[Federal Register Volume 59, Number 66 (Wednesday, April 6, 1994)]
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[FR Doc No: 94-8117]
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AAI40[FR Doc. 94-8212 Filed 4-5-94; 8:45 am]BILLING CODE 4210-32-C
VOL. 59, NO. 66
Wednesday, April 6, 1994
DEPARTMENT OF AGRICULTURE
Food and Nutrition Service
7 CFR Part 246
RIN 0584-AB53
Special Supplemental Food Program for Women, Infants, and
Children (WIC): Homelessness/Migrancy as Nutritional Risk Conditions
AGENCY: Food and Nutrition Service, USDA.
ACTION: Proposed rule.
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SUMMARY: This proposed rule would amend regulations governing the
Special Supplemental Food 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, this rulemaking would add homelessness and migrancy to the
predisposing nutritional risk conditions for the WIC Program.
This proposed rule would also alter the current WIC nutritional
risk priority system by placing 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. The use of
Priority VII for this latter group of individuals would remain a State
agency option. However, State agencies would be required to use
Priority VII for homeless or migrant individuals who are certified
solely due to their homelessness or migrancy.
The intended effect of this proposed 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.
DATES: To be assured of consideration, written comments must be
received on or before June 6, 1994. Since comments are being accepted
simultaneously on several separate rulemakings, commenters on this
proposed rule are asked to label their comments ``Homelessness/
Migrancy.''
ADDRESSES: Comments may be mailed to Stanley C. Garnett, Director,
Supplemental Food Programs Division, Food and Nutrition Service, USDA,
3101 Park Center Drive, room 540, Alexandria, Virginia 22302, (703)
305-2746. Submission of comments in duplicate would be appreciated. All
written submissions will be available for public inspection at this
address during regular business hours (8:30 a.m. to 5 p.m.) Monday
through Friday.
FOR FURTHER INFORMATION CONTACT: Contact Barbara Hallman, Supplemental
Food Programs Division, Food and Nutrition Service, USDA, 3101 Park
Center Drive, room 542, Alexandria, Virginia 22302, (703) 305-2730.
SUPPLEMENTARY INFORMATION:
Classification
Executive Order 12866
This proposed rule is issued in conformance with Executive Order
12866. It has been designated ``not significant'' and did not require
clearance 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 Nutrition 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 affect demand on local
food vendor business.
The net effect on State and local agencies is expected to be
minimal.
Paperwork Reduction Act
This proposed 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 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 proposed rule has been reviewed under Executive Order 12778,
Civil Justice Reform. This proposed 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 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
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. 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).
3. 1992 Recommendations of the National Advisory Council on
Migrant Health; Farmworkers Health for the Year 2000.
4. Technical Paper No. 12 prepared for USDA/FNS by Awal Dad
Khan; Homeless Mothers and Children: What is the Evidence for
Nutritional Risk?, 1991.
Background
There have never been specific, direct regulatory barriers or
prohibitions to the participation of the homeless or migrants in the
WIC Program. Both before and since the enactment of the Hunger
Prevention Act of 1988 (Pub. L. 100-435), the Food and Nutrition
Service (FNS) has actively promoted service to homeless and migrant
populations. Further, particular attention has long been focused in the
Child Nutrition Act of 1966, as amended (42 U.S.C. 1771 et seq.), on
the needs of special populations, e.g. migrants and Native Americans.
Section 17(f)(19) of the Child Nutrition Act of 1966, 42 U.S.C.
1786(F)(19), requires that not less than nine-tenths of 1 percent of
the sums appropriated any fiscal year for special supplemental food
programs be available for services to eligible members of migrant
populations.
In an interim and a final rule on participation of homeless
individuals in WIC, published in December 1989 and August 1992,
respectively, the Department defined the term ``homeless individual''
based upon the definition provided legislatively in section 212(a) of
the Hunger Prevention Act, Public Law 100-435 (42 U.S.C. 1786(b)(15)).
This term identifies those otherwise eligible residents of specified
overnight facilities who must be granted access to WIC when caseload is
available, provided such facilities meet conditions insuring that
residents, and not the facilities, benefit from the WIC Program.
The August 1992 final rule, 57 FR 34500 (August 5, 1992), amended
the WIC regulations to require State agencies to include in their State
Plans of Program Operation and Administration a description of how they
will provide Program benefits to and meet the special nutrition
education needs of homeless individuals (7 CFR 246.4(a) (6) and (9),
respectively) and disseminate information about program availability
and eligibility to organizations serving the homeless (7 CFR
246.4(a)(7)). The August 1992 final rule amended 7 CFR 246.10(f)(1) to
allow States, upon approval by FNS, to make substitutions for foods
normally required in the food package in order to accommodate the
special circumstances of the homeless. Further, the August 1992 final
rule amended 7 CFR 246.10(f) (2) and (3) to require that competent
professional authorities take into account the special needs and
problems of homeless individuals when prescribing supplemental foods.
