Establishing the Summer EBT Program and Rural Non-Congregate Option in the Summer Meal Programs
Federal RegisterDec 29, 2023
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DEPARTMENT OF AGRICULTURE
Food and Nutrition Service
7 CFR Parts 210, 220, 225, and 292
[FNS-2023-0029]
RIN 0584-AE96
Establishing the Summer EBT Program and Rural Non-Congregate Option in the Summer Meal Programs
AGENCY:
Food and Nutrition Service (FNS), Department of Agriculture (USDA).
ACTION:
Interim final rule.
SUMMARY:
The Consolidated Appropriations Act, 2023 requires the Secretary of Agriculture to make available an option to States to provide summer meals for non-congregate meal service in rural areas with no congregate meal service and to establish a permanent summer electronic benefits transfer for children program (Summer EBT) for the purpose of ensuring continued access to food when school is not in session for the summer. This interim final rule amends the Summer Food Service Program (SFSP) and the National School Lunch Program's Seamless Summer Option (SSO) regulations to codify the flexibility for rural program operators to provide non-congregate meal service in the SFSP and SSO, collectively referred to as the summer meal programs. This rule also establishes regulations and codifies the Summer EBT Program in the Code of Federal Regulations.
DATES:
Effective date:
This rule is effective December 29, 2023.
Comment date:
To be considered, written comments on this interim final rule must be received on or before April 29, 2024.
ADDRESSES:
The Food and Nutrition Service, USDA, invites interested persons to submit written comments on this interim final rule. Comments may be submitted in writing by one of the following methods:
•
Federal eRulemaking Portal:
Go to
https://www.regulations.gov.
Follow the online instructions for submitting comments.
•
Mail:
Send comments to Community Meals Policy Division, USDA Food and Nutrition Service, 1320 Braddock Place, Alexandria, VA 22314.
• All written comments submitted in response to this interim final rule will be included in the record and will be made available to the public. Please be advised that the substance of the comments and the identity of the individuals or entities submitting the comments will be subject to public disclosure. USDA will make the written comments publicly available on the internet via
https://www.regulations.gov.
FOR FURTHER INFORMATION CONTACT:
J. Kevin Maskornick, Division Director, Community Meals Policy Division, USDA Food and Nutrition Service, 1320 Braddock Place, Alexandria, VA 22314, telephone: 703-305-2537.
SUPPLEMENTARY INFORMATION:
I. Background
a. USDA's Vision for Complementary Summer Nutrition Programs
b. Non-Congregate Meal Service
c. Summer EBT
II. Discussion of the Interim Final Rule—SFSP and SSO Non-Congregate Option
a. Subpart A—Definitions
i. Site, Congregate Meal Service, and Non-Congregate Meal Service
ii. Rural
iii. Conditional Non-Congregate Site
iv. New Site
v. Site Supervisor and Operating Costs
vi. Good Standing
b. Subpart B—State Agencies Responsibilities
i. Department Notification
ii. Program Management and Administration Plan
iii. Priorities and Outreach Mandate
iv. Application Requirements—Content of Sponsor Applications and Site Information Sheets
v. Approval of Sites and Determining No Congregate Meal Service
vi. Duration of Rural Designation
vii. Clarifications to Existing Requirements: Free Meal Policy Statement, State-Sponsor Agreement, and Corrective Action Procedures
c. Subpart C—Requirements for Sponsor Participation
i. Sponsor Eligibility
ii. Clarifications to Existing Requirements: General Requirements at 7 CFR 225.14(c)
d. Subpart D—Responsibilities of Sponsors
i. Identification and Determination of Eligible Children
ii. Meal Ordering and Second Meals
iii. Requirements Specific to Sponsors That Operate Conditional Non-Congregate Sites
1. Certification To Collect Information on Participant Eligibility
2. Notification to the Community
e. Subpart E—Non-Congregate Meal Service
i. Non-Congregate Meal Service Requirements
ii. Non-Congregate Meal Service Options
1. Multi-Day Meal Issuance
2. Parent or Guardian Meal Pick-Up
3. Bulk Meal Items
iii. Offer Versus Serve
iv. Clarifications to Existing Meal Service Requirements—Meal Service Times and Offsite Consumption of Foods
f. Subpart F—Monitoring
i. State Agency Responsibilities
1. Pre-Approval Visits
2. Sponsor and Site Reviews
ii. Sponsor Responsibilities
1. Training
2. Site Reviews
g. Subpart G—Miscellaneous
i. Collection of Summer Meal Site Location Data
ii. Reimbursements
iii. SSO Non-Congregate Provisions
iv. Annual Update To Approved Rural Data Sources
h. Subpart H—Technical Amendments
i. Subpart I—Severability
III. Discussion of the Interim Final Rule—Summer EBT
a. Subpart A—General
i. General Purpose and Scope
ii. Definitions
1. Existing Definitions
2. Modified Definitions
3. New Definitions
iii. Administration
1. Delegation of Responsibilities
2. Authority To Waive Statute and Regulations
b. Subpart B—Eligibility Standards and Criteria
i. General Purpose and Scope
ii. Eligibility
iii. Period To Establish Eligibility
c. Subpart C—Requirements of Summer EBT Agencies
i. Plan for Operations and Management
ii. Coordination Between State-Administered and ITO-Administered Summer EBT Programs
iii. Advance Planning Document (APD) Processes
iv. Enrolling Eligible Children
1. Streamlined Certification
2. Application Requirements
3. Verification Requirements
4. Notification of Eligibility, Denial, Appeal Rights, and the Ability To Opt-Out
d. Subpart D—Issuance and Use of Program Benefits
i. General Standards
1. Benefit Issuance
2. Dual Participation
3. Benefit Amount
4. Participant Support
5. Expungement
ii. Issuance and Adjustment Requirements Specific to States, Including Territories That Administer SNAP
iii. Retailer Integrity Requirements Specific to States, Including Territories That Administer SNAP
iv. Requirements Specific to Territories That Administer Nutrition Assistance Programs (NAP) Programs
v. Requirements Specific to ITOs Administering Summer EBT
e. Subpart E—General Administrative Requirements
i. Payments to Summer EBT Agencies and Use of Administrative Program Funds
1. Benefit Funds
2. State Administrative Funds
ii. Methods of Payment
iii. Standards for Financial Management Systems
iv. Performance Criteria
v. Records and Reports
vi. Audits and Management Control Evaluations
1. Audits
2. Management Control Evaluations
vii. Investigations
viii. Hearing Procedures for Families and Summer EBT Agencies
ix. Claims
x. Procurement Standards
1. General
2. Contractual Responsibilities
3. Procedures
xi. Miscellaneous Administrative Provisions
1. Civil Rights
2. Program Evaluations
3. General Responsibilities
xii. Information Collection/Recordkeeping—OMB Assigned Control Numbers
f. Subpart F—Severability
IV. Coordinated Services Plan
V. Procedural Matters
I. Background
Summer is frequently the most challenging time of the year for children at risk of food insecurity when they no longer have access to daily school meals. The Summer Food Service Program (SFSP), authorized under section 13 of the Richard B. Russell National School Lunch Act (NSLA), 42 U.S.C. 1761, has been the primary source of nutritional support for vulnerable children during the summer since its formal inception in 1975. The purpose of the SFSP is to provide nutritious meals to children in low-income areas when schools are not in session during the summer months, as well as during long school breaks in communities with year-round school calendars. Schools can also offer meals through the Seamless Summer Option (SSO) of the National School Lunch Program (NSLP), which allows school food authorities to provide meals to children during the summer months, school breaks, and unanticipated school closures using the procedures of the school lunch and breakfast programs. The SFSP and SSO are collectively referred to as USDA summer meal programs. Through the summer meal programs, program operators provide meals and snacks to children at meal sites in their communities; these meals are served at no cost to children and were historically required to be consumed in a congregate setting on the meal site premises.
Among the USDA Child Nutrition Programs (CNPs), the summer meal programs are unique in many ways, including the seasonal nature of their operations, the diversity of organizations that operate the programs, and the range of sites at which meals are offered. Many sites offer summer programming in addition to meals. Meals served as part of the summer meal programs are served at a wide variety of sites, including schools, recreation centers, parks, camps, and places of worship. In July 2022, the summer meal programs served an average of 4.1 million children daily at more than 36,000 sites nationwide.
Although the summer meal programs are an important source of nutrition for many children, program access remains inconsistent or out of reach for some communities and families that cannot reliably access summer meals. Children who may have difficulty accessing summer meals include those:
• living in rural areas who would have to travel long distances to receive a meal,
• living in communities without summer meal sites,
• living in areas with limited safe and reliable transportation options, and in families whose schedules do not allow them to travel to a site daily.
USDA, State administering agencies, program operators, and other nutrition security champions have worked hard to expand the reach of summer meal programs over the years. Despite these efforts, only 1 in 6 children
1
who eat free or reduced price school meals participate in the summer meal programs in a typical year, leaving a large gap between children in need of summer meals and those who receive them. This ongoing summer nutrition gap indicates that the nutritional needs of children throughout the U.S. during the summer months cannot be met with a one-size-fits-all approach.
1
Calculated from 2022 FNS administrative data.
In December 2022, Congress took action to address the summer nutrition gap by providing new tools to serve low-income children during the summer months. On December 29, 2022, President Biden signed the Consolidated Appropriations Act, 2023 (the Act) (Pub. L. 117-328), which amended section 13 of the NSLA to allow children in rural areas to take their meals off-site beginning in 2023, and established a permanent, nationwide Summer Electronic Benefits Transfer for Children Program (Summer EBT) beginning in 2024. Regulations to amend the summer meal programs and establish Summer EBT are being promulgated through this interim final rule (IFR), as required by the Act.
2
2
42 U.S.C. 1761(a)(13)(F) (“Not later than 1 year after December 29, 2022, the Secretary shall promulgate regulations (which shall include interim final regulations) to carry out this section. . . .”).
As mentioned above and pursuant to the requirements of the NSLA, which authorizes the summer meal programs, summer meal program rules previously required that children remain at a meal service site while they consumed their meal or snack. This approach to program implementation, known as congregate meal service, has many benefits including providing the opportunity for children to socialize and engage in supervised activities offered at the site. However, as previously noted, some communities lack the resources or infrastructure to operate meal sites and supervise a meal service, and some families face significant barriers traveling to a site for each meal. The Act addresses these challenges by providing flexibility for sites in rural areas to provide a non-congregate meal service, which means allowing children to take meals off-site, for example, to their homes.
The Act also authorized a new permanent method for offering additional summer nutrition assistance for children. The new Summer EBT program will provide benefits on EBT cards so that families can purchase food for their children. Together, these changes will revolutionize how our nation supports the nutritional needs of children during the summer months, when school is not in session.
These two alternatives to connecting children to nutrition during the summer may be new as permanent options, but both have been tested extensively in recent years. Non-congregate meal service in the summer meal programs has been tested through demonstration projects, program waivers during the COVID-19 pandemic, and operational guidance in summer 2023; Summer EBT has been piloted through demonstration projects since 2011 and the Pandemic EBT program offered in response to COVID-19 was similar to Summer EBT in many ways.
A. USDA's Vision for Complementary Summer Nutrition Programs
USDA's goal across all summer nutrition programs is simple: to connect children with nutritious food during the summer months. While traditional congregate summer meal service remains a vital tool for providing low-income children with nutritious meals at no cost, USDA recognizes that not all children who would benefit from summer nutrition assistance are currently being reached through existing Programs. Due to numerous barriers to access that have already been highlighted, including time, distance, and transportation, many children who are eligible for free and reduced price school meals are not well served by traditional congregate summer meal sites. In particular, these challenges have been historically difficult to overcome in rural areas. USDA's goal is
to leverage the provisions codified through this IFR, working aggressively to close access gaps and ensure that children receive critical nutrition assistance during the summer months.
The Consolidated Appropriations Act, 2023, as implemented by this rulemaking, expands the reach of USDA's summer nutrition programs by establishing three distinct and essential pillars of summer nutrition assistance that will work in tandem and in a complementary fashion. In addition to the traditional congregate summer meal option provided through the SFSP and the SSO, State agencies and Program operators can now utilize two new methods of providing children with summer nutrition assistance. Non-congregate meal service will address critical access challenges in rural areas by allowing SFSP and SSO Program operators to provide meals available for pick up or delivery that children can eat at the time and place that is convenient for them. Summer EBT is a nationwide, permanently authorized program that provides EBT benefits to eligible children that can be used to buy groceries. Taken together, these three pathways for providing summer nutrition assistance will help to better support rural, suburban, and urban communities alike.
The complementary nature of these nutrition assistance options is the foundation of their great potential to benefit children across the nation. They are intended to be used simultaneously for the purposes of delivering a more complete summer nutrition safety net. To illustrate, SFSP and SSO meal sites have provided nutritious summer meals, as well as recreational, educational, and other enrichment opportunities to generations of children. However, in rural areas, where there may be a lack of transportation, sites, funds, and staff to support traditional congregate meal service, non-congregate meal service can be used to help provide children in these areas with equitable access to nutritious food. Significantly, the provisions established by the Act and implemented under this rulemaking also allow for program operators to use the non-congregate option to complement congregate meals at the times when congregate meal service is not offered; for example, a rural site serving congregate meals during the week may also offer “wraparound” service, providing take-home meals for the weekend. The Summer EBT Program's addition of EBT benefits for children introduces a new layer of nutrition assistance that is flexible and allows families to supplement summer meals with foods of their choice that are available anytime, including when meal sites are not open. The combination of these three approaches for providing nutrition during the summer months will help to ensure both equitable and more comprehensive access for children, and USDA looks forward to continued partnership with States, Tribes, and local stakeholders to use all the tools that are now available to meet their communities' needs.
B. Non-Congregate Meal Service
Demonstration Projects
The Act instructed USDA to incorporate best practices and lessons learned from demonstration projects carried out under section 749(g) of the Agriculture, Rural Development, Food and Administration, and Related Agencies Appropriations Act, 2010 (Pub. L. 111-80; 123 Stat. 2132), which provided $85 million to USDA beginning in 2010 to initiate and implement the Summer Food for Children demonstration projects.
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One demonstration project was the Enhanced Summer Food Service Program (eSFSP), which tested changes to the existing structure and delivery mechanism of SFSP for the purpose of determining effects on program participation. The eSFSP included the Meal Delivery demonstration which offered breakfast and lunch delivery to homes of eligible children in rural areas, as well as the Food Backpack demonstration which provided weekend and holiday meals to SFSP participants for consumption when SFSP sites were not open. In 2013, the demonstration project for Non-Congregate Feeding for Outdoor Summer Feeding Sites Experiencing Excess Heat was first implemented. Under this demonstration project, SFSP and SSO sponsors who were operating approved outdoor meal sites without temperature-controlled alternative sites could operate as non-congregate sites on days when the area was experiencing excessive heat. In addition to excessive heat, USDA approved four States to participate in the demonstration due to smoke and air-quality concerns in summer 2019. In more recent years, USDA implemented Meals-to-You (MTY) under the demonstration authority. MTY was developed in response to stakeholder feedback about the challenges and difficulties of serving summer meals in sparsely populated communities and remote areas. Through MTY, food boxes were mailed directly to families of children who were eligible for free or reduced price school meals. Each eligible child received a weekly box, which contained five breakfast meals, five snacks, and five lunch/supper meals.
