Special Supplemental Food Program for Women, Infants, and Children (WIC): Coordination Rule: Mandates of the Child Nutrition and WIC Reauthorization Act of 1989

DEPARTMENT OF AGRICULTURE

Food and Nutrition Service

7 CFR Part 246

RIN No. 0584-AB13

Special Supplemental Food Program for Women, Infants, and

Children (WIC): Coordination Rule: Mandates of the Child Nutrition and

WIC Reauthorization Act of 1989

AGENCY: Food and Nutrition Service, USDA.

ACTION: Final rule.

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SUMMARY: This final rule amends regulations governing the Special

Supplemental Food Program for Women, Infants, and Children (WIC) to

comply with the mandates of sections 123 and 213 of the Child Nutrition

and WIC Reauthorization Act of 1989 enacted on November 10, 1989. This

final rule contains both funding and nonfunding provisions. The major

nonfunding provisions in this final rule include: Extending adjunct or

automatic income eligibility to certain family members; enhancing

outreach efforts and program access; defining breastfeeding and

establishing breastfeeding promotion activities; referring and

providing participants with information about other health and welfare

programs; permitting State agencies the option to establish alternative

means of issuing food instruments, such as mailing them to

participants; and, reducing the frequency with which State agencies

must review their local agencies. This final rule also incorporates

other legislative mandates, such as, Governmentwide debarment and

suspension (nonprocurement) requirements, a drug-free workplace, and

new restrictions on lobbying.

DATES: This rule is effective on March 11, 1994, except that the

nondiscretionary funding provisions set forth in Sec. 246.14 and

Sec. 246.16 were, by law, effective October 1, 1989. State agencies

shall implement all other provisions no later than October 1, 1994.

FOR FURTHER INFORMATION CONTACT: Barbara Hallman, Chief, Policy and

Program Development Branch, Supplemental Food Programs Division, Food

and Nutrition Service, USDA, 3101 Park Center Drive, room 542,

Alexandria, VA 22302, (703) 305-2746.

SUPPLEMENTARY INFORMATION:

Classification

Executive Order 12866

This final rule is issued in conformance with Executive Order

12866.

Regulatory Flexibility Act

This rule has been reviewed with regard to the requirements of the

Regulatory Flexibility Act (5 U.S.C. 601-612). Pursuant to that review,

the Administrator of the Food and Nutrition Service (FNS) has

determined that this final rule will not have a significant impact on a

substantial number of small entities. State and local agencies will be

most affected because of the additional program administration and

education requirements. However, some program administration

requirements have also been reduced by this rule. The net effect on

State and local agencies is expected to be minimal. Participants and

applicants will also be affected by simplified application and benefits

issuance procedures.

Paperwork Reduction Act

The reporting and recordkeeping requirements established in the

proposed rulemaking of July 9, 1990 in Secs. 246.4, 246.6, 246.7,

246.11 and the reductions in the reporting and recordkeeping

requirements set forth in Secs. 246.11 and 246.19 were reviewed and

approved by the Office of Management and Budget under Control Number

0584-0043 in accordance with the Paperwork Reduction Act of 1980 (44

U.S.C. 3505). No changes in the reporting/recordkeeping burden for the

sections cited above have been incorporated into the final rule.

All existing reporting and recordkeeping requirements in

Secs. 246.14 and 246.16 for funding activities have been incorporated

into this final rule, and no changes in burden hours for those

activities are reflected in this final rule. The requirements for these

sections have been approved by OMB for use through November 30, 1995

under OMB control number 0584-0043. This final rule, however, does

impose on WIC State and local agencies one additional reporting and

recordkeeping requirement of documenting both direct and in-kind

expenditures for breastfeeding promotion and support.

As required by section 3504(h) of the Paperwork Reduction Act of

1980, the Department submitted to the Office of Management and Budget

(OMB) for its review the information reporting and recordkeeping

requirement of documenting both direct and in-kind expenditures for

breastfeeding promotion and support. This reporting and recordkeeping

requirement has been approved by OMB for use through August 31, 1995

under OMB control number 0584-0427.

Organizations and individuals desiring to submit comments regarding

any aspect of these information collection requirements, including

suggestions for reducing the burdens, should direct them to the

Director, Supplemental Food Programs Division, (address above) and to

the Office of Information and Regulatory Affairs, OMB, room 3208, New

Executive Office Building, Washington, DC 20503, Attn: Laura Oliven,

Desk Officer for the Food and Nutrition Service.

Executive Order 12372

The Special Supplemental Food Program for Women, Infants and

Children (WIC) is listed in the Catalog of Federal Domestic Assistance

Programs under 10.557 and is subject to Executive Order 12372, which

requires intergovernmental consultation with State and local officials

(7 CFR part 3015, subpart V, and 48 FR 29114 (June 24, 1983)).

Executive Order 12778

This final rule has been reviewed under Executive Order 12778,

Civil Justice Reform. This rule is intended to have preemptive effect

with respect to any state or local laws, regulations or policies which

conflict with its provisions or which would otherwise impede its full

implementation. This rule is not intended to have retroactive effect

unless so specified in the ``Effective Date'' paragraph of this

preamble. Prior to any judicial challenge to the provisions of this

rule or the application of its provisions, all applicable

administrative procedures must be exhausted. In the WIC Program, the

administrative procedures are as follows: (1) Local agencies and

vendors--State agency hearing procedures issued pursuant to 7 CFR

246.18; (2) applicants and participants--State agency hearing

procedures issued pursuant to 7 CFR 246.9; (3) sanctions against State

agencies (but not claims for repayment assessed against a State agency)

pursuant to 7 CFR 246.19--administrative appeal in accordance with 7

CFR 246.22; and (4) procurement by State or local agencies--

administrative appeal to the extent required by 7 CFR 3016.36.

Good Cause Determinations

This final rule incorporates several new statutory requirements

from Public Law 101-147 which were not contained in a prior proposed

rule. These are nondiscretionary funding provisions which revise the

methodology for determining the amount of funds available for NSA,

require that a portion of these funds be used for breastfeeding

promotion and support, permit conversion of food funds to NSA funds

under certain specified circumstances, provide optional spend forward

authority to State agencies, and establish timelines for allocation and

reallocation of funds. In light of the nondiscretionary nature of these

requirements, and since the legislatively mandated effective date of

these requirements was October 1, 1989, the Administrator of the Food

and Nutrition Service has found, in accordance with 5 U.S.C. 553(b),

that prior notice and comment are impracticable, unnecessary and

contrary to the public interest, and that good cause exists for

publishing revisions to Sec. 246.16 without prior notice and comment.

Two additional changes which were not proposed are contained in

this final rule. First, this final rule incorporates in Sec. 246.2

reference to the existing requirements of the non-discretionary

department-wide rule governing lobbying which applies to WIC. This new

reference merely incorporates existing, non-discretionary provisions of

7 CFR part 3018, ``New Restrictions on Lobbying,'' into WIC Program

regulations. Second, current Sec. 246.7(c)(2)(v) contains a non-

inclusive list of references of non-discretionary provisions of Federal

law which prohibit certain benefits paid under other Federal programs

from being considered as income for the WIC Program. This final rule

renumbers that section as Sec. 246.7(d)(2)(iv)(c), and amends it to

update it with additional references to other non-discretionary income

exclusions. With respect to these revisions, the Administrator of the

Food and Nutrition Service has found, pursuant to 5 U.S.C. 553(b), that

prior notice and comment are impracticable, unnecessary and contrary to

the public interest, and that good cause exists for publishing these

revisions without prior notice and comment.

Background

Public Law 101-147, the Child Nutrition and WIC Reauthorization Act

of 1989, enacted on November 10, 1989, amended a wide range of WIC

Program functions in such areas as income eligibility determinations;

program outreach, referral and access; coordination; breastfeeding

promotion; and food delivery systems. Therefore, on July 9, 1990, the

Department published a proposed rule (55 FR 28033) addressing primarily

the discretionary and nondiscretionary mandates of Public Law 101-147

that were unrelated to funds utilization and allocation. These

provisions have been commonly referred to as the ``nonfunding''

provisions of Public Law 101-147. Also included in the proposed rule

were references to requirements in Department-wide rules which apply to

WIC: Uniform Administrative Requirements for Grants and Cooperative

Agreements to State and Local Governments, 7 CFR part 3016, and

Governmentwide Debarment and Suspension (Non-Procurement) Requirements

and Government Requirements for a Drug-Free Workplace, 7 CFR part 3017.

Several nonfunding provisions were issued in separate rulemakings, as

noted below.

The proposed rule provided for a 30-day comment period, which ended

on August 8, 1990. Forty-seven comment letters were received on the

proposed rule from a variety of sources, including State and local

agencies and health professionals, advocacy groups and other public

interest groups, and the general public.

The Department has given all comments careful consideration in the

development of this final rule and would like to thank all commenters

who responded to the proposal. In addition, subsequent meetings with

various State and local agency staff on this rule provided a forum for

staff to more fully discuss the concerns and recommendations made in

their comment letters. Such discussions and individual comments on the

proposed rule, which provided a detailed and thorough analysis of

issues, were invaluable to the Department in developing this final

rule. A summary of these meetings is contained in the Department's

rulemaking record.

Although the proposed rule contained both discretionary and

nondiscretionary nonfunding provisions of Public Law 101-147, State

agencies were encouraged to focus on and direct their comments to the

discretionary provisions of the law. In addition, the Department has

worked with WIC State agencies to voluntarily implement the provisions

designated as nondiscretionary, including those provisions proposed

verbatim from the law. These legislative provisions required no further

interpretation on the part of the Department as to how State and local

agencies would implement them. While all provisions addressed in the

proposal will be discussed further, those which are discretionary will

be addressed in greater detail.

The proposed rulemaking published by the Department did not include

any of the funding provisions mandated by Public Law 101-147 because

the Department intended to publish these requirements in a separate

rulemaking. However, because the law requires several nondiscretionary

revisions to the WIC Program funds allocation procedures which preclude

the Department from exercising discretion in their implementation, the

Department has included these funding provisions in this final rule.

As indicated previously, these funding provisions include: (1)

Revising the methodology for determining the amount of funds available

for NSA, (2) requiring that at least $8 million of the NSA funds must

be spent on breastfeeding promotion and support, (3) permitting, under

certain circumstances, the conversion of food funds to funds to support

NSA and an option for States to spend forward up to 3 percent of their

food grants into the succeeding fiscal year, and (4) establishing

timelines for the allocation and reallocation of funds. These

provisions cannot be modified in response to public comment because the

legislative language is explicit regarding implementation of these

provisions. Because these provisions result in significant changes to

Sec. 246.16 of the WIC Program regulations, the Department is revising

and republishing Sec. 246.16(a) through (k), redesignated in this final

rule as paragraphs (a) through (i), in its entirety. In addition and as

required by law, these provisions were effective on October 1, 1989 and

were reflected in grants to State agencies since Fiscal Year 1990.

This final rule also incorporates into Sec. 246.7 of the WIC

Program regulations references to various cash payments which are

required by statute to be excluded from consideration as income for

Federal assistance programs. Further, due to the addition of these

references and other changes necessary to incorporate adjunct income

eligibility requirements, newly designated paragraph (d) in Sec. 246.7

has been revised and republished in its entirety in this final rule.

Department-wide rules implementing new Governmentwide lobbying

restrictions, 7 CFR part 3018, are also included in this final rule. In

addition, OMB Circular A-90, ``Cooperating with State and Local

Governments to Coordinate and Improve Information Systems'' has been

replaced by OMB Circular A-130. Therefore, all references to Circular

A-90 have been revised to reference OMB Circular A-130.

Several nonfunding provisions of Public Law 101-147 were

implemented in previous rulemakings. Therefore, they were not included

in the proposed rule of July 9, 1990 and are not addressed in this

final rule. First, the provision that State agencies be given the

option to certify and provide program benefits to incarcerated persons

(sections 123(a)(4)(A)(iv) and 123(a)(4)(E)) were published in an

interim rule on December 14, 1989 (54 FR 51289) and in a final rule on

August 5, 1992 (57 FR 34500). On February 1, 1990 (55 FR 3385), a final

rule was published which implemented two nondiscretionary benefit-

related provisions of section 123(a)(2) of Public Law 101-147--

automatic WIC income eligibility for fully eligible current recipients

of Food Stamps, AFDC, and/or Medicaid benefits, and the State agency

option to exclude military off-base housing allowance payments from an

applicant's countable income for purposes of determining WIC income

eligibility. Finally, the requirements of sections 123(a)(3)(D) and

123(a)(4)(A)(i)(II) of the law regarding the provision of information

on, and coordination with, substance abuse counseling and treatment

services were included in a separate proposed rule issued on March 30,

1990 (55 FR 11946). This rule was issued in its final form on February

26, 1993 at 58 FR 11497.

Following is a discussion of each provision, as proposed, comments

received on the proposed rule, an explanation of the provisions set

forth in this final rule, and a discussion of several nondiscretionary

provisions, including four basic areas of funding provisions in Public

Law 101-147, which have been incorporated into this final rule.

1. References to 7 CFR Part 3016

Until the publication of the final rule entitled ``Uniform

Administrative Requirements for Grants and Cooperative Agreements to

State and Local Governments'' on March 11, 1988 (53 FR 8044), the

requirements for grants and cooperative agreements were set forth in 7

CFR part 3015. This rule was promulgated to establish consistency and

uniformity among some 23 Federal agencies in the administration of

grants to, and cooperative agreements with, State and local governments

and federally-recognized Indian tribal governments. The final rule was

published as 7 CFR part 3016, replacing part 3015 for most grants and

subgrants to these government entities, including WIC grants, effective

October 1, 1988. Therefore, as proposed, this final rule would change

all references to 7 CFR part 3015 contained in part 246 to ``7 CFR part

3016.''

2. Breastfeeding Provisions (Secs. 246.2, 246.3(e)(4), 246.11(c)(2),

246.11(c)(3), 246.11(c) (5)-(6) and (8), and 246.14(c)(10))

Public Law 101-147 established a number of mandates relative to

breastfeeding. The significant number of provisions in Public Law 101-

147 concerning breastfeeding promotion and support activities, and the

level of detail with which most of these provisions are addressed,

clearly demonstrate strong Congressional support for breastfeeding

promotion and support efforts in the WIC Program. This strong support,

in turn, reflects nutritional science and medical opinion that

breastfeeding offers significant nutritional and health benefits to

infants.

The Department shares this belief and has always actively

encouraged the promotion and support of breastfeeding as the optimal

method of infant feeding. Program regulations already contain a number

of provisions in support of breastfeeding. Furthermore, the Department

has taken non-regulatory actions in this area, including the

development of publications to help local agency staff teach

participants about breastfeeding; participation in cooperative efforts

with other Federal agencies and organizations to promote breastfeeding,

such as the USDA Breastfeeding Promotion Consortium which meets semi-

annually; and the award of grants for projects on breastfeeding, such

as the funding of a WIC Breastfeeding Promotion Study and Demonstration

to identify, evaluate, and demonstrate approaches to promote

breastfeeding effectively in WIC and, more recently, the award of

grants to test the effectiveness of breastfeeding incentives in eight

locations. The provisions regarding breastfeeding contained in Public

Law 101-147 will serve to strengthen the emphasis in current

regulations by focusing more attention on the promotion and support of

breastfeeding activities at both the State and local levels. State and

local agencies are encouraged to expand their efforts to increase the

incidence and duration of breastfeeding among WIC participants.

