[Federal Register Volume 60, Number 75 (Wednesday, April 19, 1995)]
[Rules and Regulations]
[Pages 19487-19491]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-9657]
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Rules and Regulations
Federal Register
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Federal Register / Vol. 60, No. 75 / Wednesday, April 19, 1995 /
Rules and Regulations
[[Page 19487]]
DEPARTMENT OF AGRICULTURE
Food and Consumer Service
7 CFR Chapter II
RIN 0584-AB53
Special Supplemental Nutrition Program for Women, Infants and
Children (WIC): Homelessness/Migrancy as Nutritional Risk Conditions
AGENCY: Food and Consumer Service, USDA.
ACTION: Final rule.
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SUMMARY: This final rule amends regulations governing the Special
Supplemental Nutrition Program for Women, Infants and Children (WIC) to
comply with the mandate of section 204 of the Child Nutrition
Amendments of 1992, enacted on August 14, 1992. Consistent with that
legislation, and as proposed on April 6, 1994, this rulemaking adds
homelessness and migrancy to the predisposing nutritional risk
conditions for the WIC Program.
For purposes of the WIC Program's nutritional risk priority system,
this rule allows State agencies to place individuals certified for WIC
solely due to homelessness or migrancy in Priorities IV, V, VI, or, at
their option, Priority VII. The use of Priority VII for service to
certified participants who might regress in nutritional status without
continued provision of supplemental foods would remain a State agency
option.
The intended effect of this rule is to allow categorical and
income-eligible homeless or migrant individuals, who lack any other
documented nutritional or medical condition, to receive WIC Program
assistance.
This final rule also responds to two provisions of section 204 of
the Healthy Meals for Healthy Americans Act of 1994 by making technical
changes in the WIC Program rules without prior notice and comment. The
name of the Program is changed from the Special Supplemental Food
Program for Women, Infants, and Children to the Special Supplemental
Nutrition Program for Women, Infants, and Children. Also, in light of
modifications in the statutory definition of ``nutritional risk'', the
Department has reclassified as ``direct'' nutritional risk factors
certain medical and health conditions previously identified as
``predisposing'' nutritional risk factors.
DATES: This rule is effective on April 19, 1995. This rule must be
implemented not later than April 19, 1996.
FOR FURTHER INFORMATION CONTACT: Contact Barbara Hallman, Supplemental
Food Programs Division, Food and Consumer Service, USDA, 3101 Park
Center Drive, Room 542, Alexandria, Virginia 22302, (703) 305-2730.
SUPPLEMENTARY INFORMATION:
Executive Order 12866
This final rule has been determined to be not significant for
purposes of Executive Order 12866, and therefore, has not been reviewed
by the Office of Management and Budget.
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,
William E. Ludwig, Administrator of the Food and Consumer Service has
certified that this rule will not have a significant impact on a
substantial number of small entities. WIC local agency participant
caseloads may potentially increase and thereby increase local food
vendor business. The net effect on State and local agencies is expected
to be minimal.
Paperwork Reduction Act
This final rule imposes no new reporting or recordkeeping
provisions that are subject to OMB review in accordance with the
Paperwork Reduction Act of 1980 (44 U.S.C. 3507).
Executive Order 12372
The Special Supplemental Nutrition Program for Women, Infants, and
Children (WIC) is listed in the Catalog of Federal Domestic Assistance
Programs under 10.557 and is subject to Executive Order 12372, which
requires intergovernmental consultation with State and local officials
(7 CFR part 3015, subpart V, and 48 FR 29114 June 24, 1983).
Executive Order 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 DATES paragraph of this preamble. Prior to
any judicial challenge to the application of the provisions of this
rule, all applicable administrative procedures must be exhausted.
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; and (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 and local
agencies--administrative appeal to the extent required by 7 CFR
3016.36.
References and Notice Provisions
1. Chavin, Kristal, Seabron, and Guigli; The Reproductive
Experience of Women Living in Hotels for the Homeless in New York City;
New York State Journal of Medicine, 1987.