3
Information and supporting materials on each of the Summer Food for Children demonstration projects are available at:
https://www.fns.usda.gov/ops/summer-food-children-demonstrations.
Historically, non-congregate meals were operated on a small scale through the above mentioned demonstration projects. However, during the COVID-19 public health emergency (PHE), non-congregate meals became more widely available as an important part of USDA's response to the pandemic. In March 2020, Federal, State, and local level efforts to reduce the spread of COVID-19 resulted in the abrupt closure of schools across the country, disrupting access to school meals for millions of children. In response, State agencies and program operators requested individual waivers under the authority of section 12(l) of the NSLA and implemented program flexibilities, such as the flexibility to allow non-congregate meal service through SFSP and SSO. To better address the urgent need for resources and operational flexibilities required to serve children throughout the pandemic, Congress provided USDA with temporary authority to waive statute and regulations on a nationwide basis for Child Nutrition Programs through the Families First Coronavirus Response Act of 2020 (FFRCA) (Pub. L. 116-127), and later through subsequent statutory extensions to help USDA continue to respond to changing needs throughout the pandemic. Such efforts included USDA issuing the Nationwide Waiver to Allow Non-Congregate Feeding and other complementary non-congregate waivers under section 2202(a) of the FFCRA. These waivers ensured that children continued to receive nutritious meals and helped to mitigate the impacts of the COVID-19 PHE.
For summer 2023, USDA provided guidance on non-congregate meal service operations in rural areas as required by the Act. Many of the non-congregate flexibilities allowed for summer 2023 operations were allowed through previous demonstrations, waivers, and guidance on non-congregate meal service operations during the COVID-19 PHE. Through this IFR, USDA is promulgating regulations for the summer meal programs rural non-congregate option for program year 2024 and beyond. These regulations are based on a combination of best practices from demonstration projects, non-congregate flexibilities offered during the COVID-19 pandemic, and prior guidance that was issued for operating rural non-
congregate meal service in summer 2023.
Stakeholder Feedback
Between April 5, 2023, and June 15, 2023, USDA hosted 21 listening sessions with external stakeholders on the topic of non-congregate summer meals. Input was gathered from State agency program administrators,
4
school food authorities (SFAs) and other program operators, advocacy groups, and program participants. Listening session participants were asked a series of questions related to implementation, service models, program integrity, challenges, benefits, and definitions; each session also included open time where participants could share additional thoughts of interest to them. USDA also held consultations with Tribal leaders from Indian Tribal Organizations (ITOs) to obtain their input on the topic of non-congregate summer meals, as well as rural experts at Federal agencies to obtain their input on defining and identifying rural areas. USDA recorded and analyzed all comments shared during the listening sessions and has taken all comments into careful consideration when developing this rule.
4
USDA invited all State agencies to provide input, and the vast majority (47) of States actively participated in the listening sessions.
Stakeholders were generally positive about non-congregate summer meals, citing enhanced program access as the primary benefit. However, 14 State agencies voiced concerns with program integrity and five State agencies expressed concern about nutritional quality and/or food safety of meals served. Fifteen additional stakeholders voiced concern about inadequate staff support to manage non-congregate meal service. Stakeholders said that the existing (long-standing) definition of “rural” did not sufficiently encompass rural areas and offered ideas for how the definition of “rural” could be expanded (see section II. A. ii. for rural definition discussion). Finally, stakeholders requested clear and timely guidance from USDA on a wide range of topics, including best practices, eligibility, and program integrity efforts; State agencies requested that guidance be issued anywhere from 6 to 18 months in advance of summer program operations.
C. Summer EBT
Section 13A of the Richard B. Russell National School Lunch Act, 42 U.S.C. 1762, authorizes the Secretary to establish a program under which States, and Indian Tribal Organizations (ITOs) that administer the Special Supplemental Nutrition Program for Women, Infants, and Children (WIC), electing to participate in the Summer EBT Program may, beginning in Summer 2024 and annually thereafter, issue to each eligible household Summer EBT benefits. For 2024, the value of the benefit will be $40 per child for each month of the summer with amounts adjusted for Alaska, Hawaii, and the U.S. Territories.
Summer EBT Demonstration Projects
Although Summer EBT is the newest, permanent Federal food assistance entitlement program, it is not a new approach to addressing food insecurity during the summer months. In fact, Summer EBT has been tested through more than a decade of demonstration projects administered by USDA in collaboration with States and Indian Tribal Organizations. Prior to the publication of this interim final rulemaking, and under the same authority as the SFSP demonstration projects provided in 2010 (section 749(g) of the Agriculture, Rural Development, Food and Drug Administration, and Related Agencies Appropriations Act, 2010 (Pub. L. 111-80; 123 Stat. 2132)), the Summer Electronic Benefits Transfer for Children (SEBTC) demonstration project was implemented to help reduce summer food insecurity among children. Starting in 2011, the SEBTC demonstration distributed a monthly food benefit during the summer months to children eligible for free or reduced price school meals. Most States operating the demonstration projects utilized a debit card (or Supplemental Nutrition Assistance Program (SNAP)) model whereby eligible participants received benefits on a debit card, which could be redeemed at any SNAP-authorized retailer. Some States and several ITOs operated the Summer EBT program using a WIC-like model whereby eligible participants could purchase only foods prescribed in a defined food package at WIC-authorized retailers using their Summer EBT cards.
Through rigorous evaluation, the SEBTC demonstration projects have proven successful at mitigating food insecurity and improving diet quality and variety. SEBTC benefits reduced the most severe category of food insecurity among children during the summer by one-third when compared to those receiving no benefits.
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Evaluations of USDA's previous experience with SEBTC demonstration projects indicated that this model could be effectively implemented in a wide variety of communities. The SEBTC demonstration projects were an innovative approach to meeting the nutritional needs of children during the summer months as the model provides families with flexibility to purchase food for their children at times and places that are convenient for them.
5
Food and Nutrition Service. (2013). SEBTC Demonstration: Evaluation Findings for the Full Implementation Year 2012 Final Report. U.S. Department of Agriculture, Food and Nutrition Service.
https://fns-prod.azureedge.us/sites/default/files/SEBTC2012.pdf.
Pandemic Electronic Benefit Transfer
The effectiveness of the SEBTC demonstration projects facilitated the implementation of Pandemic Electronic Benefit Transfer (P-EBT). From 2020 to 2023, P-EBT was part of the COVID-19 pandemic response to prevent food insecurity among children while they did not have access to school meals. The Families First Coronavirus Response Act, (Pub. L. 116-127), as amended by the Continuing Appropriations Act, 2021 and Other Extensions Act (Pub. L. 116-159), the Consolidated Appropriations Act, 2021 (Pub. L. 116-260), the American Rescue Plan Act of 2021 (Pub. L. 117-2), and the Consolidated Appropriations Act, 2023 (Pub. L. 117-328) provided the Secretary authority to approve State agency plans to administer P-EBT. Children were eligible to receive P-EBT benefits if they would have received free or reduced price meals under the NSLA but missed those meals due to COVID-19. For example, the child's school was closed or operating at reduced hours or attendance due to COVID-19, or the child did not attend school because they were sick with COVID-19. Through P-EBT, eligible school children received temporary emergency nutrition benefits through EBT cards that families could use to purchase food at local retailers, allowing families with eligible children to purchase healthy food more easily during the pandemic.
The American Rescue Plan Act (Pub. L. 117-2) specifically authorized the extension of P-EBT for the covered summer period after any school year in which there was a public health emergency designation for all children who met P-EBT income eligibility requirements under the schools component of P-EBT. In December 2023, the Consolidated Appropriations Act, 2023 (Pub. L. 117-328) authorized USDA to allow State agencies to implement P-EBT for summer 2023 without the need for an approved P-EBT plan for the preceding school year, limited P-EBT eligibility for school children to only those children who attended NSLP-participating schools at the end of the preceding school year,
and redefined the P-EBT benefit amount for summer 2023 to $120 for the entire covered period, with amounts adjusted for Alaska, Hawaii, and the U.S. Territories.
With the end of the COVID-19 PHE on May 11, 2023, FY 2023 was the final fiscal year that children were eligible for P-EBT benefits. The permanent Summer EBT program for school-aged children will begin in summer 2024 ensuring eligible school-aged children will continue to receive critical nutrition assistance.
Summer EBT as a Permanent Program
Beginning in summer 2024, the NSLA permanently establishes Summer EBT benefits at $40 per month per eligible child and indexes the benefit to the SNAP Thrifty Food Plan to account for inflation. Summer EBT will provide EBT benefits to children from low-income households during the summer months to ensure continued access to nutrition when school is not in session. USDA anticipates that Summer EBT will help to close the summer nutrition gap for more than 29 million children once implemented nationwide. As amended, the NSLA allows States that participate in SNAP and Territories participating in NAP (including Puerto Rico, American Samoa and the Commonwealth of the Northern Mariana Islands) to issue benefits which are usable at SNAP or NAP retailers. The NSLA also provides that ITOs administering WIC may deliver Summer EBT benefits to be used at WIC authorized retailers. Benefit redemptions are made through EBT cards or `other electronic methods.' The permanent Summer EBT Program is separate and distinct from the earlier SEBTC demonstration projects, which were limited in scope and conducted for the purpose of gaining insight into the effectiveness of the model. The permanent Summer EBT Program is also separate and distinct from P-EBT, which was a specific Federal Government response to COVID-19.
USDA published the following initial guidance for 2024 Summer EBT implementation prior to publication of this rulemaking to assist States with preparations:
1. SEBT 01-2023,
Initial Guidance for State Implementation of Summer EBT in 2024,
June 7, 2023;
2. SEBT 02-2023,
Initial Guidance for Implementation of Summer EBT in 2024 by Indian Tribal Organizations Administering WIC,
June 13, 2023;
3. SEBT 03-2023,
Summer EBT Eligibility, Certification, and Verification,
July 31, 2023;
4. SEBT 01-2024,
Summer EBT Administrative Funding Process for FY2024,
October 18, 2023.
Through this rulemaking, the Summer EBT Program will be codified in a new part 292 of Title 7 of the Code of Federal Regulations, which will supersede the memos listed above.
Summary of Stakeholder Feedback
Between April and June 2023, USDA hosted 24 listening sessions to solicit input about Summer EBT from State agencies administering SNAP and Child Nutrition Programs, school food authorities (SFAs) and other program operators, advocacy groups, local elected officials, and families. USDA also consulted with Tribal leaders on Summer EBT in May 2023, attended two conferences to meet with and gather feedback directly from ITOs administering WIC, and met with Tribal WIC administrators virtually. Listening session participants were asked for input about approaches to program implementation, program integrity, program costs, customer service, and technical aspects of Summer EBT operations. Participants were offered the opportunity to raise other issues of interest to them as well. USDA carefully considered this input when developing this rule.
Across listening sessions, State agencies, school food authorities, program participants and external organizations consistently expressed a desire for the Summer EBT program to run seamlessly and automatically, particularly around eligibility determinations and enrollment. State agencies, SFAs, and advocates expressed that data sharing and collection between State agencies [and between State agencies and local education agencies (LEAs)] must be streamlined and automated, and noted that centralized databases could help simplify the data-sharing process. Relatedly, many State agencies, school food authorities, and external organizations identified the need for States to provide Statewide applications for children who must apply using a Summer EBT application to avoid placing the responsibility of collecting and processing applications on LEAs, especially those participating in the Community Eligibility Provision (CEP) who do not collect school meals applications. Some State agency staff asked that USDA provide and maintain a nationwide Summer EBT application. There was universal concern about the impacts for both LEAs and households of requiring students at special provision schools (
e.g.,
CEP schools) who are not “identified” to apply for Summer EBT. Households with children enrolled in provision schools are not accustomed to completing annual income applications for school meal benefits and may not know if their child is “identified” through participation in other means tested programs or if an income application must be completed. Without effective processes to communicate with families and to collect applications, this could cause confusion and negatively impact program participation. Likewise, many CEP schools do not collect income applications even on a periodic basis as eligibility because the level of Federal reimbursement for the NSLP/SBP is solely based on the number of identified students. These schools do not currently have resources and staffing to support this effort. Additionally, a number of external organizations and States urged USDA to allow the use of “alternative” income applications to confer Summer EBT eligibility.
Additionally, FNS received numerous inquiries from States regarding which State Agency should lead the Summer EBT Program. Although SNAP and Child Nutrition Programs are generally administered by separate agencies at the State level, these agencies have historically teamed up to improve children's nutrition. For example, SNAP and Child Nutrition agencies successfully stood up and implemented direct certification, a process that streamlines enrollment and reduces burden for millions of children every year, and they jointly provided P-EBT benefits at a time when many children were vulnerable to food insecurity. Similarly, State agencies should work together in a collaborative way to determine how they can best use their resources and expertise to support Summer EBT, and jointly decide the appropriate roles and responsibilities of each agency.
State agencies, ITOs, and external organizations expressed significant concerns about the 50 percent match funding required for Summer EBT administrative costs, particularly given the fact that, in many States, the window to request or allocate State funding for Summer EBT through the regular budgetary process was closing or had already closed. Some States shared that this may prevent them from standing up the program in Summer 2024. ITOs similarly expressed concerns about the required match, and specifically asked for a “planning year” in which benefits are not issued, but administrative funding can be received to set up the program. States and ITOs also requested clearer guidance from
USDA related to administrative funding and financial management.
States, school food authorities, and advocates also discussed lessons learned from operating P-EBT, and ways to improve operations when delivering the Summer EBT Program. Specifically, USDA heard the importance of delivering benefits timely, developing clear lines of communication on customer service (
e.g.,
clear points of contact for households), and increased participant education, such as better messaging to households. States and advocates also noted the need to improve data quality, primarily ensuring that addresses for participants are accurate and current at the time benefits are issued.
Finally, ITOs shared robust feedback on three specific topics: the benefit delivery model for ITOs, enrolling eligible children, and de-duplication of benefits.
ITOs shared that they would appreciate flexibility in the benefit delivery model, meaning the ability to operate using a cash value benefit (CVB), a food package, a combination of the two, or an alternative approach. ITOs also shared concerns about communicating with families about the option to participate in the ITO-administered program and coordinating with States to ensure that children do not receive benefits from both State
and
ITO-operated Summer EBT programs. ITOs thus asked USDA to issue strong regulatory language requiring States to cooperate with ITOs on general program operations and data sharing. Additionally, ITOs recommended that ITOs administering the Program serve their entire jurisdictions to streamline program implementation and minimize de-duplication.
II. Discussion of the Interim Final Rule—SFSP and SSO Non-Congregate Option
This section of the preamble discusses the actions USDA is taking to implement the statutory provisions for non-congregate meal service in the SFSP in 7 CFR part 225 and the SSO in 7 CFR parts 210 and 220. All Program regulations and guidance, instructions, and handbooks issued by the USDA Food and Nutrition Service (FNS) apply to both congregate and non-congregate operations except as otherwise specified through this rulemaking.