This final rule amends the regulations to include nondiscretionary

provisions (many of which have already been implemented by State

agencies) which: (1) Require that the State agency include in its

annual plan of operation and administration a plan to promote

breastfeeding and to coordinate WIC operations with local programs for

breastfeeding promotion, (2) require each State agency to designate an

agency staff member to coordinate breastfeeding promotion efforts, (3)

require that the State agency provide training to persons providing

breastfeeding promotion and support, (4) authorize the purchase of

breastfeeding aids by State and local agencies as an allowable

administrative expense, (5) require that the State agency provide

breastfeeding promotion materials in languages other than English, and

(6) establish a requirement that of the funds set aside for nutrition

services and administration, at least $8 million must be spent in the

area of breastfeeding promotion and support. This $8 million set-aside

is discussed in further detail in section 11 of this preamble. This

final rule also revises the regulations to implement the discretionary

breastfeeding provisions, which are: (1) Definition of

``breastfeeding,'' (2) breastfeeding promotion and support standards,

and (3) annual evaluation of breastfeeding promotion and support

efforts.

a. Definition of ``Breastfeeding'' (Sec. 246.2). Section 123(a)(6)

of Pub. L. 101-147 adds a new section 17(h)(4)(A) to the Child

Nutrition Act (CNA) of 1966 to require the Secretary, in consultation

with the Secretary of Health and Human Services, to develop a

definition of ``breastfeeding'' for the purpose of the WIC Program.

Accordingly, the Department asked the Committee on Breastfeeding

Promotion of the National Association of WIC Directors (NAWD),

representatives from USDA and the Maternal and Child Health Bureau in

the Department of Health and Human Services (DHHS), and other experts

on breastfeeding, to provide input on developing a national definition

of breastfeeding. The NAWD Committee recommended that ``breastfeeding''

be defined as ``the provision of mother's milk to her infant on the

average of at least once a day.'' The DHHS concurred with this

recommended definition for WIC Program purposes.

Except as may otherwise be specified, this definition would be

consistently applicable to all aspects of the WIC Program, including

the evaluation of promotional efforts and the determination of

categorical eligibility as a breastfeeding woman. The definition also

recognizes that any breastfeeding, even if only on an average of once a

day, provides some immunological and nutritional benefits which would

otherwise not be provided to an infant, as well as significant

psychological benefits, including assisting the transition to

motherhood, and assisting the formation of strong bonds between the

mother and her infant.

It is the Department's belief that a result of successful

breastfeeding promotion should be a serious commitment to breastfeeding

on the part of mothers so that breastfeeding will be the rule rather

than the exception. The Department also acknowledges that any amount of

breastfeeding should be encouraged. Partial breastfeeding supplemented

by formula feeding is preferable to no breastfeeding at all. Therefore,

the Department proposed the following definition of ``breastfeeding''

be added to Sec. 246.2: ``the practice of feeding a mother's breastmilk

to her infant(s) on the average of at least once per day.''

The majority of commenters addressing the definition of

``breastfeeding'' supported the provision as proposed. Therefore, in

view of the comments received and the Department's previous

consultation with the National Association of WIC Directors, and the

Secretary of the Department of Health and Human Services, including the

Centers for Disease Control (CDC), the definition of ``breastfeeding''

in this final rule remains unchanged from the proposed rule.

b. Designation of breastfeeding coordinator (Sec. 246.3(e)(4)).

Section 123(a)(6) of Pub. L. 101-147 amends section 17(h)(4)(C) of the

CNA of 1966 to require each State agency ``to designate an agency staff

member to coordinate breastfeeding promotion efforts identified in the

State plan of operation and administration.'' Therefore, the Department

proposed in its July 9, 1990 rulemaking to add the breastfeeding

promotion coordinator position to the list of State staffing

requirements set forth in Sec. 246.3(e)(4).

One commenter addressed this issue and recommended that the

Department specify the staffing standards per caseload as well as the

duties and responsibilities of a breastfeeding coordinator. It was the

intent of the Department to allow the State agency the flexibility

under this provision to delineate the duties and responsibilities of

the breastfeeding coordinator in its State. However, the Department

strongly urges State agencies to make breastfeeding promotion and

education duties the first priority for this position. Other duties,

may be assigned to this position, but should be related to nutrition

services if at all possible. In this way a breastfeeding coordinator

will have the flexibility to perform duties specific to the needs of

the particular State. Accordingly, the Department is adopting the

provision as proposed.

c. Training for breastfeeding promotion (Sec. 246.11(c)(2)).

Section 123(a)(6) of Public Law 101-147 adds a new section 17(h)(4)(D)

to the CNA of 1966 requiring the State agency ``to provide training on

the promotion and management of breastfeeding to staff members of local

agencies who are responsible for counseling (WIC) participants * * *

concerning breastfeeding.'' Therefore, the proposed rule added a new

sentence at the end of Sec. 246.11(c)(2) of the current WIC Program

regulations to require State agencies to provide training on the

promotion and management of breastfeeding to local agency staff.

The majority of commenters approved this provision as proposed. One

commenter approved the provision but indicated that additional funds

would be needed to provide such training to local agency staff.

Congress has already augmented the existing requirement that States

expend at least one-sixth of their nutrition services and

administration (NSA) grants on nutrition education by mandating in

Public Law 101-147 a targeted expenditure nationally of at least $8

million for the promotion and support of breastfeeding among WIC

participants. The Department has issued a policy memorandum which

clarifies that salary and benefit expenses of staff and non-WIC staff

to deliver/attend training on breastfeeding promotion and support have

been and continue to be allowable breastfeeding promotion and support

expenditures. Accordingly, the proposed modification of

Sec. 246.11(c)(2) is adopted without changes.

d. Provision of non-english breastfeeding materials

(Sec. 246.11(c)(3)). Section 17(f)(14)(A) of the CNA of 1966 has long

required State agencies to provide nutrition education materials to

local agencies in languages other than English in areas where a

substantial number of low-income households speak other languages.

Section 123(a)(4)(D) of Public Law 101-147 amends section 17(f)(14)(A)

of the CNA of 1966 specifically to add breastfeeding promotion

materials and instruction to this requirement.

The Department proposed to revise Sec. 246.11(c)(3) of the

regulations to require that the State agency ``identify or develop

resources and educational materials, including breastfeeding promotion

and instruction materials, for use in local agencies, taking reasonable

steps to include materials in languages other than English, in areas

where a significant number or proportion of the population needs the

information in a language other than English, considering the size and

concentration of such population, and where possible, the reading level

of the participants.''

One commenter responded affirmatively to the provision. This

commenter, however, recommended these materials be developed at the

Federal level. The Department may develop some materials to assist

State agencies in meeting this requirement. However, such action on the

part of the Department does not alleviate the obligation imposed by

this legislation on State agencies to produce or provide such materials

for their WIC participants.

State agencies should note that the joint statement of explanation

accompanying H.R. 24 (Congressional Record, October 10, 1989, H6863)

clarifies that Congress does not expect State agencies to develop and

produce all such materials on their own in cases where private entities

have donated a sufficient supply of materials which include correct,

complete, and up-to-date information. Furthermore, the Department

believes that any printed information, either about breastfeeding,

nutrition education, or the application/certification process itself,

should reflect, where possible, the reading level of WIC participants,

regardless of the language used. Accordingly, the final rule retains

the requirement as proposed.

e. Breastfeeding promotion and support standards and evaluation

(Sec. 246.11(c)(5)-(6) and (8)). Section 123(a)(3)(C) of Public Law

101-147 adds a new section 17(e)(2) to the CNA of 1966 mandating that

the Department ``prescribe standards to ensure that adequate * * *

breastfeeding promotion and support are provided.''

The Department requested the assistance of National Association of

WIC Directors' (NAWD) Committee on Breastfeeding Promotion in

developing and prescribing the breastfeeding promotion standards

required by Public Law 101-147. The standards/requirements recommended

by this Committee were based on a position paper previously developed

by NAWD on Breastfeeding Promotion, and reflect the concern of NAWD

that requirements such as these be general in nature. In its July 9,

1990 proposed rule, the Department proposed to add the following

requirements in new Secs. 246.11(c)(8)(i)-(iv): (1) The State agency

shall develop a policy that creates a positive clinic environment which

endorses breastfeeding as the preferred method of infant feeding; (2)

Each local agency shall designate a staff person to coordinate

breastfeeding promotion and support activities; (3) The State and local

agency shall incorporate task-appropriate breastfeeding promotion and

support training into orientation programs for new staff involved in

direct contact with WIC clients, and; (4) The State agency shall

develop a plan to ensure that women have access to breastfeeding

promotion and support activities during the prenatal and postpartum

periods.

New section 17(e)(2) of the CNA of 1966 also mandates that States

annually evaluate breastfeeding promotion and support activities,

including the views of participants concerning the effectiveness of the

nutrition education and breastfeeding promotion and support they

received. Section 246.11(c)(5) of the WIC regulations currently

requires that WIC State agencies perform and document annual

evaluations of nutrition education activities, which have always

encompassed breastfeeding promotion. Because existing program

regulations already contained annual nutrition education evaluation

requirements, the Department proposed some minor modifications to

existing Secs. 246.11 (c)(5) and (c)(8) to emphasize that breastfeeding

education and promotion are to be included in these evaluations.

A few commenters who addressed these proposed changes opposed the

annual review requirement for breastfeeding promotion and support and

recommended the frequency of this review activity be revised to be

consistent with the biennial review of local agencies as required in

Public Law 101-147.

Because language in Public Law 101-147 requires that evaluations of

breastfeeding promotion and support activities be performed annually by

State agencies, this provision must be retained as proposed. However,

as indicated above, this annual evaluation, for most States, will not

be a new requirement, because most if not all have included it as a

part of the currently required nutrition education evaluation. For

those that have not, it is likely to be a simple extension of the

evaluation currently being performed annually of nutrition education

activities, and likely entails utilizing the same assessment tool

currently used to evaluate nutrition education activities, such as a

survey. Furthermore, during management evaluation reviews which must be

conducted at least biennially, as set forth in Sec. 246.19(b)(3) of

this final rule, State agencies are required to monitor compliance with

all aspects of program operation including whether local agencies are

complying with the nutrition education and breastfeeding promotion and

support activities required by Sec. 246.11(c)(8).

Therefore, in this final rule, Sec. 246.11 (c)(5), (c)(6), and

(c)(8) are adopted as proposed. In addition to the assessment of

participants' views concerning the effectiveness of nutrition education

and breastfeeding promotion and support they received, the Department

would encourage all State agencies to include in their evaluation an

assessment of the outcomes of nutrition education and breastfeeding

promotion and support, including the incidence and duration of

breastfeeding.

f. Breastfeeding aids as an allowable administrative expense

(Sec. 246.14(c)(10)). Section 123(a)(6) of Public Law 101-147 adds a

new section 17(h)(4)(B) to the CNA of 1966 mandating that the

Department ``authorize the purchase of breastfeeding aids by State and

local agencies as an allowable expense under nutrition services and

administration.'' To implement this legislative mandate, a new

Sec. 246.14(c)(10), which includes ``breastfeeding aids'' as allowable

administrative costs, was proposed to be added by the Department in its

proposed rulemaking. Accordingly, the proposed rule would allow, but

would not require, State agencies to purchase, and authorize their

local agencies to purchase, breastfeeding aids with WIC NSA funds.

Although commenters generally supported the provision as proposed,

several suggested that more detail be added on the breastfeeding aids

which may be considered allowable costs. FNS believes the detailed

discussion in the preamble to the proposed rule adequately addressed

this subject. It has also issued additional guidance through its

regional offices in a January 17, 1991 policy memorandum entitled,

``Allowable Costs for the Promotion and Support of Breastfeeding and

the Reporting of Allowable Nutrition Services Expenditures.''

However, in this final rule a new paragraph (c)(10) has been

modified to state that allowable NSA costs include ``the cost of

breastfeeding aids which directly support the initiation and

continuation of breastfeeding.'' This is consistent with the preamble

of the proposed rule and policy issued by the Department, that

breastfeeding aids include, but are not limited to, devices such as

breast pumps, breastshells, and nursing supplementers, which directly

support the initiation and continuation of breastfeeding.

Breast pumps, including manual, battery-operated, or electric

models, are used to express breast milk for storage and later use or to

relieve over-fullness. Breastshells (i.e., breastshields and breast

cups) are used for correcting inverted nipples. A pregnant woman with

this problem is usually encouraged to start wearing such a device as

early in pregnancy as possible. If the problem continues after the

infant is born, it may be necessary to wear the aid between

breastfeedings. Nursing supplementers are small tubes which are taped

against the mother's body through which infant formula or other

nourishment is expressed as the infant breastfeeds. This permits the

mother to supplement breastfeeding when the supply of breastmilk is

insufficient to meet the infant's nutritional needs without resorting

to bottlefeeding. Avoiding the use of a bottle for supplementary

feeding eliminates possible confusion for the infant who is learning

how to breastfeed.

Other devices or aids, such as nursing pads or nursing bras, which

also directly support the initiation and continuation of breastfeeding,

may also be purchased with NSA funds. However, State and local agencies

should weigh the benefits of providing this more marginal equipment,

which provides less direct support for the initiation and continuation

of breastfeeding, against the importance of management functions and

participant benefits (e.g., nutritional counseling) that could

otherwise be provided or enhanced with the NSA funds. The Department

recommends that States establish very specific policy for local

agencies regarding what, if any, types of breastfeeding aids may be

purchased so that the most efficient use is made of NSA funding

resources. While all of the devices or aids mentioned in this section

are Federally allowable expenses, the Department recommends that States

restrict the use of administrative funds to aids or devices without

which breastfeeding for particular participants would be overly

difficult, e.g., breastshells, nursing supplementers, and breastpumps.

However, items and aids for breastfeeding that go beyond the scope of

the WIC Program would not be allowable costs.

3. Adjunct or Automatic WIC Income Eligibility (Secs. 246.2 and

246.7(d)(2)(vi))

Section 123(a)(2) of Public Law 101-147 amended section 17(d)(2)(A)

of the CNA of 1966 to provide adjunct (i.e., automatic) WIC income

eligibility to the following individuals applying for program benefits:

(1) Recipients of Food Stamps, Aid to Families with Dependent Children

(AFDC), or Medicaid Program benefits, and (2) a member of a family

which contains an AFDC recipient or a pregnant woman or infant

receiving Medicaid.

The intent of Congress in passing this provision was to reduce the

administrative burden on local agency WIC staff in the income

determination process, expedite an applicant's entry into the program

thereby removing potential barriers to program participation, and

result in increased referrals from WIC to other health and social

service programs (H.R. Rep. No. 101-194, p. 11-12).

Final regulations were published on February 1, 1990 at 55 FR 3385

to implement the nondiscretionary, benefit-related provision of

extending adjunct income eligibility to ``fully'' eligible recipients

of Food Stamps, AFDC, or Medicaid Program benefits. However, that final

rule left several issues outstanding including presumptive eligibility,

definition of ``family'' for adjunct purposes, and the length of the

certification periods. These and other issues were addressed in the

proposed rule.

Before discussing the proposed and final provisions in this area

and the comments received on the proposed rule, several facts regarding

adjunct income eligibility are important to restate. First, this

provision provides only automatic income eligibility. Persons who are

determined income eligible for WIC must still meet the other prong of

WIC eligibility and be determined at nutritional risk before they can

participate in the WIC Program and receive benefits.

Secondly, in accordance with the language of Public Law 101-147,

which specifically cites programs conducted under Federal law, these

provisions apply only to recipients of the Federal AFDC, Medicaid, and

Food Stamp Programs. A few States are administering programs financed

solely by State funds that operate like and parallel the Federal AFDC

or Medicaid programs. In addition, some States have chosen to extend

Medicaid program benefits with State funds to pregnant women and

infants who have incomes above 185 percent of poverty. Persons

participating in such state-administered programs cannot be determined

or classified as adjunctively income eligible for the WIC Program on

that basis. As discussed in further detail below, however, some of

these individuals may, at the State agency's discretion, be determined

automatically income eligible for WIC based on participation in certain

State-administered programs if the State program has income limits at

or below the WIC Program income guidelines, as set forth in newly

redesignated Sec. 246.7(d)(2)(vi)(B) of this final rule (previously set

forth in Sec. 246.7(c)(2)(vii)). This provision has been in the WIC

regulations since 1981.

