Federal Register: July 31, 2007 (Volume 72, Number 145)
DOCID: fr31jy07-1 FR Doc E7-14642
DEPARTMENT OF AGRICULTURE
Food and Nutrition Service
CFR Citation: 7 CFR Part 226
RIN ID: RIN 0584-AD27
FNS ID: [FNS-2007-0004]
NOTICE: RULES
DOCID: fr31jy07-1
ACTION: Child nutrition programs:
DOCUMENT ACTION: Final rule.
SUBJECT CATEGORY:
Afterschool Snacks in the Child and Adult Care Food Program
DATES: This final rule is effective August 30, 2007.
DOCUMENT SUMMARY:
This final rule incorporates into the Child and Adult Care Food Program (CACFP) regulations the provisions of the William F. Goodling Child Nutrition Reauthorization Act of 1998, which authorized afterschool care centers meeting certain criteria to be reimbursed for snacks served to atrisk children 18 years of age and younger. This rule establishes the eligibility of atrisk afterschool care centers to serve free snacks to children who participate in afterschool programs. The centers, which must be located in lowincome areas, are reimbursed at the free rate for snacks. The intended effect of this rule is to support afterschool care programs through the provision of snacks that meet CACFP meal pattern requirements. The additional benefits provided by the 1998 reauthorization act and codified by this final rule were extended to institutions and children immediately after enactment. These changes were originally proposed by the Department in a rulemaking published on October 11, 2000.
SUMMARY:
Child and Adult Care Food Program—; Afterschool snacks,
SUPPLEMENTAL INFORMATION
The preamble is organized into two main
parts. Part I, Background, describes the provisions in this final rule,
including a discussion of the comments received on the proposed rule. A
question and answer format is used to guide this discussion. The
Background concludes with a description of other changes made in the
final rule that were not part of the proposed rule. Part II, Procedural
Matters, contains information required to be included in publishing Federal rules.
I. Background
What changes did the law make about afterschool snacks?
The William F. Goodling Child Nutrition Reauthorization Act of 1998 (Pub. L. 105336) provided for the nationwide availability of snacks in the National School Lunch Program (NSLP), and it expanded the availability of snacks to children ages 13 through 18 in the Child and Adult Care Food Program (CACFP) through atrisk afterschool care centers (atrisk centers). CACFP atrisk centers must be located in the attendance area of a school where 50 percent or more of the enrolled children are certified as eligible to receive free or reduced price school meals.
How did USDA propose to implement these changes?
The proposed rule to implement the statutory provisions for afterschool snacks in the NSLP and CACFP was published on October 11, 2000 (65 FR 60502). Although we included proposed changes for both programs in the same rulemaking, the proposed changes were not identical in both programs. Rather, we proposed to implement afterschool snacks within each program in a way that fit the unique characteristics of each program.
The proposal had a 90day comment period. A total of 33 comment
letters were received, 26 letters were from State and local agencies
administering the NSLP and/or the CACFP, five letters came from
advocacy groups, and two comment letters were received from individuals not representing any group.
Why is USDA publishing two final rules on afterschool snacks?
There were a number of reasons why we decided to publish separate final rules. Perhaps the strongest reason was that many of the proposed procedures for administering afterschool snacks were specific to each program. Most commenters provided programspecific comments. In addition, not all commenters addressed both programs, reflecting the fact that the NSLP and the CACFP are administered by different agencies or offices in 15 States.
Another reason we chose to publish separate afterschool snack final
rules is the need to explain changes made to the CACFP regulations, 7
CFR part 226, by previously published final or interim CACFP rulemakings.
Which recently published CACFP rules impact the afterschool provisions?
Published CACFP rules that impact this final rulemaking include:
1. Implementing Legislative Reforms to Strengthen Program Integrity (67 FR 43448) (first integrity rule), an interim rule published in the Federal Register on June 27, 2002, which implemented provisions of the Agricultural Risk Protection Act of 2000 (Pub. L. 106224) designed to strengthen the integrity of the program;
2. Improving Management and Program Integrity (69 FR 53502) (second integrity rule), an interim rule published in the Federal Register on September 1, 2004, which implemented additional provisions of a proposed rule by the same name, published on September 10, 2000, to improve program integrity through State agency management;
3. Increasing the Duration of Tiering Determinations for Day Care Homes (70 FR 8501) (duration of tiering rule), a final rule published in the Federal Register on February 22, 2005, which implemented a provision of the Child Nutrition and WIC Reauthorization Act of 2004 (Pub. L. 108265) to increase the length of certain tier I
determinations from three years to five years;
4. Child and Adult Care Food Program: Age Limits for Children Receiving Meals in Emergency Shelters, (71 FR 1), an interim rule published on January 3, 2006 (emergency shelter rule), which implemented a provision of Public Law 108265 that raised the age of children receiving CACFP meals in emergency shelters from 12 to 18; and [[Page 41592]]
5. ForProfit Center Participation in the Child and Adult Care Food Program (71 FR 62057) (forprofit center rule), a final rule published in the Federal Register on October 23, 2006, which implemented a provision of Public Law 108265 that permanently authorized forprofit centers to participate in the program based on the income eligibility of children for free or reduced price meals.
The two integrity rules, published in 2002 and 2004, made
significant changes to the Program affecting all participating and
applicant institutions, including atrisk afterschool care centers. In
doing so, these interim rules revised and reorganized sections of the
CACFP regulations that are additionally amended by this final rule,
especially Sec. Sec. 226.6, 226.10, 226.11, 226.15, and 226.19. The
other three rules, published in 2005 and 2006, impact the afterschool
snack provisions in specific areas of program operations. We will
discuss the effect that all five rules have had on the final afterschool snack provisions throughout this preamble.
How are comments on the proposed rule addressed in this preamble?