A. Definitions
i. Site, Congregate Meal Service, and Non-Congregate Meal Service
SFSP regulations under 7 CFR part 225 have historically been framed in the context of the long-standing congregate meal service model under the NSLA. Prior to amendments made in the Act, provisions under the NSLA at 42 U.S.C. 1753(b)(1)(A), 42 U.S.C. 1761(a)(1)(D) and Program regulations at § 225.6(i)(15) required Program meals to be served in a congregate setting and consumed by participants on site in order to be eligible for reimbursement. Therefore, under current regulations at § 225.2, “site” means a
physical
location at which a sponsor provides a food service for children and at which children consume meals in a supervised setting. Currently, there is no separate statutory or regulatory definition of
congregate meal service.
However, the establishment of the non-congregate meal service option underscores the need to explicitly define and distinguish
congregate
and
non-congregate
meal service for Program purposes.
For Summer 2023, the NSLA was amended to allow Program operators to operate a non-congregate meal service in rural areas consistent with implementation models previously used in USDA summer demonstration projects, as discussed in section I. B. of this IFR. The two models available for both SFSP and SSO during summer 2023 were home delivery and meal pick-up. Under the home delivery model, meals are delivered directly to homes in eligible areas with eligible children. In the context of this model, FNS advised State agencies and sponsors through summer 2023 guidance to consider the non-congregate meal service operation overall as the site (for example, a delivery route or courier distribution process), instead of the individual residences to which the meals were delivered. Therefore, the inclusion of the phrases “physical location” and “supervised setting” in the definition of site at 7 CFR 225.2 is inconsistent with providing different models of non-congregate meal service, as non-congregate meals can be consumed anywhere, and do not have to be consumed under supervision.
Therefore, this rulemaking revises the existing definition of “site” and adds new definitions of “congregate meal service” and “non-congregate meal service” to provide clarity and applicability to new and existing Program requirements. USDA is codifying these working definitions as established in summer 2023 guidance into part 225.
Accordingly, this IFR makes the following amendments in § 225.2:
• Amends the definition of “site” to mean the place where a child receives a Program meal. A site may be the indoor or outdoor location where congregate meals are served, a stop on a delivery route of a mobile congregate meal service, or the distribution location or route for a non-congregate meal service. However, a child's residence is not considered a non-congregate meal site for Program monitoring purposes.
• Adds a definition of “congregate meal service” to mean a food service at which meals that are provided to children are consumed on site in a supervised setting; and
• Adds a definition of “non-congregate meal service” to mean a food service at which meals are provided for children to consume all the components off-site. The definition further clarifies that non-congregate meal service must only be operated at sites designated as “rural” and with no “congregate meal service,” as determined in § 225.6(h)(3) and (4).
ii. Rural
Newly added section 13(a)(13)(A) of the NSLA makes available to States the option to provide Program meals for non-congregate consumption in a rural area with no congregate meal service. This expansion of summer meal service prompted renewed interest in reviewing, revising, and modernizing the SFSP's long-standing definition of “rural.”
In 1978, the Department proposed a definition of “rural” (44 FR 8) in response to the provisions of the NSLA and Child Nutrition Amendments of 1977 (Pub. L. 95-166), which amended section 13(a)(4) of the NSLA, 42 U.S.C. 1761(a)(4), to include a rural outreach mandate. Public Law 95-166 also instructed USDA to conduct a study of the food service operations to include: (i) an evaluation of meal quality as related to costs; and (ii) a determination whether adjustments in the maximum reimbursement levels for food service operation costs prescribed in the NSLA should be made, including whether different reimbursement levels should be established for self-prepared meals and vended meals and which site-related costs, if any, should be considered administrative costs. Through this study, USDA confirmed sponsors that prepare their own meals and sponsors that operate in rural areas may incur higher costs than other types of sponsors [44 FR 36365, January 2, 1979]. As a result, USDA provided additional reimbursement to rural sites and self-preparation sites in the final rulemaking, which still stands today under regulations at § 225.9(d)(7). Because of the fiscal implications under that final rulemaking, USDA also codified the definition of “rural” as proposed (
Rural
means any county
which is not a part of a Standard Metropolitan Statistical Area as defined by the Office of Management and Budget). USDA had considered revising the definition of rural to include “pockets” of rurality within Metropolitan Statistical Areas (MSAs); however, USDA was not able to develop a universally applicable definition based on the varied data collected at the time of the rulemaking and said it would re-consider the definition after evaluating implementation of the provisions in the 1979 program year. In 1980, based on experience gained during the 1979 Program year, the Department revised the definition of “rural” to include an option for States, with concurrence from USDA, to establish “pockets” of rurality within MSAs (45 FR 1844). The rural definition has not been further updated since 1980.
SFSP regulations at § 225.2 define “rural” as: (a) any area in a county which is not a part of a MSA or (b) any “pocket” within a MSA which, at the option of the State agency and with Food and Nutrition Service Regional Office (FNSRO) concurrence, is determined to be geographically isolated from urban areas. The current definition is based on the Office of Management and Budget's (OMB) Standards for delineating core-based statistical areas (CBSA), specifically MSAs. Delineations are the result of the application of published standards to Census Bureau data on population estimates and commuting ties. USDA has released guidance over the years to provide technical assistance to States in this area. On April 21, 2015, USDA published memorandum SFSP 17-2015,
Rural Designations in the Summer Food Service Program—Revised,
available at: Rural Designations in the Summer Food Service Program—Revised | Food and Nutrition Service (
usda.gov
), to clarify rural designations in SFSP and to promote the use of FNS' Rural Designation Map, which was designed to help State agencies and sponsors more easily identify rural areas according to paragraph (a) of the regulatory definition.
After the release of initial summer 2023 rural non-congregate guidance, USDA heard concerns from stakeholders that the current definition of “rural” was too generalized geographically to identify rural areas and pockets effectively. MSAs are comprised of a central county or counties containing the core area (
i.e.,
the central urban area with a population of 50,000 or more) plus adjacent outlying counties having a high degree of social and economic integration with that core as measured through commuting. Because MSAs can include a cluster of counties surrounding one county with an urban center and because counties can be geographically expansive, MSAs often encompass areas that are considered rural based on additional information such as data at the census tract level. For example, a census tract within an outlying county may be sparsely populated and could be considered rural, but the county contains other census tracts or areas that have a high degree of social and economic integration with the population core, which results in the county being classified as part of the MSA.
Therefore, after consultation with Federal partners, USDA provided further guidance allowing States to use the following classification schemes to designate rural areas and pockets in summer 2023: (1) USDA Economic Research Service's (USDA-ERS) Rural Urban Commuting Area (RUCA) codes 4-10, and in some isolated cases, RUCA codes 2-3; (2) USDA-ERS' Rural-Urban Continuum Codes (RUCC) 4-9; (3) USDA-ERS' Urban Influence Codes (UIC) 3-12; and (4) the National Center for Education Statistics (NCES) Locale Classifications and Criteria, codes 41-43. The guidance also allowed for the use of other data sources on a case-by-case basis with FNS approval.
In the listening sessions held to inform this rule, stakeholders confirmed that the current definition of rural in § 225.2 does not adequately capture all rural areas. Stakeholders shared that the limitations of the existing definition were largely addressed by the addition of the classification schemes allowed in summer 2023 and noted that the use of these schemes seemed to satisfy most site location requests. However, some stakeholders still encouraged USDA to consider other factors in the definition of rural such as: access to public transportation, food deserts, physical barriers, and characteristics of rurality. One stakeholder encouraged USDA avoid overly rigid criteria or reliance on physical characteristics as many of these elements are influenced by community and State resources and priorities rather than inherent qualities, and that defining features of rural communities may vary by region. State agencies also reported a need for a streamlined process for identifying and approving rural areas and pockets, and requested one comprehensive mapping tool to determine rural designation. Therefore, based on feedback received from stakeholders and Federal partners, USDA is revising the current definition of “rural” to include the classification systems allowed for summer 2023 implementation. These classification schemes were used in summer 2023 to identify rural “pockets,” but now will be incorporated into the regulatory definition to define what rural is under the Program. In addition, this IFR will amend the current definition to provide discretion for the Department to accommodate updates to these classification schemes and to consider other classification schemes that were not identified through summer 2023 operations. Finally, USDA agrees with comments that potential community characteristics such as the presence of food deserts and physical barriers are not inherently rural or objective measures of rurality, nor may they be necessarily applied consistently across States and communities. However, to accommodate possible alternative standards that may be developed or identified, the revised definition will allow State agencies and USDA to consider requests to designate areas that may be rural in character based on other data sources on a case-by-case basis. Under this rulemaking, the definition of rural will mean:
•
Any area in a county not a part of an MSA based on the OMB's delineation of MSAs.
This criterion will allow for non-MSA counties to be designated as rural under the Program.
•
Any area in a county classified as a non-metropolitan area based on RUCC and UIC.
This criterion will allow for counties classified as rural according to USDA-ERS' RUCC and UIC codes to be designated as rural under the Program.
•
Any census tract classified as a non-metropolitan area based on RUCA codes.
This criterion will allow census tract areas classified as rural according to USDA-ERS' RUCA codes to be designated as rural under the Program.
•
Any area of an MSA not part of a Census Bureau-defined urban area.
This criterion will allow for areas located within MSAs that are classified as rural according to NCES' Locale Classifications and Criteria, which is based on the Census Bureau's urban and rural areas, to be designated as rural under the Program.
•
Any area of a State, which is not part of an urban area as determined by the Secretary; or,
•
Any “pocket” within an MSA which, at the option of the State agency and with FNSRO approval, is determined to be rural in character based on other data sources.
These last two criteria provide discretion for the Department and the State agency to consider other areas that may not be identified through this new definition.
•
Any subsequent substitution or update of the aforementioned
classification schemes that Federal governing bodies create.
This criterion is intended to accommodate updates or substitutions to the classification schemes that will be incorporated into the definition under this rule.
This framework more accurately represents rural populations and territories and is responsive to stakeholder feedback, while upholding established standard measures of rurality. Expanding the definition to allow the use of multiple recognized Federal classification schemes to designate areas as rural (without having to seek prior USDA approval) will also ease administrative burden and streamline the site identification and approval process for State agencies and Program operators. It also acknowledges the frequent stakeholder concern that any one objective measure cannot capture all rural pockets, and therefore, allows discretion for State agencies to identify rural pockets based on other data sources if needed with approval from USDA.
Accordingly, this rule expands the definition of “rural” in § 225.2 to include rural populations and territories within MSAs based on the summer 2023 approved sources, and to provide flexibility for “pockets” based on other data sources on a case-by-case basis. The amended definition of “rural” in § 225.2 will also provide discretion to USDA for any potential updates or changes to classification schemes at a future date. Following the publication of this rule, USDA will also release an updated FNS Rural Designation Map to reflect the new, comprehensive framework, which will provide one comprehensive mapping tool to assist State agencies in determining rural designations. In addition, this rule adds a new provision to establish an annual effective date by which USDA will issue updates to the approved rural data sources to be used for rural designations in that program year. The IFR also adds an effective period to the rural designation to establish the frequency at which sponsors must re-establish rural designation for non-congregate meal service sites. See section II. G. iv. and section II. B. vi., respectively, for a discussion of those provisions.
iii. Conditional Non-Congregate Site
Prior to the Act, sites were required to be located in areas which meet the definition of “areas in which poor economic conditions exist” or qualify as camps. Specific to non-congregate meals, the Act amended the NSLA to allow meal service in rural areas that are not areas in which poor economic conditions exist for children who are determined to be eligible for free or reduced price school meals. The current regulations under § 225.2 do not include a definition for a site which qualifies for Program participation on the basis that the site conducts a non-congregate meal service for eligible children in an area that does not meet the definitions of “areas in which poor economic conditions exist,” and which does not qualify as a camp.
Under statutory and regulatory requirements, for Program purposes “areas in which poor economic conditions exist” is defined as: (1) The attendance area of a school in which at least 50 percent of the enrolled children have been determined eligible for free or reduced price school meals under the NSLP and the School Breakfast Program (SBP); (2) A geographic area where, based on the most recent census data available or information provided from a department of welfare or zoning commission, at least 50 percent of the children residing in that area are eligible for free or reduced price school meals under the NSLP and the SBP; (3) A geographic area where a site demonstrates, based on other approved sources, that at least 50 percent of the children enrolled at the site are eligible for free or reduced price school meals under the NSLP and the SBP; or (4) A closed enrolled site in which at least 50 percent of the enrolled children at the site are eligible for free or reduced price school meals under the NSLP and the SBP, as determined by approval of applications in accordance with § 225.15(f). See, 42 U.S.C. 1761(a)(1)(A) and § 225.2. The definition of “camps” included in § 225.2 “means residential summer camps and nonresidential day camps which offer a regularly scheduled food service as part of an organized program for enrolled children. Nonresidential camp sites shall offer a continuous schedule of organized cultural or recreational programs for enrolled children between meal services.”
FNS clarified in its implementation guidance for summer 2023 that sponsors may claim meals served to children who are eligible for free or reduced price school meals even if the rural area does not meet the definition of “areas in which poor economic conditions exist.” Non-congregate meals may be served to children who are not eligible for free or reduced price meals in rural areas, but they may not be claimed for reimbursement. Therefore, this rule adds a definition for “conditional non-congregate site” to codify this new site type and clarify applicable Program requirements.
Accordingly, this rule adds the following definition in § 225.2 for “conditional non-congregate site” as a site which qualifies for Program participation because it conducts a non-congregate meal service for children eligible for free or reduced price meals in an area that does not meet the definition of “areas in which poor economic conditions exist” and is not a “Camp” as defined in § 225.2.
iv. New Site
FNS provides administrative and operational flexibilities for experienced sponsors and sites that have already operated the SFSP without significant operational problems. For example, when applying to participate in the Program, experienced sponsors are not required to submit the same level of detail regarding organizational and operational information required of new sponsors and those with previous operational problems. For new sponsors, and sponsors that experienced significant operational problems in the previous year, detailed information is required including, but not limited to, site information, arrangements for meeting health and safety standards, and budgets. This information is necessary for State agencies to determine if new sponsors and sites, or those with previous operational problems, are capable of administering the SFSP efficiently and effectively, and complying with all program requirements. Likewise, new sponsors and sites, and sponsors and sites that have experienced significant operational problems in the previous year, may be held to more rigorous levels of training and monitoring, at the State's discretion. To help clarify requirements for sponsors and sites with varying degrees of experience and/or success in operating the Program, § 225.2 contains definitions of “new sponsor”, “new site”, “experienced sponsor”, and “experienced site”.
For summer 2023, USDA determined and communicated through guidance that experienced sites which proposed to operate non-congregate meal service for the first time, including those sites switching from a congregate meal service model to a non-congregate model or to operating a hybrid of both congregate and non-congregate models, were “new” sites. These sites were required to follow monitoring procedures for new sites. Through this rulemaking, USDA is codifying the summer 2023 guidance, and requiring that all sites proposing to operate non-congregate meal service for the first time to use procedures for new sites (see sections II. B. and F. for application and
monitoring procedures). Therefore, this rule revises the current definition of “new site” to reflect these changes. This rulemaking does not affect the experience determination for sponsors.
