Download:
pdf |
pdfAppendix B. 7 CFR part 226 – Child and Adult Care
Food Program (CACFP)
7 CFR Ch. II (1–1–19 Edition)
component of the meal pattern requirements. For juice drinks and juice drink products the statement shall identify their contribution toward the vegetable/fruit component of the meal pattern requirements.
(3) Statement specifying that the use of
the CN logo and CN statement was authorized by FNS, and
(4) The approval date.
For example:
(d) Federal inspection means inspection of
food products by FSIS, AMS or USDC.
4. Food processors or manufacturers may
use the CN label statement and CN logo as
defined in paragraph 3 (b) and (c) under the
following terms and conditions:
(a) The CN label must be reviewed and approved at the national level by the Food and
Nutrition Service and appropriate USDA or
USDC Federal agency responsible for the inspection of the product.
(b) The CN labeled product must be produced under Federal inspection by USDA or
USDC. The Federal inspection must be performed in accordance with an approved partial or total quality control program or
standards established by the appropriate
Federal inspection service.
(c) The CN label statement must be printed
as an integral part of the product label along
with the product name, ingredient listing,
the inspection shield or mark for the appropriate inspection program, the establishment number where appropriate and the
manufacturer’s or distributor’s name and address.
(1) The inspection marking for CN labeled
non-meat, non-poultry, and non-seafood
products with the exception of juice drinks
and juice drink products is established as follows:
6. Products that bear a CN label statement
as set forth in paragraph 3(c) carry a warranty. This means that if a food service authority participating in the child nutrition
programs purchases a CN labeled product
and uses it in accordance with the manufacturer’s directions, the school or institution
will not have an audit claim filed against it
for the CN labeled product for noncompliance with the meal pattern requirements of
7 CFR 210.10, 220.8, 225.16, and 226.20. If a
State or Federal auditor finds that a product
that is CN labeled does not actually meet the
meal pattern requirements claimed on the
label, the auditor will report this finding to
FNS. FNS will prepare a report on the findings and send it to the appropriate divisions
of FSIS and AMS of the USDA, National Marine Fisheries Service of the USDC, Food and
Drug Administration, or the Department of
Justice for action against the company. Any
or all of the following courses of action may
be taken: (a) The company’s CN label may be
revoked for a specific period of time; (b) The
appropriate agency may pursue a misbranding or mislabeling action against the
company producing the product; (c) The
company’s name will be circulated to regional FNS offices; and (d) FNS will require
the food service program involved to notify
the State agency of the labeling violation.
7. FNS is authorized to issue operational
policies, procedures, and instructions for the
CN Labeling Program. To apply for a CN
label and to obtain additional information
on CN label application procedures, write to:
CN Labels, U.S. Department of Agriculture,
Food and Nutrition Service, Nutrition and
Technical Services Division, 3101 Park Center Drive, Alexandria, Virginia 22302.
PART 226—CHILD AND ADULT
CARE FOOD PROGRAM
Subpart A—General
Sec.
226.1
General purpose and scope.
178
VerDate Sep<11>2014
10:57 May 01, 2019
Jkt 247015
PO 00000
Frm 00188
Fmt 8010
Sfmt 8010
Q:\07\7V4.TXT
PC31
EC17SE91.008
(d) Yields for determining the product’s
contribution toward meal pattern requirements must be calculated using the Food
Buying Guide for Child Nutrition Programs
(Program Aid Number 1331).
5. In the event a company uses the CN logo
and CN label statement inappropriately, the
company will be directed to discontinue the
use of the logo and statement and the matter
will be referred to the appropriate agency for
action to be taken against the company.
EC17SE91.007
kpayne on VMOFRWIN702 with $$_JOB
Pt. 226
Food and Nutrition Service, USDA
226.2
226.3
§ 226.2
Definitions.
Administration.
EDITORIAL NOTE: Nomenclature changes to
part 226 appear at 70 FR 43261, July 27, 2005.
Subpart B—Assistance to States
226.4
226.5
Subpart A—General
Payments to States and use of funds.
Donation of commodities.
Subpart C—State Agency Provisions
226.6 State agency administrative responsibilities.
226.7 State agency responsibilities for financial management.
226.8 Audits.
Subpart D—Payment Provisions
226.9 Assignment of rates of reimbursement
for centers.