Third, while the legislation states that ``recipients'' of AFDC,

Medicaid, or Food Stamp benefits or a member of a family which contains

a recipient of certain programs are adjunctively income eligible for

WIC, ``recipients'' in this context and as intended in this rule are

individuals who have been certified or determined eligible to receive

benefits from one or more of these programs. It would not be feasible

to base adjunct income eligibility status for WIC on whether an

individual actually receives AFDC, Medicaid, or Food Stamp benefits at

the time of WIC application. For example, an individual may be

certified as eligible to receive Medicaid benefits but at the time he/

she applies for WIC benefits is not in need of or has not sought

Medicaid services. Section 246.7(d)(2)(vi)(A) has been modified by this

final rule to clarify this point.

Fourth, individuals are required to document that they are

certified as eligible to receive AFDC, Medicaid, or Food Stamp Program

benefits. This requirement was first established in the final rule

published in the Federal Register on February 1, 1990 at 55 FR 3385.

Such documentation would include, for example, a participant's program

identification card, or notice of program eligibility. State agencies

may also, if they have the capability, assist applicants in obtaining

such documentation through use of available means such as an online

access data system. Some of the State's program identification cards

may not provide the data necessary to confirm that the individual is

currently certified as eligible to receive program benefits. State

agencies should ensure that the documentation required sufficiently

confirms that a WIC applicant is currently certified as eligible to

participate in any one of these programs.

Note that for both Medicaid and AFDC, a recipient is an individual.

This is not the case in the Food Stamp Program. Food Stamp benefits are

for household units. Thus, a Food Stamp ``recipient'' may be one

individual or a group of individuals who are determined eligible for

benefits. Accordingly, some Food Stamp recipients may not have

documentation to confirm that they are certified as eligible to receive

food stamp benefits. They may only have documentation which identifies

that the head of the household and other unnamed family members are

certified as eligible to receive benefits. In such cases, State

agencies should require the WIC applicant to document that the person

named as the head of the household for Food Stamp purposes is certified

as eligible to receive Food Stamp benefits, and that the WIC applicant

resides with the individual named as the Food Stamp head of household,

or provide other similar documentation which proves that the applicant

is certified as eligible to receive Food Stamp benefits.

a. Definition of ``Family'' for members of families that contain an

AFDC recipient or a pregnant woman or infant receiving assistance under

the Medicaid program (Secs. 246.2 and 246.7(d)(2)(vi)). As mentioned

previously, the legislation extends adjunct income eligibility for WIC

to an individual who is a member of a family which contains an AFDC

recipient or a member of family in which a pregnant woman or infant

receives Medicaid. The purpose of this provision is to ensure that

family members of AFDC and certain Medicaid participants, who might not

themselves be AFDC or Medicaid participants, would be determined

adjunctively income eligible for WIC. Consider, for example, a family

unit which includes a pregnant woman and a 2-year old child. The

pregnant woman participates in the Medicaid Program; however, the child

does not qualify. By including family members as adjunctively income

eligible for WIC, Public Law 101-147 extends automatic WIC income

eligibility to the child, as well as to its mother. This provision also

serves to facilitate closer coordination between WIC and other health

and welfare programs that serve the same population and thereby

streamlines administrative procedures.

Prior to issuing a proposed rule on this provision, USDA considered

the development of a new definition of ``family'' that was consistent

across WIC, Medicaid and AFDC. After discussion with Federal Medicaid

and AFDC Program counterparts, however, there was some concern that use

of any one of the Federal programs' definitions of family for purposes

of this provision might exclude, in some rare situations, an individual

as adjunctively income eligible for WIC who in effect may have been

considered or counted as a family member in one of these programs. AFDC

and Medicaid approach the concept of ``family'' in a significantly

different manner from each other and from WIC. The AFDC and Medicaid

``families''--referred to in these programs as ``budget units'' or

``filing units''--may be composed exclusively of persons directly

receiving the program benefit or may include recipients and non-

recipients. Additional persons who contribute to the economic unit may

be excluded from consideration in these programs because they are not

related to the applicant by blood, marriage, or some other form of

legal relationship. In contrast, Sec. 246.2 of the WIC regulations

defines ``family'' as ``a group of related or nonrelated individuals

who are living together as one economic unit * * *'' FNS Instruction

803-3, Rev. 1, dated April 1, 1988, reiterates this regulatory

definition. It considers persons as members of a single family, or

economic unit, when their ``production of income and consumption of

goods and services are related.''

In addition, use of the equivalents of ``family'' in AFDC and

Medicaid for purposes of determining adjunct income eligibility in WIC

would require either (1) that the WIC applicant provide information on

the persons who were considered to be family members for AFDC or

Medicaid; (2) WIC authorities to be charged with the responsibility for

obtaining such information from these other programs; or (3) WIC staff

master the complex eligibility determination procedures of these

programs so that, working with the WIC applicant, they could,

independent of the other programs, reestablish the composition of the

applicant's AFDC or Medicaid ``family'' for WIC purposes. These

alternatives would impose significant unnecessary burdens on the

applicant and/or the program involved. Such procedures would increase

the administrative complexity of the programs and adversely impact on

the delivery of benefits to participants, and would, therefore, be in

direct opposition to Congressional intent.

In order to establish a proposed adjunct income eligibility

procedure which effectively results in an expedited income

determination process for such applicants and limits administrative

burden on local agencies, as intended by Congress, the Department

proposed to expand the definition of ``family'' in Sec. 246.2 of the

regulations solely for use in establishing WIC adjunct income

eligibility.

The Department proposed in its rulemaking to use a definition of

``family'' that would not require the Food Stamp, AFDC or Medicaid

Program to report information to WIC authorities. Nor would it require

the WIC applicant to secure additional information from these programs.

As proposed, the definition of ``family'' in Sec. 246.2 was revised to

provide that, for purposes of determining WIC adjunct or automatic

income eligibility only, ``family'' would be defined as persons living

together, except that residents of an institution could not be

considered members of a single family. WIC Program authorities could

easily apply this definition with minimal burden on applicants. The

Department believed that this proposed definition would not exclude any

person who would have been encompassed by the AFDC and Medicaid

concepts of ``family.''

The majority of commenters addressing this issue opposed the

provision. They objected to different definitions being applied to

three types of applicants--adjunct income eligibles, applicants not

adjunctively income eligible, and homeless persons--and indicated that

such variation would create a ``double standard'' for eligibility and

confusion for WIC clinic staff. In addition, they indicated that

individuals may make manipulations in their household compositions or

family members, i.e., request AFDC or Medicaid recipients to move in

with them, in order to gain WIC adjunct income eligibility status.

Other commenters approved the provision with modifications. For

example, one commenter expressed concern with the fact that the

definition, as proposed, did not address how a foster child should be

counted, and recommended the definition incorporate current policy

which counts a foster child as a family of one. Several commenters

concurred with the definition as proposed as long as the Department's

ultimate goal was to move towards a single definition.

In view of the concerns raised by commenters and the intent of

Congress that the Department establish an expedited process yet limit

the administrative burden on WIC local agencies, the Department has

decided in this final rule to use the WIC Program's current definition

of ``family'' for adjunct income eligibility purposes. Therefore, no

change is necessary in this final rule to the regulatory text.

The Department agrees with commenters that (1) the definition as

proposed is broad and would bring into the WIC Program a number of

persons who may not otherwise be income eligible for program benefits,

and (2) the use of a common definition of ``family'' for adjunct and

nonadjunct applicants in order to determine WIC income eligibility is

preferable in order to ensure limited administrative burden on WIC

local agencies. As reflected by commenters, merely living with an

individual who has been determined eligible to receive AFDC or a

pregnant woman or infant eligible for Medicaid benefits should not

necessarily be the sole factor in determining what family members will

also be deemed adjunctively income eligibility for WIC. The Department

would like to note that the proposed definition of ``family'' for

adjunct purposes was an attempt to account for any slight effect that

might result from variation between the WIC Program's definition of

``family'' and the budgetary or filing unit used by the AFDC and

Medicaid Programs. However, after further review, the Department

believes that using the current WIC definition of ``family'' for

adjunct income eligibility purposes would encompass all, or virtually

all persons that were considered in the budgetary or filing unit for

AFDC or Medicaid, and which are categorically eligible for WIC.

For purposes of determining under Sec. 246.7(d)(2)(vii) which

family members must also be deemed adjunctively income eligible for

WIC, and as set forth in the current WIC Program regulations,

Sec. 246.2, ```Family' means a group of related or nonrelated

individuals who are living together as one economic unit, except that

residents of a homeless facility or an institution shall not all be

considered as members of a single family.'' Therefore, those family

members, categorically eligible for WIC, who would be adjunctively

income eligible are (as is currently the case in WIC) those

individuals, related or nonrelated, who usually (although not

necessarily) live together and share income and resources with an

individual who has been certified eligible to receive AFDC or a

pregnant woman or infant who has been certified as eligible to receive

Medicaid benefits. Further, in response to commenter concerns, the

Department would like to emphasize and clarify how this definition

applies to foster children. As set forth in FNS Instruction 803-3, Rev.

1, a foster child who is the legal responsibility of a welfare or other

agency is considered a family of one. Therefore, a foster child who

remains the legal responsibility of the State and is certified as

eligible to receive AFDC or Medicaid (if the foster child is an

infant), can never confer adjunct income eligibility to family members.

Only the foster child would be adjunctively income eligible for WIC.

The Department also proposed to revise Sec. 246.7(d)(2)(vii) of the

regulations to implement the legislative mandate that a person who

documents that he/she is a member of a family which includes an AFDC

recipient or a pregnant woman or an infant who receives Medicaid shall

be determined adjunctively income eligible for WIC. No commenters

addressed this issue. In this final rule, this paragraph has been

renumbered as (d)(2)(vi)(A)(2) and has also been modified slightly to

eliminate potential confusion by replacing the word ``receives'' with

the phrase ``is certified eligible to receive.'' This change is

explained fully in Section 3 of this preamble, above, and is intended

to include persons who are currently certified as eligible for Medicaid

or AFDC although they are not currently participating in those

programs.

The remainder of this provision remains as proposed. It retains the

requirement that an applicant seeking adjunct eligibility must

document, at a minimum, that the family member is certified as eligible

to receive such benefits and that the family member resides with the

applicant. Examples of documentation to confirm that a family member is

certified as eligible to participate in AFDC or Medicaid is also

addressed previously in this preamble. Documentation that the WIC

applicant resides with the individual certified as eligible to receive

such benefits need not be extensive. Such documentation would include,

for example, a letter or envelope addressed to the family member who

participates in, for example, AFDC, which matches the WIC applicant's

address, or a program identification card or notice of eligibility

which includes the family member's name and address and matches the WIC

applicant's address.

As set forth in newly designated Sec. 246.7(d)(2)(vi)(B) of this

final rule, State agencies continue to have the option to accept, as

evidence of income within Program guidelines, documentation of the

applicant's participation in State administered programs that routinely

require documentation of income, provided that those programs have

income eligibility guidelines at or below the State agency's WIC

Program income guidelines. This section had been redesignated as

Sec. 246.7(d)(2)(x) in the proposed rule. It has again been renumbered

in this final rule.

As set forth in Public Law 101-147, section 123(a)(2) of the law

revises section 17(d)(2) of the CNA of 1966 to specify that persons who

are at nutritional risk shall be eligible for the WIC Program if the

individual meets WIC's maximum income limit (which in the law is

prescribed as the limit prescribed for the National School Lunch

Program Act for free and reduced price meals), or receives food stamps,

AFDC, or Medicaid benefits, or is a member of a family that receives

AFDC or in which a pregnant woman or an infant receives Medicaid.

Therefore, as set forth in the law, persons determined adjunctively

income eligible for WIC are not further required to meet WIC's maximum

income limit set at 185 percent of poverty. Accordingly, the Department

proposed in Sec. 246.7(d)(2)(x) that persons who are adjunctively

income eligible shall not be subject to these income limits. No

comments were received on this proposed provision. Therefore, in this

final rule, the Department has retained the provision as proposed,

however, it has been redesignated as Sec. 246.7(d)(2)(vi)(C). State

agencies should be aware that there are cases where an adjunctively

income eligible individual's family income can actually exceed the

income limit of 185 percent of poverty. For example, in the Medicaid

Program, some States employ what is known as the ``Katie Beckett'' or

``TEFRA'' option to serve disabled children who in the past would have

been institutionalized but now live at home. These children are deemed

income eligible for Medicaid without regard to the income of the

parents. However, as set forth in the law, participation in Medicaid

(or one or more of the other programs described above) is the sole

factor in determining an applicant as adjunctively income eligible for

WIC benefits, assuming the applicant has elected to apply for WIC

benefits on this basis. The fact that a few such individuals may

actually have family incomes which exceed WIC guidelines is not

determinative in these instances.

b. Adjunct income eligibility for presumptively eligible recipients

of assistance under AFDC or Medicaid (Sec. 246.7(d)(2)(vi)). Adjunct

income eligibility for fully eligible recipients of Food Stamps and

assistance under AFDC and Medicaid was established in a final rule

published on February 1, 1990 at 55 FR 3385. That rulemaking did not

grant adjunct income eligibility to ``presumptively,'' or

provisionally, eligible recipients of AFDC or Medicaid who apply for

WIC. No similar presumptive eligibility provision exists in the Food

Stamp Program.

Presumptive eligibility essentially entails granting full AFDC

benefits to all or, at the option of the State, certain eligible

recipient categories, and limited Medicaid benefits to pregnant women

based on their categorical eligibility, before they have completed the

application process and have been determined fully eligible. Such

recipients are subsequently removed from the program if they are

determined to be ineligible once the application process has been

completed. In both the AFDC and Medicaid Programs, States have the

option to provide presumptive eligibility determinations. Currently,

approximately 30 States have opted to provide such determinations under

the Medicaid Program and approximately 13 States under the AFDC

Program. In the February 1, 1990 final rulemaking, the Department did

not permit these presumptively eligible recipients of the AFDC and

Medicaid Programs to be considered adjunctively income eligible for WIC

because the Department needed first to gather more information about

the meaning and implications of presumptive eligibility in these

programs.

Although, as indicated above, presumptively eligible AFDC and

Medicaid recipients may ultimately prove to be ineligible for these

programs, in actual practice, as confirmed with our Federal Medicaid

and AFDC counterparts, such persons characteristically prove to be

fully eligible upon completion of the eligibility determination

process. This is not, therefore, a frequent cause of persons ceasing to

be certified as eligible to receive benefits under these programs after

relatively brief periods of participation, and it is by no means the

only cause of early termination. Individuals may cease to be certified

as eligible to participate in AFDC, Medicaid, or the Food Stamp Program

at any time because these programs, for the most part, reassess

eligibility more frequently than the WIC Program. Furthermore, persons

may cease to be certified as eligible to receive benefits under these

programs for reasons entirely unrelated to changes in their income,

e.g., an AFDC recipient who neglects to submit the required monthly

reporting form may be terminated from the program. Even when persons

cease to be certified as eligible to receive benefits under these

programs because of increases in their income, the possibility remains

that they may still meet WIC income eligibility guidelines.