Accordingly, this rule amends the definition of “new site” in § 225.2 to clarify that experienced sites operating a non-congregate meal service for the first time are considered new under the Program.
v. Site Supervisor and Operating Costs
Under this rulemaking, USDA is also modifying existing definitions of “site supervisor” and “operating costs” in § 225.2 to reflect the provision of non-congregate meal service under the Program.
USDA published the final rule,
Streamlining Program Requirements and Improving Integrity in the Summer Food Service Program
(87 FR 79213), on September 19, 2022, which added a definition in § 225.2 for “site supervisor” stating that the individual on site for the duration of the meal service, who has been trained by the sponsor, and is responsible for all administrative and management activities at a site including but not limited to: ordering meals, maintaining documentation of meal deliveries, ensuring that all meals served are safe, and maintaining accurate point of service meal counts.
Therefore, with the new requirements established by the Act for non-congregate meal service, this rule amends the definition for “site supervisor” to mean the individual who has been trained by the sponsor and is responsible for all administrative and management activities at the site, including, but not limited to: maintaining documentation of meal deliveries, ensuring that all meals served are safe, and maintaining accurate point of service meal counts. Except for non-congregate meal service sites using delivery services, the individual is on site for the duration of the food service.
Program regulations in § 225.2 define the term “operating costs” to mean the cost of operating a food service under the Program, including the: cost of obtaining food, labor directly involved in the preparation and service of food, cost of nonfood supplies, rental and use allowances for equipment and space, and cost of transporting children in rural areas to meal service sites in rural areas. This rule amends the definition for “operating costs” to include the costs to deliver non-congregate meals in rural areas under the Program as an allowable cost.
Accordingly, this rule revises the definition of “site supervisor” and “operating costs” in § 225.2 to reflect the provision of non-congregate meal service under the Program.
vi. Good Standing
Under current Program regulations, there is no definition for good standing. The final rule,
Streamlining Program Requirements and Improving Integrity in the Summer Food Service Program,
87 FR 57304, September 19, 2022, reflected on the qualities that contribute to a Program operator's successful performance. USDA indicated that an SFSP Program operator would be considered in “good standing” if it was reviewed by the State agency with no major Program findings or it had completed and implemented all corrective actions from the last compliance review. In addition, FNS intends to publish the proposed rule,
Serious Deficiency Process in the Child and Adult Care Food Program (CACFP) and the Summer Food Service Program (SFSP),
RIN # 0584-AE83, which will propose changes to the existing serious deficiency process in the CACFP for unaffiliated centers and establishes a serious deficiency process for the SFSP. As part of the rule, USDA will propose a new definition of “good standing” for SFSP. USDA recognizes that providing further clarification to determine what good standing means will benefit State agencies and program operators.
USDA has determined that many of the requirements and allowable options codified at § 225.16(i) for non-congregate meal service will only be allowed for sponsors in good standing, as discussed in section II. E. of this rule. However, good standing is not currently defined under Program regulations at § 225.2. Therefore, in order to support State agency ability to determine if a sponsor is in good standing, this rule will codify “good standing” to mean the status of a program operator that meets its Program responsibilities, is current with its financial obligations, and, if applicable, has fully implemented all corrective actions within the required period of time. This definition mirrors the definition that will be proposed in
Serious Deficiency Process in the Child and Adult Care Food Program (CACFP) and the Summer Food Service Program (SFSP),
RIN # 0584-AE83. USDA will review comments received on this definition both through the proposed rule, as well as through this rulemaking, and may further revise this definition as needed in future rulemaking.
Accordingly, this rule adds a definition of “good standing” at § 225.2.
B. State Agency Responsibilities
i. Department Notification
Consistent with provisions under the NSLA at 42 U.S.C. 1753(b)(1)(A) and 1761(a)(1)(D) and Program regulations at § 225.3(b), by November 1 each fiscal year each State agency must notify USDA regarding the State's intention to administer the Program in that fiscal year. Each State agency desiring to take part in the Program must enter into a written agreement with FNS for the administration of the Program. The Act amended section 13(n)(1) of the NSLA to require, for summer 2023 only, that each State desiring to participate in the Program must notify the USDA of its intent to administer the Program and must submit a management and administration plan (MAP) for the Program by April 1, 2023. In addition, the Act amended section 13(n)(2) of the NSLA to include that beginning in 2024, each State agency desiring to participate in the Program must notify the Department by January 1 of each year.
Accordingly, this rule amends the regulatory deadline at § 225.3(b) for a State to notify the Department of its intent to administer the SFSP from November 1 to January 1 of each fiscal year. This rule also makes changes to the MAP requirements in § 225.4, which are described in this section of the preamble. Finally, this rule establishes a requirement at § 225.3(e) for State agencies administering the summer meal programs and Summer EBT Program to develop and implement a coordinated services plan for the programs in their State. This plan is a separate requirement from the MAP and is meant to coordinate the statewide availability of services offered through the Summer Food Service Program. See section IV. for discussion of those requirements.
ii. Program Management and Administration Plan
Prior to the Act, provisions under the NSLA at 42 U.S.C. 1753(b)(1)(A) and 1761(a)(1)(D) and Program regulations at § 225.4 required State agencies to submit a MAP for approval by February 15 for the current fiscal year (
i.e.,
a plan that will cover program operations during the following summer). The State agency must include the State's administrative budget, an estimate of need for monies to pay for the cost of conducting health inspections, and the State's plans for use of Program funds (including providing technical assistance, monitoring, corrective action, fiscal integrity, and to ensure compliance with food service
management company procurement monitoring) in the MAP.
The Act amended section 13(n)(1) of the NSLA to require that, for summer 2023, each State agency will have until April 1, 2023, to submit their MAP, which must include the State's plan for using non-congregate meal service, if applicable, including plans to provide a reasonable opportunity to access meals across all areas of the State, in addition to the MAP requirements previously required under the NSLA (
i.e.,
the State's administrative budget for the fiscal year, an estimate of need for monies to pay for the cost of conducting health inspections, and the State's plan for the use of program funds, providing technical assistance, monitoring, taking timely action against program violators, certifying fiscal integrity, and to ensuring compliance with food service management company procurement monitoring). The summer 2023 Program guidance provided State agencies additional information detailing the plans for implementation of non-congregate meal service in their MAP. This information included participation projections, sponsor information, plans for targeting and outreach, how State Administrative Funds (SAF) would be used to support non-congregate meal service for summer 2023, and strategies for providing technical assistance to ensure integrity requirements are met. Guidance also allowed State agency discretion to establish statewide policies regarding aspects of rural non-congregate meal service, based on past experiences gained during the COVID-19 pandemic. State agencies were required to include statewide details related to the non-congregate meal service option in the MAP. Summer 2023 MAP submissions indicated that two State agencies used statewide discretion to prohibit the use of the non-congregate meal service for summer 2023 operations to allow them to evaluate non-congregate processes in order to safeguard Program integrity.
This rule codifies the amendments made to section 13(n)(2) of the NSLA, which provides that the MAP must include all provisions previously required under the NSLA, the new additional requirement under section 13(n)(1), and the State agency's plan for Program delivery in areas that could benefit the most from the provision of non-congregate meals. This includes the State's plan to identify rural areas with no congregate meal service, and plan to target priority areas for non-congregate meal service. A discussion of the provisions and an “area with no congregate meal service” is described further below. USDA understands that State agencies are best positioned to determine how non-congregate meal service may be conducted through sponsors to provide Program access to eligible children while maintaining Program accountability. Apart from the case-by-case determinations outlined in section II. E. of this rulemaking, State agencies should include any additional proposed statewide requirements or restrictions and operational safeguards as part of the State's plan to use non-congregate meal service in their MAP.
Accordingly, this rule codifies non-congregate meal service requirements in the MAP by adding a new § 225.4(d)(9) and (10). SAF as outlined in § 225.5, may be requested based on projected program growth with the additional meals that will be served as a part of both congregate and non-congregate meal service. The SAF can be used to support outreach to service institutions and encourage participation in both congregate and non-congregate meal service, as well as implementation of program accountability and integrity efforts.
iii. Priorities and Outreach Mandate
Program regulations at § 225.6(a)(2) require that, by February 1 of each fiscal year, each State agency must announce the purpose, eligibility criteria, and availability of the Program throughout the State, through appropriate means of communication. As a part of this effort, each State agency must identify rural areas, Indian Tribal territories, and areas with a concentration of migrant farm workers which qualify for the Program and actively seek eligible applicant sponsors to serve such areas. State agencies must identify priority outreach areas in accordance with USDA guidance and prioritize outreach efforts in these areas.
The Act amended section 13(a)(13)(D) of the NSLA to require State agencies to identify areas with no congregate meal service that could benefit the most from the provision of non-congregate meals and encourage participating service institutions in those areas to provide non-congregate meals as appropriate. Accordingly, this rule amends program requirements at § 225.6(a)(2) to reflect this new priority area for State agencies as required by statute. In addition, the rule revises the paragraph structure at § 225.6(a)(2) to improve the clarity of the regulations.
iv. Application Requirements—Content of Sponsor Applications and Site Information Sheets
Annually, each State agency must inform all the previous year's sponsors which meet current eligibility requirements, as well as all other potential sponsors, of the application deadline for Program participation. Program regulations at § 225.6 outline State agency responsibilities when approving Program sponsors and sites. When reviewing applications, the State agency should consider the resources and capabilities of each applicant to sufficiently operate all proposed sites. This rule clarifies the State agency review requirements for the content of sponsor application and site application approval, which are discussed in this section.
Program regulations at § 225.6(g)(1) and (2) require that State agencies develop site information sheets for new or experienced sites where a food service is proposed. The site information sheets provide State agencies with the documentation needed to determine if the site can demonstrate administrative capability and financial viability to effectively operate a meal service. The site information sheet completed by the sponsor must demonstrate or describe the estimated number and types of meals to be served and times of service; documentation of eligibility; and, if the site qualifies as a camp, documentation of the number of children enrolled in the Program who meet the Program's income standards. New sites are also required to demonstrate or describe an organized and supervised system for serving meals to children; arrangements for delivery and holding of meals and storing leftovers for next day meal service to ensure food safety; arrangements for food service during periods of inclement weather; access to means of communication for making necessary adjustments for number of meals to be served at each site; whether the site is rural or non-rural; and whether the site's food service will be self-prepared or vended.
Program regulations do not include site information specific to non-congregate meal service. Therefore, this rule modifies the minimum information that must be demonstrated or described on the site information sheets to reflect the provision of non-congregate meal service under the Program. This information provided in the site information sheet for new sponsors must describe an organized and supervised system for serving meals to children; whether the site is rural and the documentation supporting the rural designation as discussed later in this section; whether the meal service is congregate or non-congregate; and, if the site qualifies as a conditional non-congregate site, documentation of the number of children enrolled in the
Program who meet the Program's income standards. For experienced sites, the site information sheets must include whether the meal service to be provided is congregate or non-congregate; whether the site is rural and documentation supporting the rural designation which is discussed later in this section; and, if the site qualifies as a conditional non-congregate site, documentation of the number of children enrolled in the Program who meet the Program's income standards.
As noted above, this rule is adding a documentation requirement for experienced sites to demonstrate that they are rural. Current regulations do not require that the site information sheet demonstrate or describe whether the site is rural for experienced sites, as required for new sites or sites with operational problems. This application requirement was removed for experienced sites under the Final Rule,
Summer Food Service Program: Program Meal Service During the School Year, Paperwork Reduction, and Targeted State Monitoring
(64 FR 72889), to eliminate duplicative and unnecessary requirements for experienced sponsors, with the intent of reducing the paperwork associated with the application process for these sponsors. However, USDA has concluded that determining rurality is necessary for all Program sponsors due to the effect of a rural designation and non-congregate participation. This rule also adds an effective period to the rural designation to establish the frequency at which sponsors must re-establish rural designation for non-congregate meal service sites, which is discussed in later in this section of the rule.
In addition, USDA is codifying non-congregate meal service options under this IFR, as discussed in section II. E. ii. As part of those options, USDA will require integrity safeguards to prevent unallowable or duplicate meal distribution. Under this rule, sponsors opting to distribute multiple days' worth of meals must have procedures in place that document, to a reasonable extent, that the proper number of meals are distributed to each eligible child. In addition, sponsors opting to distribute meals to parents or guardians on behalf of children must have procedures in place to document that meals are only distributed to parents or guardians of eligible children and that duplicate meals are not distributed to any child. Therefore, this rule will require this information to be included in the applications for new sponsors, sponsors that have experienced significant operational problems in the prior year, and experienced sponsors.
Accordingly, this rule adds a new § 225.6(c)(2)(xi) and (3)(viii) to require that the application for new sponsors, sponsors that have experienced significant operational problems in the prior year, and experienced sponsors include procedures to document that meals are only distributed, to a reasonable extent, to eligible children and that duplicate meals are not distributed to any child, if the applicant sponsor is electing to use the non-congregate meal service options of multi-day meal issuance and parent or guardian meal pick-up. In addition, this rule amends Program regulations at § 225.6(g)(1)(iv) and(g)(2)(iii) to require sponsors to identify whether each meal service will be congregate or non-congregate. This rule also adds new § 225.6(g)(1)(xiv) and (g)(2)(viii) to require Program sponsors who are operating conditional non-congregate sites to specify the number of children enrolled who meet the Program's income standards. In addition, this rule amends requirements at § 225.6(g)(1)(iii) and 225.6(g)(2)(ii) to establish whether a site is rural, and that documentation supporting the rural designation is required. This rule also establishes the frequency at which the site must re-establish rural designation, which is described later in this section of this rule. Due to the addition of the new requirements, the rule revises the subordinate paragraph numbering at § 225.6(g)(1) and (2). Furthermore, this rule amends § 225.6(b)(6) to include State agency requirements for sponsor application approval related to site reviews, as discussed in section II. F. of this rulemaking. Lastly, this rule clarifies the requirement at § 225.6(g)(1)(v) with terms consistent with those defined in § 225.2.
v. Approval of Sites and Determining No Congregate Meal Service
Program regulations at § 225.6(h) provide the site requirements that must be evaluated by the State agency before site approval is granted. Program regulations at § 225.6(h)(1) require State agencies to ensure the proposed food service site is located in an “area in which poor economic conditions exist,” or will serve specific groups of eligible children; the area which the site proposes to serve will not be served in whole or in part by another site, unless it can be demonstrated to the satisfaction of the State agency that each site will serve children not served by any other site in the same area for the same meal; the site is approved to serve no more than the number of children for which its facilities are adequate and; if it is a site proposed to operate during any unanticipated school closure, it is a non-school site. Regulations at § 225.6(h)(2)(i), (ii), (iii), and (v) are specific to congregate meal service operations and require that each vended site must have an approved level for the maximum number of children's meals which may be served under the Program, which is commonly known as a “site cap.”
Summer 2023 Program guidance provided specific requirements that the State agency must follow when approving Program sites to operate non-congregate meal service. Those requirements included:
• The proposed non-congregate meal service site must be in a rural area;
• The area proposing to be served will not be served by a congregate meal service; and
• Safeguards must be implemented to ensure children will not receive more than the maximum allowance of summer meals per day.