We organized and analyzed the comments on the proposed rule under the following topics:
1. General comments supporting/opposing the proposed rule.
2. Atrisk afterschool care centers.
3. Eligible afterschool care programs.
4. Eligible children.
5. Area eligibility:
Definition (eligible area).
Data used.
Procedures for determining.
6. Licensing and approval provisions.
7. Application processing.
8. Forprofit center provisions.
9. Meal requirements.
10. Monitoring:
By State agencies.
By sponsors.
11. Reimbursement provisions.
12. Reporting and Recordkeeping provisions.
13. Other provisions.
Following is a discussion of the comments and our responses to the comments received on these topics.
1. Did commenters provide any comments that addressed the general
design or scope of the proposed CACFP afterschool snack component?
Yes. We received three comments that generally supported the proposed rule. One supportive comment was from a sponsoring organization that stated it had been operating under FNS guidance issued after the atrisk snack component was authorized, most of which was incorporated into the proposed rule, and had experienced few problems following the requirements.
We also received three comments that opposed our general objective of ensuring that the snack component made sense within each respective child nutrition program. In achieving this objective, we were obliged to incorporate some afterschool snack policies that recognize differences between the programs, resulting in two similar afterschool snack components with some variation in operating provisions. These commenters encouraged the Department to make the snack components in the CACFP and NSLP as similar as possible. One commenter urged us to create a ``seamless'' afterschool snack component that would include three child nutrition programs, the NSLP, CACFP, and Summer Food Service Program.
Although we support seamless child nutrition programs, statutory requirements vary among the child nutrition programs, and we must draft the respective program rules accordingly.
2. What is an atrisk afterschool care center?
We proposed to define an atrisk afterschool care center as a public or private nonprofit organization or a forprofit center that is eligible to participate in the CACFP, which provides nonresidential child care to children after school through an approved afterschool care program in an eligible area, and which participates either as an independent center or as a sponsored center.
We received no comments on our proposed definition of an atrisk afterschool care center at Sec. 226.2 or on the proposed requirement at Sec. 226.17a(a)(1)(i) that organizations must meet this definition in order to receive reimbursement for atrisk afterschool snacks.
Since the October 2000 publication of the proposed rule, we have had to address an issue that was not included in the proposed rule concerning eligibility of emergency shelters. Questions were raised about the eligibility of homeless children to receive afterschool snacks under the atrisk provisions when the emergency shelter where they reside is not located in an eligible area. To ensure that homeless children receive benefits under the atrisk snack component, we provided written guidance in June 2002 that emergency shelters may participate in the atrisk afterschool snack component regardless of location. This policy on emergency shelters is incorporated in this final rule in Sec. Sec. 226.2 (definition of atrisk afterschool care centers), 226.17a(b)(1)(iv), and 226.17a(i).
The Department proposed to add ``atrisk afterschool care center''
to the definitions of child care facility, independent center, and
institution. We received no comments on these proposals. Therefore, the
proposed revisions are retained in the final rule. For consistency, we
have also added the term ``atrisk afterschool care center'' to the definition of ``Center'' in this final rule.
3. What did commenters say about proposed criteria for eligible afterschool programs?
We proposed that organizations that want to participate in the at risk afterschool snack component must have a program that meets the following four criteria: (1) is organized primarily to provide care for children after school and on weekends, holidays, or school vacations during the school year (but not during summer vacation); (2) has regularly scheduled activities (i.e., in a structured and supervised environment); (3) includes education or enrichment activities; and (4) is located in an eligible area. In addition, we proposed to exclude organized athletic sports programs that compete interscholastically or at the community level. These criteria resemble those proposed for afterschool programs serving snacks in the NSLP, except that an afterschool snack service under the NSLP may not operate on weekends or holidays and does not have to be located in an eligible area.
We received eight comments on these provisions.
Commenters asked the Department to clarify the term ``care for
children''. The Richard B. Russell National School Lunch Act (NSLA) at
section 17(r)(2)(A), 42 U.S.C. 1766(r)(2)(A), requires that atrisk
afterschool care centers must be organized primarily to provide care to
atrisk school children during after school hours, weekends, or
holidays during the regular school year. Care for children in atrisk centers would reasonably encompass:
1. Adult supervision,
2. A facility that provides a safe environment, and
3. An organization that assumes responsibility for the children or youth while they are present.
Care for children should be given in a context that is appropriate
for the age of the participants. Preschool children, for example, require close adult
[[Page 41593]]
supervision in a structured environment; adolescents need adult
supervision, which may be provided in a more informal, less structured environment.
Commenters also asked us to clarify ``education or enrichment activity'' and the State agency's responsibility for reviewing organized activities/educational components. Examples of educational or enrichment activity would include homework help, tutoring, supervised dropin athletic or other activity programs. A State agency must review the activities/educational components to the extent needed in order to approve or deny the application for the atrisk center. State agencies should instruct applicant organizations to describe the planned activities or educational components in enough detail so that it is possible for State agencies to determine the adequacy of the program based on the information provided in the application.
Commenters stated that atrisk snack programs should be able to operate during the summer. Section 17(r)(2)(A) of the NSLA (42 U.S.C. 1766(r)(2)(A)) limits reimbursement to snacks served during the regular school year. However, afterschool snacks can be served yearround through the CACFP if an atrisk center is located in the attendance area of a school operating on a yearround schedule. We have clarified the restriction on summer service at Sec. 226.17a(b)(1)(i) and 226.17a(m). Atrisk centers that are affected by this restriction (i.e., are located in the attendance area of a school that is on a traditional school calendar) may be able to participate in the Summer Food Service Program.