Therefore, the Department intended, as explained in the preamble of

its proposed rulemaking, that any WIC applicant determined

presumptively eligible for AFDC or Medicaid would also be considered

adjunctively income eligible for WIC. However, the proposed regulatory

language in Sec. 246.7(d)(2)(vii)(A) inadvertently did not specifically

mention presumptive eligibility.

The majority of commenters approved the Department's proposal to

extend WIC adjunct income eligibility to persons participating in AFDC

or Medicaid based on presumptive eligibility determinations. However,

several commenters recommended that the actual regulatory text be

revised specifically to grant WIC adjunct income eligibility status to

applicants determined presumptively eligible for AFDC or Medicaid.

Therefore, based on the comments received, this final rule, in

newly designated Sec. 246.7(d)(2)(vi)(A)(1), states that applicants who

are certified as eligible to receive Food Stamps, AFDC or Medicaid, or

applicants who are presumptively eligible for AFDC or Medicaid, and

document such eligibility, shall be determined adjunctively income

eligible for WIC.

c. Cessation of food stamp, AFDC or medicaid benefits and its

impact on WIC certification periods and mid-certification

disqualification of adjunct income eligible participants

(Sec. 246.7(h)(1)). An additional issue which was addressed in the

Department's proposed rule is how to treat WIC participants who gain

adjunct income eligibility only to be subsequently determined

ineligible for Food Stamps, AFDC or Medicaid, and the impact, if any,

such a determination should have on these individuals' WIC

certification periods. Currently, WIC local agencies are required to

make a WIC income eligibility determination at the time of initial

application and subsequent applications. The standard certification

period is 6 months, though pregnant women may be certified for the term

of their pregnancies and up to 6 weeks postpartum, and State agencies

may opt to certify infants who are under six months of age for a period

extending to their first birthday. However, in Sec. 246.7(g) of the

current WIC regulations and under current WIC policy, if a reassessment

of program eligibility is performed mid-certification and the

individual is determined ineligible, the local agency must disqualify

the individual in the middle of a certification period. Examples of

situations which might trigger a reassessment include a change in

income reported by a participant, rehiring of temporarily laidoff

workers and validated citizen complaints of eligibility violations. If

the State agency has reason to believe that a participant may no longer

be income-eligible, prudent management would dictate the need to

conduct a reassessment. However, WIC participants are not required to

report income changes during certification periods nor are local

agencies required to inquire about such changes. State agencies have

been informed that they may wish to establish formal policies for when

it is appropriate to conduct a mid-certification reassessment.

As discussed earlier in section 3.b. of this preamble, there are a

variety of reasons why persons may cease to be certified as eligible to

participate in one or more benefit programs that confer adjunct income

eligibility for WIC, many of which do not signal a change in financial

status. To require in these regulations that adjunctively income

eligible WIC participants must report cessation of benefits in any one

of these programs during their WIC certification periods would be

inconsistent with current policy regarding the reporting of income

changes for other WIC participants.

Therefore, the Department proposed in its rulemaking to allow State

agencies to confer adjunct income eligibility for the entire WIC

certification period to persons who, at the time of application for

WIC, were either recipients of Food Stamps, Medicaid, or AFDC, or were

members of families which contain an AFDC recipient or a pregnant woman

or an infant who receives Medicaid. In the proposed rule, a statement

was added to newly designated Sec. 246.7(h)(1) to the effect that the

State agency need not, during a certification period, reassess the

income eligibility of a person who has been enrolled in WIC based on

adjunct income eligibility.

While the majority of commenters approved the proposal that

adjunctively income eligible participants be given a full certification

period, some commenters opposed the proposed change in the regulations.

Although the intent of the proposal was to confer equal treatment for

adjunct and nonadjunct income eligible participants by ensuring such

participants are provided a full certification period, several

commenters noted that the proposed regulatory language change to the

mid-certification disqualification requirements resulted in and

reflected inequitable treatment. In effect, nonadjunct participants

could be disqualified mid-certification while participants adjunctively

income eligible for WIC were guaranteed continued participation

regardless of income changes during the certification period. Such

commenters recommended the regulatory language be revised to reflect

consistent mid-certification reassessment policy regardless of the

method used to initially determine an individual's income eligibility

for WIC.

Therefore, in response to these concerns, the Department has

clarified these issues in this final rule. First, no change is

reflected in this final rule concerning WIC certification periods. All

participants, including those determined adjunctively income eligible

or income eligible under the State option set forth in newly designated

Sec. 246.7(d)(2)(vi)(B) would be subject to the certification periods

set forth in newly designated Sec. 246.7(g)(1), except in those cases

where State policy permits shorter certification periods in certain

circumstances, as permitted in newly designated Sec. 246.7(g)(1)(v).

Secondly, newly designated Sec. 246.7(h)(1) has been revised with

regard to mid-certification disqualification action. State agencies

shall continue to ensure that local agencies disqualify an individual

during a certification period if, on the basis of a reassessment of WIC

eligibility, the individual is determined ineligible. In addition,

newly designated paragraph (h)(1) has been revised to clarify the

procedures to be followed in the case of participants who at the time

of certification were determined adjunctively income eligible (or

income eligible under the State option) for WIC. As set forth in this

paragraph, an individual determined adjunctively income eligible or

eligible under the State option, shall not be disqualified mid-

certification solely on the basis of a determination that they (or

where applicable for adjunct eligibility purpose, a member of their

family) are no longer certified as eligible to participate in AFDC,

Medicaid, Food Stamps, or another qualified State-administered program

(as permitted in Sec. 246.7(d)(2)(vi)(B)). As discussed above, such

participants or a family member or members may no longer be certified

as eligible to participate in any one of these programs for reasons

entirely unrelated to their income status. In addition, while the WIC

participant may have been determined adjunctively income eligible for

WIC due to certified eligibility for Medicaid but may have been

recently terminated from the Medicaid Program, such an individual could

be certified as eligible to participate in AFDC and/or Food Stamps.

Therefore, such an individual would continue to be classified as an

adjunct income eligible WIC participant and would not be disqualified

mid-certification.

Therefore, as set forth in paragraph (h)(1) of this final rule,

State agencies are required to ensure that local agencies disqualify

such an individual during a certification period if, on the basis of a

reassessment of Program eligibility he/she is no longer deemed

adjunctively income eligible (or income eligible under the State

option), and after utilizing standard income screening procedures

employed for other WIC applicants, such an individual does not meet

income criteria. Any mid-certification reassessment of an adjunct

income eligible participant must first involve a determination of

whether the individual (1) is certified as eligible to participate in

at least one of the programs which triggers adjunct income eligibility

or (2) is a member of a family which contains an individual certified

as eligible to receive AFDC or a pregnant woman or an infant is

certified as eligible to receive Medicaid or (3) is participating in a

qualified State-administered program, if the State agency has chosen to

implement this option. If none of the conditions exist, the

reassessment process would proceed with the usual income screening

procedures used for individuals not adjunctively income eligible for

the Program. If, utilizing these procedures, the individual is no

longer income eligible, he/she must be disqualified or terminated from

the program mid-certification. Such procedures ensure equal treatment

of any WIC participant if his/her eligibility is reassessed mid-

certification. The distinction in this final rule is that the process

used to reassess an adjunctively income eligible participant must be

approached differently in order to ensure an equitable determination of

continued eligibility. Just as there is not a requirement for reporting

income changes during the certification period, adjunctively income

eligible participants are not required to report changes in their

status which may effect the basis for their eligibility during the

certification period.

4. State Plan Requirements (Sec. 246.4(a))

a. Enhanced outreach. In recognition of the importance of enrolling

women in WIC as early in their pregnancy as possible, section

123(a)(4)(A)(ii) of Public Law 101-147 amends section 17(f)(1)(C)(vii)

of the CNA of 1966 to require that the State agency's outreach plan

include ``emphasis on reaching and enrolling eligible women in the

early months of pregnancy, including provisions to reach and enroll

eligible migrants.'' This legislation adds an emphasis on outreach and

also specifically refers to migrants as a target population. Therefore,

the Department proposed to revise Sec. 246.4(a)(7) of the regulations

to require a description in the State plan of how the State intends to

emphasize contacting and enrolling eligible women in the early months

of pregnancy and migrants through its outreach efforts. One commenter

responded to this proposal by recommending additional resources be

provided State agencies to reach potentially eligible migrants.

This final rule retains the provision as proposed. In response to

the commenter's recommendation, the Department notes that through the

overall increases in the amount of NSA funding provided to State

agencies as a result of increases in program funds appropriated by

Congress and the increased percentage of the appropriation which is

allocated as NSA funds as a result of Public Law 101-147, State

agencies will receive more NSA funds to carry out the activities

required by this provision to reach and enroll migrants.

b. Plans to promote breastfeeding. Section 123(a)(4)(A)(i) of

Public Law 101-147 amends section 17(f)(1)(C)(iii) of the CNA of 1966

to require that State plans include a plan to coordinate WIC operations

with ``local programs for breastfeeding promotion.'' Because

coordination between WIC and other programs is already covered in

Sec. 246.4(a)(8) of program regulations, the Department proposed to

modify this paragraph to include breastfeeding promotion.

Further, section 123(a)(4)(A)(iv) of Public Law 101-147 amends

section 17(f)(1)(C)(xi) of the CNA of 1966 to require that the State

agency describe in its State plan the manner in which it intends to

provide nutrition education ``and promote breastfeeding.''

Nutrition education goals and action plans are currently addressed

in Sec. 246.4(a)(9). Therefore, the Department proposed in its

rulemaking to revise Sec. 246.4(a)(9) of the WIC regulations to

include, as part of the State's description of its nutrition education

goals and action plans, a description of the methods that would be used

to promote breastfeeding.

No comments were received on these proposed provisions. Therefore,

this final rule retains the provision as proposed.

WIC Program regulations (Sec. 246.11(e)(1)) have long required

State and local agencies to encourage all pregnant participants to

breastfeed unless contraindicated for health reasons. The breastfeeding

promotion and support provisions of Public Law 101-147 therefore serve

to reinforce and intensify efforts by WIC Program staff to encourage

breastfeeding.

c. WIC benefits for foster children. Section 123(a)(4)(A)(ii) of

Public Law 101-147 added a new paragraph (viii) to section 17(f)(1)(C)

of the CNA of 1966, requiring State agencies to describe in their State

plans how they will provide program benefits ``to infants and children

under the care of foster parents, protective services, or child welfare

authorities, including infants exposed to drugs perinatally.''

Accordingly, the Department proposed to add a new Sec. 246.4(a)(20)

to the WIC regulations to incorporate this legislative mandate.

The majority of commenters addressing this issue approved the

provision, as proposed, but suggested modifications. One commenter

recommended that the Department develop a method of allowing WIC staff

access to such a child's medical records in order to determine

nutritional risk. Another commenter recommended that the Department

require Federally-funded State child social service programs to

coordinate with WIC. While the Department is currently involved in

coordination efforts with numerous Federal health and social service

programs, we would encourage State agencies to initiate discussions

with their State counterparts administering such programs in order to

bring about the suggested actions and coordination efforts within the

State. With regard to both recommendations, we would encourage State

agencies to enter into written agreements with health and welfare

programs serving foster children, as provided in Sec. 246.26(d) of the

WIC regulations pertaining to confidentiality. Such written agreements

provide an effective mechanism to encourage coordination of services

and the sharing of information for eligibility and outreach purposes.

Because these comments do not necessitate changes in the provision

as proposed, the Department is adopting it without changes.

In explaining the provision, Senator Leahy noted (Congressional

Record, August 3, 1989, S10021-2) that Congress intended that

implementation of this provision would entail State or local WIC

agencies contacting foster care and protective service agencies and

providing them with written information about the WIC Program. It would

then be up to the foster care and protective service agencies to make

this information available to their clients.

In regard to a clarification requested by a commenter, this

outreach effort and provision of WIC materials would include agencies

serving foster children in group settings. Because such group settings

would be considered only temporary arrangements, they would fall under

the very broad definition of homeless facilities used in the WIC

Program. As such, this clarification of policy was recently issued by

the Department as guidance to States in implementing the final homeless

regulations published in the Federal Register on August 5, 1992 (57 FR

34500).

d. Improved access for employed persons and rural-area residents.

Most local WIC clinics are located where WIC participants are

concentrated within their service delivery areas, and are organized to

take and process WIC applications during ``normal'' business hours.

This may pose problems for WIC applicants and participants who are

employed and cannot always take time off from their jobs long enough to

complete the application/certification process or participate in

nutrition education activities, and for applicants and participants who

reside in rural areas which may be a considerable distance away from

the nearest WIC local agency or clinic. Similar problems are

encountered by these two groups of participants when they need to make

subsequent trips to the local WIC office to pick up their food

instruments.

Section 123(a)(4)(A)(iv) of Public Law 101-147 focuses attention on

this issue by adding a new section 17(f)(1)(C)(x) to the CNA of 1966

requiring State agencies to describe in their State plans how they will

``improve access to the program for participants and prospective

applicants who are employed, or who reside in rural areas, by

addressing their special needs through the adoption or revision of

procedures and practices to minimize the time participants and

applicants must spend away from work and the distances that

participants and applicants must travel, including appointment

scheduling, adjustment of clinic hours, clinic locations, or mailing of

multiple vouchers.'' Therefore, a new Sec. 246.4(a)(21) was proposed by

the Department with the intent to reiterate this legislative mandate.

Of those commenters addressing this issue, the majority either

opposed the provision or approved the provision but expressed some

concerns. Some commenters expressed concern with staffing the clinic

for late hours, and in one commenter's opinion such action would place

too much demand on local agencies to change clinic hours which could

result in clinic closings. Several commenters noted that additional

funds would be needed to hire additional staff and provide clinic

security for extended or after-hours operation.

It should be noted that this State plan requirement addressing

improved program access for employed applicants and residents of rural

areas is flexible. As proposed, the Department inadvertently used

language in the regulatory text which implied that a State's plan to

improve program access for employed individuals or individuals who

reside in rural areas must include appointment scheduling, adjustment

of clinic hours and/or locations and alternate means of delivery of

benefits. This inadvertent error may have generated the concerns raised

by commenters. As noted above, the legislative language did not specify

that all of these procedures must be implemented, but rather cited

several examples of procedures which might be implemented. In other

words, a State agency may choose to implement procedures to adjust

clinic hours and/or locations, but may prefer not to implement

alternative procedures for delivery of benefits, such as mailing

vouchers. The intent of this legislative provision is to ensure State

agencies take some action to recognize and accommodate the special

needs of employed persons and those living in rural areas. Therefore,

the proposed Sec. 246.4(a)(21) has been modified to clarify that at

least one of the procedures/practices contained in this paragraph must

be implemented, but that each State agency has the option of choosing

which one. State agencies are encouraged, but not required, to

implement more than one of these procedures/practices. In addition,

this provision has been revised to incorporate the legislative

requirement, as discussed below in Section 6.d. of the preamble, that

each State agency must adopt policies to require local agencies to

schedule appointments for adult individuals applying or reapplying for

the WIC Program for themselves or on behalf of others who are employed,

if the local agencies do not currently do so.