FNS has also shared with State WIC agencies successful initiatives
and targeting strategies employed by other States to facilitate
participation of homeless and migrant persons in the WIC Program. A
number of State agencies have established local agency clinics and WIC
certification offices in hotels and facilities which house homeless and
migrant families. Other States have held statewide training sessions
for their local WIC agencies to educate them about the special problems
most frequently encountered by homeless individuals, and how WIC can
help to alleviate some of these problems.
According to a 1986 report to Congress by the U.S. House of
Representatives' Committee on Government Operations, families,
especially those composed of women and children, are the fastest
growing segment of the homeless population nationwide (report cited by
the National Advisory Council on Maternal, Infant, and Fetal Nutrition,
1992 Biennial Report to Congress on WIC and CSFP (Commodity
Supplemental Food Program)). Although the homeless have not been well
studied relative to other population groups, several studies have
indicated that the homeless and migrants are predisposed to
inadequacies in their diets and in the medical care they receive.
Homeless infants and children appear to be at higher risk of low
birthweight and malnutrition. (Chavkin, Kristal, Seabron, and Guigli,
1987). Studies have also found that a correlation exists between
homelessness in women and a general lack of prenatal care and poor
pregnancy outcomes. Homelessness may also impede access to health care
services and other public assistance programs. Moreover, evidence
indicates that homeless children have high rates of delayed
immunization, a higher risk of exposure to infectious diseases, and
higher rates of emotional and developmental problems. (Khan, 1991).
Because of the difficulty in conducting research on the homeless,
most studies have focused on the sheltered homeless. The risks to
unsheltered homeless mothers and children are likely to be somewhat
greater.
A recent study indicates that migrants suffer most if not all of
the conditions identified above afflicting the homeless. (Farmworkers
Health for the Year 2000, 1992 Recommendation of the National Advisory
Council on Migrant Health). In addition, testimony before the National
Advisory Council on Migrant Health of the Department of Health and
Human Services (DHHS) suggests that a lack of permanent housing also
predisposes migrants to higher rates of infant mortality than the
general population.
Over the years, FNS has incorporated into the WIC Program
regulations various provisions with the expressed purpose of addressing
the unique circumstances of migrant farmworkers. State plans are
required to include information on how the State intends to provide
program benefits to eligible migrant farmworkers and their families;
State agencies' nutrition education goals and action plans must include
a description of the methods that will be used to meet the special
nutrition education needs of migrant farmworkers and their families;
and, States must provide expedited processing services to special
nutritional risk groups such as migrant farmworkers and their families.
Because of the increased 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, 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, as manifested 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.
Definition of Homelessness/Migrancy
As previously stated, the current definition of a ``homeless
individual'' in the WIC regulations is based on the legislative
definition provided in section 212(a) of the Hunger Prevention Act,
Public Law 100-435 (42 U.S.C. 1786 (b)(15). Specifically, 7 CFR 246.2
defines a ``homeless individual'' as ``a woman, infant or child who
lacks a fixed and regular nighttime residence; or whose primary
nighttime residence is: A supervised publicly or privately operated
shelter (including a welfare hotel, a congregate shelter, or a shelter
for victims of domestic violence) designated to provide temporary
living accommodation; an institution that provides a temporary
residence for individuals intended to be institutionalized; a temporary
accommodation in the residence of another individual; or a public or
private place not designed for, or ordinarily used as, a regular
sleeping accommodation for human beings.''
The Department believes this definition, along with its current
migrant farmworker definition, 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.
While Congress has specifically defined the term ``homeless
individual'' for the WIC Program, section 17 of the Child Nutrition Act
of 1966 does not contain a definition for the terms ``migrant'' or
``migrancy.'' However, section 17 uses the terms ``migrant'' (e.g.
section 17(f)(1)(c)(iv)) and ``migrant farmworker'' (e.g. section
17(d)(4)(B)). The Department has interpreted Congress' references to
migrants in section 17 to mean only migrant farmworkers and the latter
term is currently defined at CFR 246.2. However, before assuming that
its migrant farmworker definition was sufficient to apply to all
Congressional references to the term migrant, the Department examined
the definition of migrant(s) as used by other public and private
organizations and agencies concerned with migrants and migrant
services. In each case, some reference was made to the agricultural or
seasonal nature of migrancy and movement of individuals for
agricultural employment purposes. Based on this comparative analysis,
the Department considered its current definition of migrant farmworker
adequate to accommodate all of Congress' references and uses of the
term migrancy as set forth in section 204 of the Child Nutrition
Amendments of 1992.