2. The Homeless Families Program newsletter, Home Again, February
edition, 1994.
3. National Advisory Council on Maternal, Infant, and Fetal
Nutrition, 1992 Biennial Report on the Special Supplemental Food
Program for Women, Infants, and Children (WIC) and on the Commodity
Supplemental Food Program (CSFP).
4. 1992 Recommendations of the National Advisory Council on Migrant
Health; Farmworkers Health for the Year 2000.
5. Technical Paper No. 12 prepared for USDA/FNS by Awal Dad Khan;
Homeless Mothers and Children: What is the Evidence for Nutritional
Risk?, 1991. [[Page 19488]]
6. United States Conference of Mayors survey, A Status Report on
Hunger and Homelessness in America's Cities, 1993.
The Department adopts as final, two technical Program changes in
response to provisions of Pub. L. 103-448, the Healthy Meals for
Healthy Americans Act of 1994. Section 204(w)(1)(A) of Pub. L. 103-448
changed the name of the Special Supplemental Food Program for Women,
Infants, and Children to the Special Supplemental Nutrition Program for
Women, Infants, and Children.
Secondly, in section 204(a) of Pub. L. 103-448, Congress redefined
the Program term ``nutritional risk''. Before the amendment,
alcoholism, drug addiction, homelessness and migrancy were identified
as conditions that predisposed persons to ``inadequate nutritional
patterns or nutritionally related medical conditions, * * *'' 42 U.S.C.
Sec. 1758(b)(8). Section 204(a) of Pub. L. 103-448 amended this
definition to indicate that alcoholism and drug abuse will henceforth
be considered conditions that directly affect nutritional health.
Homelessness and migrancy are still considered predisposing conditions.
In light of this change, the Department, at 7 CFR 246.7(e)(2)(iv), is
reclassifying those medical and health conditions identified in the
regulation as similar to alcoholism and drug abuse as ``direct'' risk
factors.
Pursuant to 5 U.S.C. 553(b)(3)(A), ``notice and public procedure
thereon'' are not required prior to the implementation of a final rule
if those procedures are ``unnecessary''. We view the term unnecessary
in this context as meaning that if a statutory provision requires a
particular regulatory result or if a regulatory change only clarifies
an already existing regulation and the change will have no real effect
on the public, notice and comment are unnecessary. Both of the
regulatory changes made herein as final rules in response to section
204 of Pub. L. 103-448 qualify for exemption from notice and comment
procedures because those procedures are ``unnecessary'', as that term
is used in 5 U.S.C. 553(b)(3)(A).
Background
Homelessness is not a new issue, but the plight of the homeless has
captured much public attention in the last several years as the nature
and number of homeless have changed. Homelessness is variably defined
as a housing problem, an employment problem, a problem brought on by
the deinstitutionalization of mentally ill persons, a symptom of the
breakdown of family traditions and/or of an inadequate social welfare
system, or any combination of these factors (Rossi and Wright, 1987).
According to a 1993 Status Report on Hunger and Homelessness in
America's Cities, released by the United States Conference of Mayors,
it is suggested that as many as seven million people were homeless
during some part of the 1980s, and the problem is more than ten times
as widespread as previously acknowledged. City officials participating
in the Mayors' Conference identified unemployment and/or
underemployment, poverty, and the high cost of housing as the major
causes of hunger and homelessness.
The homeless of today defy the traditional definitions and notions
of shiftless, skid row vagrants for whom alcoholism was their nemesis.
Today's homeless population contains a sizeable number of women and
children--over one-third of the total homeless population in America
(Wright, 1988; Breakey, 1989; Bassuk and Rosenberg, 1990). Studies show
forty-three percent of today's homeless are families, and an increasing
number of the ``new homeless'' include economically displaced
individuals who have lost their jobs, exhausted their resources, and
recently entered into the ranks of the homeless and consider their
condition to be temporary. It is clear that the homeless population is
heterogeneous and includes many subgroups. The Homeless Families
Program (HFP), a joint initiative of the Robert Wood Johnson Foundation
and the Department of Housing and Urban Development, urges that
informed public policy resist the temptation to simplify the complex
issue of homelessness and distinguish homeless families from single
unattached adults. HFP asserts that the demographics, causes of
homelessness, length of time homeless, and health issues differ
significantly between these subgroups.