While several commenters raised valid security and staffing

concerns with adjusting clinic hours, there are alternatives available

that achieve the goal of improved Program access without significant

resource or security implications. For example, if extended evening

hours are not feasible in all local agencies, the agencies might

consider closing clinic offices early one day during the week and

providing Saturday morning clinic hours. Local agencies might also

provide ``early-bird'' morning services. In this way, both the security

and staffing issues may have a minimal impact on the feasibility of

implementing this procedure. Another option is to establish smaller

satellite facilities that are open a half day to one day a week for

purposes of certification and food instrument issuance that rotate

throughout the local agency's ``catchment area'' in which hard to reach

participants live.

e. Conforming state plan amendments and related provisions. The

proposed rule contained amendments to conform WIC Program regulations

to ensure compliance with certain existing, Department-wide or

government-wide requirements of general applicability. The first of

these are the conforming amendments to State Plan requirements

contained in Secs. 246.24(a) (22) and (23). They concern the

Department's requirements, set-forth in 7 CFR part 3017, on debarment

and suspension and maintenance of a drug-free workplace. In addition,

Sec. 246.6(b), which contains the requirements for agreements entered

by the State agency with local agencies, was amended in the proposed

rule to reflect the debarment and suspension provisions in 7 CFR part

3017. This final rule further amends it to incorporate by reference any

applicable restrictions on the use of Federal funds for lobbying which

are contained at 7 CFR part 3018. The substance of these provisions is

more fully discussed in section 20 of this preamble.

In addition, as discussed in section 10 of this preamble, Public

Law 101-147, as set forth in the Department's proposed rulemaking and

these final regulations (Sec. 246.12(r)(8)), authorizes State agencies

to issue food instruments to participants through means other than

direct participant pick-up. As set forth in this final rule in

Sec. 246.4(a)(21), a State agency which chooses to issue food

instruments through alternative means must include a description of

this system in its State Plan and describe measures to ensure the

integrity of program services, such as nutrition education and health

care/social services linkages, and fiscal accountability. In addition,

as required by Sec. 246.12(r)(8) of this final rule, if a State agency

opts to mail WIC food instruments, it must provide justification, in

the description of the alternative issuance system in its State Plan,

for mailing WIC food instruments to areas where food stamps are not

mailed.

5. Outreach/Certification in Hospitals (Sec. 246.6(f))

A number of local agencies operate the WIC Program within a

hospital, or have cooperative arrangements with an area hospital to

certify WIC applicants. Such arrangements enable eligible newborn

infants to begin receiving WIC benefits from the earliest possible

date, and facilitate enrollment of at-risk mothers who may not have

been eligible during pregnancy immediately after the birth of their

child. Section 123(a)(4)(B) of Public Law 101-147 builds upon existing

local agency/hospital WIC relationships by adding a new section

17(f)(8)(D) to the CNA of 1966 to require each local agency which

either operates a WIC Program within a hospital or has a cooperative

arrangement with one or more hospitals to ``advise potentially eligible

individuals that receive inpatient or outpatient prenatal, maternity,

or postpartum services, or accompany a child under the age of 5 who

receives well-child services, of the availability of Program

benefits.'' The legislation also requires that local agencies, ``to the

extent feasible, provide an opportunity for individuals who may be

eligible to be certified within the hospital for participation in the

program.''

The Department proposed to add a new paragraph (f) to Sec. 246.6 to

state that a local agency which has such an arrangement with a hospital

would be required to enter into a written agreement with the hospital

incorporating the provisions of the legislative mandate. This agreement

would, in turn, be appended to the State agency's agreement with the

local agency. No requirement exists for local WIC agencies which do not

operate the program in a hospital or through a cooperative agreement

with a hospital to establish such an arrangement.

An overwhelming majority of commenters opposed the provision as

proposed. The main concern expressed by commenters was the Department's

proposal that local agencies enter into written agreements with

hospitals. Several commenters indicated that such an agreement could

potentially jeopardize existing arrangements and cooperative efforts

local agencies have established with many hospitals and would be

unnecessarily prescriptive.

Based on commenters' concerns, the Department has deleted in this

final rule the requirement that local agencies enter into written

agreements with hospitals. The remainder of Sec. 246.6(f) is adopted as

proposed. As set forth in this paragraph, the State agency is required

to ensure that each local agency operating the program within a

hospital and/or that has a cooperative arrangement with a hospital

advises potentially eligible individuals that receive inpatient or

outpatient prenatal, maternity, or postpartum services, or that

accompany a child under the age of 5 who receives well-child services,

of the availability of program services. In addition, to the extent

feasible, individuals who may be eligible to be certified for WIC

within the hospital should be provided such an opportunity.

6. Program Referral and Access (Sec. 246.7(b))

In response to mandates of Public Law 101-147 which place increased

emphasis on improving access to the WIC Program and referrals to other

health-related or public assistance programs, the Department proposed

to add a new paragraph (b) to Sec. 246.7. The specific proposed

requirements regarding improved program access and referral, including

comments received and changes made in this final rule, are discussed in

detail below.

a. Providing written information on other programs to WIC

applicants/participants. Section 123(a)(3)(D) of Public Law 101-147

adds a new section 17(e)(3)(A) to the CNA of 1966 which requires State

agencies to ``ensure that written information concerning food stamps,

the program for aid to families with dependent children under part A of

title IV of the Social Security Act, and the child support enforcement

program under part D of title IV of the Social Security Act is provided

on at least 1 occasion to each adult participant in and each applicant

for the program.'' The Department proposed to implement this

requirement by adding a new subparagraph (1) in newly designated

Sec. 246.7(b).

While the majority of commenters approved the provision as

proposed, many of these commenters recommended various changes to the

regulatory text or questioned the intent of the provision as discussed

in the preamble to the proposed rule. First, several commenters

recommended that such information be provided to one adult member in

any family as opposed to ``each adult participant in and each applicant

for the program.'' Commenters noted that as proposed, the requirement

could result in multiple copies of the same materials being provided to

different household members, including children, in the same family.

One commenter recommended the provision of materials be extended to

adult caretakers. Secondly, several commenters recommended such

information be provided to applicants and participants ``on at least

one occasion'' as required by law and not once each certification

period as noted in the proposed preamble.

Based on commenters' concerns, Sec. 246.7(b)(1) has been modified

to require State agencies to ensure that written information concerning

the Food Stamp, Aid to Families with Dependent Children and the Child

Support Enforcement Programs is provided on at least one occasion to

``adult participants and adult individuals applying for the WIC Program

for themselves or on behalf of others.'' Because Congress did not

intend this provision to result in an inordinate administrative burden,

the Department believes that providing one adult member or caretaker of

a household with the required information is sufficient and meets the

intent of Congress.

In addition, while the proposed rule did not specifically define

the phrase ``on at least one occasion,'' the Department suggested in

the preamble that the requirement should mean at each certification or

recertification. However, based on commenters' concerns that this

suggestion went beyond the intent of Congress, the Department wishes to

make clear that State agencies have the flexibility to define what ``on

at least one occasion'' means. It may be defined as only at the initial

application or at each application or reapplication. Since these

comments arose only in connection with the proposed preamble, this

portion of Sec. 246.7(b)(1) is being adopted as proposed.

State agencies may find that a routine distribution at every

application is actually administratively easier or less burdensome than

distribution only at initial application. Also, household circumstances

can change dramatically in a 6-month period. For example, some

applicants and participants who received the information at the initial

WIC application visit may not have contacted one of these programs

because they felt their circumstances at that point in time did not

necessitate seeking other types of assistance. However, 6 months later

at a subsequent WIC application visit, the family's circumstances may

warrant contacting other assistance programs. Therefore, the

availability of such program information at the reapplication visit

would assist the family in seeking additional services. Further, a

program's requirements can change from year to year, in which case WIC

applicants and participants should be apprised or updated regarding

these changes. While the State agency must require local agencies to

provide this information on one occasion, it should consider such

factors when determining if more frequent distribution is appropriate.

In addition, a statement of explanation agreed on by the House and

Senate to accompany H.R. 24 makes it clear that this requirement can be

satisfied by providing a fact sheet which contains basic information

about these programs and the addresses and phone numbers of local

offices where low-income families can apply (Congressional Record,

October 10, 1989, H6863). Further, WIC agencies are not required to

document in each WIC participant's or applicant's file that the fact

sheet was provided, as this would unnecessarily increase paperwork

burdens for local WIC agency staff.

Finally, it is not the intent of this provision to require WIC

agencies to develop and create fact sheets on other assistance

programs. WIC State and/or local agencies are encouraged to consult

with their State and/or local counterparts administering the Food

Stamp, AFDC and Child Support Enforcement Programs to ascertain the

existence and availability of program fact sheets for dissemination in

WIC clinics. State and/or local agencies may simply need to duplicate

copies of a fact sheet or materials developed by another assistance

program.

The Department wishes to reiterate that this final rule attempts to

minimize the administrative and paperwork burden associated with

providing information to Program applicants concerning the Food Stamp,

AFDC, Medicaid, and Child Support Enforcement Programs. However, the

Department believes very strongly that WIC's role in providing

referrals to other health and social service programs is critical to

WIC's mission to promote and protect the health and well-being of at-

risk women, infants, and children. Therefore, the Department fully

expects State and local agencies to aggressively promote and pursue

appropriate referrals on behalf of their clients and, as appropriate,

institute measures to determine whether clients have in fact made

contact with other service providers.

b. Referrals to Medicaid. Section 123(a)(3)(D) of Public Law 101-

147 adds a new section 17(e)(3)(B) to the CNA of 1966 requiring State

agencies to ``provide each local WIC agency with materials showing the

maximum income limits, according to family size, applicable to pregnant

women, infants, and children up to age 5 under the medical assistance

program established under title XIX of the Social Security Act (in this

section referred to as the `medicaid program').'' In addition, a new

section 17(e)(3)(C) is added to the CNA by the same section of Public

Law 101-147 to require that local agencies, in turn, ``provide to

individuals applying for the program under this section, or reapplying

at the end of their certification period, written information about the

Medicaid program and referral to such program or to agencies authorized

to determine presumptive eligibility for such program, if such

individuals are not participating in such program and appear to have

family income below the applicable maximum income limits for the

program.'' In the proposed rule, the Medicaid referral provisions were

addressed by adding a new subparagraph (2) to newly designated

Sec. 246.7(b).

The majority of commenters approved the provision as proposed.

Therefore, the proposed rule is adopted with two minor clarifications

the Department feels are needed. First, this final rule clarifies in

the regulatory text that information about the Medicaid Program must be

provided to ``adult individuals applying and reapplying for the WIC

Program for themselves or on behalf of others.'' This clarification is

intended to ensure that duplicative materials are not provided to

multiple family members applying for the program, which the Department

believes was not intended by Congress. This is also consistent with the

revision made in this final rule to newly designated Sec. 246.7(b)(1)

regarding the provision of written information on the Food Stamp, AFDC

and Child Support Enforcement Programs. State and local agencies should

note, however, that Congress specified in the law that information on

the Medicaid Program must be provided to individuals at the time of

application and reapplication. In addition, the joint statement of

explanation accompanying H.R. 24 further supports this requirement by

directing State agencies to provide local agencies with ``the

information necessary to conduct such referrals, including * * * the

appropriate agency where the participant or applicant could apply for

Medicaid'' (Congressional Record, October 10, 1989, H6863). Thus, this

final rule retains reference to providing this information to those

both applying and reapplying to the WIC Program.

Second, the proposed regulatory language has been revised to

clarify that referrals to the Medicaid Program include the referral of

infants and children to the appropriate agency in the area authorized

to determine eligibility for early and periodic screening, diagnostic,

and treatment (EPSDT) services. EPSDT services are authorized under

title XIX of the Social Security Act and are a component of and

provided under the Medicaid Program. In addition, the proposed

requirement has been revised to clarify that it includes the referral

of pregnant women to the appropriate entity in the area authorized to

determine presumptive eligibility for the Medicaid Program, if the

State has chosen to make such determinations. As mentioned previously,

based on current data, approximately 30 States have opted to provide

presumptive eligibility determinations under the Medicaid Program.

Several clarifications are necessary regarding this requirement

since it was misunderstood by some commenters. First, the requirement

to refer individuals to the Medicaid Program applies only to

individuals seeking WIC benefits who do not currently participate in

the Medicaid Program. Therefore, the effects of implementing this

provision could be minimal if a large majority of WIC applicants and

participants already participate in the Medicaid Program. Second, while

Medicaid eligibility is based on various factors, including citizenship

and alien status, it is not the intent of this provision that WIC local

agency staff become experts in Medicaid eligibility and screen WIC

applicants based on various Medicaid eligibility factors, including for

example, whether such individuals are U.S. citizens. Such extensive

screening procedures would be outside the intent and scope of this

requirement and are not the responsibility of WIC local agencies in

implementing this provision.

As reflected in this requirement, the determination by local clinic

staff of whether to refer an individual to Medicaid would entail a

comparison of the family income, as determined for WIC income

eligibility purposes, to the State Medicaid Program's maximum income

limits according to family size, supplied by the WIC State agency to

its local agencies. One factor which local clinic staff need to

consider, however, in performing this comparison is that Medicaid by

law counts a pregnant woman as if the child were born and living with

her, whereas by law the WIC Program does not count the child. For

example, a pregnant woman applies for WIC benefits and her family size,

which includes herself and her spouse, is a two-person household for

WIC income eligibility purposes. In performing the comparison of this

family's potential Medicaid eligibility, this household's income should

be compared to a family size of three persons on the State's Medicaid

income eligibility scale.

Further, as indicated by Congress, it is not the intent that such

referrals to Medicaid by local WIC agencies be documented in each

individual's WIC file. Moreover, as indicated above in Section 6.a. of

this preamble, the requirement to provide Medicaid information can be

met by use of a simple fact sheet, and it is not the intent of this

provision to require WIC agencies to develop and create a fact sheet on

the Medicaid Program. WIC State and/or local agencies are encouraged to

consult with their State and/or local Medicaid counterparts to

determine the existence and availability of program fact sheets for

dissemination in WIC clinics. State and/or local agencies may simply

need to duplicate copies of a fact sheet or materials developed by the

State's Medicaid Program. Although Congress envisioned minimal

administrative burden on State and local agencies in providing

applicants/participants with information about other assistance

programs, the Department believes, as stated above, that the referral

of WIC applicants and participants to other health and welfare programs

is a vital WIC function and critical to the WIC Program's mission to

promote and protect the health and well-being of at-risk women,

infants, and children.

c. Referrals to other food assistance programs when WIC is fully

enrolled. Section 123(a)(4)(F) of Public Law 101-147 adds a new

paragraph 17(f)(19) to the CNA of 1966 which requires each local agency

to ``provide information about other potential sources of food

assistance in the local area to individuals who apply in person to

participate in the program under this section, but who cannot be served

because the program is operating at capacity in the local area.'' The

Department proposed to incorporate this legislative mandate in the WIC

regulations by adding a new subparagraph (3) to newly designated

Sec. 246.7(b) of the regulations.

No comments were received on this specific requirement, and the

Department is retaining this provision with one minor change to clarify

that the information need only be provided to adults who apply or

reapply for themselves or on behalf of others. This eliminates

duplicative and unnecessary distribution of this information to infants

or children. If individuals cannot be served because the program is

operating at capacity in the local area, local agencies shall provide

to individuals applying or reapplying for the program for themselves,

or on behalf of others, information about other potential sources of

food assistance in the local area. Such potential sources of food

assistance would include, but are not limited to, food banks, food

pantries, and soup kitchens which provide emergency or immediate food

assistance, as well as more structured food assistance programs such as

the Food Stamp Program, the Commodity Supplemental Food Program where

available, the Emergency Food Assistance Program, and/or the Food

Distribution Program on Indian Reservations (FDPIR), as appropriate.

Information and referrals provided under this section need not be

documented in participant files.

d. Scheduled appointments for employed participants and applicants.

Most local agencies utilize an appointment system for the WIC

application/certification process. However, in some local agencies,

particularly the smaller ones, persons wishing to apply for WIC are

seen on a first-come, first-served basis. This type of intake system

creates a particular hardship for the employed applicant or participant

who must take time off from work in order to be certified for WIC, and

may be required to wait a long time for service at the clinic if a

number of clients are in line ahead of her. In order to facilitate

participation of working families in WIC, section 123(a)(4)(F) of

Public Law 101-147 adds a new Section 17(f)(20)(B) to the CNA of 1966

requiring local agencies that do not routinely schedule certification

appointments to ``schedule appointments for each employed individual

seeking to apply or be recertified for participation in such program so

as to minimize the time each such individual is absent from the

workplace due to such application or request for recertification.''