226.10 Program payment procedures.
226.11 Program payments for centers.
226.12 Administrative payments to sponsoring organizations for day care homes.
226.13 Food service payments to sponsoring
organizations for day care homes.
226.14 Claims against institutions.
Subpart E—Operational Provisions
226.15 Institution provisions.
226.16 Sponsoring organization provisions.
226.17 Child care center provisions.
226.17a At-risk afterschool care center provisions.
226.18 Day care home provisions.
226.19 Outside-school-hours care center provisions.
226.19a Adult day care center provisions.
226.20 Requirements for meals.
226.21 Food service management companies.
226.22 Procurement standards.
226.23 Free and reduced-price meals.
Subpart F—Food Service Equipment
Provisions
226.24
Property management requirements.
Subpart G—Other Provisions
kpayne on VMOFRWIN702 with $$_JOB
226.25 Other provisions.
226.26 Program information.
226.27 Information
collection/recordkeeping—OMB assigned control numbers.
APPENDIX A TO PART 226—ALTERNATE FOODS
FOR MEALS
APPENDIX B TO PART 226 [RESERVED]
APPENDIX C TO PART 226—CHILD NUTRITION
(CN) LABELING PROGRAM
AUTHORITY: Secs. 9, 11, 14, 16, and 17, Richard B. Russell National School Lunch Act, as
amended (42 U.S.C. 1758, 1759a, 1762a, 1765 and
1766).
SOURCE: 47 FR 36527, Aug. 20, 1982, unless
otherwise noted.
§ 226.1 General purpose and scope.
This part announces the regulations
under which the Secretary of Agriculture will carry out the Child and
Adult Care Food Program. Section 17
of the Richard B. Russell National
School Lunch Act, as amended, authorizes assistance to States through
grants-in-aid and other means to initiate, maintain, and expand nonprofit
food service programs for children and
adult participants in non-residential
institutions which provide care. The
Program is intended to provide aid to
child and adult participants and family
or group day care homes for provision
of nutritious foods that contribute to
the wellness, healthy growth, and development of young children, and the
health and wellness of older adults and
chronically impaired persons.
[81 FR 24377, Apr. 25, 2016]
§ 226.2 Definitions.
2 CFR part 200, means the Uniform
Administrative Requirements, Cost
Principles, and Audit Requirements for
Federal Awards published by OMB. The
part reference covers applicable: Acronyms and Definitions (subpart A), General Provisions (subpart B), Post Federal Award Requirements (subpart D),
Cost Principles (subpart E), and Audit
Requirements (subpart F). (NOTE: PreFederal Award Requirements and Contents of Federal Awards (subpart C)
does not apply to the National School
Lunch Program).
Act means the National School Lunch
Act, as amended.
Administrative costs means costs incurred by an institution related to
planning, organizing, and managing a
food service under the Program, and allowed by the State agency financial
management instruction. These administrative costs may include administrative expenses associated with outreach
and recruitment of unlicensed family
or group day care homes and the allowable licensing-related expenses of such
homes.
Administrative review means the fair
hearing provided upon request to:
179
VerDate Sep<11>2014
10:57 May 01, 2019
Jkt 247015
PO 00000
Frm 00189
Fmt 8010
Sfmt 8010
Q:\07\7V4.TXT
PC31
kpayne on VMOFRWIN702 with $$_JOB
§ 226.2
7 CFR Ch. II (1–1–19 Edition)
(a) An institution that has been
given notice by the State agency of
any action or proposed action that will
affect their participation or reimbursement under the Program, in accordance with § 226.6(k);
(b) A principal or individual responsible for an institution’s serious deficiency after the responsible principal
or responsible individual has been
given a notice of intent to disqualify
them from the Program; and
(c) A day care home that has been
given a notice of proposed termination
for cause.
Administrative review official means
the independent and impartial official
who conducts the administrative review held in accordance with § 226.6(k).
Adult means, for the purposes of the
collection of the last four digits of social security numbers as a condition of
eligibility for free or reduced-price
meals, any individual 21 years of age or
older.
