Appendix F - SP 15-2018 CACFP 12-2018 SFSP 05-2018 Child Nutrition Program Waiver Request Guidance and Protocol

OMB #: 0584-0654
Expiration date: 01/31/2022

Appendix F
Child Nutrition Program Waiver Request Guidance
and Protocol- Revised

This information is being collected to assist the Food and Nutrition Service (FNS) ensure States and eligible providers adhere to the statutory
requirements at Section 12(l) of the Richard B. Russell National School Lunch Act (NSLA) (42 U.S.C. 1760(l)) when requesting a waiver of Child
Nutrition Program (CNP) requirements. This collection is required to obtain a waiver approval under waiver authority at Section 12(l) of the NSLA;
FNS uses the information to evaluate whether waiver requests meet the statutory requirements established at Section 12(l) of the NSLA, assess a state or
eligible service provider’s need to waive program requirements, enhance integrity in CNPs, and monitor the impact waiver approvals have on CNP
operations. This collection does not request any personally identifiable information under the Privacy Act of 1974. Responses will be kept private to the
extent provided by law. According to the Paperwork Reduction Act of 1995, an agency may not conduct or sponsor, and a person is not required to
respond to, a collection of information unless it displays a valid OMB control number. The valid OMB control number for this information collection is
0584-0654. The time required to review this guidance document is estimated to average 15 minutes (.25 hours), the time required to develop and
submit a waiver request to FNS is 1 hour per response, and the time required to report on the impact waiver implementation has on CNP operations is
30 minutes per waiver approval (.5 hours). Send comments regarding this burden estimate or any other aspect of this collection of information,
including suggestions for reducing this burden, to: U.S. Department of Agriculture, Food and Nutrition Service, Office of Policy Support, 1320
Braddock Place, 5th Floor, Alexandria, VA 22314 ATTN: PRA (0584-0654). Do not return applications to waive program requirements to this address.

OMB #: 0584-0654
Expiration date: 01/31/2022

Food and
Nutrition
Service
Park Office
Center
3101 Park
Center Drive
Alexandria
VA 22302

DATE:

May 24, 2018

MEMO CODE:

SP 15-2018, CACFP 12-2018, SFSP 05-2018

SUBJECT:

Child Nutrition Program Waiver Request Guidance and ProtocolRevised

TO:

Regional Directors
Special Nutrition Programs
All Regions
State Directors
Child Nutrition Programs
All States

This memorandum revises the current USDA Food and Nutrition Service (FNS) process
for State agencies and eligible service providers1 seeking a waiver of statutory or
regulatory Program requirements for the Child Nutrition Programs (CNPs), including the
Child and Adult Care Food Program (CACFP), the Summer Food Service Program
(SFSP), the National School Lunch Program (NSLP), the Fresh Fruit and Vegetable
Program (FFVP), the Special Milk Program (SMP), and the School Breakfast Program
(SBP). This memorandum supersedes SP 27-2017, CACFP 12-2017, SFSP 08-2017, Child
Nutrition Program Waiver Request Guidance and Protocol, dated April 26, 2017.
Background
This memorandum provides an overview of statutory waiver authority, the waiver request
and review process, and data reporting requirements. The intent is to enhance integrity in
all CNPs by ensuring that FNS, State agencies, and eligible providers adhere to the
statutory requirements in Section 12(l) of the Richard B. Russell National School Lunch
Act (NSLA), 42 U.S.C. 1760(l) when requesting a waiver. This memorandum also
includes a revised version of the Child Nutrition Program State Waiver Request Template
[Attachment$]. State agencies and eligible service providers are encouraged to use this
template when submitting waiver requests for the CACFP, SFSP, NSLP, FFVP, SMP, and
SBP. Using the template ensures all information required by FNS, as outlined in this
memorandum, is included in the waiver request. However, if State agencies and eligible
service providers choose not to use the template, they must ensure that all requirements
included in Section 12(l) of the NSLA are met, including submission of all required data
and information.