There is very little data on the health and/or nutritional status
of migrants. However, that which does exist reveals an extremely bleak
and disturbing picture, e.g., infant mortality rates are considerably
higher than the general U.S. population; incidence of malnutrition is
higher than among any subpopulation in the nation; and rates of
parasitic disease among migrant children are many times higher than
among the general population. Public hearings before the National
Advisory Council on Migrant Health, of the Department of Health and
Human Services (DHHS), have indicated that housing is the number one
need of this subpopulation. As stated in the preamble of this rule's
proposed version dated April 6, 1994, studies suggest that migrants
suffer many of the circumstances and conditions afflicting the
homeless.
The changing nature of the homeless and the chronic conditions of
migrants have necessitated a re-examination of the causes,
circumstances, and approaches to addressing the needs of both these
vulnerable groups. Because of the increased nutritional risks
associated with homelessness and migrancy, the National Advisory
Council on Maternal, Infant, and Fetal Nutrition recommended in its
1992 Report to the President and Congress that Section 17(b)(8) of the
Child Nutrition Act of 1966 (CNA), 42 U.S.C. 1786(b)(8), be amended to
include homelessness and migrancy as predisposing nutritional risk
conditions for the WIC Program. Congress and the President accepted
this recommendation and, in section 204 of the Child Nutrition
Amendments of 1992, Public Law 102-342, specifically identified
homelessness and migrancy as predisposing nutritional risk conditions
for purposes of WIC Program eligibility.
The Homelessness/Migrancy as Nutritional Risk Conditions Proposed Rule
A proposed rule on homelessness/migrancy as predisposing
nutritional risk conditions was published for comment on April 6, 1994
at 59 FR 16146. The rule proposed to place individuals certified for
WIC due solely to homelessness or migrancy in Priority VII, along with
previously certified participants who might regress in nutritional
status without continued provision of supplemental foods. While the use
of Priority VII for this latter group of individuals would have
remained a State agency option, State agencies would have been required
to use Priority VII for homeless or migrant individuals who are
certified solely due to their homelessness or migrancy. Because income-
eligible homeless and migrant individuals with documentable nutritional
deficiencies or medical conditions would already be certified for WIC
Program assistance, the intended effect of the proposed rule was to
appropriately place income-eligible homeless or migrant individuals,
without a documented nutritional or medical condition, in a lower
priority than individuals, including the homeless and migrants, with
documented risk conditions.
Comments on the Proposed Rule
In the April 1994 proposed version of this rule, the Department
cited various [[Page 19489]] studies which support including
homelessness and migrancy as predisposing nutritional risk conditions.
Such studies suggest there is a high likelihood of various health-
related problems associated with homelessness and migrancy. However,
despite a decade of active advocacy of homeless issues, there is very
little systematic and reliable information available on the health and
nutritional status of the homeless or any of its subgroups.
Nevertheless, WIC State agencies have gained an impressive amount of
practical knowledge and experience from which the Department benefits
in planning its outreach efforts. This practical knowledge, as
demonstrated in the comments received from both public and private
homeless advocacy groups on the proposed rule, was instrumental in
formulating the final rule.