Therefore, the Department proposed to incorporate the requirement that

local agencies schedule appointments for employed WIC applicants/

participants through the addition of a new Sec. 246.7(b)(4). The

majority of commenters supported the provision as proposed. This final

rule retains the requirement as proposed, but clarifies, consistent

with the preceding referral provisions, that this requirement applies

to adult applicants seeking to apply or reapply for themselves or on

behalf of others.

7. Contacting Pregnant Women Who Miss Certification Appointments

(Sec. 246.7(b)(5))

Section 123(a)(4)(F) of Public Law 101-147 adds a new section

17(f)(20)(A) to the CNA of 1966 requiring the State agency to adopt a

policy that would ``require each local agency to attempt to contact

each pregnant woman who misses an appointment to apply for

participation in the program, in order to reschedule the appointment,

unless the phone number and the address of the woman are unavailable to

such local agency.''

The statement of explanation agreed upon by the House and Senate

which accompanied H.R. 24 provides specific guidance regarding how this

mandate should be implemented. First, Congress did not envision that

compliance would entail ``elaborate efforts'' by the local agency;

rather, ``a brief phone call or the mailing of a post card would

suffice'' (Congressional Record, October 10, 1989, H6863). Second,

although the legislation does not require that an effort be made to

contact the pregnant woman who has missed an appointment if the local

agency lacks her address and phone number, Congress expressed the view

that ``local agencies should get her phone number (and/or the address)

when a pregnant woman makes an appointment. This should become a

routine part of making appointments for pregnant women, * * * (if it) *

* * is not already'' (Congressional Record, October 10, 1989, H6863).

The Department believes that this is, in fact, standard practice at

most local agencies.

In commenting on this provision at the time S. 1484 was introduced,

Senator Leahy indicated that it ``applies at the initial certification

interview only. It does not apply to missed appointments for picking up

WIC vouchers or to missed appointments at recertification''

(Congressional Record, August 3, 1989, S10018).

Pursuant to the direction of Congress that follow-up contacts be

made, but that the process not be labor-intensive (Congressional

Record, October 10, 1989, H6863), the Department proposed to add a new

paragraph (b)(5) in Sec. 246.7 which required each local agency to

contact each pregnant woman who misses her first appointment to apply

for participation in the Program in order to reschedule the

appointment. In addition, the Department proposed that each local

agency, at the time of initial contact, would be required to request an

address and telephone number where the pregnant woman could be reached.

Without this requirement, it would be difficult for local agencies to

conduct the Congressionally mandated follow-up with pregnant women who

miss their first certification appointment, and the Congressional

intent of promoting early program intervention for these women would be

thwarted. In addition, the Department proposed several minimum

procedures to comply with the legislative requirement. First, if the

applicant failed to attend her first certification appointment, the

local agency would be required to attempt to contact her by telephone

or mail. If she is contacted by phone, she must be offered one

additional certification appointment. Second, if the applicant could

not be reached by telephone and initial contact is by mail, the local

agency would be required to send the applicant one card or letter

requesting that the applicant contact the local agency for a second

appointment.

The majority of commenters supported these proposed requirements

and indicated that it is essential that the program facilitate the

certification of this high-risk population. Several commenters focused

their concerns on the proposed minimum procedural requirements. One of

these commenters indicated that follow-up calls are ineffective due to

nonworking numbers, recordings, and frequent moves by some individuals,

and further noted that there is no consensus such calls increase the

show rate. Some commenting State agencies recommended the Department

provide State and local agencies with the flexibility to determine

procedurally how to implement the provision. They indicated that other

types of follow-up procedures could produce more effective show rates.

For example, a local agency could schedule an appointment and provide

an alternate appointment in a followup postcard. Applicants would be

instructed to call if the scheduled appointment was unacceptable. These

commenters emphasized that local agencies should have the option to use

a reminder (before the appointment) and/or follow-up system. They

indicated the postcard and reminder system and calling the day before

the appointment are effective procedures.

While the Department must require compliance with the legislative

mandate to contact pregnant women who miss their initial certification

appointment, the Department does have flexibility to modify in this

final rule the minimum procedural requirements to accomplish this

mandate. Therefore, based on commenters' concerns, proposed paragraph

(b)(5) has been modified in this final rule to only require that each

local agency must attempt to contact each pregnant woman who misses her

first appointment to apply for participation in the Program in order to

reschedule the appointment. As noted above, Congress intends this

requirement to apply at the initial certification interview only and

does not apply to missed appointments for WIC voucher pick up or to

missed appointments at subsequent applications. In order to facilitate

such an attempt to contact these women if an initial certification

appointment is missed, this final rule retains the requirement, from

the proposed rule, that local agencies must request an address and

telephone number of each pregnant woman at the time of the initial

contact.

As requested by commenters, the specific procedures for

implementing this requirement have been deleted from this final rule.

It is the responsibility of State and/or local agencies to determine

appropriate procedures and they should be addressed in each State's

procedure manual. In developing such procedures, State and/or local

agencies should consider those addressed in the proposed rule,

commenters' recommendations as noted above and any first-hand

experiences in attempting to contact applicants in order to minimize

no-show rates. As suggested by commenters, the Department also

encourages, but does not require, local agencies to send out a reminder

notice prior to the certification appointment, especially where there

is a long lag time between the initial contact and the date of the

appointment. Such a precaution could reduce the number of missed

initial appointments requiring follow-up action.

8. Prior Notification to Participants for Termination Due to Funding

Shortages (Sec. 246.7(h)(2))

Section 246.7(g)(2) in current regulations (redesignated

Sec. 246.7(h)(2) in the proposed rulemaking) permits a State agency to

discontinue program benefits to certified participants in the event

that it experiences funding shortages which would warrant taking such

action. Because such a step would constitute an adverse action against

a participant, section 123(a)(4)(C)(ii) of Pub. L. 101-147 adds a new

section 17(f)(9)(B) to the CNA of 1966 requiring State agencies in this

situation to first issue a notice to affected participants identifying

``the categories of participants whose benefits are being suspended or

terminated due to the shortage.'' The Department proposed to add this

requirement in a new paragraph (j)(9) in Sec. 246.7.

Current regulations require State agencies to provide 15 days

advance notification of disqualification. To maintain consistency with

the statutory language, the Department proposed that the first sentence

of redesignated Sec. 246.7(j)(6) (formerly Sec. 246.7(i)(6)) be revised

to indicate that 15 days advance notice must be given in cases of

suspension, as well as disqualification.

No comments were received on these proposed provisions. Therefore,

the Department is retaining these requirements as proposed. As

discussed in the proposed rule preamble, State agencies would be able

to define the ``categories'' of participants to be terminated or

suspended in a variety of ways, given the alternative methods available

to them to achieve the necessary reduction in costs through mid-

certification disqualifications. Further, as discussed in Section 6.c.

of this preamble, Sec. 246.7(h)(3) of the final rule requires local

agencies to provide referrals to other food assistance programs when

their caseloads are full. State agencies may wish to advise their local

agencies to provide similar referrals to WIC participants who are

disqualified or suspended due to a funding shortage.

9. Documentation of Nutrition Education in a Master File

(Sec. 246.11(e)(4))

Nutrition education has always been an integral component of the

WIC Program. Any nutrition education provided to WIC participants has

always been required by regulations to be documented in each WIC

participant's casefile. However, many nutrition education activities,

especially those directed toward children or involving considerable

dialogue (such as food preparation demonstrations), lend themselves to

group activities. In such cases, individual casefile documentation

becomes an administrative hardship for the local agency staff.

Therefore, section 213(a)(1) of Public Law 101-147 adds a new Section

17(e)(5) to the CNA of 1966 which alleviates this paperwork requirement

by allowing local agencies to ``use a master file to document and

monitor the provision of nutrition education services (other than the

initial provision of such services) to individuals that are required,

under standards prescribed by the Secretary, to be included by the

agency in group nutrition education classes.'' The law applies the

master file documentation option to nutritional education contacts,

after the first such contact during a certification period, which are

provided, per Departmental mandate, to persons in groups. However,

because of the wide variety of both the nutrition education services

that can be provided to WIC participants and the techniques and

strategies appropriate for providing these various services, the

Department does not dictate terms and conditions under which subsequent

nutrition education contacts could be provided in a group setting.

The Department proposed to revise Sec. 246.11(e)(4) to comply with

this legislative requirement by permitting local agencies to document

nutrition education contacts, except for initial contacts, in a

participant master file when such contacts are provided in a group

setting. Further, proposed Sec. 246.11(e)(4) provided that should a

participant miss (no-show or refusal) a nutrition education

appointment, the local agency is required, for purposes of monitoring

and further education efforts, to document this fact in the

participant's file, or, at the local agency's discretion, in a master

file, in the case of a second or subsequent missed contact where the

nutrition education was offered in a group setting.

The majority of comments approved this provision as proposed. They

indicated that this provision would help to reduce and eliminate the

current paperwork burden, thus allowing more time on actual nutrition

education. Therefore, this final rule retains the provision, as

proposed.

With regard to this requirement, State agencies may not prohibit a

local agency from exercising the option to document nutrition education

in a master file, as permitted in these final regulations. First, as

designated by Congress in Public Law 101-147, this is a paperwork

reduction burden provision. Secondly, the legislative language

specifically refers to ``Each local agency * * *'' when addressing the

option to use a master file. For State agencies to prohibit local

agencies from exercising this option would be in direct violation of

the Congressional intent of this provision.

One commenter recommended the Department suggest mechanisms for

effective monitoring of the provision when implemented by local

agencies. The Department will address this issue in guidance materials

which will be issued to assist State agencies with this task.

10. Alternatives to Participant Pick-Up for Issuance of WIC Food

Instruments (Secs. 246.7(f)(2)(iv), 246.7(h)(1)(ii) and 246.12(r)(8))

Section 213(a)(2)(A)(ii) of Public Law 101-147 adds a new section

17(f)(7)(B) to the CNA of 1966 allowing States to provide for the

delivery of WIC food instruments ``to any participant who is not

scheduled for nutrition education counseling or a recertification

interview through means, such as mailing, that do not require the

participant to travel to the local agency to obtain the food

instruments.'' This section of the law also requires State agencies to

describe any plans for issuance of vouchers by mail in its State Plan.

Further, the law states that the Department may disapprove a State plan

with respect to issuance of WIC vouchers by mail ``in any specified

jurisdiction or part of a jurisdiction within a State only if the

Secretary finds that such issuance would pose a significant threat to

the integrity of the program * * *''.

By including the alternative issuance provision in Public Law 101-

147, Congress intended to broaden the authority of State agencies to

deliver food benefits to participants. Problems of convenience,

transportation, and accessibility to the local agency can be addressed

by use of alternative means of issuance of WIC food instruments. In

addition, alternative means of issuance of WIC food instruments can

significantly alleviate clinic congestion and keep participants as well

as applicants from having to wait for long periods of time at local

agencies. Local agency staffs would also be freed by use of other

issuance alternatives to spend more time on certification and nutrition

education activities, including high-risk contacts.

As indicated above, however, Congress did impose certain

restrictions on the issuance of food instruments through alternative

means. First, the method may not, in the judgment of the Department,

pose a significant threat to the integrity of the program. The concept

of program integrity encompasses both the quality and coordination of

the full range of program services--supplemental foods, nutrition

education, and health care referrals--and fiscal accountability.

Congress specifically stressed the former aspect of program integrity

by stipulating that food instruments may not be mailed to participants

who are scheduled for a certification interview or for a nutrition

education contact. Applicants must be seen when they enter the program

in order to provide referrals and to ensure integration into the health

care system with which WIC is coordinated.

Under current WIC regulations (Sec. 246.12(r)(8)(i)-(ii)) and in

accordance with guidelines established by the State agency, local

agencies have had the authority to mail food instruments on a case-by-

case basis to individual participants in specific circumstances which

make direct pick-up infeasible, e.g., illness or imminent childbirth.

State agencies have also had the authority to permit the mailing of

food instruments on a local agency-wide basis in response to specific

temporary conditions, e.g., inclement weather or damage to a bridge

that is a critical transportation link. In such circumstances,

certification appointments and nutrition education have been

rescheduled and food instruments mailed.

The new legislation expands the authority of States to mail food

instruments. Therefore, in order to comply with the legislative

mandate, the Department proposed to revise Sec. 246.12(r)(8) to expand

State agency authority to implement alternative issuance systems

through means other than direct pick-up, such as mailing food

instruments, provided that direct pick-up must be required of

participants when scheduled for nutrition education or for an

appointment to determine whether participants are eligible for a second

or subsequent certification period. The Department further proposed

that the State agency may provide the issuance of food instruments

through means, such as mailing, to specified categories of participants

in specified areas. However, as proposed and per the mandate of Public

Law 101-147, State agencies would be required by the new

Sec. 246.4(a)(21) (discussed in Section 4.d. of this preamble) to

describe in their State plans any alternative food instrument

distribution policies and systems. Further, for conformity, the

reference to Sec. 246.12(r)(8)(i) and (ii) in Sec. 246.7(f)(2)(iv) was

proposed to be changed to Sec. 246.12(r)(8).

Use of an alternative means of issuance, such as mailing food

instruments, in no way reduces the State and local agency's

responsibility to ensure accountability for issuance and receipt of

food instruments, as required by Sec. 246.12(l) of current regulations.

Therefore, this was an issue which was addressed by the Department in

the preamble to its proposed rulemaking. The Department indicated that

State agencies which opted to distribute food instruments by mail would

be expected to ensure that the food instruments do, in fact, reach the

intended persons. In order to monitor non-participation, the State

agency instead would need to trace food instruments not redeemed back

to participant files. Therefore, the Department proposed to revise

Sec. 246.7(h)(1)(ii) to specify that non-redemption of food instruments

for a number of consecutive months would be a basis for

disqualification.

Mailing by certified mail, return receipt requested, was a method

identified in the preamble to the proposed rule that should be

considered by State agencies to ensure accountability for issuance and

receipt of food instruments by participants. Commenters were asked, in

response to the proposed rule, to suggest other means of ensuring

accountability in alternate issuance systems which could be shared as

guidance to State and local agencies in the preamble to the final rule.

The majority of commenters overwhelmingly opposed the proposed

provision in Sec. 246.7(h)(1)(ii) whereby participants could be

disqualified for failure to redeem food instruments for a number of

consecutive months if such instruments were provided by the State

agency by means other than direct pick-up. Commenters viewed this

requirement as creating an undue administrative burden on State and

local agencies to track unredeemed food instruments in such cases. In

addition, commenters indicated that such a requirement was not feasible

given the timeframe which exists before data are available to State

agencies on non-redemption. Commenters also indicated that the

provision, as proposed, created a different requirement for WIC food

instruments mailed versus those instruments picked up at the clinic.

Several commenters noted that if a State agency can ensure delivery,

there is no need to require the tracking of redemption data for such

participants.

With regard to the proposed revision to Sec. 246.12(r)(8), which

provides State agencies with the option to implement alternative means

of delivery of WIC food instruments other than by means of direct pick-

up, the majority of commenters approved the provision but offered

comments regarding their experiences with mailing of food instruments

or recommendations on the method which should be used to mail the food

instruments to participants. Those supporting the provision indicated

that implementation of this option would reduce transportation and

accessibility barriers to WIC services.

