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

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## Record

- **Collection:** Federal Register
- **Document type:** Uncategorized Document
- **Published:** March 11, 1994

## Text

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'' beca

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A94-5569. Public record. Not legal advice.