements of 7 CFR part 3017 regarding nonprocurement debarment/
suspension.
(23) A description of the State agency's plans to provide and
maintain a drug-free workplace.
* * * * *
8. In Sec. 246.6:
a. Paragraph (b)(1) is revised;
b. A new paragraph (f) is added.
The revision and addition read as follows:
Sec. 246.6 Agreements with local agencies.
* * * * *
(b) * * *
(1) Complies with all the fiscal and operational requirements
prescribed by the State agency pursuant to this part, 7 CFR part 3016,
the debarment and suspension requirements of 7 CFR part 3017, if
applicable, the lobbying restrictions of 7 CFR part 3018, and FNS
guidelines and instructions, and provides on a timely basis to the
State agency all required information regarding fiscal and Program
information;
* * * * *
(f) Outreach/Certification In Hospitals. The State agency shall
ensure that each local agency operating the program within a hospital
and/or that has a cooperative arrangement with a hospital:
(1) Advises potentially eligible individuals that receive inpatient
or outpatient prenatal, maternity, or postpartum services, or that
accompany a child under the age of 5 who receives well-child services,
of the availability of program services; and
(2) To the extent feasible, provides an opportunity for individuals
who may be eligible to be certified within the hospital for
participation in the WIC Program.
9. In Sec. 246.7:
a. Paragraphs (b)-(n) are redesignated as paragraphs (c)-(o) and
all references to these paragraphs within Sec. 246.7 are redesignated
accordingly.
b. A new paragraph (b) is added;
c. Newly redesignated paragraph (d) is revised;
d. In newly redesignated paragraph (f)(2)(iv), an incorrect
reference to ``Sec. 246.12(s)(8) (i) and (ii)'' is revised to read
Sec. 246.12(r)(8)'';
e. The introductory text of newly redesignated paragraph (h)(1) is
revised;
f. Newly redesignated paragraph (h)(1)(ii) is revised;
g. The first sentence of newly redesignated paragraph (j)(6) is
revised; and
h. A new paragraph (j)(9) is added.
The additions and revisions read as follows:
Sec. 246.7 Certification of participants.
* * * * *
(b) Program referral and access. State and local agencies shall
provide WIC Program applicants and participants or their designated
proxies with information on other health-related and public assistance
programs, and when appropriate, shall refer applicants and participants
to such programs.
(1) The State agency shall ensure that written information
concerning the Food Stamp Program, the program for Aid to Families with
Dependent Children under Title IV-A of the Social Security Act (AFDC),
and the Child Support Enforcement Program under Title IV-D of the
Social Security Act, is provided on at least one occasion to adult
participants and adult individuals applying for the WIC Program for
themselves or on behalf of others.
(2) The State agency shall provide each local WIC agency with
materials showing the maximum income limits, according to family size,
applicable to pregnant women, infants, and children up to age 5 under
the medical assistance program established under Title XIX of the
Social Security Act (in this section, referred to as the ``Medicaid
Program''). The local agency shall, in turn, provide to adult
individuals applying or reapplying for the WIC Program for themselves
or on behalf of others, written information about the Medicaid Program.
If such individuals are not currently participating in Medicaid but
appear to have family income below the applicable maximum income limits
for the program, the local agency shall also refer these individuals to
Medicaid, including the referral of infants and children to the
appropriate entity in the area authorized to determine eligibility for
early and periodic screening, diagnostic, and treatment (EPSDT)
services, and, the referral of pregnant women to the appropriate entity
in the area authorized to determine presumptive eligibility for the
Medicaid Program, if such determinations are being offered by the
State.
(3) Local agencies shall provide information about other potential
sources of food assistance in the local area to adult individuals
applying or reapplying in person for the WIC Program for themselves or
on behalf of others, when such applicants cannot be served because the
Program is operating at capacity in the local area.
(4) Each local agency that does not routinely schedule appointments
shall schedule appointments for employed adult individuals seeking to
apply or reapply for participation in the WIC Program for themselves or
on behalf of others so as to minimize the time such individuals are
absent from the workplace due to such application.
(5) Each local agency shall attempt to contact each pregnant woman
who misses her first appointment to apply for participation in the
Program in order to reschedule the appointment. At the time of initial
contact, the local agency shall request an address and telephone number
where the pregnant woman can be reached.
* * * * *
(d) Income criteria and income eligibility determinations. The
State agency shall establish, and provide local agencies with, income
guidelines, definitions, and procedures to be used in determining an
applicant's income eligibility for the Program.
(1) Income eligibility guidelines. The State agency may prescribe
income guidelines either equaling the income guidelines established
under section 9 of the National School Lunch Act for reduced-price
school meals or identical to State or local guidelines for free or
reduced-price health care. However, in conforming Program income
guidelines to health care guidelines, the State agency shall not
establish Program guidelines which exceed the guidelines for reduced-
price school meals or are less than 100 percent of the revised poverty
income guidelines issued annually by the Department of Health and Human
Services. Program applicants who meet the requirements established by
paragraph (d)(2)(vi)(A) of this section shall not be subject to the
income limits established by State agencies under this paragraph.
(i) Local agency income eligibility guidelines. Different
guidelines may be prescribed for different local agencies within the
State provided that the guidelines are the ones used by the local
agencies for determining eligibility for free or reduced-price health
care.
(ii) Annual adjustments in the income guidelines. On or before June
1 each year, FNS will announce adjustments in the income guidelines for
reduced-price meals under section 9 of the National School Lunch Act,
based on annual adjustments in the revised poverty income guidelines
issued by the Department of Health and Human Services.
(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 shall ensure that
conforming adjustments are made, if necessary, in local agency income
guidelines. The local agency shall implement (revised) guidelines
effective July 1 of each year for which such guidelines are issued by
the State.
(2) Income eligibility determinations. The State agency shall
ensure that local agencies determine income through the use of a clear
and simple application form provided or approved by the State agency.
(i) Timeframes for determining income. In determining the income
eligibility of an applicant, the State agency may instruct local
agencies to consider the income of the family during the past 12 months
and the family's current rate of income to determine which indicator
more accurately reflects the family's status. However, persons from
families with adult members who are unemployed shall be eligible based
on income during the period of unemployment if the loss of income
causes the current rate of income to be less than the State or local
agency's income guidelines for Program eligibility.