All existing application and approval requirements, including the priority system when approving applicants to operate sites that propose to serve the same area or the same enrolled children (7 CFR 225.6(b)(5)) and site cap requirements, continued to apply for both congregate and non-congregate meal service. In addition, summer 2023 guidance also included considerations when determining if an area was already being served by a congregate site. This guidance allowed for State agency discretion when approving sites for non-congregate meal service, if they ensured adherence to the requirements provided above, but with the caveat that State agencies may not deny a site based solely on the sponsor's intent to provide a non-congregate meal service. Sites that served the same children on different days, different weeks, or for different meals on the same day could provide a combination of congregate and non-congregate meal service if the State agency could ensure that the congregate and non-congregate sites would not serve the same population of children for the same meal service on the same day. Summer 2023 guidance also allowed congregate sites that existed prior to that time to switch from congregate to non-congregate meal service. However, the Department encouraged State agencies and sponsors to work to identify and prioritize those rural areas that the congregate Program cannot reliably reach.
USDA received mixed feedback from stakeholders related to defining an area with no congregate meal service. Some stakeholders suggested setting parameters for an “area with no congregate meal service,” such as a
specified distance from congregate sites. Other stakeholders suggested that an “area with no congregate meal service” should be left to State agency discretion, since Program operations vary across States. One stakeholder suggested requiring sponsors to provide an integrity plan prior to site approval to avoid meal duplication.
This final rule incorporates new statutory requirements and summer 2023 Program guidance with additional regulatory clarifications as to how to determine areas with no congregate meal service.
First, in accordance with summer 2023 guidance which stated that State agencies may not deny a site based solely on the sponsor's intent to provide a non-congregate meal service, USDA is adding a new § 225.6(b)(12) to require that the State agency must not deny a sponsor's application based solely on the sponsor's intent to provide a non-congregate meal service.
Second, this rule amends Program regulations at § 225.6(h)(1)(i) to require that the proposed site will serve an “area in which poor economic conditions exist,” unless it is a conditional non-congregate site, as discussed in this rulemaking. This rule also amends § 225.6(h)(2) to clarify that each vended site must have an approved level for the maximum number of children's meals which may be served under the Program as they relate to congregate and non-congregate meal service.
Third, this rule adds a new § 225.6(h)(3) to address the elements of the proposed site operations that the State agency must ensure when approving the application of sites to provide non-congregate meal service. Under this rulemaking, the State agency must ensure that the proposed site: is rural; will only distribute the allowable number of reimbursable meals that would be provided over a 10-calendar day period, although the State agency may establish a shorter calendar day period on a case-by-case basis and without regard to sponsor type (as described in section II. E.); serves an area in which poor economic conditions exist or is approved for reimbursement only for meals served free to enrolled children who meet the Program's income standards; and will not serve an area where children would receive the same meal at an approved congregate meal site, unless it can be demonstrated to the satisfaction of the State agency that the site will serve a different group of children who may not be otherwise served. Also, as discussed in sections II. A. and F., this rule clarifies that all sites proposing to operate non-congregate meal service for the first time must use procedures for new sites. The rule reflects this regulatory change by adding a requirement that the State agency must ensure that the sponsor follows the site information sheet requirements at § 225.6(g)(1) for new sites, where a non-congregate food service operation is proposed for the first time.
Fourth, this rule adds a new § 225.6(h)(4) to address the elements of the proposed site operations that the State agency must ensure when approving the application of a site which will provide both a congregate meal service and a non-congregate meal service, effectively allowing State agencies to approve sites which will operate both meal services, with some restrictions to ensure the non-congregate meal service does not compete with or duplicate the congregate meal service. This includes regulations to require the State agency to ensure that the proposed site will only conduct a non-congregate meal service when the site is not providing a congregate meal service, and that the sponsor has a system in place to prevent meal service overlap when providing a congregate and non-congregate meal service at the same site to reasonably ensure children are not receiving more than the daily maximum allowance of meals. Note that for sites that operate both congregate and non-congregate service, it is not considered a meal service overlap if the site provides a congregate breakfast and then a non-congregate lunch intended to be consumed at a later time offsite (for example). Finally, the new requirements for approving sites operating a non-congregate meal service are in addition to the existing program requirements at § 225.6(h)(1) and (2).
Some stakeholders requested that USDA establish more specific criteria or standards to define “an area with no congregate meal service.” However, USDA agrees with the majority of stakeholders who suggested that USDA allow some discretion for State agencies to consider operational and environmental factors, which may vary by location. USDA also determined that providing discretion would avoid introducing complexity into the regulations and allow necessary flexibility to support successful implementation. USDA intends to provide additional guidance and technical assistance to support implementation of this provision.
Accordingly, this IFR adds a new § 225.6(b)(12) to require that the State agency must not deny a sponsor's application based solely on the sponsor's intent to provide a non-congregate meal service. The IFR also makes the following amendments to § 225.6(h):
• Amends Program regulations at § 225.6(h)(1)(i) to include conditional non-congregate sites.
• Adds a new § 225.6(h)(3) and (4) to include site application approval requirements that State agencies must ensure when evaluating the proposed site which will provide a non-congregate meal service and determining an “area with no congregate meal service.”
• Revises terminology used in § 225.6(h)(2) to clarify the applicability of regulations to both congregate and non-congregate meal services.
vi. Duration of Rural Designation
The Act authorized non-congregate meal service in “rural areas where no congregate meal service is available.” Currently, no effective period is established in statute, regulations, or guidance for rural designations. As discussed in section II. B. iv. of this rule, current Federal regulations do not require an experienced site to demonstrate it is rural as part of the site information sheets. However, USDA concluded that determining rurality is a necessary documentation submission, regardless of the level of site or sponsor experience, due to the significant effect of a rural designation under the non-congregate provision added by the Act. Therefore, this rule adds a new documentation requirement for experienced sites (discussed at section II. B. iv.) and establishes the frequency at which the site must re-establish its rural designation.
This rule codifies the requirement that Program sponsors re-determine their sites' rural designations every 5 years. Once a site is established as rural based on the rural definition in Program regulations at § 225.2, the rural status is effective for a period of 5 years from the date of determination. At the discretion of the State agency, redetermination prior to the 5-year period may be required, if the State agency determines that an area's rural status has changed significantly since the previous determination.
USDA evaluated the effective period for similar application documentation requirements (such as area eligibility) as well as the frequency in which the allowable rural data sources are updated. Using this information, USDA determined a streamlined approach to minimize administrative burden. Standards, classifications, and delineations of rural data sources allowed under summer 2023 and moving forward (see section II.A.ii.) are updated with each decennial census
and periodically based on annual census surveys. Although more frequent redeterminations may more accurately and timely capture changes to an area's rural status, particularly during periods that overlap with census years, USDA concludes that shorter effective periods for rural designation may be too burdensome and are unnecessary for State agencies and Program operators.
Accordingly, this rule adds language at § 225.6(g)(1)(iii) and (g)(2)(ii) to require new documentation of rural designation every 5 years, or earlier, if the State agency believes that an area's rural status has changed significantly since the previous determination.
vii. Clarifications to Existing Requirements: Free Meal Policy Statement, State-Sponsor Agreement, and Corrective Action Procedures
This rule clarifies existing requirements in §§ 225.6 and 225.11, which fall under the purview of the State agency. These clarifications reflect the provision of non-congregate meal service under the Program, specifically in response to the addition of the new site type, conditional non-congregate site, as defined under this rulemaking.
Program regulations at § 225.6 require that State agencies provide and obtain specific information regarding a sponsor's meal service sites. Regulations at § 225.6(f) require that as part of the free meal policy statement, sponsors must submit a nondiscrimination statement of their policy for serving meals to children. This rule clarifies that sponsors operating conditional non-congregate sites are exempt from including a statement that meals served are free at all sites. In addition, the rule clarifies that sponsors operating conditional non-congregate sites that charge separately for meals must also include specific eligibility information in the policy statement, and that each sponsor of a conditional non-congregate site must submit a copy of its hearing procedures with its application.
Furthermore, Program regulations at § 225.6(i) require that a sponsor approved for Program participation must enter into a written agreement with the State agency. Under the requirements in which all sponsors must agree to in writing, the rule clarifies that a sponsor of sites operating as conditional non-congregate sites are excepted from serving meals without cost to all children and may charge for meals served to children who do not meet the Program's income standards. These sponsors may claim reimbursement only for meals served to children who meet the Program's income standards. In addition, the rule clarifies that the requirement to maintain children on site while meals are consumed only applies for sponsors providing a congregate meal service. Finally, this rule revises the language at § 225.6(i) to reflect the definition of “termination for convenience” that will be proposed in
Serious Deficiency Process in the Child and Adult Care Food Program (CACFP) and the Summer Food Service Program (SFSP),
RIN # 0584-AE83. Program regulations at § 225.6(i) allow the State agency or sponsor to terminate the agreement at its convenience, for considerations unrelated to the sponsor's performance of Program responsibilities under the agreement. USDA is revising this language to clarify that the State agency or sponsor may terminate the agreement at its convenience,
upon mutual agreement, due to considerations unrelated to either party's performance of Program responsibilities under the agreement.
USDA will review comments received on this definition both through the proposed rule, as well as through this rulemaking, and may further revise this terminology as needed in future rulemaking.
Program regulations at § 225.11 require the State agency to use corrective action procedures to improve Program performance, such as investigations, denial of applications and termination of sponsors, meal service restrictions, meal disallowances, corrective action and termination of sites, and technical assistance for improved meal service. This rule clarifies that the serious deficiencies of the simultaneous service of more than one meal to any child and excessive instances of off-site meal consumption outlined in Program regulations at § 225.11 (c)(4)(iv) and (viii), respectively, are specific to congregate meal service operations. Also, as discussed in section II. B. v. and section II. E. i. of this rule, non-congregate meals must be served according to the number and type of meals allowed for the site type at 7 CFR 225.16(b)(3), and sponsors must implement an organized and supervised system which prevents overlap between meal services to reasonably ensure children are not receiving more than the daily maximum allowance of meals. Therefore, USDA is adding a new Program violation that is specific to non-congregate meal service to the list outlined at § 225.11(c)(4). Under this IFR, for non-congregate meal service operations, distributing more than the daily meal limit when multi-day service is used is considered a serious deficiency which is grounds for disapproval of applications and for termination when the violation is recorded at a significant proportion of the sponsor's sites.
In addition, Program regulations at § 225.11(d) require that, with the exception of residential camps, the State agency must restrict to one meal service per day any site determined to be in violation of the time restrictions for meal service set forth at § 225.16(c) when corrective action is not taken within a reasonable time, and all sites under a sponsor if more than 20 percent of the sponsor's sites are determined to be in violation of the time restrictions set. The regulations also require the State agency to make a reasonable effort to locate another source of meal service for these children if this action results in children not receiving meals under the Program. Given the exceptions to the meal service time requirements for non-congregate meal service provided through this rulemaking (see section II. E.), and that restricting non-congregate sites to one meal service per day could impact children served by that site, this rule clarifies that non-congregate meal service sites are also excepted from the meal service restrictions at § 225.11(d).
Accordingly, this rule amends § 225.6(f) to clarify nondiscrimination and hearing procedures statement requirements for non-congregate meal service. Additionally, this rule amends § 225.6(i) introductory text, (i)(4), (i)(7)(i) and (ii), and (i)(15) to clarify State-sponsor agreement requirements for sites that provide non-congregate meal service. Lastly, this rule amends § 225.11(c)(4) and (d) to clarify corrective action procedures as they relate to congregate and non-congregate meal service.
C. Requirements for Sponsor Participation
i. Sponsor Eligibility
Program regulations at § 225.14 outline requirements for sponsor participation. The requirements include application procedures, sponsor eligibility, and demonstration of administrative and financial ability to manage a food service effectively. Sponsor eligibility is limited to public or private nonprofit SFAs; public or private nonprofit residential summer camps; units of local, municipal, county, Tribal, or State governments; public or private nonprofit colleges or universities which are currently participating in the National Youth Sports Program; and private nonprofit organizations as defined in § 225.2 and outlined at § 225.14(b). Additionally, Program regulations at § 225.14(d) provide requirements that are specific to
sponsor types, such as camps. The Act requires State agencies to encourage participating service institutions in rural areas with no congregate meal service to provide non-congregate meals as appropriate.
Summer 2023 guidance allowed any service institution that met the definition of sponsor in Program regulations at § 225.2 to participate in the non-congregate meal service option with State agency approval, including sponsors new to the Program. Camps were also allowed to participate, though guidance acknowledged that regulations require camps to provide a regularly scheduled food service as part of an organized program for enrolled children, and such programming is generally understood to be congregate in nature. Furthermore, Summer 2023 guidance instructed that to participate, experienced sponsors must be considered in “good standing.” However, sponsors that have experienced serious deficiencies in prior years may be approved to operate non-congregate meal service if, to the satisfaction of the State agency, all appropriate corrective actions to prevent recurrence of the deficiencies were taken as outlined in Program regulations at § 225.6(b)(9).
USDA received stakeholder feedback that expressed integrity concerns related to non-congregate meal service provided by community sponsors in recent years, most notably during non-congregate meal service operations provided during the COVID-19 pandemic. Several State agencies expressed more confidence in SFAs' ability to operate non-congregate meal service as compared to other program sponsors due to their familiarity with NSLP and SBP meal service operations, as well as potential greater logistical capacity. One stakeholder commented that in their State only SFA sponsors were allowed to operate non-congregate meal service. However, three State agencies and four additional stakeholders emphasized the need to maintain access when considering important integrity measures. Finally, USDA did not receive direct feedback on camp (as defined at § 225.2) participation from stakeholders. A limited number of State agencies reported that they did not include camps in non-congregate service this summer due to their interpretation that such sites are inherently congregate in nature.
Program sponsors who provide year-round meal service have consistent program operations and thus are more readily able to demonstrate administrative capabilities than sponsors who only operate during the summer period. Although several stakeholders expressed concern for certain sponsor types operating a non-congregate meal service, USDA concludes that all service institutions listed under requirements at § 225.14(b) are eligible to sponsor the Program, including providing congregate and non-congregate meal services, and thus, this rulemaking establishes no restrictions on providing non-congregate meal service based on sponsor type. This decision is based on the need to maintain program access and support the stipulation that all sponsors considered in good standing and who meet all other program requirements should have the opportunity to provide non-congregate meal service. This decision also pertains to public or nonprofit private residential summer camps. As defined in 7 CFR 225.2, camps must provide a regularly scheduled food service as part of an organized program for enrolled children, and as mentioned above, such programming is generally understood to be congregate in nature. However, USDA recognizes that there may be situations where it makes sense to allow a camp to operate a non-congregate meal service for their enrolled children, such as service of the third meal if a congregate meal service is not provided, or meals provided to be consumed over the weekend while an enrolled child is in an active camp session, but during which there are no congregate meals provided. USDA encourages State agencies to work with potential sponsors of all types to determine how their proposed site(s) and operations can best serve communities in identified rural areas that could benefit the most from the provision of non-congregate meals and fill in gaps in service.