Adult day care center means any public or private nonprofit organization or
any for-profit center (as defined in this
section) which (a) is licensed or approved by Federal, State or local authorities to provide nonresidential
adult day care services to functionally
impaired adults (as defined in this section) or persons 60 years of age or older
in a group setting outside their homes
or a group living arrangement on a less
than 24-hour basis and (b) provides for
such care and services directly or
under arrangements made by the agency or organization whereby the agency
or organization maintains professional
management responsibility for all such
services. Such centers shall provide a
structured, comprehensive program
that provides a variety of health, social
and related support services to enrolled
adult participants through an individual plan of care.
Adult day care facility means a licensed or approved adult day care center under the auspices of a sponsoring
organization.
Adult participant means a person enrolled in an adult day care center who
is functionally impaired (as defined in
this section) or 60 years of age or older.
Advanced payments means financial
assistance made available to an institution for its Program costs prior to
the month in which such costs will be
incurred.
At-risk afterschool care center means a
public or private nonprofit organization that is participating or is eligible
to participate in the CACFP as an institution or as a sponsored facility and
that provides nonresidential child care
to children after school through an approved afterschool care program located in an eligible area. However, an
Emergency shelter, as defined in this
section, may participate as an at-risk
afterschool care center without regard
to location.
At-risk afterschool meal means a meal
that meets the requirements described
in § 226.20(b)(6) and/or (c)(1), (c)(2), or
(c)(3), that is reimbursed at the appropriate free rate and is served by an Atrisk afterschool care center as defined in
this section, which is located in a State
designated by law or selected by the
Secretary as directed by law.
At-risk afterschool snack means a
snack that meets the requirements described in § 226.20(b)(6) and/or (c)(4) that
is reimbursed at the free rate for
snacks and is served by an At-risk afterschool care center as defined in this section.
CACFP child care standards means the
Child and Adult Care Food Program
child care standards developed by the
Department for alternate approval of
child care centers, and day care homes
by the State agency under the provisions of § 226.6(d)(3) and (4).
Center means a child care center, atrisk afterschool care center, an adult
day care center, an emergency shelter,
or an outside-school-hours care center.
Child care center means any public or
private nonprofit institution or facility
(except day care homes), or any forprofit center, as defined in this section,
that is licensed or approved to provide
nonresidential child care services to
enrolled children, primarily of preschool age, including but not limited to
day care centers, settlement houses,
neighborhood centers, Head Start centers and organizations providing day
care services for children with disabilities. Child care centers may participate in the Program as independent
centers or under the auspices of a sponsoring organization.
180
VerDate Sep<11>2014
10:57 May 01, 2019
Jkt 247015
PO 00000
Frm 00190
Fmt 8010
Sfmt 8010
Q:\07\7V4.TXT
PC31
kpayne on VMOFRWIN702 with $$_JOB
Food and Nutrition Service, USDA
§ 226.2
Child care facility means a licensed or
approved child care center, at-risk
afterschool care center, day care home,
emergency shelter, or outside-schoolhours care center under the auspices of
a sponsoring organization.
Children means:
(a) Persons age 12 and under;
(b) Persons age 15 and under who are
children of migrant workers;
(c) Persons with disabilities as defined
in this section;
(d) For emergency shelters, persons
age 18 and under; and
(e) For at-risk afterschool care centers, persons age 18 and under at the
start of the school year.
Claiming percentage means the ratio
of the number of enrolled participants
in an institution in each reimbursement category (free, reduced-price or
paid) to the total of enrolled participants in the institution. In the case of
an outside-school-hours care center
that is not required to collect enrollment forms from each participating
child, a claiming percentage is the
ratio of the number of children in each
reimbursement category (free, reducedprice or paid) to the total number of
children participating in the program
in that center.
Current income means income received during the month prior to application for free or reduced-price meals.
If such income does not accurately reflect the household’s annual income,
income shall be based on the projected
annual household income. If the prior
year’s income provides an accurate reflection of the household’s current annual income, the prior year may be
used as a base for the projected annual
income.
Day care home means an organized
nonresidential child care program for
children enrolled in a private home, licensed or approved as a family or group
day care home and under the auspices
of a sponsoring organization.
Days means calendar days unless otherwise specified.
Department means the U.S. Department of Agriculture.