A total of 43 comment letters were received from both public and
private individuals, groups, and State and local agencies. All except
one commenter agreed that homelessness and migrancy should be
considered predisposing nutritional risk conditions for the WIC
Program. However, most commenters opposed the proposed placement in
Priority VII of individuals certified for WIC based solely on their
migrancy or homelessness. Those who objected to this provision
suggested that the many risk conditions associated with homelessness
and migrancy, as cited in the proposed rule, warrant a higher placement
of homeless and migrant persons in WIC's nutritional risk priority
system, even though they may not show signs of such risks at the time
of certification. The common suggestion of commenters was that State
agencies should be allowed to determine which priority best suits the
needs of its homeless and migrant community. Second, many commenters
claimed that, in times of limited funding, States could not serve
participants certified for Priority VII and therefore, the intended
beneficiaries of this rule--homeless and migrant individuals who are at
nutritional risk solely due to their homelessness or migrancy--would
not receive WIC services. Third, several commenters mentioned the
difficulty of contacting homeless or migrant individuals placed on
waiting lists during times of funding shortages, who frequently do not
have mailing addresses or telephones, to inform them of caseload
availability. In fear of losing the opportunity to serve this
vulnerable and mobile population, commenters suggested that homeless
and migrant individuals be provided benefits at the earliest
opportunity. The aforementioned three reasons comprised the major
objections or opposition to the proposed rule. In addition to these
comments, one commenter suggested that WIC's nutritional risk
definition be amended to include homelessness and migrancy among the
listed conditions that predispose persons to inadequate nutritional
patterns or nutritionally related medical conditions.
The Department appreciates the comments of all those who responded
to the proposed rule, and values their commitment to providing the best
possible WIC service to the homeless and migrant community. The
Department has carefully and thoughtfully considered all of the
comments submitted in response to the proposed rule. We believe the
revisions that have been made in the final rule, in response to the
comments received, improve both the acceptability and quality of the
rule.
Priority Placement of Individuals Certified Solely Due to Homelessness/
Migrancy
In response to the many commenters who objected to the required
placement in Priority VII of homeless and migrant individuals certified
at nutritional risk solely due to their homelessness/migrancy, and who
preferred that State agencies be granted the discretion to place such
individuals in a higher priority, the Department has made a partial
concession to this preference. Pregnant, breastfeeding, or postpartum
women, infants, and children who are certified for WIC solely due to
their homelessness/migrancy may be placed in Priority IV, V, and VI,
based on their respective category. Alternatively, Priority VII may be
used to serve any of the above mentioned categorically eligible
homeless or migrant individuals, at the discretion of the State agency.
For instance, a homeless or migrant pregnant or breastfeeding woman may
be placed either in Priority IV, or she could be placed in Priority VII
if the State agency chose to use Priority VII to serve all homeless or
migrant individuals whose only nutritional risk condition was
homelessness or migrancy.
WIC's nutritional risk priority system was developed to prioritize
service according to the seriousness of demonstrated nutritional risk
conditions. As stated in the proposed rule, given the facts revealed
through studies on the homeless and migrants, there is a high
likelihood that these groups are already being served by the WIC
Program by virtue of other documented nutritional risk(s). The
Department strongly stands by the logic and fairness of the WIC
priority system, which advocates serving individuals with documented
nutritionally related medical risk conditions before persons with
dietary risk only or persons likely to regress to a former risk. To
serve applicants with no documentable medical or nutritional risk
condition, even when their lifestyle may predispose them to risk
conditions, before someone with verifiable nutritionally-related risk
conditions, would be contrary to the purpose and intent of WIC's
service priority system. Finally, the Department recognizes the
limitations of the services it can provide to address the many needs of
homeless and migrant individuals. Although it is clear that WIC
services can contribute to improving the nutrition and health of these
vulnerable groups, such services cannot change their homeless or
migrant circumstances. Homelessness and migrancy are socio-economic
conditions which require more than the provision of supplemental foods
and nutrition services to change the individual's circumstances. In
addition, as stated earlier, the homeless are a heterogeneous group
with a wide range of characteristics, circumstances, and needs. The
definition of a homeless individual, as specified in section 17(b)(15)
of the CNA, 42 U.S.C. 1786(b)(15), covers a wide range of circumstances
and includes persons who are temporarily living with relatives or
friends, individuals housed in a shelter which serves meals and can
offer nutrition education, or individuals whose nighttime residence is
not designed or ordinarily used as a regular sleeping accommodation.
These examples or conditions reflect the diversity in the homeless
population as defined by WIC legislation.