(ii) Definition of ``Income''. If the State agency uses the
National School Lunch reduced-priced meal income guidelines, as
specified in paragraph (d)(1) of this section, it shall use the
following definition of income: Income for the purposes of this part
means gross cash income before deductions for income taxes, employees'
social security taxes, insurance premiums, bonds, etc. Income includes
the following--
(A) Monetary compensation for services, including wages, salary,
commissions, or fees;
(B) Net income from farm and non-farm self-employment;
(C) Social Security benefits;
(D) Dividends or interest on savings or bonds, income from estates
or trusts, or net rental income;
(E) Public assistance or welfare payments;
(F) Unemployment compensation;
(G) Government civilian employee or military retirement or pensions
or veterans' payments;
(H) Private pensions or annuities;
(I) Alimony or child support payments;
(J) Regular contributions from persons not living in the household;
(K) Net royalties; and
(L) Other cash income. Other cash income includes, but is not
limited to, cash amounts received or withdrawn from any source
including savings, investments, trust accounts and other resources
which are readily available to the family.
(iii) Use of a State or local health care definition of ``Income''.
If the State agency uses State or local free or reduced-price health
care income guidelines, as it is authorized to do in paragraph (d)(1)
of this section, it may use the State or local definition or
definitions of income used for the health care eligibility
determinations. The State agency shall ensure, however, that the State
or local agency's definition of income does not count the value of in-
kind housing and other in-kind benefits and payments or benefits listed
in paragraph (d)(2)(iv) of this section as income for Program purposes,
and that families with gross income, as defined in paragraph (d)(2)(ii)
of this section, in excess of 185 percent of the Federal guidelines
specified under paragraph (d)(1) of this section are not rendered
eligible for Program benefits, except that persons who meet the
requirements of paragraph (d)(2)(vi) of this section shall not be
subject to limitations established under this paragraph.
(iv) Income exclusions. (A) In determining income eligibility, the
State agency may exclude from consideration as income any basic
allowance for quarters received by military services personnel residing
off military installations. State agencies which choose to exercise
this option shall implement it uniformly with respect to all Program
applicants from military families.
(B) The value of inkind housing and other inkind benefits, shall be
excluded from consideration as income in determining an applicant's
eligibility for the program.
(C) Payments or benefits provided under certain Federal programs or
acts are excluded from consideration as income by legislative
prohibition. The payments or benefits which must be excluded from
consideration as income include, but are not limited to:
(1) Reimbursements from the Uniform Relocation Assistance and Real
Property Acquisition Policies Act of 1970 (Pub. L. 91-646, sec. 216, 42
U.S.C. 4636);
(2) Any payment to volunteers under Title I (VISTA and others) and
Title II (RSVP, foster grandparents, and others) of the Domestic
Volunteer Service Act of 1973 (Pub. L. 93-113, sec. 404(g), 42 U.S.C.
5044(g)) to the extent excluded by that Act;
(3) Payment to volunteers under section 8(b)(1)(B) of the Small
Business Act (SCORE and ACE) (Pub. L. 95-510, sec. 101, 15 U.S.C.
637(b)(1)(D));
(4) Income derived from certain submarginal land of the United
States which is held in trust for certain Indian tribes (Pub. L. 94-
114, sec. 6, 25 U.S.C. 459e);
(5) Payments received under the Job Training Partnership Act (Pub.
L. 97-300, sec. 142(b), 29 U.S.C. 1552(b));
(6) Income derived from the disposition of funds to the Grand River
Band of Ottawa Indians (Pub. L. 94-540, sec. 6);
(7) Payments received under the Alaska Native Claims Settlement Act
(Pub. L. 100-241, sec. 15, 43 U.S.C. sec. 1626(c));
(8) The value of assistance to children or their families under the
National School Lunch Act, as amended (Pub. L. 94-105, sec. 9(d), 42
U.S.C. sec. 1760(e)), the Child Nutrition Act of 1966 (Pub. L. 89-642,
sec. 11(b), 42 U.S.C. sec. 1780(b)), and the Food Stamp Act of 1977
(Pub. L. 95-113, sec. 1301, 7 U.S.C. sec. 2017(b));
(9) Payments by the Indian Claims Commission to the Confederated
Tribes and Bands of the Yakima Indian Nation or the Apache Tribe of the
Mescalero Reservation (Pub. L. 95-433, sec. 2, 25 U.S.C. 609c-1);
(10) Payments to the Passamaquoddy Tribe and the Penobscot Nation
or any of their members received pursuant to the Maine Indian Claims
Settlement Act of 1980 (Pub. L. 96-420, sec. 6, 9(c), 25 U.S.C.
1725(i), 1728(c));
(11) Payments under the Low-income Home Energy Assistance Act, as
amended (Pub. L. 99-125, sec. 504(c), 42 U.S.C. sec. 8624(f));
(12) Student financial assistance received from any program funded
in whole or part under Title IV of the Higher Education Act of 1965,
including the Pell Grant, Supplemental Educational Opportunity Grant,
State Student Incentive Grants, National Direct Student Loan, PLUS,
College Work Study, and Byrd Honor Scholarship programs, which is used
for costs described in section 472 (1) and (2) of that Act (Pub. L. 99-
498, section 479B, 20 U.S.C. 1087uu). The specified costs set forth in
section 472 (1) and (2) of the Higher Education Act are tuition and
fees normally assessed a student carrying the same academic workload as
determined by the institution, and including the costs for rental or
purchase of any equipment, materials, or supplies required of all
students in the same course of study; and an allowance for books,
supplies, transportation, and miscellaneous personal expenses for a
student attending the institution on at least a half-time basis, as
determined by the institution. The specified costs set forth in section
472 (1) and (2) of the Act are those costs which are related to the
costs of attendance at the educational institution and do not include
room and board and dependent care expenses;
(13) Payments under the Disaster Relief Act of 1974, as amended by
the Disaster Relief and Emergency Assistance Amendments of 1989 (Pub.
L. 100-707, sec. 105(i), 42 U.S.C. sec. 5155(d));
(14) Effective July 1, 1991, payments received under the Carl D.