Several commenters opposed other restrictions on eligible programs that were in the proposed rule, including limiting atrisk programs to lowincome areas and excluding organized sports from participating in the snack service. The NSLA restricts the CACFP afterschool snack component to lowincome areas, specifically defined at section 17(r)(1)(B) (42 U.S.C. 1766(r)(1)(B)) as programs that are located in the attendance area of a school in which at least 50 percent of the enrolled children are certified eligible for free or reducedprice school meals. Since this restriction is a statutory requirement, we must include it in the regulations.
Concerning the proposed exclusion of organized sports, some commenters stressed the important role of sports in providing afterschool activity for youth. However, as we explained in the preamble to the proposed rule, House and Senate conferees declared in the Conference Report accompanying Public Law 108265 (House Report 105786) that they did not intend for afterschool snacks to be provided to members of athletic teams. Rather, the conferees intended that children receiving afterschool snacks would be participating in the types of programs that provide education or enrichment activities, which are known to help reduce or prevent involvement in juvenile crime. This statement provides a clear indication of Congressional intent, and thus we have retained the restriction on interscholastic or community level sports teams in the final rule. This same exclusion applies to the NSLP afterschool snack component as proposed, as well.
We would, however, like to clarify participation by student athletes in afterschool snacks. One commenter suggested that even though organized athletic teams would be excluded, individual student athletes participating in center activities should be allowed to receive a snack or a meal from an atrisk afterschool care center that is operating to serve children in the eligible area where the athletes live or attend school. We agree. This situation would not violate the intent of Congress as expressed by the House and Senate conferees, which addressed the ineligibility of athletic teams as an afterschool activity to qualify as atrisk snack programs.
We would also like to clarify, as stated in the proposed rule, that programs could include supervised athletic activity along with education or enrichment activities, such as those typically sponsored by the Police Athletic League, Boys and Girls Clubs, and the YWCA. The key requirement for afterschool programs that include sports would be that they are ``open to all'' and would not limit membership for reasons of athletic ability, or would not exist principally for the pursuit of competitive athletics.
Accordingly, the proposed limitation on eligible afterschool care programs, proposed at Sec. 226.17a(b)(2), is retained in this final rule.
4. Who is eligible for afterschool snacks?
One of the hallmarks of the afterschool snack provisions for CACFP as mandated by section 107(h) of Public Law 105336 was to extend benefits to youth through age 18. Accordingly, we proposed at Sec. 226.17a(c) and in the definition of ``Children'' at Sec. 226.2 that children are eligible for atrisk afterschool snack programs if they participate in an approved afterschool care program and are 18 and under at the start of the school year or meet the definition of ``Person with disabilities'', as proposed at Sec. 226.2.
We received three comments on this proposed provision.
Two State agencies encouraged the Department to set a minimum age limit for participation in the atrisk afterschool snack component. They questioned whether this program is really appropriate for infants and preschoolers. The statute did not set a minimum age for participation in atrisk afterschool snacks. We are concerned that a lower age limit might discourage otherwise eligible child care centers from offering afterschool programs to the atrisk population if they could not be reimbursed for snacks served to preschool children. Furthermore, if centers provided afterschool activities suitable only for schoolage children, older siblings might not attend the afterschool program if care was not extended to their younger brothers or sisters.
One commenter encouraged the Department to expand the age limit to
18 also for outsideschoolhours care centers. We are unable to adopt
this suggestion because the age limitation for outsideschoolhours
centers remains at age 12 (age 15 for children of migrant workers) as
mandated at section 17(a)(3) of the NSLA (42 U.S.C. 1766(a)(3)). As
discussed in the preamble to the proposed rule, both atrisk centers
and outsideschoolhours care centers are reimbursed for snacks served
to children in afterschool care, but they are intended to serve
different populations and consequently have different provisions. The
following chart highlights some of the similarities and differences
between atrisk centers and outsideschoolhours care centers. [[Page 41594]]
Comparison Between AtRisk Centers and OutsideSchoolHours Care Centers (OSHCCs)
Atrisk centers OSHCCS
Provision Regulatory Regulatory
citation Description citation Description
Eligible institutions......... Sec. Sec. Public, private Sec. 226.2 Public, private
226.17a(a) and nonprofit, and for definition of nonprofit, and for
226.6(b). profit organizations ``Outside profit organizations
that operate an schoolhours that are licensed or
eligible afterschool care center'' approved (if
care program, are and Sec. required) to provide
licensed or approved 226.6(b). organized
(if required). In nonresidential child
addition, centers care services to
must meet other children during
CACFP requirements, hours outside of
as applicable. school. In addition,
centers must meet
other CACFP
requirements, as
applicable.
Eligible afterschool care Sec. Must be organized N/A............. N/A.
program. 226.17a(b). primarily to provide
care for children
after school or on
weekend, holidays,
or school vacations
during the regular
school year, have
organized, regularly
scheduled
activities, include
education or
enrichment
activities, and be
located in a low
income area (see
Eligible area below).
Licensing..................... Sec. If there is no Sec. If there is no
226.6(d)(1). Federal, State, or 226.6(d)(1). Federal, State, or
local licensing local licensing
requirement, must requirement, must
only meet State or only meet State or
local health and local health and
safety standards safety standards
(see also sec. (see also sec.
17(a)(5) of the 17(a)(5) of the
NSLA.). NSLA).
Eligible area................. Sec. 226.2 Attendance area of an N/A............. May operate in any
definition of elementary, middle, area.
``Eligible or high school with
area'', 50% or more free/
paragraph (a). reducedprice
eligible children.
Reimbursement................. Sec. All afterschool Sec. 226.12(c) Reimbursement is at
226.17a(n). snacks are the free/reduced
reimbursed at the price/paid rates
free rate. based on individual
income eligibility
of children.
Eligible children............. Sec. 226.2, Persons age 18 and Sec. 226.2, Children who are age
definition of under at the start definition of 12 and under,
``Children'', of the school year ``Children'', children age 15 and
paragraphs (c) and persons of any paragraphs (a), under who are
and (e). age who meet the (b), (c). children of migrant
definition of workers, and persons
``Persons with of any age who meet
disabilities''. the definition of
``Persons with
disabilities''.