Of those approving the provision but suggesting modifications, one

commenter recommended that State agencies be given discretion in

procedural implementation, and another commenter recommended the

Department delete the reference to mailing food instruments to

``specified categories of participants in specified areas'' because

this created limitations on a State agency's implementation of the

provision. One commenter viewed the proposed preamble discussion as

contradictory and recommended the Department clarify the relationship

between this new provision and policy which has been in existence

regarding the circumstances in which food instruments may be mailed.

The majority of commenters responded to the request in the preamble

to the proposed rule for suggestions of methods State agencies may want

to consider in the mailing of food instruments to ensure accountability

and receipt of the food instruments by participants. Several commenters

recommended that food instruments should not be sent certified mail due

to the expense.

They recommended that food instruments mailed should be sent first

class, but that the following phrase should be added on the envelope:

``Do Not Forward, Return to Sender'' or ``Do Not Forward, Address

Correction Requested.'' One commenter recommended that for security

purposes the name of the clinic should be deleted from the return

address. The Department will provide State agencies with additional

guidance in this area, using experience gained and effective techniques

utilized by WIC State agencies which currently mail WIC food

instruments in limited circumstances and the experience and knowledge

gained by States in mailing food stamps in the Food Stamp Program.

Based primarily on comments received on Sec. 246.12(r)(8) of the

proposed rulemaking, the Department has made the following changes in

this final rule. First, based on comments received on the Department's

proposed revision to Sec. 246.7(h)(1)(ii) regarding mid-certification

disqualification for failure of participants to redeem mailed food

instruments for a specified number of consecutive months, the

Department has modified this requirement in this final rule. The intent

of the proposed revision was to establish a mid-certification

disqualification policy for participants mailed food instruments which

would be comparable to disqualification due to failure on the part of

participants to pick up their WIC food instruments. Therefore, in this

final rule, Sec. 246.7(h)(1)(ii) has been revised to state that a

participant may be disqualified mid-certification for failure to obtain

food instruments or supplemental foods for a number of consecutive

months, as specified by the State agency, evidenced by indicators such

as failure to pick up supplemental foods or food instruments,

nonreceipt of food instruments as evidence by return of mailed

instruments, or failure to have an electronic benefit transfer (EBT)

card revalidated to authorize the purchase of supplemental foods. As

set forth in this final rule, this requirement ensures similar

treatment of all participants, regardless of the method in which they

may receive or obtain authorization to purchase supplemental foods,

including the mailing of food instruments or use of an EBT system as

alternative issuance systems.

Second, for clarification purposes, paragraph (r)(8) has been

revised to include reference to an EBT system as an example of an

alternative WIC food instrument issuance system. An EBT system has been

pilot-tested by one WIC State agency, who is currently in the process

of developing an expanded demonstration project. Other State agencies

have also shown an interest in this type of issuance system.

Third, as requested by commenters, a reference in the proposed rule

to what appeared to be limitations on the mailing of food instruments

to only ``specified categories of participants in specified areas'' has

been deleted in this final rule. Therefore, this paragraph allows State

agencies the option to provide for the issuance of food instruments

through an alternative means, such as EBT or mailing to any

participant, except when participants are scheduled for nutrition

education or for an appointment to determine whether participants are

eligible for a second or subsequent certification period, unless FNS

determines that such action would jeopardize the integrity of program

services or program accountability.

Fourth, Sec. 246.12(r)(8) has been revised to specify that if a

State agency opts to mail WIC food instruments, it must provide

justification, as part of the description of its alternative issuance

system in its State plan, as required in Sec. 246.4(a)(21) of this

final rule, for mailing WIC food instruments to areas where food stamps

are not mailed. In assessing the impact on program integrity and

accountability, WIC State agencies and FNS will review Food Stamp

Program experience in mailing food stamps. Some States do not mail food

stamps either statewide or to certain areas due to the probability of

or experienced high mail issuance losses. As of Fiscal Year 1992,

approximately 11 States have chosen not to implement a mail issuance

system for food stamps. Some States, however, that have implemented

mail issuance systems may only mail food stamps to certain areas of the

State. A decision by a State not to mail food stamps could be based on,

for example, the probability of or experienced high mail issuance

losses, the use of an EBT system in some areas, or other reasons which

may be unrelated to mail issuance losses.

WIC State agencies and FNS must review such decisions on the part

of States in determining if it is appropriate to mail WIC food

instruments to such areas. Close coordination on this issue with State

Food Stamp Program staff will be necessary. For example, WIC State

agencies will need to determine whether a State has chosen not to mail

food stamps or to mail only to certain areas, the reason(s) why such

decision(s) were made, and if food stamps are being mailed, the dollar

value of current mail issuance losses in the State's Food Stamp

Program. In approving a WIC State agency's plan to mail to areas where

food stamps are not mailed, FNS will not approve a plan in which all

WIC participants would be mailed food instruments in an area where food

stamps are not mailed due to the probability of or experienced high

mail issuance losses. However, FNS may approve, for example, a State

agency's plan to mail WIC food instruments in an area where food stamps

are not mailed due to reasons unrelated to mail issuance losses.

Fifth, in this final rule, paragraph (r)(8) further provides that

State agencies which opt to mail food instruments must establish and

implement a system which ensures the return of food instruments to the

State or local agency if the participant no longer resides or receives

mail at the address to which the food instruments were mailed.

Inclusion of this requirement is intended to reflect a balance between

responding to commenters' concerns that the Department permit greater

flexibility in the procedural implementation of this requirement and

the Department's concern, that such procedures ensure program

accountability for the issuance and receipt of mailed food instruments.

While some commenters viewed the tracking of unredeemed mailed food

instruments as an administrative burden, good program management

dictates a reconciliation of food instruments, as required in

Sec. 246.12(n)(1), which includes reconciling food instruments issued

to food instruments redeemed, unredeemed, lost, stolen and voided.

Currently, while alternative means of issuance present certain

advantages of convenience for participants and local agencies, these

same advantages can be achieved through modifications of the

participant pick-up system. Section 246.12(r)(7) of current regulations

permits State agencies to give the participant up to a 3-month supply

of food instruments at one time. Thus through this multiple-issuance

strategy, States can reduce to two the number of times the participant

must visit the WIC local agency during the standard 6-month

certification period. The new statutory provision regarding alternative

means of issuance would not change the number of personal appearances

required per certification period.

In any event, the Department would not recommend that State

agencies reduce the participant's frequency of visits to the local

agency merely for reasons of local agency convenience, independent of

consideration for the quality of service to participants.

In addition, a commenter requested clarification on the

relationship of this new legislative provision to what has been

permitted by the Department in the past in terms of mailing food

instruments. In the past, mailing of food instruments was permitted

only to meet specific needs on a case-by-case basis. The new provision

would permit a State agency to continue their current policy of mailing

food instruments on a case-by-case basis or expand its use of mailing

food instruments. For example, a State agency could continue to permit

a nutrition education or a certification appointment to be rescheduled

if extenuating circumstances exist, e.g., illness, inclement weather,

and authorize the mailing of that month's food instruments. A

participant who may have been scheduled for a certification visit could

be mailed food instruments due to inclement weather as long as the

mailed food instruments represent no more than a one-month extension to

the participant's certification period, as permitted by the current

Sec. 246.7(f)(3) which is newly designated as Sec. 246.7(g)(3) in this

final rule. The certification appointment (or nutrition education

session) must be scheduled during the next issuance cycle and the

participant must be required to pick up WIC food instruments at the

time of her rescheduled visit.

State agencies which decide to mail food instruments may want to

consider which groups of participants (based either categories or on

location) are most in need of this service and least in need of regular

direct contact with WIC staff. For example, mailing might be

appropriate for lower risk participants in a sparsely populated rural

area where they must travel great distances to reach their WIC clinic,

and for working families. Mailing might be less appropriate for

pregnant women, for whom regular interface with clinic staff--and the

health care system which may be on WIC clinic premises--can contribute

significantly to positive pregnancy outcomes. In the final analysis,

State agencies must weigh the benefits of participant convenience and

reduced administrative burden against the benefit of frequent contact

with participants and the goal of balanced, coordinated delivery of

services, which is facilitated through such contact. Furthermore, the

State agency will need to assess which local agency service area(s) are

more appropriate locations for mailing of food instruments. It is not

likely to be appropriate, given numerous factors which must be

considered, including program integrity and accountability, for a State

agency to establish a policy of mailing food instruments to all

participants statewide.

The Department will carefully scrutinize plans for alternative

issuance of food instruments through the State plan review process and

monitor the effects of implementation during management evaluations in

order to ensure that alternative issuance systems do not jeopardize the

quality of program services or fiscal accountability.

As discussed in Section 4.d. of this preamble, State agencies

opting to implement an alternative WIC food instrument issuance system

must describe this system in its State plan, as required by Public Law

101-147 and addressed in Secs. 246.4(a)(21) and 246.12(r)(8) of this

final rule.

11. Nutrition Services and Breastfeeding Promotion (Secs. 246.14(c)(1)

and 246.16(b)(2))

This final rule revises Program regulations to incorporate certain

non-discretionary funding requirements of Public Law 101-147, which are

described below. Although not previously proposed, this final rule

incorporates these non-discretionary changes in Secs. 246.14(c)(1) and

246.16(b)(2).

Prior to the enactment of Public Law 101-147, section 17(h)(1) of

the CNA of 1966 required that not less than one-sixth of the funds

expended by each State agency for NSA costs be used for nutrition

education activities, but there was no requirement that any portion of

this amount be used specifically for promotion and support of

breastfeeding among WIC mothers. Section 123(a)(6) of Public Law 101-

147 recognizes the importance of breastfeeding by creating a new

section 17(h)(3)(A)(i)(II) of the CNA of 1966.

This new section earmarks $8 million in State agency NSA grants for

the promotion and support of breastfeeding among WIC mothers. The

mandated utilization of this $8 million, and its relationship to the

existing one-sixth NSA requirement are described below.

The earmarked $8 million is the amount of NSA funds that, at a

minimum, must be expended to support and promote breastfeeding. These

funds are intended to be used to promote increases in the number of

breastfeeding mothers and the length of time that these mothers

breastfeed. As noted above in this preamble in section 2.f.,

breastfeeding aids are allowable administrative expenses, as set forth

in Sec. 246.14(c)(10) of this final rule. In addition, this final rule

revises Sec. 246.14(c)(1) to specify that in addition to the cost of

nutrition education, the cost of breastfeeding promotion and support

activities which meet the requirements of Sec. 246.11 are allowable

nutrition services and administration costs.

In addition, this final rule revises Sec. 246.14(c)(1) to specify

that each State agency's target share of the $8 million expenditure

requirement will be determined by the State agency's average monthly

number of pregnant and breastfeeding WIC participants as a percentage

of the average monthly number of pregnant and breastfeeding

participants in the WIC Program in all State agencies. These targets

will be announced at the same time that final grants for the fiscal

year are announced. As discussed further in section 16 of this

preamble, in this final rule, Sec. 246.16(b)(2) has been revised to

indicate that the grant levels will be issued in a timely manner.

As set forth in Sec. 246.14(c)(1) of this final rule, the $8

million expenditure target for breastfeeding promotion and support

provided by section 123(a)(6) of Public Law 101-147 is an augmentation

of the amount of funds State agencies must spend on nutrition education

and related activities as specified in newly-amended section

17(h)(3)(A)(i) of the CNA of 1966. The total spending requirement for

nutrition education, including breastfeeding promotion and support, is

one-sixth of the amount of NSA funds allocated to the State agency for

nutrition education in general, plus the State agency's proportionate

share of the $8 million targeted specifically for breastfeeding

promotion support. Of this aggregate amount, the targeted amount is the

minimum which must be spent on breastfeeding promotion and support.

However, total spending on breastfeeding promotion and support may

exceed this minimum, since funds from the one-sixth allocation may be

used for additional breastfeeding promotion and support, or for other

nutrition education purposes.

The following is a simplified example of how NSA funds, the one-

sixth spending requirement for nutrition education and related services

and targeted amounts for breastfeeding promotion and support are

calculated for a particular State:

Total NSA Expenditures.......................................... $600

Proportionate Share of $8 Million (targeted for breastfeeding

promotion and support only).................................... 10

\1/6\ Nutrition Education Requirement (may include additional

breastfeeding promotion and support)........................... 100

Aggregate sum of \1/6\ and Proportionate Share (total

expenditure requirement for nutrition education and

breastfeeding promotion and support)........................... 110

-------

Total remaining funds for other NSA......................... 490

As allowed by section 123(a)(6) of Public Law 101-147 and as set

forth in Sec. 246.14(c)(1) of this final rule, State agencies are

permitted, subject to approval by the Department, to spend less than

their identified breastfeeding support and promotion target amount if:

(a) The State agency so requests, and (b) the request is accompanied by

documentation that other resources will be used to conduct nutrition

education activities at a level commensurate with the level at which

such activities would be conducted if the target share amount were

expended. State agencies may also request permission to spend less than

the amount earmarked for nutrition education if they can, similarly,

document that other resources are being used to meet the requirement.

These other resources include in-kind services provided by volunteer

private organizations and professionals, or other State and local

personnel. Section 246.14(c)(1) has also been modified to clarify that

State agencies should submit documentation of other resources to be

used in lieu of NSA funds to the appropriate WIC regional office for

advance approval. If a State agency does not have such documentation

approved, and its nutrition education and breastfeeding promotion and

support expenditures are less than the required amount of expenditures,

the Department will issue a claim for the difference.

12. Funding Authorizations--Secs. 246.16(a)(1) and 246.16(a)(6)

Section 123(a)(5) of Public Law 101-147 amends section 17(g)(1) of

the CNA of 1966 to change the funding authorization for the WIC Program

to include a specific provision that allows appropriations 1 year in

advance of the beginning of the fiscal year in which the funds become

available for disbursement to the States. If appropriations are enacted

for a year in advance, this would enable State agencies to know total

grant funds for the current fiscal year and the next fiscal year. This

provision previously existed for the WIC Program and appeared in

section 3 of the National School Lunch Act. It has now been

specifically referenced in the WIC authorizing legislation. Therefore,

this final rule revises Sec. 246.16(a) to add a new paragraph (a)(1) to

incorporate this provision.

Section 123(a)(5)(D) of Public Law 101-147 amends section 17(g)(5)

(as redesignated by section 123(a)(5)(B)) of the CNA of 1966 to expand

funding for studies and demonstration projects. It permits the

Secretary to use one-half of 1 percent (not to exceed $5 million) for

evaluation and demonstration purposes, which is an increase from the

previous statutory limit of $3 million. Section 246.16(b)(1) of the

current regulations has been redesignated as Sec. 246.16(a)(6) in this

final rule and revised to address the Secretary's authority to increase

the amount of funds used for studies and demonstration projects.

13. Nutrition Services and Administration (NSA) Funding--

Sec. 246.16(c)(2)

Administrative costs associated with the WIC Program were formerly

referred to as administrative and program services costs. Public Law

101-147 has changed the name of these costs to ``nutrition services and

administration (NSA) costs''. Therefore, the definition of

``Administrative and program services costs'' in Sec. 246.2 has been

removed and replaced with a definition of ``Nutrition services and

administration costs.'' In addition, all other references within part

246 to ``administrative and program services'' costs or funds have been

revised accordingly.

During the past few years, WIC Program participation has increased

substantially in States that have implemented measures to lower WIC

food costs. This increase in participation, as well as additional

Program requirements in areas such as drug abuse education and

referral, prevention and detection of vendor abuse, improved management

information systems at the State and local level, improved program

access for rural areas and the working poor, improved nutrition

services and more effective Program coordination, had been increasingly

difficult to accomplish within existing limits on funds set for NSA.