The Department reminds those commenters who stressed the importance
of seizing the opportunity to provide services to homeless and migrant
applicants, that section 246.7(e)(2)(iii)(A) of the WIC regulations
already requires State agencies to establish criteria for identifying
categories of persons at special nutritional risk who require expedited
services. In addition, this provision of the Program regulations
requires that migrant farmworkers and their family members who soon
plan to leave the jurisdiction of the local agency be considered as
special nutritional risk applicants. Added to these provisions by this
final rule is the allowance for States, at 246.7(d)(4), to include
homeless individuals in their criteria for expedited services, along
with migrant farmworkers and their family members. [[Page 19490]]
In response to those commenters who suggested that WIC add
homelessness and migrancy to the list of predisposing nutritional risk
conditions at section 246.7(e)(2)(iv), the following changes are made.
This final rule designates homelessness and migrancy as predisposing
nutritional risk conditions, and redesignates conditions currently
listed at section 246.7(e)(2)(iv) as direct nutritional risks (chronic
infections, alcohol or drug abuse, mental retardation in women, lead
poisoning, history of high-risk pregnancies or factors associated with
high-risk pregnancies such as smoking; conception before 16 months
postpartum; history of low birth weight, premature births, or neonatal
loss; adolescent pregnancy; or current multiple pregnancies in pregnant
women, or congenital malformations in infants or children, or infants
born of women with alcohol or drug abuse histories or mental
retardation). The redesignation of these currently listed predisposing
conditions to a new status as direct risks is a technical change the
impact of which will only affect recordkeeping. It was done to reflect
two realities. First, section 204(a) of Pub. L. 103-448 revised the
legislative definition of ``nutritional risk'' by adding a new
subparagraph that includes conditions that directly affect the
nutritional health of a person, such as alcoholism or drug abuse.
Therefore, consistent with the legislation, this final rule removes the
aforementioned conditions, along with alcoholism and drug abuse, from
the predisposing category and more appropriately groups them as
conditions that directly affect a person's nutritional health. The
revision of the definition of nutritional risk in Pub. L. 103-448
further delineates nutritional risk conditions by retaining
homelessness and migrancy as examples of conditions that predispose
persons to inadequate dietary patterns or nutritionally related medical
conditions. Homelessness and migrancy are now the only examples of
conditions that predispose persons to inadequate nutritional patterns
or nutritionally related medical conditions that remain in the CNA.
Second, in addition to the legislative directive, the change was made
to reflect current practices, which in the Department's estimation, is
appropriate. Most if not all State agencies classify the aforementioned
conditions as direct nutritionally related medical risk conditions.
Definition of Homelessness/Migrancy
In the April 1994 proposed version of this rule the Department
proposed that it keep the current definitions of both a ``homeless
individual'' and ``migrant farmworker'' outlined in section 246.2, and
asserted that both should accommodate all individuals Congress intended
to include in their references to homelessness and migrancy in section
204 of the Child Nutrition Amendments of 1992, Public Law 102-342. No
commenters opposed this. Therefore, these definitions will remain as
currently stated in section 246.2 for purposes of this final rule.
WIC Priority System
The current WIC nutritional risk priority system was designed to
ensure that persons at greatest health and nutritional risk are served
first with available program funds. The priority system therefore
follows a logical order of progression to determine priority for
service. Applicants with documented nutritionally related medical
conditions are served first, followed by those at nutritional risk due
to inadequate dietary patterns. Finally, and as a State agency option,
previously certified participants whose nutritional status might
regress without continued provision of supplemental foods are certified
in Priority VII.
This final rule requires State agencies to include pregnant,
breastfeeding or postpartum women, infants, and children who are
certified at nutritional risk solely because of their homelessness or
migrancy in one of the respective priorities (Priority IV through VI,
or VII) of the WIC nutritional risk priority system. State agencies
must indicate in their State Plans which Priority(ies) they will use to
certify pregnant, breastfeeding or postpartum women, infants, and
children at nutritional risk solely because of their homelessness or
migrancy. State agencies may also continue to use Priority VII to
identify certified participants who might regress in nutritional status
without continued provision of supplemental foods. State agencies must
implement the provisions of this rule by no later than October 1, 1995.