Types of meals eligible for Sec. Snacks............... Sec. Breakfast, snack, and
reimbursement. 226.17a(l). 226.19(b)(4). supper (lunch may
also be served under
certain conditions).
Number of reimbursable meals.. Sec. One snack per day.... Sec. Two meals and one
226.17a(k). 226.19(b)(5). snack per child per
day (or two snacks
and one meal).
Meal patterns................. Sec. Sec. Requirements for at Sec. Sec. Requirements for
226.17a(l) and risk snacks are the 226.19(b)(6), meals served by
226.20(b)(6) same as CACFP snack 226.20(b) and OSHCCs are the same
and (c)(4). pattern requirements (c). as CACFP meal
for infants and patterns for infants
children. and children.
Days of operation............. Sec. School days, Sec. School days, school
226.17a(m). weekends, holidays, 226.19(b)(4). vacation, including
and school vacations weekends and
during the school holidays; no weekend
year; not in the only programs.
summer except in
areas served by year
round schools.
Time restrictions on meal Sec. 226.20(k) States may establish Same............ Same.
service periods. requirements
concerning time
restrictions for
CACFP institutions.
Monitoring.................... Sec. 226.6(m) The State agency must Same............ Same.
for State review \1/3\ of all
agency review institutions each
of independent year; percentages of
centers and sponsored facilities
sponsoring sponsored by the
organizations; institution vary
Sec. depending on the
226.16(d)(4)(iv size of the
) for institution. Large
sponsoring sponsoring
organizations organizations < 100
review of their must be reviewed
facilities. every two years. New
institutions with
five or more
facilities must be
reviewed within the
first 90 days of
operation.
Sponsoring
organizations must
review their
facilities three
times each year. At
least one review
must occur during
the first six weeks
of program
operations; reviews
cannot be spaced
more than six months
apart. Two reviews
must be unannounced. [[Page 41595]]
Readers should note that Public Law 108265 raised the age for participation in CACFP meals in emergency shelters to 18. FNS notified CACFP State agencies of this statutory change, which was effective on October 1, 2004, and the emergency shelter rule, published on January 3, 2006 (71 FR 1) codified the increase to age 18 in the CACFP regulations. There are now two types of centers that may serve CACFP meals or snacks to children through age 18: atrisk afterschool care centers and emergency shelters.
The provision describing the eligibility of children for receiving afterschool snacks as proposed at Sec. 226.17a(c) remains unchanged in this final rule. We have made some minor changes, however, to the definition of ``Children'', revising proposed text of children's eligibility for afterschool snacks and current text of children's eligibility for meals at emergency shelters, which was revised by the emergency shelter rule. We have removed the references to persons with disabilities specific to either atrisk centers or emergency shelters; these references are unnecessary because the definition of ``Children'' includes persons with disabilities as a category of eligible children. This final rule adopts the proposed definition for participation by disabled persons with minor changes. Longstanding CACFP policy has recognized that disabled persons meeting the regulatory definition are eligible to participate in any CACFP component serving children, including not only atrisk afterschool care centers or emergency shelters, but also child care centers, outsideschoolhours care centers, and family or group day care homes. This rule codifies the policy by providing a separate definition for ``Persons with disabilities''.
5. Area Eligibility
Because of the number of the issues involved in area eligibility, the next seven questions address the proposed provisions, comments received, and changes made to area eligibility requirements. How did the Department propose to define area eligibility and did anyone comment on the definition?
We proposed to define an eligible area for the atrisk afterschool snack component as the attendance area of an elementary, middle, or high school in which at least 50 percent of the enrolled children are certified eligible for free or reducedprice school meals. As previously mentioned, we also proposed to use area eligibility as one of four key criteria that an afterschool program must meet in order to be eligible for participation in the CACFP atrisk component. We have provided guidance on questions of area eligibility of schools involved in busing. This policy permits area eligibility to be extended to sites if the majority of children at the site come from schools where at least 50 percent of the enrolled children are eligible for free or reducedpriced school meals.
We received comments from two State agencies that opposed the inclusion of data for middle and high schools; they stated that it would be a reporting burden for NSLP State agencies. Although we acknowledge that the addition of middle and high schools may require more work for NSLP State agencies, we believe it is important to identify as many area eligible locations as possible to reach the population of needy children and youth targeted by the atrisk snack provisions in the NSLA, especially now that the statute expands afterschool snacks to teenagers through age 18.
In this final rule, we have revised the definition for eligible area to provide a twopart definition that distinguishes between two different uses of the term in CACFP. Although the term is more frequently associated with the atrisk snack component, it is also used to describe the geographic area of tier I day care homes. Therefore, to avoid possible confusion, we have provided both definitions of eligible area.
Eligible area as it applies to the atrisk snack component, which
is unchanged from the proposed rule, includes the attendance area of an
elementary, middle, or high school in which at least 50 percent of the
enrolled children are certified eligible for free or reducedprice
school meals. Eligible area for tiering purposes, which is taken from the definition of tier I day care home in section
17(f)(3)(A)(ii)(I)(aa) and (bb) of the NSLA (42 U.S.C.
1766(f)(3)(A)(ii)(I)(aa) and (bb)), includes the attendance areas of
elementary schools in which at least 50 percent of the total number of
children are certified eligible to receive free or reducedprice meals,
or neighborhoods that meet the 50 percent threshold of income
eligibility for free or reducedprice meals based on census data.
Eligible areas for atrisk snacks include middle and high school
attendance areas as well as the attendance areas of elementary schools;
eligible areas for tiering purposes do not include middle or high
school attendance areas but do include neighborhood areas defined by
census data that meet the 50 percent threshold of households eligible
for free or reducedprice meals. The inclusion of a definition of
eligible area for tiering purposes is not intended to change any aspect
of current requirements for determining tier I status for day care homes.