Perkins Vocational Education Act, as amended by the Carl D. Perkins
Vocational and Applied Technology Education Act Amendments of 1990
(Pub. L. 101-392, sec. 501, 20 U.S.C. sec. 2466d);
(15) Payments pursuant to the Agent Orange Compensation Exclusion
Act (Pub. L. 101-201, sec. 1);
(16) Payments received for Wartime Relocation of Civilians under
the Civil Liberties Act of 1988 (Pub. L. 100-383, sec. 105(f)(2), 50
App. U.S.C. sec. 1989b-4(f)(2));
(17) Value of any child care payments made under section
402(g)(1)(E) of the Social Security Act, as amended by the Family
Support Act (Pub. L. 100-485, sec. 301, 42 U.S.C. sec. 602 (g)(1)(E));
(18) Value of any ``at-risk'' block grant child care payments made
under section 5081 of Pub. L. 101-508, which amended section 402(i) of
the Social Security Act;
(19) Value of any child care provided or paid for under the Child
Care and Development Block Grant Act, as amended (Pub. L. 102-586, Sec.
8(b)), 42 U.S.C. 9858q);
(20) Mandatory salary reduction amount for military service
personnel which is used to fund the Veteran's Educational Assistance
Act of 1984 (GI Bill), as amended (Pub. L. 99-576, sec. 303(a)(1), 38
U.S.C. sec. 1411 (b));
(21) Payments received under the Old Age Assistance Claims
Settlement Act, except for per capita shares in excess of $2,000 (Pub.
L. 98-500, sec. 8, 25 U.S.C. sec. 2307);
(22) Payments received under the Cranston-Gonzales National
Affordable Housing Act, unless the income of the family equals or
exceeds 80 percent of the median income of the area (Pub. L. 101-625,
sec. 522(i)(4), 42 U.S.C. sec. 1437f nt);
(23) Payments received under the Housing and Community Development
Act of 1987, unless the income of the family increases at any time to
not less than 50 percent of the median income of the area (Pub. L. 100-
242, sec. 126(c)(5)(A), 25 U.S.C. sec. 2307);
(24) Payments received under the Sac and Fox Indian claims
agreement (Pub. L. 94-189, sec. 6);
(25) Payments received under the Judgment Award Authorization Act,
as amended (Pub. L. 97-458, sec. 4, 25 U.S.C. sec. 1407 and Pub. L. 98-
64, sec. 2(b), 25 U.S.C. sec. 117b(b));
(26) Payments for the relocation assistance of members of Navajo
and Hopi Tribes (Pub. L. 93-531, sec. 22, 22 U.S.C. sec. 640d-21);
(27) Payments to the Turtle Mountain Band of Chippewas, Arizona
(Pub. L. 97-403, sec. 9);
(28) Payments to the Blackfeet, Grosventre, and Assiniboine tribes
(Montana) and the Papago (Arizona) (Pub. L. 97-408, sec. 8(d));
(29) Payments to the Assiniboine Tribe of the Fort Belknap Indian
community and the Assiniboine Tribe of the Fort Peck Indian Reservation
(Montana) (Pub. L. 98-124, sec. 5);
(30) Payments to the Red Lake Band of Chippewas (Pub. L. 98-123,
sec. 3);
(31) Payments received under the Saginaw Chippewa Indian Tribe of
Michigan Distribution of Judgment Funds Act (Pub. L. 99-346, sec.
6(b)(2)); and
(32) Payments to the Chippewas of Mississippi (Pub. L. 99-377, sec.
4(b)).
(v) Verification of information. A State or local agency may
require verification of information which it determines necessary to
confirm income eligibility for Program benefits.
(vi) Adjunct or automatic income eligibility. (A) The State agency
shall accept as income-eligible for the Program any applicant who
documents that he/she is:
(1) Certified as fully eligible to receive food stamps under the
Food Stamp Act of 1977, or certified as fully eligible, or
presumptively eligible pending completion of the eligibility
determination process, to receive Aid to Families with Dependent
Children (AFDC) under Part A of Title IV of the Social Security Act or
Medical Assistance (i.e., Medicaid) under Title XIX of the Social
Security Act; or
(2) A member of a family that is certified eligible to receive
assistance under AFDC, or a member of a family in which a pregnant
woman or an infant is certified eligible to receive assistance under
Medicaid.
(B) The State agency may accept, as evidence of income within
Program guidelines, documentation of the applicant's participation in
State-administered programs not specified in this paragraph that
routinely require documentation of income, provided that those programs
have income eligibility guidelines at or below the State agency's
Program income guidelines.
(C) Persons who are adjunctively income eligible, as set forth in
paragraphs (d)(2)(vi)(A) of this section, shall not be subject to the
income limits established under paragraph (d)(1) of this section.
(vii) Income eligibility of Indian applicants. If an Indian State
agency (or a non-Indian State agency which acts on behalf of a local
agency operated by an Indian organization or the Indian Health Service)
submits census data or other reliable documentation demonstrating to
FNS that the majority of the Indian households in a local agency's
service area have incomes at or below the State agency's income
eligibility guidelines, FNS may authorize the State agency to approve
the use of an income certification system under which the local Indian
agency shall inform each Indian applicant household of the maximum
family income allowed for that applicant's family size. The local
agency shall ensure that the applicant, or the applicant's parent or
caretaker, signs a statement that the applicant's family income does
not exceed the maximum. The local agency may verify the income
eligibility of any Indian applicant.
(viii) Income eligibility of instream migrant farmworkers and their
family members. Instream migrant farmworkers and their family members
with expired Verification of Certification cards shall be declared to
satisfy the State agency's income standard; Provided, however, that the
income of that instream migrant farmworker family is determined at
least once every 12 months. Any determination that members of an
instream migrant farmworker family have met the income standard, either
in the migrant's home base area before the migrant has entered the
stream for a particular agricultural season, or in an instream area
during the agricultural season, shall satisfy the income criteria in
any State for any subsequent certification while the migrant is
instream during the 12-month period following the determination.
* * * * *
(h) * * *
(1) The State agency shall ensure that local agencies disqualify an
individual during a certification period if, on the basis of a
reassessment of Program eligibility status, the individual is
determined ineligible; provided, however, that an individual determined
adjunctively income eligible under paragraph (d)(2)(vi)(A) (1) or (2)
of this section or income eligible under paragraph (d)(2)(vi)(B) of
this section is not disqualified solely on the basis of a determination
they no longer participate in AFDC, Medicaid, Food Stamps, or another
qualified State-administered program or are no longer a member of a
family which contains an AFDC recipient or a pregnant woman or an
infant receiving Medicaid. The State agency shall ensure that local
agencies disqualify such an individual during a certification period,
if on the basis of a reassessment of Program eligibility, the
individual is no longer deemed income eligible under paragraph
(d)(2)(vi) (A) or (B) of this section and does not meet the income
eligibility requirements of paragraph (d)(1) of this section. The State
agency may authorize local agencies to disqualify an individual during
the certification period for the following reasons:
* * * * *
(ii) Failure to obtain food instruments or supplemental foods for a
number of consecutive months, as specified by the State agency,
evidenced by indicators such as failure to pick up supplemental foods
or food instruments, nonreceipt of food instruments as evidenced by
return of mailed instruments, or failure to have an electronic benefit
transfer card revalidated to authorize the purchase of supplemental
foods.