1

Eligible service providers include: a local school food service authority, a service institution or private
nonprofit organization; or a family or group day care home sponsoring organization.
USDA is an Equal Opportunity Provider, Employer and Lender

Regional Directors
State Directors
Page 2
Waiver Authority: Section 12(l) of the NSLA, 42 U.S.C. 1760(l)
The NSLA provides USDA authority to waive certain provisions of the CNPs,2 as follows:
(l)(1)(A) Except as provided in paragraph (4), the Secretary may waive any requirements under
this Act or the Child Nutrition Act of 1966 (42 U.S.C. 1771 et seq.), or any regulation issued
under either such Act, for a State or eligible service provider that requests a waiver if—
(i) the Secretary determines that the waiver of the requirement would facilitate the ability
of the State or eligible service provider to carry out the purpose of the program;
(ii) the State or eligible service provider has provided notice and information to the
public regarding the proposed waiver; and
(iii) the State or eligible service provider demonstrates to the satisfaction of the Secretary
that the waiver will not increase the overall cost of the program to the Federal
Government, and, if the waiver does increase the overall cost to the Federal
Government, the cost will be paid from non-Federal funds.
(B) The notice and information referred to in subparagraph (A)(ii) shall be provided in the
same manner in which the State or eligible service provider customarily provides similar notices
and information to the public.
(2)(A) To request a waiver under paragraph (1), a State or eligible service provider (through
the appropriate administering State agency) shall submit an application to the Secretary that—
(i) identifies the statutory or regulatory requirements that are requested to be waived;
(ii) in the case of a State requesting a waiver, describes actions, if any, that the State has
undertaken to remove State statutory or regulatory barriers;
(iii) describes the goal of the waiver to improve services under the program and the
expected outcomes if the waiver is granted; and
(iv) includes a description of the impediments to the efficient operation and
administration of the program.
(B) An application described in subparagraph (A) shall be developed by the State or
eligible service provider and shall be submitted to the Secretary by the State.
2

Under the Robert Stafford Disaster Relief and Emergency Act (42 U.S.C. 5141), the Secretary may use
separate waiver authority in response to federally declared disasters and emergencies. Refer to
memorandum SP 46-2014, CACFP 12-2014, SFSP 18-2014, Disaster Response, May 19, 2014,
(http://www.fns.usda.gov/disaster-response-0) for more information.

Regional Directors
State Directors
Page 3
(3) The Secretary shall act promptly on a waiver request contained in an application
submitted under paragraph (2) and shall either grant or deny the request. The Secretary shall state
in writing the reasons for granting or denying the request.
(4) The Secretary may not grant a waiver under this subsection that increases Federal costs or
that relates to—
(A) the nutritional content of meals served;
(B) Federal reimbursement rates;
(C) the provision of free and reduced price meals;
(D) limits on the price charged for a reduced price meal;
(E) maintenance of effort;
(F) equitable participation of children in private schools;
(G) distribution of funds to State and local school food service authorities and service
institutions participating in a program under this Act and the Child Nutrition Act of 1966 (42
U.S.C. 1771 et seq.);
(H) the disclosure of information relating to students receiving free or reduced price
meals and other recipients of benefits;
(I) prohibiting the operation of a profit producing program;
(J) the sale of competitive foods;
(K) the commodity distribution program under section 14;
(L) the special supplemental nutrition program authorized under section 17 of the Child
Nutrition Act of 1966 (42 U.S.C. 1786); or
(M) enforcement of any constitutional or statutory right of an individual, including any
right under—
(i) title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d et seq.);
(ii) section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794);
(iii) title IX of the Education Amendments of 1972 (20 U.S.C. 1681 et seq.);
(iv) the Age Discrimination Act of 1975 (42 U.S.C. 6101 et seq.);
(v) the Americans with Disabilities Act of 1990 (42 U.S.C. 12101 et seq.); and
(vi) the Individuals with Disabilities Education Act (20 U.S.C. 1400 et seq.).