Accordingly, this rule makes no regulatory changes to existing sponsor eligibility requirements § 225.14(b), effectively allowing all service institutions listed under requirements at § 225.14(b) to be eligible to sponsor the Program, including operating both congregate and non-congregate meal services. Although USDA is not making changes to sponsor eligibility, this rule limits some meal service options to sponsors in good standing and retains the meal service option of offer versus serve to SFAs, as discussed in section II. E. of this rule.
i. Clarifications to Existing Requirements: General Requirements at § 225.14(c)
Program regulations at § 225.14(c)(3) require that, to be eligible to participate in the SFSP, applicant sponsors must conduct a regularly scheduled food service for children in areas in which poor economic conditions exist or must qualify as a camp. With the establishment of the non-congregate option in eligible rural areas, conditional non-congregate sites, as defined under this rulemaking, can also provide a regularly scheduled food service for children in non-area eligible locations.
Accordingly, this rule amends § 225.14(c)(3) to clarify this qualification for applicant sponsors which will operate a conditional non-congregate site.
D. Responsibilities of Sponsors
i. Identification and Determination of Eligible Children
As discussed in the background section of this rule, for summer 2023 non-congregate meal service operations, the Act allowed State agencies to use service models developed for demonstration projects carried out under section 749(g) of the Agriculture, Rural Development, Food and Drug Administration, and Related Agencies Appropriations Act, 2010 (Pub. L. 111-80; 123 Stat. 2132). Summer 2023 guidance allowed home delivery and meal pick-up options as provided in past demonstrations. The home delivery model allowed for non-congregate meals to be delivered directly to homes of participants. Program guidance required that sponsors approved to provide non-congregate meal service through home delivery must be able to identify and invite households of eligible children to participate in the meal delivery service. The guidance also required that sponsors obtain written consent from the eligible child's parent or guardian that the household wants to receive delivered meals. Written consent could include hard copy, email, or other electronic means of communication. Furthermore, sponsors were required to confirm the household's current contact information and the number of eligible children in the household to ensure the correct number of meals were delivered to the correct location.
In addition, Summer 2023 Program guidance required non-SFA sponsors that planned to obtain individual children's program eligibility information through free and reduced price school meal eligibility data to enter into a written agreement or Memorandum of Understanding (MOU) with an SFA. However, non-SFA sponsors could also use the household application procedures outlined in Program regulations at § 225.15(f) to identify eligible children in non-area eligible areas instead of entering into a
written agreement or MOU with the local SFA. Lastly, sponsors were required to protect the confidentiality of participants and their households throughout the process in accordance with confidentiality and disclosure provisions in the NSLA and Program regulations at § 225.15(f) through (l). These home delivery requirements were also implemented during non-congregate meal service during COVID-19 operations.
In the listening sessions held to inform this rule, stakeholders shared challenges with the home delivery model when providing non-congregate meal service, particularly, concerns with delivering Program meals when participants are not home. USDA heard from stakeholders that communication with participating families was imperative to home delivery operations. Several stakeholders explained that obtaining delivery signatures or asking parents to provide delivery instructions worked well in their State. Another stakeholder suggested text notifications or reminders to participating families about meal deliveries would be helpful to confirm someone was home to receive the meals, and thus ensure a smoother delivery and reduced food waste. In addition, several stakeholders reported the importance of protecting student data by requiring a MOU to receive student eligibility data from a local SFA. One stakeholder requested USDA allow non-profit sponsors to provide home delivery without requiring an MOU with an SFA, and that limiting home delivery to students identified through an MOU with an SFA excludes students who are homeschooled or in virtual school as well as families with children not yet in school. Finally, stakeholders also reported concerns with overt identification of those children who are eligible to receive free and reduced price meals when providing home delivered meals in non-area eligible areas.
USDA agrees with stakeholders that communication with participating families and protecting participants' right to confidentiality is imperative to Program integrity and operations. Therefore, through this rulemaking, USDA is codifying summer 2023 guidance for obtaining written parental consent for home delivery. This rule requires sponsors that provide meals directly to children's homes to obtain written parental consent prior to providing home delivered meals to children. While USDA sought to minimize burden on program operators and participants wherever feasible, the Agency determined that obtaining written consent prior to delivering meals to private residences is the only reasonable approach for setting up delivery service with basic integrity safeguards. Establishing both the presence of children in each household as well as the household's consent to receive meals is critical to ensuring Program integrity, and preventing any unnecessary financial burden, time burden, and potential for food waste, as well as possible convenience for households. However, USDA appreciates that up-front time and resource investment associated with obtaining consent and up-to-date information from households, and seeks comments on effective strategies to streamline this process and ensure validity of household information.
USDA is also codifying the requirement that non-SFA sponsors must enter into a written agreement or MOU with the State agency or local SFA to receive student data for identification and eligibility determinations. Program regulations at § 225.15(k) require that the State agency or sponsor, as appropriate, should have a written agreement or MOU with programs or individuals receiving eligibility information, prior to disclosing children's free and reduced price meal eligibility information. The agreement or MOU should include information like that required for disclosures to Medicaid and the Children's Health Insurance Program (CHIP) specified in Program regulations at § 225.15(k)(2). Sponsors are responsible for the proper handling and storage of student data with applicable SFAs in accordance with confidentiality and disclosure provisions in the NSLA and SFSP regulations (§ 225.15(f) through (l)). Program sponsors should consider safeguards to protect participant confidentiality prior to implementation of the non-congregate meal service option. USDA reiterates that sponsors are not limited to using school data or providing meals to students identified through school data. Both congregate and non-congregate Program sponsors may use household applications or other means, such as household's receipt of SNAP, TANIF, and FDPIR benefits (as described in 7 CFR 225.15(f)(3)) to identify and notify children in the area of the option to receive meal deliveries, including students who are homeschooled or in virtual school as well as families with children not yet in school. Requirements regarding applications for free Program meals outlined at § 225.15(f) must be followed when using household applications to determine the eligibility of children.
Accordingly, this rule adds new §§ 225.14(d)(6) and 225.16(b)(5)(i) to require sponsors operating a non-congregate meal service which delivers meals directly to children's homes to obtain written parental consent prior to providing meals to the children. In addition, this rule adds a new § 225.14(d)(8) to establish the requirement that non-SFA sponsors must enter into a written agreement or MOU with the State agency or local SFA if they wish to receive student data for identification and eligibility determination purposes.
i. Meal Ordering and Second Meals
Program regulations at § 225.15(b)(4) allow sponsors to claim reimbursement for several second meals which does not exceed 2 percent of the number of first meals served to children for each meal type (
i.e.,
breakfasts, lunches, snacks, or suppers) during the claiming period. This option is provided in recognition of the fluctuation in participation during summer operations which makes forecasting difficult. The State agency must disallow all claims for second meals if it determines that the sponsor failed to plan and prepare or order meals with the objective of providing only one meal per child at each meal service. Second meals must be served only after all participating children at the site's meal service have been served a meal. Summer 2023 Program policy only allowed second meals to be claimed at congregate meal sites. In this rule, USDA maintains its determination that the purpose and design of the non-congregate meal service option does not support the basis for claiming second meals at non-congregate meal service sites.
Accordingly, this rule amends Program regulations at § 225.15(b)(4) to limit reimbursement of second meals to congregate meal service. State agencies must disallow claims if it determines sponsors served second meals as part of a non-congregate meal service.
i. Requirements Specific to Sponsors Operating Conditional Non-Congregate Sites
As stated in the section II. A. of this rule, USDA is defining conditional non-congregate sites under this rulemaking and clarifying applicable program requirements. This section describes the changes and clarifications USDA is making for this new site type as it relates to Sponsor responsibilities.
1. Certification To Collect Information on Participant Eligibility
As is discussed throughout this section of the rule, sponsors of conditional non-congregate sites may only claim meals served to children who meet the Program's income standards. Program regulations at § 225.14(d) provide requirements for specific sponsor types, such as sponsors that operate camp sites, and States that those sponsor types must certify that they will collect information on children's Program eligibility to support their claim for reimbursement. Accordingly, this IFR adds a new § 225.14(d)(7) to clarify that if the sponsor operates a conditional non-congregate site, it must certify that it will collect information on participants' eligibility to support its claim for reimbursement.
2. Notification to the Community
Summer 2023 guidance required sponsors of non-congregate meal service sites to announce the availability of free meals in the local media as outlined in Program regulations at § 225.15(e). Program regulations at § 225.15(e) require sponsors operating the SFSP, including sponsors of open sites, camps, and closed enrolled sites, to annually announce the availability of free meals in the media serving the area from which the sponsor draws its attendance. Sponsors of camps and closed enrolled sites must notify participants of the availability of free meals and if a free meal application is needed. The regulations specify that for sites that use free meal applications to determine individual eligibility, the notification to the community must include the Program's income eligibility standards, a statement explaining that certain children (such as children in households that receive SNAP) are automatically eligible to receive free meal benefits at eligible Program sites, and a statement that meals are available without regard to race, color, national origin, sex, age, or disability. USDA reminds State agencies and program operators that, despite the introduction of new SFSP regulations in this IFR, the requirement to provide reasonable modifications to accommodate participants with disabilities remains unchanged. With the addition of the new conditional non-congregate site type to Program regulations, USDA is amending Program requirements at § 225.15(e) to clarify that sponsors of conditional non-congregate sites must notify participants of the availability of free meals and if a free meal application is needed, as with sponsors of camps and closed enrolled sites. Program regulations at § 225.15(e) continue to apply to sponsors regardless of the meal service type provided.
Accordingly, this rule amends § 225.15(e) to clarify notification requirements for sponsors of conditional non-congregate sites. This IFR also revises the language at § 225.15(e) to reflect the current federally protected bases for the CNPs, as discussed in section II. H. of this rule.
E. Non-Congregate Meal Service
i. Non-Congregate Meal Service Requirements
Under the SFSP, meals which may be served to children are breakfast, lunch, supper, and snacks. A sponsor may claim reimbursement only for the types of meals the sponsor is approved to serve under its agreement with the State agency. Sponsors' food service sites may be approved to serve any combination of two meals or one meal and one snack during each day of operation, except that lunch and supper cannot be served on the same day. In addition, sites that serve meals primarily to migrant children (commonly referred to as “migrant sites” under the Program) or camps may serve up to three meals (breakfast, lunch, and supper), or two meals and one snack, during each day of operation. A sponsor may only be reimbursed for meals that meet the meal pattern requirements, adhere to State and local health, safety, and sanitation requirements, and which are served during the approved meal service times, among other meal service requirements at § 225.16. The Act added additional provisions specific to non-congregate feeding, which USDA is codifying into regulations through this rulemaking.
The NSLA was amended to allow States to provide program meals under the SFSP for non-congregate consumption in a rural area with no congregate meal service, as determined by the Secretary. In addition, under the new non-congregate provision, meals may only be claimed when served to children in an area in which poor economic conditions exist, or, in an area that is not an area in which poor economic conditions exist, if the child is determined to be eligible for free or reduced price school meals under the NSLP or the SBP. Finally, as with any meal served for congregate consumption, non-congregate meals must be served according to the number and type of meals allowed for the site type, and must meet all applicable State, Tribal, and local health, safety, and sanitation standards, and the nutritional standards prescribed under the Program meal pattern.
Accordingly, this rule adds a new § 225.16(b)(5) to codify the additional meal service requirements for non-congregate meals, in accordance with the statute. In addition, the rule reiterates pertinent existing requirements that continue to apply to non-congregate meal service, including restrictions on the number and type of meals served per operational day, and provisions that sponsors must only be approved to operate if they have the administrative and operational capability to do so. This rule makes further changes to the meal service requirements in § 225.16, which are described in this section of the preamble.
ii. Non-Congregate Meal Service Options
Under summer 2023 guidance, USDA allowed meal service options specific to non-congregate feeding including, but not limited to: multi-day meal issuance; parent or guardian meal pick-up; and bulk meal components. Based on stakeholder feedback, experience gained under COVID-19 operations, and summer 2023 implementation, USDA is codifying the use of these three specified options. The rule also includes several integrity safeguards, as well as parameters around State agency approval to use these options through this rulemaking. First, these meal service options may only be used by sponsors in good standing (good standing is discussed in section II. A. vi. of this rule), as determined by the State agency. Furthermore, a State agency may prohibit sponsors from using these options only on a case-by-case basis and without regard to sponsor type if the State agency determines that a sponsor does not have the capability to operate or oversee non-congregate meal services at their sites. Finally, a State agency's decision to prohibit a sponsor from using an option is not an appealable action.
This flexible approach promotes integrity while ensuring that sponsors who have demonstrated the administrative capability to carry out these options, are able to use these options as part of a non-congregate meal service to meet the needs of the children in their area. Maintaining such access is critical for rural areas which may benefit from the use of these options where children would otherwise have to travel long distances to receive a meal.
USDA understands that State agencies are best positioned to determine how sponsors may conduct non-congregate meal service to provide Program access
for eligible children while maintaining Program accountability. USDA encourages State agencies and sponsors to implement safeguards to ensure food safety and Program integrity. State agencies should include any additional statewide requirements and operational safeguards as part of the State's plan to use non-congregate meal service, as required for MAPs under this rulemaking (see section II. B. ii. of this rule).
Accordingly, this IFR adds a new § 225.16(i) to establish the use of these options for non-congregate meal service. A discussion of each of the provisions, stakeholder feedback, and USDA's actions and rationale for each of these options is included below.
1. Multi-Day Meal Issuance
Program regulations under part 225 reflect the long-standing congregate meal service requirements of the NSLA. Provisions of the NSLA at 42 U.S.C. 1753(b)(1)(A) and 1761(a)(1)(D) and Program regulations at § 225.6(i)(15) require Program meals to be served in a congregate setting and consumed by participants on site in order to be eligible for reimbursement. The NSLA further requires at 42 U.S.C. 1761(b)(2) that a service institution may only serve up to two meals (or one snack and one meal) per day, per child (except for camps and migrant sites which may serve up to three meals (or two meals and one snack) per day, per child). However, the Act added section 13(a)(13)(E) [42 U.S.C. 1761(a)(13)(E)] to the NSLA which provides the option to provide multi-day meal distribution at rural non-congregate sites. Specifically, it allows that over a 10-calendar day period, the number of reimbursable non-congregate meals provided to a child does not exceed the number of meals that could be provided over a 10-calendar day period under congregate feeding. Under summer 2023 guidance, USDA did not establish further Federal limitations and allowed State agencies, at their discretion, to approve sponsors for multi-day distribution of meals that could be provided over a 10-calendar day period, consistent with the statute.
During COVID-19 operations, about 30 percent of State agencies reported that more than half of Program sponsors provided 2 to 3 days' worth of meals at one time. In addition, about one fourth of State agencies reported that more than half of these local Program sponsors provided a full week of meals at one time.