* * * * *
(j) * * *
(6) A person who is about to be suspended or disqualified from
program participation at any time during the certification period shall
be advised in writing not less than 15 days before the suspension or
disqualification. * * *
* * * * *
(9) If a State agency must suspend or terminate benefits to any
participant during the participant's certification period due to a
shortage of funds for the Program, it shall issue a notice to such
participant in advance, as stipulated in paragraph (j)(6) of this
section. Such notice shall also include the categories of participants
whose benefits are being suspended or terminated due to such shortage.
* * * * *
Sec. 246.9 [Amended]
10. In Sec. 246.9(g), reference to ``Sec. 246.7(i)(6)'' is revised
to read ``Sec. 246.7(j)(6)''.
11. In Sec. 246.11:
a. A new sentence is added at the end of paragraph (c)(2);
b. Paragraphs (c)(3), (c)(5), and (c)(6) are revised;
c. A new paragraph (c)(8) is added; and
d. Paragraph (e)(4) is revised.
The additions and revisions read as follows:
Sec. 246.11 Nutrition education.
* * * * *
(c) * * *
(2) * * * The State agency shall also provide training on the
promotion and management of breastfeeding to staff at local agencies
who will provide information and assistance on this subject to
participants.
(3) Identify or develop resources and educational materials for use
in local agencies, including breastfeeding promotion and instruction
materials, taking reasonable steps to include materials in languages
other than English in areas where a significant number or proportion of
the population needs the information in a language other than English,
considering the size and concentration of such population and, where
possible, the reading level of participants.
* * * * *
(5) Annually perform and document evaluations of nutrition
education and breastfeeding promotion and support activities.
The evaluations shall include an assessment of participants' views
concerning the effectiveness of the nutrition education and
breastfeeding promotion and support they received.
(6) Monitor local agency activities to ensure compliance with
provisions set forth in paragraphs (c)(8), (d), and (e) of this
section.
* * * * *
(8) Establish standards for breastfeeding promotion and support
which include, at a minimum, the following:
(i) A policy that creates a positive clinic environment which
endorses breastfeeding as the preferred method of infant feeding;
(ii) A requirement that each local agency designate a staff person
to coordinate breastfeeding promotion and support activities;
(iii) A requirement that each local agency incorporate task-
appropriate breastfeeding promotion and support training into
orientation programs for new staff involved in direct contact with WIC
clients; and
(iv) A plan to ensure that women have access to breastfeeding
promotion and support activities during the prenatal and postpartum
periods.
* * * * *
(e) * * *
(4) The local agency shall document in each participant's
certification file that nutrition education has been given to the
participant in accordance with State agency standards, except that the
second or any subsequent nutrition education contact during a
certification period that is provided to a participant in a group
setting may be documented in a masterfile. Should a participant miss a
nutrition education appointment, the local agency shall, for purposes
of monitoring and further education efforts, document this fact in the
participant's file, or, at the local agency's discretion, in the case
of a second or subsequent missed contact where the nutrition education
was offered in a group setting, document this fact in a master file.
* * * * *
12. In Sec. 246.12:
a. In paragraph (o), reference to ``paragraph (s)(8)'' is revised
to read ``paragraph (r)(8)'';
b. In paragraph (r)(2) (ii) and (iii), all references to
``paragraph (s)(2)(i)'' are revised to read ``paragraph (r)(2)(i)'';
and,
c. Paragraph (r)(8) is revised.
The revision reads as follows:
Sec. 246.12 Food delivery systems.
* * * * *
(r) * * *
(8) Participants or their authorized proxies shall personally pick
up food instruments when scheduled for nutrition education or for an
appointment to determine whether participants are eligible for a second
or subsequent certification period. However, in all other circumstances
the State agency may provide for issuance of food instruments through
an alternative means, such as electronic benefit transfer (EBT) or
mailing, unless FNS determines that such action would jeopardize the
integrity of program services or program accountability. If a State
agency opts to mail WIC food instruments, it must provide
justification, as part of the description of its alternative issuance
system in its State plan, as required in Sec. 246.4(a)(21), for mailing
WIC food instruments to areas where food stamps are not mailed.
State agencies which opt to mail food instruments must establish
and implement a system which ensures the return of food instruments to
the State or local agency if the participant no longer resides or
receives mail at the address to which the food instruments were mailed.
* * * * *
13. In Sec. 246.14:
a. The heading and introductory text of paragraph (c) and paragraph
(c)(l) are revised;
b. A new paragraph (c)(10) is added.
The revision and addition read as follows:
Sec. 246.14 Program costs.