Accordingly, the definition of ``Eligible area'' as proposed in
Sec. 226.2 is revised, and reference to this definition is added at new Sec. 226.17a(i)(1).
What data did the Department propose to require for determining area eligibility?
We proposed that the data used to determine area eligibility must be based on the school's total number of children approved for free and reducedprice school meals for the preceding October. However, we stipulated that the NSLP State agency, which provides the data, may designate another month. If the NSLP State agency chooses to designate a month other than October, it must do so for the entire State. The other critical data element in determining the area eligibility of an atrisk center is documentation that the center is located in the school's attendance area. If not available from the NSLP State agency, information on a school's geographical boundaries would be provided by the individual school or by the school district. We did not propose to require the NSLP State agency to provide attendance area data. What did commenters say about data for determining area eligibility?
One State agency commented that the regulations should restrict the use of private school data in establishing area eligibility because private schools often have very large attendance areas. This commenter stated that Federal regulations should specify that only public school data could be used to establish area eligibility.
We agree that private school data may often be an inappropriate source to establish area eligibility for atrisk centers, but we recognize that there may be exceptions, making the use of private school data reasonable to establish area eligibility in some situations. Thus, we conclude that State agencies should have the flexibility to approve the use of private school data for establishing area eligibility when necessary.
One commenter suggested that eligibility determinations made for open sites in the Summer Food Service Program (SFSP) should be allowed to establish area eligibility for atrisk care centers also.
We are bound by the specific requirement of section 17(r)(1)(B) of
the NSLA, 42 U.S.C. 1766(r)(1)(B), that area eligibility must be based on eligibility for free or reducedprice school meals.
[[Page 41596]]
For this reason, the SFSP open site eligibility may be used only if it
is based on the same criteria required for determining area eligibility for atrisk centers.
Accordingly, the data required to document the area eligibility of an atrisk afterschool care center, proposed at Sec. Sec.
226.6(f)(9)(i) and 226.17a(h)(2) are retained but redesignated at Sec. Sec. 226.6(f)(1)(ix) and 226.17a(i)(2).
What did the Department propose about the process of determining area eligibility?
We proposed a process of determining area eligibility that is similar to the process of determining the tiering status of day care homes. Like the tiering process, which is redesignated in this final rule at Sec. 226.6(f)(1)(viii), the process of determining area eligibility starts with the receipt of free and reducedprice school data from the NSLP State agency. As with tiering, we charged the CACFP State agency with the task of coordinating with the NSLP State agency to receive the school data (i.e., the list of elementary, middle, and high schools that meet the definition of eligible area) on an annual basis. Unlike the tiering process, however, the CACFP State agency is not required to provide the school data to sponsoring organizations of atrisk centers or to independent atrisk centers by a certain date each year. Instead, we proposed that the CACFP State agency must only provide the list upon request by sponsoring organizations or independent atrisk centers.
We proposed that CACFP State agencies must determine the area eligibility for all independent atrisk centers, using the most recent free and reducedprice school data and attendance area data obtained or verified from school officials within the last school year. However, we proposed that a sponsoring organization must provide information required by the State agency that would enable the State to determine the area eligibility of each sponsored atrisk center. This information may include current free and reducedprice school data from the list and related attendance area data. As proposed, area eligibility determinations would be valid for three years to match the tiering determination provisions for tier I status based on school data, which were in effect at the time the proposed rule was published.
We also proposed two provisions for redetermining area eligibility that were consistent with those for tiering determinations based on school data. One of these provisions would allow the sponsoring organization, the State agency, or FNS to redetermine area eligibility if the attendance area data received annually from the NSLP State agency indicates that an atrisk center is no longer eligible. The second provision would limit this flexibility by prohibiting routine redeterminations of area eligibility based on annual data. Both provisions duplicate current regulatory language for tiering redeterminations found at Sec. 226.6(f)(3)(i) in this final rule.
The annual collection of area eligibility data provides the State
agency current and accurate information to approve new applications as
well as for use in redeterminations at the end of a center's
eligibility cycle. This annual information can also be used if the
sponsoring organization, the State agency, or FNS has identified a
particular area that has had a dramatic change in economic status and
wants to use this information in redetermining a center's area eligibility.
What has changed about area eligibility determinations in the final rule?
We received six comments from State agencies that addressed the frequency or timing of the determination or redetermination. Three commenters weighed in on the proposal to allow area eligibility to be valid for three years; two supported and one opposed.
Since the October 11, 2000 publication of the proposed rule, Congress authorized the increase in the duration of tier I status determinations based on school data to five years. The provision of Public Law 108265 was effective on July 1, 2004, and the change was codified in the CACFP regulations by the duration of tiering rule.
This final rule reflects an increase in longevity of area eligibility determinations from the proposed three years to five years. Please note that those centers that were deemed not eligible to participate in the CACFP as atrisk afterschool centers would not have to wait for five years before they could apply again to participate in the CACFP as an atrisk afterschool center.
We increased the duration of area eligibility determinations in order to achieve the coordinated use of school data for
redeterminations of tiering and area eligibility that we had sought in
the proposed rule. The Department wants to point out that because
applications are approved on a threeyear cycle, for administrative
efficiency State agencies may choose to make area eligibility
determinations on that threeyear cycle. However, we encourage State
agencies wherever possible to adopt the fiveyear cycle for area eligibility determinations.
Two commenters addressed the proposal to allow sponsoring organizations, State agencies, or FNS the option of changing a determination of area eligibility based on updated school data. One commenter opposed the option entirely, and the other commenter noted what seemed to be conflicting language between proposed Sec. 226.6(b)(11)(iii), which stated that State agencies must document area eligibility at least once every three years, and proposed Sec. 226.6(f)(9)(v), which stated that State agencies may not routinely redetermine area eligibility during the threeyear period. In this final rule, State agency responsibilities for area eligibility redeterminations are clarified and addressed in Sec. 226.6(f)(3)(ii).