6
Through the listening sessions, USDA received varied feedback from stakeholders regarding the multi-day meal issuance option when used for non-congregate meal service during the COVID-19 pandemic. Many of the comments focused on the difficulty of balancing Program integrity with Program access. Some stakeholders, including a few State agencies, stated that multi-day meal issuance is an essential method of providing non-congregate meals in rural areas and praised the benefits to the community, such as the ability to provide children meals for the weekend. Though, stakeholders expressed concerns about food safety or food quality when multiple days of meals are provided at one time, as well as providers' and households' storage capabilities. Many State agencies reported limiting multi-day meal issuance to no more than 5- or 7-days during summer 2023, while other State agencies reported prohibiting multi-day meal issuance for all sponsors due to operational challenges experienced during the COVID-19 pandemic. Some State agencies noted that they permitted the maximum number of days' worth of meals allowed (
i.e.,
10 calendar days) when sponsors provided a valid rationale or a food safety plan. Acknowledging some State agencies' concerns with multi-day meal issuance, one stakeholder suggested USDA provide State agencies a tiered system based on a risk assessment to determine the number of days' worth of meals that a sponsor or site can distribute at one time. This tiered system could include years of operation (total and utilizing non-congregate service), prior review findings, degree of remoteness of the service area, and presence of other sites in the vicinity.
6
Severn, Veronica, Liana Washburn, Rachel Frisk, and Kevin Conway. (2023). Child Nutrition Program Operations During the COVID-19 Pandemic, March through September 2020: School Meals Operations Study (SMO) Year 1 Report. Prepared by Mathematica, Contract No. 12319819A0009/12319819F0162. Alexandria, VA: U.S. Department of Agriculture, Food and Nutrition Service, Office of Policy Support.
This rule codifies into regulations the provision at section 13(a)(13)(E) of the NSLA, as amended by the Act, which requires that the number of reimbursable meals provided to a child does not exceed the number of meals that could be provided over a 10-calendar day period. However, the State agency may establish a shorter calendar day period on a case-by-case basis for an individual sponsor, considering possible concerns regarding a sponsor's ability to ensure Program integrity, food safety, and meal quality. For State agency approval to operate sites that provide multi-day meal service, sponsors opting to distribute multi-day meals must have procedures in place that document, to a reasonable extent, that the proper number of meals are distributed to each eligible child, these procedures must be included in the sponsor's application to participate in the Program (as discussed in section II.B.iv.) and may also impose additional requirements, at the State's discretion. As noted above, this rule further requires that multi-day meal issuance may only be used by Program sponsors in good standing, and that State agencies may only prohibit sponsors from using these options on a case-by-case basis without regard to sponsor type, if the State agency determines that a sponsor does not have the capability to effectively operate or oversee non-congregate meal services at their sites. USDA encourages State agencies, when considering the imposition of additional multi-day meal issuance requirements, to also consider the potential challenges for participants to access sites (which could include the effort required for families who reside in remote areas to travel to pick-up sites more than once per week).
Accordingly, this rule codifies the option for multi-day meal issuance by adding a new § 225.16(i)(1) to allow State agency approved sponsors to operate multi-day meal service. Sponsors opting to distribute multi-day meals must ensure through documented procedures, approved by their State agency, that the proper number of meals are distributed to each eligible child.
2. Parent or Guardian Meal Pick-Up
Prior to the Act, provisions under the NSLA at 42 U.S.C. 1761(f)(3) and Program regulations at § 225.9(d)(7) required that meals must be served to eligible children. These requirements ensured that Program sponsors provided meals directly to children who participate in the SFSP. As previously mentioned, the Act authorized USDA to issue guidance for summer 2023 rural non-congregate meal service. Through that guidance, USDA allowed the option for Program meals to be distributed to parents or guardians to take home to children and for non-congregate meals to be delivered to participants' homes. During the COVID-19 PHE, USDA used temporary legislative authority to grant a nationwide waiver, allowing sponsors to set up meal service in which parents or guardians could pick up meals for their children, without requiring the child to be present. This option proved to be a useful tool for ensuring children's access to Program meals in a non-congregate setting. USDA established guidance that required Program sponsors opting to distribute
meals to parents or guardians to maintain accountability and Program integrity through processes that ensured meals were only distributed to parents or guardians of eligible children and that duplicate meals were not provided.
During COVID-19 meal service operations, Program sponsors that used the parent and guardian pick-up waiver were required to ensure that duplicate meals were not provided to any child and that meals were distributed only to parents and guardians of children. To ensure this requirement was met, Program sponsors requested that parents and guardians provide their children's names or other identifying information when picking up meals.
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Similar to multi-day meal issuance, during the listening sessions, stakeholders provided mixed feedback on this aspect of operations. While some stakeholders raised integrity concerns with the possibility of serving meals to non-participants and cited operational challenges during the pandemic, others expressed strong support for the option to allow a parent or guardian to pick up meals without children present. These respondents in support of the provision stated that the flexibility to provide or deliver a meal when children are not present is essential to both the purpose and efficacy of non-congregate service and found that this option was successfully implemented during the COVID-19 PHE. For example, multiple stakeholders reported the difficulty that many families in rural communities experience when required to commute long distances between work and home, noting that it is often more convenient for parents to pick up meals on their commute. On the other hand, some stakeholders reported concerns with oversight of unallowable or duplicate meal distribution to individuals on behalf of children. However, 13 non-State agency stakeholders suggested that sponsors know their rural communities (
e.g.,
who has children and who does not) well enough to prevent individuals with the intent to defraud from receiving Program meals. USDA appreciates the attention paid by Program operators to this aspect of operations during the implementation of non-congregate meal service and recognizes the importance of ensuring Program integrity while providing Program access to children who reside in rural areas.
This rule codifies the option for sponsors in good standing to allow parents or guardians to pick up Program meals on behalf of eligible children. As noted above, State agencies have the discretion on a case-by-case basis to prohibit sponsors, regardless of sponsor type, from using this option if the State agency determines that the sponsor cannot adequately ensure these requirements are met. Program integrity is vital to the success of non-congregate meal service; therefore, for State agency approval to operate sites that provide meal pick-up, sponsors opting to distribute meals to parents or guardians must have procedures in place that document, to a reasonable extent, that meals are only distributed to parents or guardians of eligible children, and that duplicate meals are not distributed to any child. These procedures must be included in the sponsor's application to participate in the Program. Examples of documented procedures may include, but are not limited to, using sign-in sheets (including the use of technology-based solutions which may streamline program participation and monitoring), or with State agency approval, other methods which result in accurate recording completed by Program sponsors that want to implement parent or guardian meal pick-up for children. State agencies may establish specific criteria or standards for what should be included in these procedures.
Although State agencies reported the prior use of these integrity measures among some sponsors during COVID-19 operations, USDA acknowledges that this type of meal duplication prevention effort may be new to some Program operators with the addition of the permanent non-congregate meal service option. USDA seeks to ensure that non-congregate meals are accessible to all eligible children while maintaining Program accountability and integrity. Permanent non-congregate meal service is a distinct approach to providing summer meals to children compared to the congregate meal service model, and thus, presents its own set of risks that Program sponsors must take reasonable steps to mitigate in order to maintain Program accountability and integrity.
USDA seeks public comments on effective approaches for balancing integrity and access priorities, while offering parent or guardian meal pick-up flexibility during summer non-congregate service. Commenters are specifically encouraged to provide input on:
• Successful and recommended procedures (ideally those informed by pandemic or summer 2023 implementation experience), for ensuring to a reasonable extent that meals are only distributed to parents or guardians of eligible children;
• Criteria, standards, or other requirements that may be established by State agencies to ensure consistency in the approval of documented procedures to be implemented by sponsors;
• Minimizing burden on States, sponsors, and families while maintaining the integrity standards of the Program;
• The frequency and type of program integrity incidents witnessed during unannounced reviews, technical assistance visits, and scheduled reviews; and
• The desirability or appropriateness of USDA to establish further integrity controls in relation to parent or guardian meal pick-up through future guidance and/or rulemaking (including but not limited to restrictions based on sponsor experience, sponsor type, or site type).
Accordingly, this rule adds § 225.16(i)(2) to allow State agency approved sponsors to distribute meals to parents or guardians to provide to their children. Sponsors opting to distribute meals to parents or guardians must ensure through documented procedures, approved by their State agency, that meals are only distributed to parents or guardians of eligible children, and that duplicate meals are not distributed to any child.
3. Bulk Meal Items
Summer 2023 implementation guidance permitted State agencies to approve self-preparation sites to distribute bulk foods to eligible children to provide multiple days' worth of meals for multi-day meal issuance, if the foods provided met the component and quantity requirements for each meal service type (
i.e.,
breakfast, lunch/supper, snack). Additionally, the guidance required:
• Foods to be in the proper amounts for each reimbursable meal being served;
• Foods to be clearly identifiable as making up reimbursable meals;
• Menus to be provided with directions indicating which items are to be used for each meal as well as the correct portion sizes; and
• Minimal preparation is needed, including a prohibition on foods provided as ingredients for recipes that require chopping, mixing, or baking.
Through additional guidance, USDA also encouraged sponsors to consider several factors such as food safety risks, access to kitchen appliances and cooking tools, and availability of the parent or guardian to assist with meal preparation. USDA received varied feedback from stakeholders regarding bulk meal item issuance during the listening sessions. Similar to multi-day meal issuance, many comments focused on the difficulty of balancing Program
integrity with Program access. Stakeholders also expressed concerns about food safety or food quality, providers' and households' storage capabilities, the usability of bulk food items, and the challenges families experience putting the items together to make the meal. Many State agencies reported limiting the use of bulk meal items, while some State agencies reported prohibiting bulk foods entirely due to operational challenges experienced during the COVID-19 pandemic, such as the difficulty of food usage before spoilage when multiple days' worth of meals were provided at one time. Some State agencies noted that they allowed bulk meal item distribution only when provided with a food safety plan. Though several stakeholders expressed support for this flexibility, citing reasons including that it gives parents an opportunity to prepare and serve meals directly to their children, reduces packing waste, and potentially supports local economies and farmers.
This rule codifies the option for self-preparation sponsors approved to operate non-congregate meal service to provide bulk foods that meet the meal pattern requirements for each meal service type with added safeguards to ensure Program integrity and the health and safety of children while promoting access for rural areas. As discussed in section II. E. ii. 1. of this rulemaking, about 30 percent of State agencies reported that more than half of Program sponsors provided 2 to 3 days' worth of meals at one time. In addition, about one fourth of State agencies reported that more than half of these local Program sponsors provided a full week of meals at a time during COVID-19 operations. Since multi-day meal issuance and bulk food distribution flexibilities work collectively additional restrictions around this pairing will be codified through this rulemaking. State agencies must determine whether a sponsor's proposed distribution of bulk food items meets State and local health, safety, and sanitation standards. In addition, when a sponsor is approved to use this option, the sponsor must ensure that:
• Required food components for each reimbursable meal served meet the meal pattern requirements at § 225.16(d);
• All food items that contribute to a reimbursable meal are clearly identifiable;
• Menus are provided and clearly indicate the food items and portion sizes for each reimbursable meal;
• Food preparation, such as heating or warming, is minimal. With State agency and FNSRO approval, sponsors may offer food items that would require further preparation in circumstances where distribution of such food items is justified and appropriate; and
• The maximum number of reimbursable meals provided to a child does not exceed the number of meals that could be provided over a 5-calendar day period (or less if the State agency established a shorter calendar day period on a case-by-case basis). However, a State agency can approve sponsors to provide up to 10 days' worth of bulk meals, also on a case-by-case basis, in appropriate circumstances such as extremely remote areas where more frequent distribution is impracticable. The approved time period may not exceed the time period for which the sponsor is approved for multi-day meal issuance.
As noted above, under this rule, USDA further codifies that bulk meal service may only be used by sponsors in good standing. State agencies have the discretion to limit bulk meal service for Program sponsors on a case-by-case basis. Additionally, State agencies can prohibit Program sponsors from using this flexibility, on a case-by-case basis without regard to sponsor type, if the State agency determines that a sponsor does not have the capability to operate or oversee non-congregate meal services at their sites, such as if the State agency determines that the Program sponsor cannot adequately ensure the proper number of meals are distributed to each eligible child.
USDA encourages State agencies to place reasonable limits on the food items provided or types of food items provided as part of bulk meal service, dependent on sponsor experience. For this reason, USDA is seeking comments on best practices for providing bulk food menu items to inform future rulemaking.
Accordingly, this rule codifies the option to provide bulk meal items by adding a new § 225.16(i)(3).
iii. Offer Versus Serve
The NSLA in section 13(f)(7) [42 U.S.C. 1761(f)(7)] and Program regulations at § 225.16(f)(1)(ii) provide that an SFA participating as a service institution may permit a child to refuse one or more items of a meal that the child does not intend to eat, under rules that the school uses for school meals under Program regulations in parts 210 and 220 (7 CFR 210.10(e) and 220.8(e), respectively). Since section 13(f)(7) of the NSLA only authorizes SFAs to use OVS, non-SFA sponsoring organizations are not permitted to use OVS.
For summer 2023, USDA issued guidance that allowed SFA sponsors operating non-congregate meal service to utilize OVS with State agency approval, as long as all meal components or food items were offered, and all participants had the opportunity to select a complete reimbursable meal. While OVS is potentially a useful tool for reducing food waste, many stakeholders expressed concerns about program integrity and meal quality associated with OVS when meals were mostly pre-packaged. Several State agencies reported observing improper implementation of OVS during COVID, stating that some Program sponsors used OVS exclusively for the milk component instead of offering any meal components or items as required in SFSP regulations § 225.16(f)(1)(ii). However, the goals of OVS are to simplify Program administration and reduce food waste and costs while maintaining the nutritional integrity of the SFSP meal that is served. Therefore, USDA reminds State agencies and SFA sponsors that when implementing OVS, a child or parent must be able to decline to accept any component offered.
Therefore, under this rulemaking, State agencies may only permit SFAs to operate OVS for non-congregate meal service as outlined in section 13(f)(7) of the NSLA and at Program regulations § 225.16(f)(1(ii). USDA continues to limit OVS to SFA sponsors, who are experienced with OVS in the NSLP, to remain consistent with the statutory requirements of the NSLA and to promote Program integrity. USDA encourages SFAs that intend to use OVS to carefully consider how to best implement this flexibility while ensuring that all meal service requirements are met as outlined in § 225.16(f)(1)(2), and under parts 210 and 220 at §§ 210.10(e) and 220.8(e), respectively. Some possible strategies for ensuring Program integrity include providing a buffet style meal pick-up service or utilizing an online ordering system where children can choose their SFSP meal items prior to meal pick-up or delivery.
Accordingly, this rule does not make further changes to existing regulations § 225.16(f)(1)(ii), effectively allowing SFAs to use OVS when providing non-congregate meal service.
iv. Clarifications To Existing Meal Service Requirements—Meal Service Times and Offsite Consumption of Food Items
Meal Service Times
Program regulations at § 225.16(c) require meals served in the SFSP to
follow specific time requirements. Meal service times must be established by sponsors for each site, included in the sponsor's application, and approved by the State agency. Meal service time requirements also specify that breakfast meals be served at or close to the beginning of a child's day; all sites except residential camps must start the next meal service at least one hour after the end of the previous meal or snack; and meals served outside of the approved meal service times are not eligible for reimbursement. In addition, meal service requirements at § 225.16(c) provide instructions for meals not prepared on site. Specifically, meal deliveries must arrive before the approved meal service time and meals must be delivered within one hour of the start of the meal service if the site does not have adequate storage to hold hot or cold meals at the temperatures required by State or local health regulations.