* * * * *
(c) Specified allowable nutrition services and administration
costs. Allowable nutrition services and administration (NSA) costs
include the following:
(1) The cost of nutrition education and breastfeeding promotion and
support which meets the requirements of Sec. 246.11. 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 a
proportionate share of $8 million targeted specifically for
breastfeeding promotion and support activities. Each State agency's
share of the $8 million shall be determined on the basis of the average
monthly number of pregnant and breastfeeding women served by a WIC
State agency as a percentage of the average monthly number of pregnant
and breastfeeding women served by all WIC State agencies. The amount to
be spent on nutrition education shall be computed by taking one-sixth
of the total fiscal year NSA expenditures. The amount spent by a State
agency on breastfeeding promotion and support activities shall be at
least an amount that is equal to its proportionate share of the $8
million as specified in this paragraph. If the State agency's total
reported nutrition education and breastfeeding promotion and support
expenditures are less than the required amount of expenditures, the
Department will issue a claim for the difference. The State agency may
also request prior written permission from the Department to spend less
than the required portions of its NSA grant for either nutrition
education or for breastfeeding promotion and support activities. The
Department may grant such permission if the State agency has documented
that other resources, including in-kind resources, will be used to
conduct these activities at a level commensurate with the requirements
of this paragraph. Such requests should be submitted to the appropriate
FNS regional office for approval. Nutrition education costs are limited
to activities which are distinct and separate efforts to help
participants understand the importance of nutrition to health. The cost
of dietary assessments for the purpose of certification, the cost of
prescribing and issuing supplemental foods, the cost of screening for
drug and other harmful substance use and making referrals to drug and
other harmful substance abuse services, and the cost of other health-
related screening shall not be applied to the expenditure requirement
for nutrition education and breastfeeding promotion and support
activities. The Department shall advise State agencies regarding
methods for minimizing documentation of the nutrition education and
breastfeeding promotion and support expenditure requirement. Costs to
be applied to the one-sixth minimum amount required to be spent on
nutrition education and the target share of funds required to be spent
on breastfeeding promotion and support include, but need not be limited
to--
(i) Salary and other costs for time spent on nutrition education
and breastfeeding promotion and support consultations whether with an
individual or group;
(ii) The cost of procuring and producing nutrition education and
breastfeeding promotion and support materials including handouts, flip
charts, filmstrips, projectors, food models or other teaching aids, and
the cost of mailing nutrition education or breastfeeding promotion and
support materials to participants;
(iii) The cost of training nutrition or breastfeeding promotion and
support educators, including costs related to conducting training
sessions and purchasing and producing training materials;
(iv) The cost of conducting evaluations of nutrition education or
breastfeeding promotion and support activities, including evaluations
conducted by contractors;
(v) Salary and other costs incurred in developing the nutrition
education and breastfeeding promotion and support portion of the State
Plan and local agency nutrition education and breastfeeding promotion
and support plans; and
(vi) The cost of monitoring nutrition education and breastfeeding
promotion and support activities.
* * * * *
(10) The cost of breastfeeding aids which directly support the
initiation and continuation of breastfeeding.
* * * * *
14. In Sec. 246.16:
a. Paragraphs (a) through (i) are revised and paragraphs (j)
through (k) are removed;
b. Paragraphs (l) through (q) are redesignated as paragraphs (j)
through (o); and,
c. In newly redesignated paragraphs (k)(2) (ii) and (iii), all
references to ``administrative'' are revised to read ``nutrition
services and administration''.
The revisions read as follows:
Sec. 246.16 Distribution of funds.
(a) General. This paragraph describes the timeframes for
distribution of appropriated funds by the Department to participating
State agencies and the authority for the Secretary to use appropriated
funds for evaluation studies and demonstration projects.
(1) Authorized appropriations to carry out the provisions of this
section may be made not more than 1 year in advance of the beginning of
the fiscal year in which the funds shall become available for
disbursement to the State agencies. The funds shall remain available
for the purposes for which appropriated until expended.
(2) In the case of appropriations legislation providing funds
through the end of a fiscal year, the Secretary shall issue to State
agencies an initial allocation of funds provided under such legislation
not later than the expiration of the 15-day period beginning on the
date of the enactment and subsequent allocation of funds shall be
issued not later than the beginning of each of the second, third and
fourth quarters of the fiscal year.
(3) Allocations of funds pursuant to paragraph (a)(2) of this
section shall be made as follows: The initial allocation of funds to
State agencies shall include not less than \1/3\ of the appropriated
amounts for the fiscal year. The allocation of funds to be made not
later than the beginning of the second and third quarters shall each
include not less than \1/4\ of the appropriated amounts for the fiscal
year.
(4) In the case of legislation providing funds for a period that
ends prior to the end of a fiscal year, the Secretary shall issue to
State agencies an initial allocation of funds not later than the
expiration of the 10-day period beginning on the date of enactment. In
the case of legislation providing appropriations for a period of not
more than 4 months, all funds must be allocated to State agencies
except those reserved by the Secretary to carry out paragraph (a)(6) of
this section.
(5) In any fiscal year unused amounts from a prior fiscal year that
are identified by the end of the first quarter of the fiscal year shall
be recovered and reallocated not later than the beginning of the second
quarter of the fiscal year. Unused amounts from a prior fiscal year
that are identified after the end of the first quarter of the fiscal
year shall be recovered and reallocated on a timely basis.
(6) Up to one-half of one 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) of this part, and administering
pilot projects, including projects designed to meet the special needs
of migrants, Indians, and rural populations.
(b) Distribution and application of grant funds to State agencies.
Notwithstanding any other provision of law, funds made available to the
State agencies for the Program in any fiscal year will be managed and
distributed as follows:
(1) The State agency shall ensure that all Program funds are used
only for Program purposes. As a prerequisite to the receipt of funds,
the State agency shall have executed an agreement with the Department
and shall have received approval of its State Plan.
(2) Notwithstanding any other provision of law, all funds not made
available to the Secretary in accordance with paragraph (a)(6) of this
section shall be distributed to State agencies on the basis of funding
formulas which allocate funds to all State agencies for food costs and
NSA costs incurred during the fiscal year for which the funds had been
made available to the Department. Final State agency grant levels as
determined by the funding formula and State agency breastfeeding
promotion and support expenditure targets will be issued in a timely
manner.
(3) A State agency may transfer funds allocated to it for one
fiscal year to another fiscal year under the following conditions:
(i) 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;
(ii) Not more than 1 percent of the total funds allocated to a
State agency for food costs and for NSA costs in any fiscal year may be
spent forward and expended by the State agency for such costs incurred
in the subsequent fiscal year, except that State agencies which
converted food funds to NSA funds under paragraph (f) of this section
during a fiscal year shall not spend NSA funds forward into the
following fiscal year.
(iii) The total amount of funds transferred from any fiscal year
under paragraphs (b)(3)(i) and (b)(3)(ii) of this section shall not
exceed 1 percent of the funds allocated to a State agency for the
fiscal year.
(iv) A State agency which has implemented an acceptable cost
containment measure(s) resulting in increased annual food cost savings
of more than 5 percent of its food grant, may spend forward into the
fiscal year following the fiscal year of implementation a maximum of 5
percent of the funds allocated to the State agency for food costs for
the fiscal year of implementation of such system, less any food funds
backspent into the prior fiscal year under paragraph (b)(3)(i) of this
section and any food and NSA funds spent forward into the succeeding
fiscal year under paragraph (b)(3)(ii) of this section.
(v) Any State agency entering the second fiscal year following the
fiscal year of implementation of, or a significant change to, any cost
containment measure may, at its discretion, spend forward up to 3
percent of the funds allocated to such State agency for food costs for
such fiscal year, less any food funds backspent under paragraph
(b)(3)(i) of this section and any food and NSA funds spent forward from
the fiscal year under paragraph (b)(3)(ii) of this section.