We want to clarify the issue of what was received as conflicting language. Although sponsoring organizations, State agencies, or FNS may redetermine area eligibility if the attendance area data received annually from the NSLP State agency indicates that an atrisk center is no longer eligible, they would not be permitted to do so routinely based on annual data. The intention is that existing atrisk afterschool centers would remain area eligible for the entire period of time (i.e. five years), and annual data would not be used to respond to minor variations in eligibility (for example, centers that are located in the attendance areas of schools where the percentage of students eligible for free or reducepriced meals drops negligibly below the 50 percent level in any given year during the fiveyear period). The intention is to give sponsoring organizations, State agencies, or FNS the flexibility to make redeterminations in those situations where this percentage drops markedly due to underlying demographic changes.
In this final rule, State agency responsibilities for area eligibility redeterminations are clarified and addressed in Sec. 226.6(f)(3)(ii).
Finally, one State agency commented that eligibility periods should begin with the fiscal year or school year, not in the month in which the first determination is made; this is too much work for State agencies to track.
We agree that State agencies should have the flexibility to
determine within the last year of area eligibility when the next cycle
should begin. This would allow State agencies the option of
synchronizing all area eligibility redeterminations so that atrisk
centers could begin the next cycle on a particular date, such as the
first day of the fiscal year or school year. Note that this flexibility to set the date extends
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only with redeterminations, not with the initial determination and
approval to begin program operations. State agencies that opt to
synchronize area eligibility redeterminations should notify all newly
participating atrisk centers of the date in the last year when current
area eligibility will expire and new area eligibility data must be submitted.
Accordingly, proposed Sec. Sec. 226.6(f)(9)(v) and 226.17a(h)(2)
are revised and redesignated as Sec. Sec. 226.6(f)(3)(ii) and
226.17a(i)(3) to increase the duration of area eligibility
determinations to five years and to specify that State agencies may
determine the date in the fifth year by which the next fiveyear cycle of area eligibility will begin.
What other changes have been made to the regulations affecting the area eligibility determination process?
The second integrity rule substantially revised Sec. 226.6(f) by
sorting provisions into annual, triennial or other time periods when
data are due or actions are required. These changes compelled us to
sort the proposed afterschool snack provisions in current Sec.
226.6(f) into the appropriate time periods. The result is that these
provisions are reorganized and in some instances, revised to clarify
the process of determining area eligibility; the substance of the
proposed provisions has not changed, with one exception. That
exception, as previously described, permits State agencies to determine
the date during the fifth year of area eligibility when the next cycle
of area eligibility will begin. We have also included the tiering
determination process for day care homes in the reorganization of Sec.
226.6(f); the tiering provisions previously located at Sec.
226.6(f)(1)(iii) have been revised and redesignated at Sec. 226.6(f)(1)(viii) and (f)(3)(i).
6. What licensing and approval requirements did the Department propose for atrisk centers?
Public Law 105336 eased licensing and approval requirements for
afterschool care programs by allowing institutions to meet State or
local health and safety standards if Federal, State, or local licensing
or approval is not required. Accordingly, we proposed to require that
atrisk and outsideschoolhours care centers must only meet State or
local health and safety standards if Federal, State, or local licensing or approval is not otherwise required.
What did commenters say about this proposed change in licensing/ approval standards?
This proposed provision generated 11 comments from State agencies, advocates and associations, and sponsoring organizations. Commenters focused on difficulties that exist due to State and local variations in establishing health and safety standards appropriate for atrisk centers and in maintaining those standards through inspection of facilities. Atrisk programs in some areas have been prevented from operating because of nonexistent or inappropriate health and safety standards or backlogs in obtaining inspection and approval.
One State agency opposed the reduced licensing requirements for outsideschoolhours centers in the proposed rule.
The statutory language, found at section 17(a)(5)(C) in the NSLA (42 U.S.C. 1766(a)(5)(C)), does not distinguish between the types of CACFP afterschool centers that may operate based on compliance with health and safety standards in the absence of licensing requirements. Broadly stated, this provision applies to both types of afterschool centers operating in the CACFP, atrisk centers and outsideschool hours centers. We would like to emphasize that this provision applies only in those localities where Federal, State, or local licensing is not required for afterschool care programs.
One commenter asked the Department to clarify whether CACFP State agencies could require licensing of atrisk and outsideschoolhours centers.
Since the authority to establish standards resides with the licensing agency at the Federal, State, or local level, the CACFP State agency may establish or change licensing requirements for outside schoolhours and atrisk centers only if it is also the licensing authority for the State.
Commenters asked what are appropriate health and safety standards for atrisk and outsideschoolhours centers. State agencies have informed us that in some localities these centers must meet stringent requirements that apply to restaurants because health authorities are unfamiliar with CACFP meal services. In other instances, minimal or no standards exist.
We encourage CACFP State agencies to work closely with State and local health and safety authorities to determine the specific requirements for each type of facility. This will help ensure that appropriate requirements are being applied to organizations seeking to participate in the CACFP.
Some commenters encouraged the Department to specify not only the types of standards that are appropriate but also a reasonable time interval between inspections. In some localities, an occupancy permit may be issued only once, such as prior to initial occupancy of a newly constructed building.
The Department lacks the statutory authority to regulate either standards or time intervals for health and safety certification of facilities. Because of the variations that exist among communities, the CACFP State agency should work with State and/or local health and safety officials to promote reasonable standards with appropriate time intervals established between inspections and/or certifications.
Commenters asked what information should be provided to document that health and safety standards are met before a State agency approves the atrisk or outsideschoolhours center for CACFP participation.