The Department does not intend for State agencies to use
administrative shortcuts in certifying homeless and migrant
individuals. The Department fully expects that homeless and migrant
applicants will receive all the normal and necessary health assessments
that are routinely performed to determine the presence of a medical or
nutritional risk which would determine their proper priority placement,
and assist in identifying other health and social services to which
such individuals may be referred.
Change in Name of Program
Section 204(w)(1) of Pub. L. 103-448, changed the name of the WIC
Program from the ``Special Supplemental Food Program for Women,
Infants, and Children'' to the ``Special Supplemental Nutrition Program
for Women, Infants, and Children''. This final rule implements that
statutory change.
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.
Accordingly, 7 CFR Chapter II and Part 246 are amended as follows:
1. In 7 CFR Chapter II (consisting of Parts 210-299) all references
to ``the Special Supplemental Food Program for Women, Infants, and
Children `` are revised to read ``the Special Supplemental Nutrition
Program for Women, Infants, and Children''.
PART 246--SPECIAL SUPPLEMENTAL NUTRITION PROGRAM FOR WOMEN, INFANTS
AND CHILDREN
2. The authority citation for Part 246 continues to read as
follows:
Authority: 42 U.S.C. 1786.
4. In Sec. 246.7, paragraphs (e)(2)(ii), (e)(2)(iv), the
introductory text of paragraph (e)(4) and paragraph (e)(4)(vii) are
revised to read as follows:
Sec. 246.7 Certification of participants.
* * * * *
(e) * * *
(2) * * *
(ii) Other documented nutritionally related medical conditions,
such as clinical signs of nutritional deficiencies, metabolic
disorders, pre-eclampsia in pregnant women, failure to thrive in an
infant, chronic infections in any person, alcohol or drug abuse or
mental retardation in women, lead poisoning, history of high risk
pregnancies or factors associated with high risk pregnancies (such as
smoking; conception before 16 months postpartum; history of low birth
weight, premature births, or neonatal loss; adolescent pregnancy; or
current multiple pregnancy) in pregnant women, or congenital
malformations in infants or children, or infants born of women with
alcohol or drug abuse histories or mental retardation.
* * * * *
(iv) Conditions that predispose persons to inadequate nutritional
patterns or nutritionally related medical [[Page 19491]] conditions,
such as homelessness or migrancy.
* * * * *
(4) Nutritional risk priority system. The competent professional
authority shall fill vacancies which occur after a local agency has
reached its maximum participation level by applying the following
participant priority system to persons on the local agency's waiting
list. Priorities I through VI shall be utilized in all States. The
State agency may, at its discretion, expand the priority system to
include Priority VII. The State agency may set income or other sub-
priority levels within any of these seven priority levels. The State
agency may expand Priority III, IV, or V to include high-risk
postpartum women. The State agency may place pregnant or breastfeeding
women and infants who are at nutritional risk solely because of
homelessness or migrancy in Priority IV; children who are at
nutritional risk solely because of homelessness or migrancy in Priority
V; and postpartum women who are at nutritional risk solely because of
homelessness or migrancy in Priority VI, OR, the State agency may place
pregnant, breastfeeding or postpartum women, infants, and children who
are at nutritional risk solely because of homelessness or migrancy in
Priority VII.
* * * * *
(vii) Priority VII. Individuals certified for WIC solely due to
homelessness or migrancy and, at State agency option, and in accordance
with the provisions of paragraph (e)(1)(iii) of this section,
previously certified participants who might regress in nutritional
status without continued provision of supplemental foods.
* * * * *
Dated: April 11, 1995.
William E. Ludwig,
Administrator, Food and Consumer Service.
[FR Doc. 95-9657 Filed 4-18-95; 8:45 am]
BILLING CODE 3410-30-U