(vi) The State agency shall specify in writing to the Department
the amount of funds it intends to backspend under paragraph (b)(3)(i)
of this section and to spend forward under paragraphs (b)(3) (ii), (iv)
and (v) of this section not later than March 1 of the fiscal year
following the fiscal year from which funds are to be transferred.
(vii) Food funds transferred by the State agency from one fiscal
year to another shall be used by the State agency only for food costs
in the subsequent fiscal year and, in accordance with Sec. 246.14(a)(2)
of this part, shall not be used to cover NSA costs. Any funds spent
forward by the State agency for expenditure in the subsequent fiscal
year shall not affect the amount of funds allocated to such State
agency for the subsequent fiscal year. The Department shall presume
that any funds spent forward are the first funds expended by such State
agency for costs incurred in the subsequent fiscal year.
(4) Any State agency using an approved cost containment measure as
defined in Sec. 246.2 of this part (rebates, competitive bidding, home
delivery and direct distribution), may temporarily borrow amounts made
available to the State agency for the first quarter of a fiscal year to
defray expenses for costs incurred during the final quarter of the
preceding fiscal year. Any State agency that uses this authority shall
restore or reimburse such borrowed amounts when the State agency
receives payment as a result of its cost containment measures for such
expenses.
(5) Each State agency's funds will be provided by means of a Letter
of Credit unless another funding method is specified by the Department.
State agencies shall use funds to cover those allowable and documented
Program costs, as defined in Sec. 246.14, which are incurred by the
State agency and participating local agencies within their
jurisdictions.
(c) Allocation formula. State agencies shall receive grant
allocations according to the formulas described in this paragraph. To
accomplish the distribution of funds under the allocation formulas,
State agencies shall furnish the Department with any necessary
financial and Program data.
(1) Use of participation data in the formula. Wherever the formulas
set forth in paragraphs (c)(2) and (c)(3) of this section require the
use of participation data, the Department shall use participation data
reported by State agencies according to Sec. 246.25(b) of this part;
Provided, however, that prior to using such participation data in any
such formula the Department shall adjust such data as necessary to
impute the number of persons in each participant category that are in
each nutritional risk priority group; Provided, further, that the
Department shall use data reflecting participation supported by the
aggregate of Federal and State funds for any State agency whose State
has budgeted funds from State sources for the Program, if such State
agency requests the Department to do so in accordance with a deadline
prescribed by the Department.
(2) Allocation for nutrition services and administration. The funds
available for allocation to State agencies for NSA for each fiscal year
shall be an amount sufficient to guarantee a national average per
participant grant, as adjusted for inflation. The amount of the
national average per participant grant for NSA for any fiscal year will
be $8.24, the amount of the national average per participant grant for
NSA allocated for Fiscal Year 1987, annually adjusted for inflation.
This inflation adjustment will be made by revising the $8.24 to reflect
the percentage change in the value of the index for State and local
government purchases, calculated using the implicit price deflator, as
published by the Bureau of Economic Analysis of the Department of
Commerce. The percentage change shall be calculated based upon the
change between (x) the base year, and (y) the most recent estimate that
is available as of the start of the current fiscal year of the value of
such index for the 12-month period ending June 30 of the previous
fiscal year. The base year is the value of such index for the 12-month
period ending June 1986. Funds for NSA costs will be allocated
according to the following procedure:
(i) Allocation of stability funds. To the extent funds are
available, and subject to the provisions of paragraph (c)(2)(iii) of
this section, each State agency shall, at a minimum, receive an amount
equal to the final amount of funds received for NSA in the preceding
fiscal year.
(ii) Allocation of residual funds. Subject to the provisions of
paragraph (c)(2)(iii) of this section, any funds remaining available
for allocation for NSA after the stability allocation required by
paragraph (c)(2)(i) of this section has been completed shall be
allocated as residual funds.
(A) The Department shall allocate residual funds to each State
agency according to a method that determines the higher of an amount
equalling the stability funds which are allocated in accordance with
paragraph (c)(2)(i) of this section plus an amount commensurate with
the projected increase in participation from the preceding year as
determined by the Department or the amount of funds generated by the
formula set forth in paragraph (c)(2)(ii)(B) of this section.
(B) The formula shall calculate the amount of funds each State
agency would receive if all available NSA funds were allocated on the
basis of the average monthly participation levels, as projected by the
Department. Each State agency's projected participation level shall be
adjusted to account for the higher (per participant) costs associated
with small participation levels, differential salary levels relative to
a national average salary level, and service to Priority I participants
relative to the national average service to Priority I participants.
The formula shall be adjusted to account for these costs factors in the
following manner: 80 percent of available funds shall provide
compensation based on rates which are proportionately higher for the
first 15,000 or fewer participants, as projected by the Department, and
20 percent of available funds shall provide compensation based on
differential salary levels and service to Priority I participants, as
determined by the Department.
(iii) Discretionary funds. Each State agency's final NSA grant
shall be reduced by 10 percent, and these funds shall be aggregated for
all State agencies within each FNS region to form a discretionary fund.
The Department shall distribute these funds according to guidelines
which shall be established nationally each year and which shall
consider the varying needs of State agencies within the region.
(iv) Operational level. The sum of each State agency's stability,
residual and discretionary funds shall constitute the State agency's
operational level. This operational level shall remain unchanged for
such year even if the number of Federally-supported participants in the
program at such State agency is lower than the Federally-projected
participation level. However, if the provisions of paragraph (e)(2)(ii)
of this section are applicable, a State agency will have its
operational level for NSA reduced in the immediately succeeding fiscal
year.
(3) Allocation for food costs. In any fiscal year, any amounts
remaining from amounts appropriated for such fiscal year and amounts
appropriated for the preceding fiscal year after making any allocations
under paragraph (a)(6) of this section and allocations for NSA as
required by paragraph (c)(2) of this section shall be made available
for food costs. Allocations to State agencies for food costs will be
determined according to the following procedure:
(i) Allocation of stability funds. Each State agency shall receive
for food costs a base amount of stability funds equal to the sum of all
funds allocated to such State agency for all food costs during the
preceding fiscal year minus fifty (50) percent of any food funds
voluntarily returned by such State agency prior to July 16 of the
preceding fiscal year. This base amount shall be adjusted by the
cumulative effect of the following operations.