Documentation requirements will vary by State or locality. An application for participation as an atrisk center or outsideschool hours center should include a copy of the documentation that is provided by the health or safety inspection agency. Ideally, this would include a copy of the permit and/or a copy of the inspection report with the date, name, and signature of the inspecting official. In some jurisdictions, however, occupancy permits may serve as the only evidence that a facility is in compliance with State or local health or safety standards. In situations where an atrisk center or outside schoolhours center is located in a school building where school lunch or breakfast is served and food safety inspections have occurred (as required by section 9(h) of the NSLA, 42 U.S.C. 1758(h)), the center may not need to meet any additional health and safety requirements. The school's participation in the National School Lunch Program or the School Breakfast Program would be proof of meeting applicable standards. In all cases, the State agency should ensure that the documentation provided is appropriate and current (i.e., not revoked or expired).
Some commenters suggested that atrisk centers and outsideschool hours centers be allowed to simply notify the State or local health department prior to starting operations, in the same way that sponsors of Summer Food Service Program (SFSP) sites are required to do, as described at 7 CFR 225.16(a).
In localities where health and safety standards exist for
afterschool programs and the health inspection requirements are the
same for meals served under CACFP afterschool programs and SFSP, [[Page 41598]]
State agencies may accept documentation of a current health inspection
of a facility that was previously obtained for the SFSP. CACFP may do
this as long as the current SFSP inspection has not been revoked or
expired. However, the notification letter to the health department,
which serves simply as a notice of intent to begin meal services, must
not be considered documentation for meeting health and safety standards
for atrisk or outsideschoolhours centers. An inspection of the facilities must have occurred.
Some commenters asked what requirements should apply if there are no State or local health and safety standards for atrisk and outside schoolhours centers.
The NSLA did not establish any form of ``alternate approval'' for centers providing afterschool care, as it did for other types of child care facilities (see section 17(a)(5)(B) of the NSLA 42 U.S.C. 1766(a)(5)(B)). The Department concludes, therefore, that CACFP State agencies are not required to develop health and safety standards for these facilities.
To eliminate possible confusion about actions that State agencies must take in the absence of licensing or approval standards for outsideschoolhours care centers, we made the following changes. First, we revised the definition of ``CACFP child care standard'' by removing the words ``outsideschoolhours care centers''. Second, in the definition of ``Outsideschoolhours care center'', we added a reference to Sec. 226.6(d)(1)(v), which provides the specific licensing and approval requirements for this type of center. Third, we removed Sec. 226.6(d)(3)(ii) because it referred to alternate child care standards that may be used as approval standards for outside schoolhours care centers when no other licensing/approval standards are available. This change required a revision to the structure of Sec. 226.6(d)(3), which we have set out in this rule.
The Department wants to make clear that in the absence of licensing or approval standards, atrisk centers and outsideschoolhours care centers must meet State or local health and safety standards. When State or local health and safety standards have not been established, State agencies are encouraged to work with appropriate State and local officials to create such standards. Meeting these standards will remain a precondition for any afterschool center's eligibility for CACFP nutrition benefits. Therefore, atrisk afterschool care centers and outsideschoolhours care centers will not be eligible for CACFP in areas where State or local health and safety standards have not been established. However, as described at Sec. 226.6(d)(1)(iv), an atrisk afterschool care center or an outsideschoolhours care center in an area where State or local health and safety standards have not been established will still have the option to demonstrate, to the State agency, compliance with CACFP child care standards, as described at Sec. 226.6(d)(3).
This final rule retains the requirement, proposed at Sec.
226.6(d)(1)(v), which requires atrisk centers and outsideschoolhours
centers to meet State or local health and safety standards in the
absence of Federal, State, or local licensing requirements. This
requirement is also restated at Sec. 226.17a(d) for atrisk centers and at Sec. 226.19(b)(1) for outsideschoolhours centers.
7. What were the features of the Department's proposal for processing atrisk center applications?
We did not propose an extensive application process. An official of the applicant organization must apply in writing. The organization must meet the general application requirements for CACFP located at Sec. Sec. 226.6(b), and 226.15(b) or 226.16(b). Sponsoring organizations that are applying on behalf of sponsored atrisk centers must provide information, including documentation of area eligibility, to enable the State agency to determine each center's eligibility as an atrisk center. State agencies must determine the eligibility of independent centers that are applying to participate.
We proposed that once the application is approved, the organization must enter into an agreement with the State agency; the agreement or amendment to an existing agreement must meet all general requirements located at Sec. 226.6(b)(4). We also proposed to allow State agencies to require sponsoring organizations of atrisk centers to enter into separate agreements for the administration of separate types of CACFP facilities. In subsequent years, renewing independent atrisk centers or sponsoring organizations must inform the State agency of any substantive changes to their afterschool care programs.
One State agency questioned the proposed inclusion of atrisk centers in the provision allowing State agencies to require separate agreements for each type of center operated by a sponsoring organization. This commenter thought that the provision allowing State agencies to require separate agreements conflicted with the movement toward single agreements.
Single agreement requirements mandated by Public Law 105336 apply
only to School Food Authorities (SFAs) operating more than one child
nutrition program under the same State agency. Other CACFP institutions
are not included in the single agreement requirements. To avoid
confusion about the type of agreement an SFA must sign to operate an
atrisk afterschool care center, we have clarified Sec. Sec. 226.16(f)
and 226.17a(f)(2) in this final rule to specify that SFAs must continue
to operate under single, permanent agreements in accordance with Sec. 226.6(b)(4)(ii)(A).
Are there any changes to application processing procedures in the final rule?