Regional Directors
State Directors
Page 4
Waiver Request Protocol
Eligible service providers must submit their requests to waive CNP requirements to their
respective State agencies. State agencies must submit requests to waive CNP requirements to
their FNS Regional Office. FNS Regional Offices will review the waiver request for
completeness and verify that the applicant provided the required public notice of their request.
Notice and information provided to the public regarding the proposed waiver should be in the
same manner in which the State or eligible service provider usually provides similar notices and
information to the public. Acceptable methods include, but are not limited to:
x Posting notice on the State agency’s or eligible service provider’s website;
x Providing public notice through a printed announcement in the local/state newspaper.
Waiver Decisions
Once a complete waiver request is received, FNS Regional Offices will then submit a
recommendation to the National Office for review. FNS highly encourages State agencies and
eligible service providers to submit requests using the attached template, which includes the
elements required by the NSLA as well as other information that will assist FNS in processing
the request.
State agencies and eligible service providers should consult with their Regional Offices when
developing waiver requests to ensure a well-reasoned, thorough request is submitted from the
outset and clearly provides the reason and need for the waiver request. In order to ensure USDA
is able to conduct a detailed review of each request, State agencies should submit complete
waiver requests at least 60 calendar days prior to the anticipated implementation date. However,
FNS recognizes that some requests are made in response to unexpected situations addressing
unforeseen circumstances and will make every effort to expedite the response to those requests.
The Secretary carefully considers every waiver request but may only approve those requests that
facilitate the ability of the State agency or service provider to carry out the purpose of the CNPs
and do not increase the overall cost of the Federal Government program. Moreover, the Secretary
does not have the authority to waive the nutritional content of the meals served, Federal
reimbursement rates, or the enforcement of any statutory right of any individual. FNS will
provide all responses to waiver requests in writing.
FNS provides approval of waivers for a limited time period. After the initial waiver period has
expired, if the waiver is still needed, State agencies and eligible service providers may request
renewal of a waiver. A renewal waiver request will be processed in the same manner as an initial
waiver request. FNS will consider the data reports, discussed in further detail below, with each
request for renewal.

Regional Directors
State Directors
Page 5
Monitoring and Reporting
FNS is committed to ensuring that waivers granted improve Program operations while
maintaining Program integrity. The NSLA requires FNS to review the performance of State
agencies’ and eligible service providers’ CNP operations under waiver authority. FNS requires
that each request to waive CNP requirements include proposed data reporting that will enable
FNS to assess the effect of the waiver on CNP administration and monitor its impact. Reports
will include:
x
x
x
x
x

a summary of the use of waivers by the State and eligible service providers;
a description of whether the waivers resulted in improved services to
recipients/participants;
a description of the impact of the waivers on providing nutritional meals to participants;
a description of how the waivers reduced the quantity of paperwork necessary to
administer the Program; and
any additional information requested in the waiver approval.

State agencies and eligible service providers are reminded to adhere to existing applicable
monitoring and reporting requirements, as well as those outlined in the waiver approval issued
by FNS, to ensure continued operation throughout the approved waiver period. Failure of a
Program operator to fulfill the monitoring and reporting requirements will impact consideration
of subsequent requests to waive the same Child Nutrition Program regulations. For example, if
FNS determines that the waiver leads to deficits in Program operation or to an increase in the
overall cost of the Program to the Federal Government and the increase has not been paid for
with non-Federal funds, FNS may terminate the waiver.
State agencies are reminded to distribute this memorandum to Program operators. Program
operators should direct any questions concerning this guidance to their State agency. State
agencies with questions should contact the appropriate FNS Regional Office.

Angela Kline
Director
Policy and Program Development Division
Child Nutrition Programs

Attachment