(A) Inflation adjustment. The base amount shall be increased by an
inflation factor. The inflation factor shall be obtained by dividing
the State agency's imputed participation in Priorities I, II and III by
its total participation and multiplying the resulting quotient by the
anticipated rate of inflation as determined by FNS. Provided, however,
that the sum of the stability funds and residual funds allocated to any
Indian State agency for food costs shall not be less than such State
agency's base amount increased by the anticipated rate of inflation.
(B) Migrant set-aside. Each State agency's base amount, as adjusted
for inflation, shall be further adjusted in order to make funds
available for services to eligible members of migrant populations. The
national aggregate amount of funds made available for this purpose
shall not be less than nine-tenths of one percent of the sums
appropriated for the applicable fiscal year. To the extent that this
amount exceeds the amount required to maintain each State agency's
existing level of service to migrants, as determined by the Department,
funds shall be deducted on a proportional basis from every State
agency's base amount as adjusted for inflation. The funds made
available thereby shall be added to the amounts awarded to those State
agencies that had served migrant populations in the immediately
preceding fiscal year. The basis for determining each such State
agency's share of these funds shall be its proportionate share of the
anticipated cost, as determined by the Department, of supplemental
foods to be provided to eligible migrants in the applicable fiscal
year.
(ii) Allocation of residual funds. Any funds remaining available
for allocation for food costs after the allocation of stability food
funds required by paragraph (c)(3)(i) of this section has been
completed shall be allocated as follows.
(A) Fifty (50) percent of such food funds shall be allocated on the
basis of the State agency's imputed participation in Priority I. Of the
funds available for allocation on this basis, the percent allocated to
each State agency shall be the percent such State agency's imputed
Priority I participation is of the national aggregate imputed Priority
I participation.
(B) Fifty (50) percent of such food funds shall be allocated on the
basis of the extent to which the total amount of funds each State
agency receives through the allocations required by paragraphs
(c)(3)(i) and (c)(3)(ii)(A) of this section falls short of the amount
such State agency would receive for food costs if all funds available
for food were allocated solely on the basis of each State agency's
proportionate share of the national aggregate population of persons
potentially eligible to participate in the Program. Each State agency's
population of potentially eligible persons shall be determined through
poverty and health indicators selected by FNS. If the CSFP also
operates in the State, the number of persons in such State
participating in the CSFP but otherwise eligible to participate in the
Program, as determined by FNS, shall be deducted from such State
agency's population of potentially eligible persons. For purposes of
this allocation, the respective amounts of food funds that would be
allocated to Alaska, the Virgin Islands, Hawaii, Guam, and any Indian
State agencies located within the borders of these States, on the basis
of their respective shares of the potentially eligible population,
shall be adjusted on the basis of appropriate Thrifty Food Plan amounts
used in the Food Stamp Program. The adjusting factor for each such
State agency shall be the quotient obtained by dividing the Thrifty
Food Plan amount used in the applicable State by the Thrifty Food Plan
amount used in the 48 contiguous States and the District of Columbia;
Provided, however, that the ``Urban Alaska'' Thrifty Food Plan amount
shall be used to determine the adjusting factor for the Alaska State
Agency; and the adjusting factor for any Indian State agency located
within the State of Alaska shall be determined from whichever ``Rural
Alaska'' Thrifty Food Plan amount is used in the locality served by
such Indian State agency.
(4) Adjustment for new State agencies. Whenever a State agency that
had not previously administered the program enters into an agreement
with the Department to do so during a fiscal year, the Department shall
make any adjustments to the requirements of this section that are
deemed necessary to establish an appropriate initial funding level for
such State agency.
(d) Distribution of funds to local agencies. The State agency shall
provide to local agencies all funds made available by the Department,
except those funds necessary for allowable State agency NSA costs and
food costs paid directly by the State agency. The State agency shall
distribute the funds based on claims submitted at least monthly by the
local agency. Where the State agency advances funds to local agencies,
the State agency shall ensure that each local agency has funds to cover
immediate disbursement needs, and the State agency shall offset the
advances made against incoming claims each month to ensure that funding
levels reflect the actual expenditures reported by the local agency.
Upon receipt of Program funds from the Department, the State agency
shall take the following actions:
(1) Distribute funds to cover expected food cost expenditures and/
or distribute caseload targets to each local agency which are used to
project food cost expenditures.
(2) Allocate funds to cover expected local agency NSA costs in a
manner which takes into consideration each local agency's needs. For
the allocation of NSA funds, the State agency shall develop an NSA
funding procedure, in cooperation with representative local agencies,
which takes into account the varying needs of the local agencies. The
State agency shall consider the views of local agencies, but the final
decision as to the funding procedure remains with the State agency. The
State agency shall take into account factors it deems appropriate to
further proper, efficient and effective administration of the program,
such as local agency staffing needs, density of population, number of
persons served, and availability of administrative support from other
sources.
(3) The State agency may provide in advance to any local agency any
amount of funds for NSA deemed necessary for the successful
commencement or significant expansion of program operations during a
reasonable period following approval of a new local agency, a new cost
containment measure, or a significant change in an existing cost
containment measure.
(e) Recovery and reallocation of funds. (1) Funds may be recovered
from a State agency at any time the Department determines, based on
State agency reports of expenditures and operations, that the State
agency is not expending funds at a rate commensurate with the amount of
funds distributed or provided for expenditures under the Program.
Recovery of funds may be either voluntary or involuntary in nature.
Such funds shall be reallocated by the Department through application
of appropriate formulas set forth in paragraph (c) of this section.
(2) Performance standards. The following standards shall govern
expenditure performance.
(i) 95 Percent standard. The amount allocated to any State agency
for food benefits in any fiscal year shall be reduced if such State
agency's food expenditures for the preceding fiscal year were less than
95 percent of the amount allocated to such State agency for such
benefits. Such reduction shall equal the difference between the State
agency's preceding year food expenditures and 95 percent of the amount
allocated to the State agency for such benefits. If a State agency has
incurred a food funds recovery, the 95 percent standard will be
calculated based on the amount of its grant prior to the recovery. For
purposes of determining the amount of such reduction, the amount
allocated to the State agency for food benefits for the preceding
fiscal year shall not include food funds expended for food costs
incurred in the second preceding fiscal year in accordance with
paragraph (b)(3)(i) of this section, food funds spent forward from the
preceding fiscal year in accordance with paragraph (b)(3)(ii) of this
section, or allowable adjustments related to rebate savings or funds
conversions discussed in paragraph (f) of this section. The Department
shall recover the amount of food funds by which the amount allocated to
any State agency is reduced pursuant to this paragraph. Temporary
waivers of this 95 percent performance standard may be granted at the
discretion of the Department.