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.
Under this proposal, State agencies would be required to include in
Priority VII pregnant, breastfeeding or postpartum women, infants, and
children who are certified 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.
The placement in Priority VII of individuals certified solely due to
homelessness or migrancy should not be viewed as diminished concern for
these individuals. Rather, such a placement reflects the Department's
obligation to serve persons with the greatest medical and/or
nutritional needs first. Priority VII will only be used to classify
those individuals who are homeless or migrants and have no other
documented medical or nutritional risk. These are individuals who
previously would not have otherwise qualified for WIC Program benefits
due to lack of nutritional risk.
Given the facts revealed in the aforementioned studies, there is a
high likelihood that homeless and migrant individuals are already being
served by the WIC Program by virtue of their nutritional risk(s).
Proposed Priority VII will serve as a safety net for homeless or
migrant individuals who are not otherwise eligible due to a lack of
documented nutritional or medical risk conditions. However, like any
other eligible applicant, a homeless or migrant individual may be
placed in a higher priority if her/his nutritional/health assessment by
a competent professional warrants a higher placement in the priority
system. For example, a homeless or migrant individual whose nutritional
risk assessment reveals the presence of anemia would be placed in a
higher priority category than a homeless or migrant person with no
other documented nutritional risk condition who would be placed in
Priority VII. This is in keeping with the aforementioned system of
prioritizing WIC service based on documented nutritionally or medically
related conditions. Priority VII is the logical placement for homeless
and migrant individuals with no documented nutritional risks who
qualify for the program due solely to homelessness or migrancy.
The Department does not intend for Priority VII to be used by
States as an administrative shortcut in certifying homeless and migrant
individuals. The Department 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.
The Department recognizes that this proposed regulation might
require some States to modify their current reporting systems to
accommodate the revised Priority VII. As such, the Department intends
to provide an implementation period adequate to incorporate the
necessary system modifications.
The Department notes that while Congress has found homelessness and
migrancy to be conditions predisposing individuals to nutritional
risks, and this determination has been recognized by the placement of
these individuals in a WIC nutritional risk category, alcoholism and
drug abuse, similarly recognized by Congress in section 17(b)(8), have
not been accorded similar treatment by the Department. The Department
believes the distinction is warranted. Over the past several years, the
health and medical communities have come to accept alcoholism or drug
addiction, in and of itself, as a nutritionally related medical
condition sufficient to warrant placement in one of the first three
priorities in 7 CFR 246.7(e)(4). The Department does not believe that
the same can be said for homelessness and migrancy. Recognizing that
most State agencies classify individuals suffering from alcoholism or
drug addiction as a Priority I, based on recent medical research, the
Department is considering seeking a technical correction to the WIC
legislation to remove alcoholism and drug addiction from the examples
of ``predisposing'' nutritional risk conditions. This change would thus
recognize these conditions as independent nutritionally related medical
conditions in the law, thereby adjusting legislative language to
reflect current medical knowledge.
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
proposed to be amended 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 Sec. 246.4, paragraph (a)(11)(i) is revised to read as
follows:
Sec. 246.4 State Plan.
(a) * * *
(11) * * *
(i) Certification procedures, including a list of specific
nutritional risk criteria by priority level which cites conditions and
indices to be used to determine a person's nutritional risk, the State
agency's income guidelines for Program eligibility, and any adjustments
to the participant priority system made pursuant to Sec. 246.7(e)(4) to
accommodate high-risk postpartum women or the inclusion of previously
certified persons who might regress in nutritional status without
continued provision of supplemental foods in Priority VII.
* * * * *
3. In Sec. 246.7, 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) * * *
(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 VII shall be utilized in all States. The
State agency may, at its discretion, expand Priority VII to include
previously certified participants who might regress in nutritional
status without continued provision of supplemental foods. 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.
* * * * *
(vii) Priority VII. Pregnant, breastfeeding and postpartum women,
infants, and children who are at nutritional risk solely because of
homelessness or migrancy and, at State agency option 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: March 25, 1994.
William E. Ludwig,
Administrator, Food and Nutrition Service.
[FR Doc. 94-8117 Filed 4-5-94; 8:45 am]
BILLING CODE 3410-30-U