There are no new application requirements specific to atrisk afterschool care centers. However, applying to participate in the CACFP is a more comprehensive process than at the time the proposed rule was published. The first integrity rule strengthened application and participation requirements for all CACFP institutions. Because the application process is the initial opportunity to address an institution's fitness in operating the program, applicant institutions must provide documentation that demonstrates financial viability, demonstrates administrative capability to operate the program, and establishes internal controls that ensure program accountability.
Although atrisk centers must meet all CACFP application requirements, which are described at Sec. 226.6(b), we recognize that some of the smaller afterschool care organizations that are applying to participate in CACFP for the first time may find the application process to be complex and demanding. In order to foster their participation, we encourage State agencies to offer technical assistance whenever possible to independent institutions that want to participate in the atrisk afterschool snack component.
To clarify the process of application renewal for atrisk centers,
we added language at Sec. 226.17a(g) on the responsibilities of
renewing independent atrisk centers and sponsoring organizations of
atrisk centers. We have also clarified in Sec. Sec. 226.17a(h) and
226.6(f)(3)(iii) how changes are handled between application periods.
Finally, we updated citations of general application processing requirements to reflect
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changes made by the second integrity rule.
Accordingly, the provisions on application processing for atrisk centers are revised and redesignated at Sec. 226.6(f)(2)(ii) and (f)(3)(ii); these provisions are also described in Sec. 226.17a(f), (g), and (h).
8. ForProfit Center Participation
The following questions address the issue of forprofit center participation in the CACFP and the atrisk snack component.
What did the Department propose regarding forprofit organizations participating in atrisk afterschool snacks?
We proposed that children who only participate in the atrisk afterschool snack component at a forprofit center must not be included in the count that qualifies the center for program participation each month. At the time the proposed rule was published, participating for profit centers could be reimbursed for CACFP meals and snacks only during the months in which 25 percent of enrolled children or 25 percent of licensed capacity, whichever is less, were title XX beneficiaries.
We had also proposed to define at Sec. 226.2, the criteria for
participation in the Iowa/Kentucky demonstration project, which had
been permanently authorized under Public Law 105336. The proposed
definition described the criteria for participation by forprofit
centers in these two States as: providing nonresidential child care and
having at least 25 percent of the children, based on the enrollment or
licensed capacity of the center (whichever is less), eligible to receive free or reducedprice meals.
What did commenters say about the proposed provisions about forprofit centers?
Three State agencies commented on the proposed provisions affecting forprofit centers; one supported, one opposed, and a third State agency encouraged us to allow forprofit organizations to count all Federal and State funding sources, not just the title XX funding, toward meeting the 25 percent eligibility criteria. The commenter who opposed the provision thought it would be confusing because children who are enrolled in forprofit centers for parttime care (not necessarily as part of the atrisk component) are currently counted toward the 25 percent participation qualifying level.
For purposes of determining a forprofit center's eligibility, there is a difference between parttime children who are enrolled in the forprofit child care center and children who are not required to be enrolled but may just dropin to participate in the afterschool activities and receive a snack. Current program regulations at Sec. Sec. 226.10(c), 226.11(b) and (c), 226.17(b)(4), and 226.19(b)(5), stipulate that participating forprofit centers must meet eligibility criteria on a monthly basis in order to be reimbursed.
For this reason, we are retaining the exclusion of children who
only participate in the atrisk afterschool snack component toward
meeting the monthly eligibility criteria for participation and claiming
reimbursement. This provision is described at Sec. Sec. 226.2
(definition of ``Forprofit center''), 226.9(b)(2), 226.10(c),
226.11(b)(3) and (c)(4), 226.17(b)(4), and 226.17a(a)(2) in this final rule.
How do the recent changes to forprofit center participation impact the provisions in this final rule?
The afterschool snack provisions in this final rule reflect the statutory and regulatory changes that permit forprofit centers to participate in CACFP based on the income eligibility of children in care. The proposed rule was published for comment before the Miscellaneous Appropriations Act of 2001 (Appendix D, Division B, Title I of the Consolidated Appropriations Act of 2001, Pub. L. 106554) permitted forprofit organizations nationwide to participate in CACFP as long as 25 percent of the children served are eligible for free or reducedprice meals. Initially, Congress limited this change to one year but later extended the provision annually through appropriation legislation. Public Law 108265 permanently established this provision in the NSLA. With the permanent authorization of the participation of forprofit centers based on children's income eligibility for free or reducedprice meals, the pilot project that had operated in Iowa, Kentucky, and Delaware was no longer needed; accordingly, its authority was removed by Public Law 108265. (Note: The third state to participate in the forprofit pilot project, Delaware, was authorized by the Agricultural Risk Protection Act of 2000 (Pub. L. 106224); for reasons of timing, Delaware was not included in the proposed rule.)
The forprofit center rule codified the forprofit center eligibility criteria as mandated by the NSLA, at section 17(a)(2)(B)(i) and (ii), 42 U.S.C. 1766(a)(2)(B)(i) and (ii). As defined in Sec. 226.2, forprofit centers that are otherwise eligible may participate if:
1. 25 percent of the children in care (enrolled or licensed capacity, whichever is less) are eligible for free or reducedprice meals; or
2. 25 percent of the children in care (enrolled or licensed capacity, whichever is less) receive benefits from title XX funding and the center receives compensation from amounts granted to the States under title XX.
The forprofit center rule also changed the terminology used in the
regulations to describe these types of centers from proprietary title
XIX and proprietary title XX centers to forprofit centers. This final
rule uses the new term ``forprofit centers'' to describe participating
forprofit organizations, replacing all references to ``proprietary title XX centers'' used in the proposed rule.
9. Meal Service
Did commenters say anything about the proposed meal pattern requirements for afterschool snacks?
We proposed th
FOR FURTHER INFORMATION CONTACT
Keith Churchill, Policy and Program Development Branch, Child Nutrition Division, Food and Nutrition Service, USDA, 3101 Park Center Drive, Alexandria, VA 22302, phone (703) 3052590.