USDA determined that some meal service time requirements continued to apply under the summer 2023 guidance. The guidance instructed that meal service times must be:
• Established for each site;
• Included in the sponsor's application and approved by the State agency; and
• Supported through State agency approved pick-up schedules or delivery plans with designated times for distribution.
The guidance also required that the State agency must approve any changes in meal service times. Finally, sponsors offering a non-congregate meal service were not required to serve breakfast in the morning or provide one hour between the end of one meal service and the start of the next.
Stakeholders did not provide feedback on meal service time requirements during listening sessions. However, USDA maintains that some meal service time requirements are necessary to provide sufficient control at the State agency and sponsor levels to allow for planned meal services that meet the needs of the community, consistent with the summer 2023 guidance. Therefore, through this rulemaking, USDA is codifying the summer 2023 guidance on meal service time restrictions for non-congregate meal service.
Accordingly, this rule adds a new § 225.16(b)(5)(iii) to establish that non-congregate meal service is subject to the time restrictions for meal service at § 225.16(c)(1), (4), and (5). This rule also amends § 225.16(c)(2), (3) and (6) to clarify that non-congregate meal service is exempt from requiring that breakfast must be served at or close to the beginning of the child's day, that one hour must elapse between meal services, and that meals not prepared on site must be delivered within one hour of the approved meal service time for congregate meal service. Lastly, the rule makes further changes to the requirements under meal service times in accordance with monitoring requirements, as discussed in section II.F.i.b. of this rulemaking.
Offsite Consumption of Food Items
Program regulations at § 225.16(h) allow sponsors to permit a child to take one fruit, vegetable, or grain item off-site for later consumption without prior State agency approval if all applicable State and local health, safety, and sanitation standards are met. Sponsors should only allow an item to be taken off-site if the site has adequate staffing to properly administer and monitor the site. A State agency may prohibit individual sponsors on a case-by-case basis from using this option if the State agency determines that the sponsor's ability to provide adequate oversight is in question. The State agency's decision to prohibit a sponsor from utilizing this option is not an appealable action. With the establishment of the non-congregate option in eligible rural areas and for meals served to eligible children in non-rural areas, this option only applies for congregate meal service.
Accordingly, this rule amends § 225.16(h) to clarify that the provisional flexibility to allow children to take specific food items for off-site consumption only applies to congregate meal service.
F. Monitoring
Under the Act, the authorization of rural non-congregate meal service in SFSP expanded meal service options for participating sponsors and sites. This action changes meal service operations at sites that will provide non-congregate meals and thus requires compliance with new regulatory requirements. By conducting reviews of sponsors and sites, State agencies maintain oversight of Program compliance; sponsors are also responsible for ensuring that their sites correctly adhere to Program requirements.
Summer 2023 guidance provided that all existing monitoring requirements for State agencies and sponsors apply to non-congregate sponsors and sites. This included pre-approval visits, sponsor and site reviews, follow-up reviews, meal preparation facility review by State agencies as required in Program regulations at § 225.7, and site visits and reviews conducted by sponsors as required in Program regulations at § 225.15.
USDA received significant feedback from stakeholders regarding monitoring and general Program integrity related to non-congregate meal service operations. Stakeholders reported isolated incidents of improper benefit distribution that occurred during the COVID-19 pandemic at non-congregate meal service operations, which were in place under temporary waiver authority. States reported incidents of meal duplication and inaccurate use of meal service flexibilities that resulted in improper benefit distribution during the pandemic. Additionally, a few stakeholders noted the delicate balance between ensuring Program integrity and ensuring Program access.
USDA understands that State agencies are best positioned to evaluate applicant sponsors and sites for non-congregate meal service operations. Under this rule, with two exceptions discussed below in section i. 2., the basic monitoring requirements for type, number, and frequency of reviews will not change. However, to ensure all Program operations, both congregate and non-congregate, are properly adhering to Program requirements, USDA is amending the regulations to incorporate operational changes concerning pre-approval visits and sponsor and site review that reflect the introduction of non-congregate meal service.
USDA seeks to improve Program integrity by assessing how State agencies, sponsors and sites can use data analysis to detect potential Program mismanagement in the SFSP. USDA will create guidance materials and technical assistance tools to leverage Program data to detect potential Program mismanagement. USDA is seeking comments on best practices for utilizing data analysis and trends to ascertain Program irregularities which may be indicative of potential Program mismanagement to inform future rulemaking.
i. State Agency Responsibilities
1. Pre-Approval Visits
Program regulations at § 225.7(d) require State agencies to conduct pre-approval visits of sponsors and sites to assess the applicant sponsor's or site's potential for successful Program operations. That includes all applicant sponsors that did not participate in the Program in the prior year, those that had operational problems noted in the prior year, and any sites that the State agency has determined need a pre-approval visit. Current regulations allow pre-
approval visits of SFA sponsors that had a review with no significant deficiencies in the preceding 12 months to be conducted at the discretion of the State agency. Under this rule, that regulation will be amended to include CACFP institutions. The addition of this flexibility will ease administrative burden at the State agency while allowing the State to provide oversight on sponsors with operational problems and those needing additional technical assistance.
Additionally, this rule will add a requirement that State agencies must establish a process to determine which sites need pre-approval visits. This process must consider characteristics of sites including sites that did not participate in the Program in the prior year, existing sites that are new to non-congregate meal service, and existing sites that exhibited operational problems. This requirement will ensure that applicant sites have the capacity to operate the Program, including existing sites new to non-congregate meal service and existing sites that exhibited operational problems in the prior year. The importance of pre-approval visits was highlighted in the USDA Summer Food Service Program Integrity Study, which found that a majority of State directors believed the pre-approval visits were effective in spotting potential problems.
7
7
Giesen, L., Gola, A.A, Gearing, M., Gabay, M., Baier, K., Bozzolo, C., and Mwombela, B. (2023). Summer Food Service Program Integrity Study Final Report. Prepared by Westat, Contract No. 12319818A0021; Order No. 12319818F0134. Alexandria, VA: U.S. Department of Agriculture, Food and Nutrition Service, Office of Policy Support, Project Officer: Chan Chanhatasilpa. Available online at:
www.fns.usda.gov/research-and-analysis.
Accordingly, this rule amends § 225.7(d) to allow pre-approval visits of sponsors which are a CACFP institution that had a review within the preceding 12 months and had no significant deficiencies to be conducted by the State agency at their discretion at paragraph (d)(2). Furthermore, this rule amends the State agency pre-approval site visit requirement at § 225.7(d) to include that State agencies must develop a site selection process that considers site characteristics, including whether an existing site is new to non-congregate meal service operations, by adding a new regulation at § 225.7(d)(4) and listing site characteristics at paragraph (d)(4)(i), (d)(4)(ii), and (d)(4)(iii). Lastly, the rule revises the paragraph structure at § 225.7(d) to improve the clarity of the regulations.
2. Sponsor and Site Reviews
Program regulations at § 225.7(e) require State agencies to review SFSP sponsors and sites to ensure compliance with Program regulations by determining an appropriate sample selection of sponsors and sites to review. In determining which sponsors and sites to review, the State agency must, at a minimum, consider the sponsors' and sites' previous participation in the Program, their current and previous Program performance, and the results of previous reviews. Additionally, Program regulations at § 210.18(e)(3)(ii) require State agencies during a school meals administrative review to review a minimum of one site if the SFA selected for review operates the SSO. Under this rule, USDA is requiring State agencies to include in the sample selection SFSP sponsors who operate either congregate or non-congregate sites, or both, per § 225.7(e)(2). This is to ensure that all meal service options are included in the sample selection. USDA is also requiring State agencies to review a minimum of one congregate and one non-congregate site during a school meals administrative review if the SFA operates both meal service models. If the SFA has one site that operates both congregate and non-congregate meal services, the State agency may review a minimum of one site and must observe both a congregate and non-congregate meal service at that one site.
Furthermore, regulations at § 225.7(e)(4) require State agencies to conduct a review of every new sponsor at least once during the first year of operations, annually review every sponsor that experienced operational problems in the prior year, review each sponsor at least once every 3 years, and conduct reviews of at least 10 percent of each reviewed sponsor's sites. This rule does not change any of these requirements, which require State agencies to provide adequate oversight of all SFSP sponsors, including those that are new or exhibit problems, and conduct site level reviews.
In addition to the above requirements, per current § 225.7(e)(4)(ii), State agencies must also ensure that they annually review several sponsors whose Program reimbursements, in the aggregate, account for at least one half of the total Program meal reimbursements in the State in the prior year. This provision requires States to review larger sponsors to meet the total reimbursement threshold. These sponsors are solely selected based on size, which means, in many States, that larger sponsors must be reviewed every year to meet this requirement. These large sponsors, such as SFAs who operate CNPs on a year-round basis, are typically more familiar with Program requirements. Focusing critical oversight resources on these experienced sponsors limits the number of reviews that State agencies can conduct of sponsors who are small to mid-size and may be at risk for more serious operational challenges.
To provide State agencies the ability to target their resources on sponsors of all sizes and operational capacity, this IFR removes the requirement at § 225.7(e)(4)(ii). This will allow State agencies to adjust to any potential changes in the number of meals served due to new and existing sponsors operating the non-congregate meal service option. It will also facilitate the timely identification of issues that pose a risk to Program integrity. The elimination of this requirement provides State agencies the ability to review sponsors of various operational capacities who are not currently being reviewed with the same frequency as larger sponsors. This will allow State agencies to target resources on sponsors of all sizes who may pose a greater risk to Program integrity or need additional monitoring and technical assistance, by identifying a wider variety of issues based on criteria such as spikes and anomalies in meal claiming. This will ensure Program integrity across all SFSP Program operators.
In addition to providing State agencies the ability to focus resources on sponsor reviews that are not just related to the amount of Program reimbursements, USDA is also adding under § 225.7(e)(4) a provision that allows State agencies to more frequently review sponsors who require additional technical assistance. The addition of this provision at § 225.7(e)(4)(iv) further ensures integrity in the Program by allowing State agencies to review sponsors of all sizes more frequently than the current 3-year review cycle, if the State agency determines the sponsor needs additional oversight and technical assistance.
Additionally, USDA is including meal service models, both congregate and non-congregate, and meal distribution methods in the review sample under § 225.7(e)(4). The addition of this provision at § 225.7(e)(4)(v) ensures all types of meal service models and meal distribution methods are included in the 10 percent of sponsor's sites required to be reviewed. In terms of the number of sites each sponsor can be approved to operate, the State agency, per § 225.6(b)(6), must not approve any sponsor to operate more than 200 sites
or to serve more than an average of 50,000 children per day. However, if the sponsor can demonstrate that it has the capacity to manage and operate the Program larger than these limits, the State agency may approve exceptions. Regardless of the size of the sponsor's operation, the State agency must have the capacity to conduct reviews of at least 10 percent of the sponsor's sites per § 225.6(b)(6).
Accordingly, this rule amends § 225.7(e)(4) to remove § 225.7(e)(4)(ii), the one-half aggregate review requirement. The rule will also add a new § 225.7(e)(4)(iv) to include review of additional sponsors at the State agencies discretion and amend § 225.7(e)(4)(v) for the inclusion of all meal types in the 10 percent review sample. Additionally, this rule amends § 225.6(b)(6) to include the requirement that the State agency must have the capacity to conduct reviews of at least 10 percent of the sponsor's sites when the State agency approves a sponsor to operate more than 200 sites or to serve more than an average of 50,000 children per day. The rule also revises the paragraph structure at § 225.6(b)(6) to improve the readability of the regulations. Lastly, this rule amends § 210.18(e)(3)(ii) to include the review of a non-congregate site for SFAs operating non-congregate meal service in the SSO.
Program regulations at § 225.7(e)(5) direct State agencies to develop criteria for site selection when selecting sites to meet the minimum number of sites required under paragraph (e)(4)(v). This rule will include at § 225.7(e)(5)(i)(G) and (H) the type of meal service (
e.g.,
congregate or non-congregate); if non-congregate, the type of meal distribution method, in the characteristics used to determine sites selected as part of the sponsor's review. This provision will ensure the new meal service model type and meal distribution method is considered when selecting sites for review.
Accordingly, this rule amends § 225.7(e)(5) to include new non-congregate meal services at paragraph (e)(5)(i)(G) and (H).
Program regulations at § 225.7(j) require State agencies to develop and provide monitor review forms to all approved sponsors. The monitor review form must include, at a minimum, the time of the reviewer's arrival and departure, the site supervisor's printed name and signature, a certification statement to be signed by the monitor, the number of meals prepared or delivered, the number of meals served to children, the deficiencies noted, the corrective actions taken by the sponsor, and the date of such actions. This rule will include whether the meal service is congregate or non-congregate on the monitor review form, which must be completed by sponsor monitors per § 225.7(j). This ensures that there is a differentiation between the congregate and non-congregate meal service at each site for each review.
Accordingly, this rule amends § 225.7(j) to include whether the meal service is congregate or non-congregate on the monitoring review form.
Program regulations at § 225.16(c)(1)(iii) require meal service times to be approved by the State agency. Under this rule, all meal service times approved by the State agency must be in accordance with the State agency or sponsor's capacity to monitor the full meal service during a review. This provision will ensure that the sponsor and State agency have enough resources and the capacity to review the full meal service.
Accordingly, this rule amends § 225.16(c)(1)(iii) to clarify that the approval of meal service times must be in accordance with the State agency or sponsor's capacity to monitor the full meal service during a review.
i. Sponsor Responsibilities
1. Training
Program regulations at § 225.15(d)(1) require sponsors to hold Program training sessions for its administrative and site personnel. These trainings must, at a minimum, include: the purpose of the Program, site eligibility, recordkeeping, site operations, meal pattern requirements, and the duties of a monitor. This rule will include both congregate and non-congregate meal service in the required training conducted by the sponsor. This is to ensure that the proper meal service is operated and monitored by the sponsor's administrative and site personnel at each site.
Accordingly, this rule amends § 225.15(d)(1) to include the addition of congregate and non-congregate meal service in the sponsor Program training sessions for its administrative and site personnel prior to the operation of a site's first meal service.
2. Site Reviews
Through guidance, sponsors were required to conduct pre-operational visits for new sites and those that experienced operational problems in the previous year before a site operates the SFSP. This rule codifies the requirement for sponsors to conduct pre-operational visits for new sites and those that experienced operational problems in the previous year before a site operates the Program per § 225.15(d). Similar to pre-approval visits conducted by the State agency, pre-operational visits conducted by the sponsor assist the sponsor in detecting potential operational issues prior to operation of the Program. USDA also supports the use of virtual monitoring as a tool to supplement the required on-site monitoring reviews. Providing technical assistance and training through virtual technologies may also allow them to be offered more frequently and increase access to trainings, thereby supporting Program integrity. In addition, this rule will codify that existing sites that are new to non-congregate meal service are considered new sites; and as such are also required to have a pre
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