(ii) Reduction of NSA operational level. If a State agency's per
participant expenditure for NSA is more than 15 percent higher than its
per participant grant for NSA without good cause, the Secretary shall
reduce such State agency's operational level for costs of NSA in the
next fiscal year. Circumstances that may meet the good cause criterion
include, but are not limited to, dramatic and unforeseen increase in
food costs, which result in the inability to reach Federally-projected
participation levels. To avoid a reduction, the State agency must
submit to and receive approval from the Department, justification for
exceeding the 15 percent limit on excess NSA expenditures under the
``good cause'' allowance. The justification must be submitted at the
time it submits its closeout report for the applicable fiscal year.
(iii) Spend forward funds. If any State agency notifies the
Department of its intent to spend forward a specific amount of funds
for expenditure in the subsequent fiscal year, in accordance with
paragraph (b)(3)(ii) of this section, such funds shall not be subject
to recovery by the Department.
(f) Conversion of food funds. In any fiscal year that a State
agency achieves, through use of acceptable measures (including, but not
limited to, use of cost containment measures, curtailment of vendor
abuse, and breastfeeding promotional activities), increased Federal
participation that exceeds its current year Federally-projected
participation level as determined by the allocation in the second
quarter, such State agency may convert food funds to NSA funds. The
conversion rate (per participant administrative grant) will be
determined after the initial allocation (excluding partial year
appropriations) by dividing the current year's administrative grant,
inclusive of regional discretionary funds, by the current year's
Federally-projected participation level. This conversion is allowable
to the extent that the funds are necessary to cover allowable NSA
expenditures in such fiscal year and the State agency does not exceed
the per participant grant for NSA established by the funding procedure
in paragraph (c)(2) in this section. If a State agency increases its
participation level through measures that are not in the nutritional
interests of participants or not otherwise allowable under program
regulations (such as reducing the quantities of foods provided for
reasons not related to nutritional need), the State agency may not
convert amounts allocated for food benefits to defray costs of NSA and
the expenditure of such funds for NSA purposes will be disallowed in
accordance with paragraph (h) of this section.
(g) Expenditure of converted food funds. The State agency may
convert food funds to NSA funds under paragraph (f) of this section
only to the extent necessary to cover allowable NSA costs which exceed
the State agency's NSA grant for the current fiscal year and any NSA
funds which the State agency has spent forward into the current fiscal
year.
(h) Limits on converted food funds. At the end of the fiscal year,
the Department will determine the amount of food funds which the State
agency was entitled to convert to NSA funds under paragraph (f) of this
section. In the event that the State agency has converted more than the
permitted amount of funds, the Department will disallow the amount of
excess conversion.
(i) Converted funds in relation to grants. For purposes of
establishing a State agency's stability food grant and stability NSA
grant under paragraphs (c)(2)(i) and (c)(3)(i) of this section,
respectively, amounts converted from food funds to NSA funds under
paragraph (f) of this section and Sec. 246.14(e) of this part during
the preceding fiscal year shall be treated as though no conversion had
taken place.
* * * * *
15. In Sec. 246.19, paragraph (b)(3) is revised to read as follows:
Sec. 246.19 Management evaluation and reviews.
* * * * *
(b) * * *
(3) The State agency shall conduct monitoring reviews of each local
agency at least once every two years. Such reviews shall include on-
site reviews of a minimum of 20 percent of the clinics in each local
agency or one clinic, whichever is greater. The State agency may
conduct such additional on-site reviews as the State agency determines
to be necessary in the interest of the efficiency and effectiveness of
the program.
* * * * *
16. In Sec. 246.24, paragraph (a) is revised to read as follows:
Sec. 246.24 Procurement and property management.
(a) Requirements. State and local agencies shall ensure that
subgrantees comply with the requirements of 7 CFR part 3016, the
nonprocurement debarment/suspension requirements of 7 CFR part 3017,
and if applicable, the lobbying restrictions as required in 7 CFR part
3018 concerning the procurement and allowability of food in bulk lots,
supplies, equipment and other services with Program funds. These
requirements are adopted to ensure that such materials and services are
obtained for the Program in an effective manner and in compliance with
the provisions of applicable law and executive orders.
* * * * *
Sec. 246.25 [Amended]
17. In Sec. 246.25(b)(2), reference to ``Sec. 246.7(d)(4)'' is
revised to read ``Sec. 246.7(e)(4)''.
18. In Sec. 246.27, paragraphs (a)-(d) and (f) are revised to read
as follows:
Sec. 246.27 Program Information.
* * * * *
(a) Connecticut, Maine, Massachusetts, New Hampshire, New York,
Rhode Island, Vermont: U.S. Department of Agriculture, FNS, Northeast
Region, 10 Causeway Street, room 501, Boston, Massachusetts 02222-1066.
(b) Delaware, District of Columbia, Maryland, New Jersey,
Pennsylvania, Puerto Rico, Virginia, Virgin Islands, West Virginia:
U.S. Department of Agriculture, FNS, Mid-Atlantic Region, Mercer
Corporate Park, 300 Corporate Boulevard, Robbinsville, New Jersey
08691-1598.
(c) Alabama, Florida, Georgia, Kentucky, Mississippi, North
Carolina, South Carolina, Tennessee: U.S. Department of Agriculture,
FNS, Southeast Region, 77 Forsyth Street, SW., suite 112, Atlanta,
Georgia 30303.
(d) Illinois, Indiana, Michigan, Minnesota, Ohio, Wisconsin: U.S.
Department of Agriculture, FNS, Midwest Region, 77 West Jackson
Boulevard--20th Floor, Chicago, Illinois 60604-3507.
* * * * *
(f) Colorado, Iowa, Kansas, Missouri, Montana, Nebraska, North
Dakota, South Dakota, Utah, Wyoming: U.S. Department of Agriculture,
FNS, Mountain Plains Region, 1244 Speer Boulevard, suite 903, Denver,
Colorado 80204.
* * * * *
Dated: March 2, 1994.
William E. Ludwig,
Administrator, Food and Nutrition Service.
[FR Doc. 94-5569 Filed 3-10-94; 8:45 am]
BILLING CODE 3410-30-U