Previously, section 17(h)(1) of the CNA of 1966 mandated that 20

percent of the funds appropriated for the WIC Program (less funds used

for evaluation and demonstrations) be made available for State agency

and local agency costs for NSA. There has been extensive discussion and

research to determine whether the 20 percent funding limitation for NSA

was an appropriate level to permit State and local programs to operate

the WIC Program. As mandated in section 8(c) of the Commodity

Distribution Reform Act and WIC Amendments of 1987 (Pub. L. 100-237),

the Department submitted to Congress in March 1989, a report entitled

Study of Funding for Nutrition Services and Program Administration in

the WIC Program. The report concluded that the WIC Program faced a

serious erosion of per participant administrative resources due to

significant participation increases. Among the solutions proposed was

the establishment of a base-level NSA grant per participant with an

appropriate inflation index. Public Law 101-147 amends section 17(h)(1)

of the CNA of 1966 to eliminate the 20 percent limitation for NSA

funding and, in lieu thereof, adopts a national guaranteed average

administrative grant per person to be used in determining the amount of

total funds available for NSA. As described below in a simplified

example, NSA funds will now be apportioned on a per-participant basis.

The amount available for NSA will be determined by the Department

based on the ratio of the national guaranteed average administrative

grant per person to the total projected cost per person. This ratio is

derived as follows. Once the national guaranteed average administrative

grant per person is calculated, the projected per participant food cost

is determined based on State agency reported food expenditure and

participation data. The national guaranteed average administrative

grant per person is then added to the projected food cost per

participant to estimate the total projected cost per person. The ratio

of the NSA cost per participant to the total cost per participant can

then be derived. This ratio determines the amount available for NSA. In

the following simplified example, 25 percent of the appropriation would

go to NSA since the guaranteed average administrative grant per person

represents 25 percent of the total projected cost per person.

Projected Food Cost/Person................................. $30-75%

Guaranteed Admin./Person................................... $10-25%

------------

Total Projected Cost/Person............................ $40-100%

Section 123(a)(6) of Public Law 101-147 also amends section

17(h)(1)(B)(ii) of the CNA of 1966 to change the method for determining

the inflation adjustment for NSA funding. Previously, the same

inflation adjustments were applied to both food benefit funds and NSA

funds. Many State agencies argued that inflationary increases in food

costs did not track with inflationary increases in salary and wage

costs. In the Study of Funding for Nutrition Services and Program

Administration in the WIC Program, it was shown that from Fiscal Year

1981 through Fiscal Year 1987 the average administrative expenditure

per person had risen by an average of 2.3 percent per year. This rate

of increase has been much lower than the 7 percent rate of inflation

for salaries during the same time period. Salaries constitute one of

the largest NSA costs. Approximately 70 percent of all NSA expenditures

are for salaries and related benefits. As State agencies can only

expend the Federal WIC funds granted to them, their expenditures could

not keep pace with inflation. In recognition of these NSA expenditure

trends, Congress determined that separate inflation indices were needed

for food and NSA funding, which are incorporated into revised

Sec. 246.16(c)(2).

a. National NSA Funding. Section 123(a)(6) of Public Law 101-147

amends section 17(h)(1) of the CNA of 1966 to guarantee funds

sufficient to provide a national average per participant grant for NSA.

As stipulated in such amendments, Sec. 246.16(c)(2) of this final rule

specifies that the national average per participant grant shall be

equal to the national average per participant grant for Fiscal Year

1987, adjusted to reflect annual inflation increases. The Fiscal Year

1987 figure is $8.24. Section 17(h)(1)(B)(ii) provides that the

adjustment for inflation for a current fiscal year will be made by

revising the national average per participant grant for NSA for Fiscal

Year 1987 to reflect the percentage change from the base year level in

the index for State and local government purchases. This index is

calculated using the implicit price deflator, and is published by the

Bureau of Economic Analysis of the Department of Commerce. It measures

the price increase of State and local government purchases including

compensation for employees and purchases of structures, durable goods

(such as equipment), nondurable goods (such as food, paper goods, and

clothing), and services.

The base year for the index, as established in section

17(h)(l)(B)(ii)(I), is the 12-month period ending June 30, 1986. It has

a value of 100. The inflation adjustment shall reflect the percentage

change between this base year value and the most recent estimate that

is available as of the start of a current fiscal year of the value of

such index for the 12-month period ending June 30 of the previous

fiscal year. The difference between the most recent estimate and the

base index of 100 is multiplied by $8.24 to establish a current year's

national average per participant grant. In any fiscal year, any

remaining funds after funds for NSA have been identified will be made

available for food benefits. These requirements are also incorporated

into revised Sec. 246.16(c)(2).

b. Allocations to state agencies. Section 123(a)(6) of Public Law

101-147 amends section 17(h)(2)(A) of the CNA of 1966 to require that

the formula for allocating NSA funding must be designed to take into

account the varying needs of each State, participation levels in each

State, a minimum grant amount, and other factors which promote proper,

efficient and effective program administration. Section 123(a)(6) of

Public Law 101-147 also amends section 17(h)(2)(A) of the CNA of 1966

to require that the funding formula must provide each State agency with

an estimate of participation and a per participant grant for NSA. The

NSA funding formula outlined in Sec. 246.16(c)(2) of the WIC Program

regulations as revised by this final rule reflects these requirements.

The Department is currently evaluating the funding formula contained in

Sec. 246.16 to ensure that the formula promotes proper, efficient and

effective program administration, and may undertake a future rulemaking

if modifications are necessary.

Public Law 101-147 also amends section 17(h)(2)(B)(i) to specify

that the total NSA grant level is the operational level for NSA costs

that a State agency is authorized to spend for any given fiscal year.

Section 246.16(c)(2)(iv) has been added to this final rule to reflect

this, as described below.

14. Nutrition Services and Administration Performance Standard--

Secs. 246.16(c)(2)(ii) and 246.16(e)

A new provision mandated by section 123(a)(6) of Public Law 101-

147, which amends section 17(h)(2)(B)(ii) of the CNA of 1966, provides

that the Secretary may reduce a State agency's NSA operational level if

its per participant expenditure for NSA is more than 15 percent higher

than its per participant NSA grant, without good cause. This will only

occur in those State agencies that fail to reach the Federally-

projected participation level. Guidelines for determining the

Federally-projected participation level are set forth in

Sec. 246.16(c)(3)(ii)(B) of the current regulations and redesignated as

Sec. 246.16(c)(2)(ii)(B) by this final rule.

In order to carry out revised section 17(h)(2)(B)(ii),

Sec. 246.16(e)(2)(ii) is revised to provide that if a State agency's

per participant expenditure exceeds its per participant grant by more

than 15 percent, the Secretary shall reduce the State agency's NSA

operational level in the subsequent fiscal year. In accordance with

section 17(h)(2)(B)(ii) however, a State agency may avoid a reduction

to its NSA operational level in the subsequent fiscal year by showing

good cause. Section 246.16(c)(2)(ii) is revised by this final rule to

permit a State agency to submit in writing a ``good cause''

justification for exceeding the 15 percent limit. Circumstances that

may meet the ``good cause'' criterion include, but are not limited to,

dramatic and unforeseen increases in food costs which result in an

inability to reach Federally-projected participation levels.

Section 246.16(e)(2)(ii) further requires justification for

exceeding the 15 percent limit to be submitted to the Department at the

time the State agency submits its closeout report for the applicable

fiscal year.

It should be noted that section 123(a)(6) of Public Law 101-147

amends section 17(h)(2)(B) of the CNA of 1966 to require that each

State agency's operational level for NSA be maintained, except when the

State agency's administrative expenditure per person exceeds its

administrative grant per person by more than 15 percent without good

cause. This precludes NSA grant reductions in concert with food grant

reductions pursuant to a State agency's failure to meet the 95 percent

standard for food expenditures contained in Sec. 246.16(e)(2) of the

current regulations. Therefore, this final rule amends

Sec. 246.16(e)(2)(i) to no longer require that a corresponding level of

NSA funds be deducted for failure to meet the 95 percent performance

standard for food expenditures.

15. Local Agency Funding--Sec. 246.16(d)

Section 123(a)(6) of Public Law 101-147 amends section 17(h)(6) of

the CNA of 1966 to require that State agencies develop local agency NSA

funding allocation standards taking into consideration factors such as

local agency staffing needs, population density, participation and the

availability of administrative support from other sources. Section

246.16(d)(2) of the current WIC Program regulations already includes

these funding allocation standards for local agencies. Although no

changes to this section have been made in this final rule, this section

is republished for the convenience of the reader.

However, section 123(a)(6) of Public Law 101-147 also amends

subsection 17(h) of the CNA of 1966 by adding paragraph (7) which

provides that State agencies are permitted to advance NSA funds to

local agencies following approval of ``(A) a new local agency; (B) a

new cost containment measure; or (C) a significant change in an

existing cost containment measure.'' Therefore, Sec. 246.16(d)(3) of

this final rule has been revised to incorporate this legislative

provision.

16. Cost Containment Cash Flow Provisions (Secs. 246.16(a)(3),

246.16(a)(4), 246.16(b)(2), 246.16(b)(3), 246.16(b)(4), and

246.16(b)(5))

In the past, some State agencies that have implemented infant

formula rebate systems have experienced cash flow problems. In some

rebate systems, a State agency receives payments from manufacturers

based on the number of units of the product purchased with WIC funds.

Cash flow problems have resulted because of the delay between the time

the State agency pays retail vendors for food instruments and the time

the State agency receives rebate payments from manufacturers.

To help alleviate these cash flow problems, new funding mechanisms

have been set forth in Public Law 101-147 for those State agencies that

have implemented an approved cost-containment measure. Section 17(i) of

the CNA of 1966 has been amended by section 123(a)(7)(C) by adding a

new paragraph (7) which authorizes State agencies with approved cost-

containment measures (defined in Sec. 246.2 as competitive bidding,

rebates, home delivery and direct distribution) to temporarily borrow

current fiscal year first quarter cash to defray fourth quarter

expenses from the prior fiscal year. Therefore, in this final rule

Sec. 246.16(b)(4) is redesignated as (b)(5) and this legislative

provision has been added in a new Sec. 246.16(b)(4). As further

required by section 17(i)(7), section 246.16(b)(4) requires that these

borrowed funds must be restored when the State agency receives the

rebate funds or other reimbursement resulting from its cost containment

measure. This provision is not an extension of the back-spending

authority which is a permanent transfer of funds that allows the State

agency to use current year food funds to pay prior year food

expenditures which is contained in section 17(i)(3)(A)(i) of the CNA of

1966 and Sec. 246.16(b)(3)(i) of the current regulations. In addition,

Sec. 246.16(b)(2) has been revised to specify that the Department will

issue final grant levels to State agencies in a timely manner.

In a further effort to reduce cash flow difficulties within a given

fiscal year due to approved cost containment measures, section

123(a)(5)(C) of Public Law 101-147 amends section 17(g) of the CNA of

1966 to require the initial allocation of appropriated funds to include

not less than \1/3\ of the appropriated funds and the second and third

quarter allocations to include not less than \1/4\ of appropriated

funds. This helps ensure that adequate cash is available in the early

part of the fiscal year to make payments to vendors while waiting for

rebate payments. Therefore, in this final rule a new Sec. 246.16(a)(3)

has been added to incorporate this legislative provision.

Further, section 123(a)(5)(C) of Public Law 101-147 amends section

17(g)(3)(C) of the CNA of 1966 to require that in the case of an

appropriation of not more than 4 months, such as a continuing

resolution, all appropriated amounts shall be allocated, except amounts

reserved by the Secretary to carry out the provisions in section

17(g)(5) of the CNA of 1966 (as reflected in Sec. 246.16(a)(6) of this

final rule). This exception provides that one-half of 1 percent, not to

exceed $5 million per fiscal year, shall be available to the Secretary

for program evaluation, technical assistance to State agencies

administration of pilot projects, and other specified purposes. This

requirement to fully allocate all other amounts not reserved to the

Secretary for these purposes is incorporated in a new Sec. 246.16(a)(4)

in this final rule.

It should be noted that while these provisions are helpful, they do

not solve all cash flow problems. State agencies with significant

rebate savings should institute management controls to avoid cash flow

problems and potentially disruptive funding shortfalls, particularly at

the end of the Federal fiscal year.

17. Allocation Timelines (Secs. 246.16(a)(2), 246.16(a)(4), and

246.16(a)(5))

Public Law 101-147 sets forth explicit deadlines for the allocation

of WIC Program funds. It is imperative that timely allocations are made

to State agencies, especially reallocation of unspent funds, to ensure

efficient and effective use of all program resources. Section

123(a)(5)(C) of Public Law 101-147 amends section 17(g)(2)(A)(i) of the

CNA of 1966 to provide that the initial allocation of funds to State

agencies must be made within 15 days of enactment of appropriating

legislation. Therefore, a new Sec. 246.16(a)(2) has been added in this

final rule to incorporate this provision. Subsequent allocations must

be made by the beginning of each quarter.

Newly added section 17(g)(2)(B) of the law further requires that

unused funds from a prior fiscal year that are identified by the end of

the first quarter of the current fiscal year (December 31) must be

recovered and reallocated not later than the beginning of the second

quarter of the fiscal year. That provision further states that unused

funds from a prior fiscal year identified after the end of the first

quarter must be reallocated on a timely basis. These provisions are set

forth in a new Sec. 246.16(a)(5) in this final rule.

18. Conversion of Food Funds to Nutrition Services and Administration

Funds (Secs. 246.16(b)(3), 246.16(f), and 246.16(h))

Under section 8 of the Commodity Distribution Reform Act and WIC

Amendments of 1987 (Pub. L. 100-237), which amended section 17(h)(5) of

the CNA of 1966, State agencies that implemented one of the four

designated cost containment measures, specifically defined as

competitive bidding, rebates, home delivery and direct distribution,

were authorized to convert food funds to cover allowable nutrition

services and administration expenditures related to increased

participation attributable to the resulting cost savings. The purpose

of conversion was to cover additional NSA expenses not funded by the

Department's NSA funding formula. The conversion authority pursuant to

Public Law 100-237 was exceedingly complicated and was focused on

accommodating sudden decreases in food costs resulting from newly

instituted cost containment measures.

Public Law 101-147 has simplified the conversion process. Section

123(a)(6) of Public Law 101-147 further amends section 17(h)(5)(A) of

the CNA of 1966 to provide that State agencies which, through

acceptable measures, increase participation beyond Federally-projected

participation levels can convert food funds to NSA funds necessary to

maintain that year's per participant grant for NSA to the extent that

such funds are needed to cover allowable NSA expenses. The Department

points out that unlike the prior conversion provision, new section

17(h)(5)(A) is based on participation increases accomplished through

``acceptable measures,'' not just the four designated cost containment

measures. Therefore, Sec. 246.16(f) of this final rule amends

Sec. 246.16(f) to provide that in addition to the cost containment

measures which were specified in Public Law 100-237 (i.e. competitive

bidding, rebates, direct distribution, and home delivery), ``acceptable

measures'' could include, but are not necessarily limited to,

curtailment of vendor abuse and increased breastfeeding promotion. It

is not possible to more fully specify in advance all acceptable

measures utilized to increase participation as many unforeseen

situations could occur. State agencies may not convert food funds if

participation increases are achieved through measures that are not in

the nutritional interests of participants or are not otherwise

allowable under program regulations. An example of an unacceptable

measure which increases participation is a reduction/modification in

the food package not related to the nutritional needs of participants.

The number of participants reported by the State agency will be

monitored by the Department and any significant increases in

participation must be satisfactorily explained by the State agency to

insure that increases were achieved through acceptable measures in

compliance with WIC Program regulations. The State agency does not have

to request prior approval to convert funds from food to NSA funds but

State agencies are strongly advised to seek guidance from the

Department if in

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