Disclosure means reveal or use individual children’s program eligibility
information obtained through the free
and reduced price meal eligibility process for a purpose other than for the
purpose for which the information was
obtained. The term refers to access, release, or transfer of personal data
about children by means of print, tape,
microfilm, microfiche, electronic communication or any other means.
Disqualified means the status of an
institution, a responsible principal or
responsible individual, or a day care
home that is ineligible for participation.
Documentation means:
(a) The completion of the following
information on a free and reduced-price
application:
(1) Names of all household members;
(2) Income received by each household member, identified by source of
income (such as earnings, wages, welfare, pensions, support payments, unemployment compensation, social security and other cash income);
(3) The signature of an adult household member; and
(4) The last four digits of the social
security number of the adult household
member who signs the application, or
an indication that the adult does not
possess a social security number; or
(b) For a child who is a member of a
SNAP or FDPIR household or who is a
TANF
recipient,
‘‘documentation’’
means the completion of only the following information on a free and reduced price application:
(1) The name(s) and appropriate
SNAP, FDPIR or TANF case number(s)
for the child(ren); and
(2) The signature of an adult member
of the household; or
(c) For a child in a tier II day care
home who is a member of a household
participating in a Federally or State
supported child care or other benefit
program with an income eligibility
limit that does not exceed the eligibility standard for free or reduced price
meals:
(1) The name(s), appropriate case
number(s) (if the program utilizes case
numbers), and name(s) of the qualifying program(s) for the child(ren), and
the signature of an adult member of
the household; or
(2) If the sponsoring organization or
day care home possesses it, official evidence of the household’s participation
in a qualifying program (submission of
a free and reduced price application by
181
VerDate Sep<11>2014
10:57 May 01, 2019
Jkt 247015
PO 00000
Frm 00191
Fmt 8010
Sfmt 8010
Q:\07\7V4.TXT
PC31
kpayne on VMOFRWIN702 with $$_JOB
§ 226.2
7 CFR Ch. II (1–1–19 Edition)
the household is not required in this
case); or
(d) For an adult participant who is a
member of a SNAP or FDPIR household or is an SSI or Medicaid participant, as defined in this section, ‘‘documentation’’ means the completion of
only the following information on a
free and reduced price application:
(1) The name(s) and appropriate
SNAP or FDPIR case number(s) for the
participant(s) or the adult participant’s SSI or Medicaid identification
number, as defined in this section; and
(2) The signature of an adult member
of the household; or
(e) For a child who is a Head Start
participant, the Head Start statement
of income eligibility issued upon initial
enrollment in the Head Start Program
or, if such statement is unavailable,
other documentation from Head Start
officials that the child’s family meets
the Head Start Program’s low-income
criteria.
Eligible area means:
(a) For the purpose of determining
the eligibility of at-risk afterschool
care centers, the attendance area of a
school in which at least 50 percent of
the enrolled children are certified eligible for free or reduced-price school
meals; or
(b) For the purpose of determining
the tiering status of day care homes,
the attendance area of a school in
which at least 50 percent of the enrolled children are certified eligible for
free or reduced-price meals, or the area
based on the most recent census data
in which at least 50 percent of the children residing in the area are members
of households that meet the income
standards for free or reduced-price
meals.
Emergency shelter means a public or
private nonprofit organization or its
site that provides temporary shelter
and food services to homeless children,
including a residential child care institution (RCCI) that serves a distinct
group of homeless children who are not
enrolled in the RCCI’s regular program.
Enrolled child means a child whose
parent or guardian has submitted to an
institution a signed document which
indicates that the child is enrolled for
child care. In addition, for the purposes
of calculations made by sponsoring or-
ganizations of family day care homes
in accordance with §§ 226.13(d)(3)(ii) and
226.13(d)(3)(iii), ‘‘enrolled child’’ (or
‘‘child in attendance’’) means a child
whose parent or guardian has submitted a signed document which indicates that the child is enrolled for
child care; who is present in the day
care home for the purpose of child care;
and who has eaten at least one meal
during the claiming period. For at-risk
afterschool care centers, outsideschool-hours care centers, or emergency shelters, the term ‘‘enrolled
child’’ or ‘‘enrolled participant’’ does
not apply.
Enrolled participant means an ‘‘Enrolled child’’ (as defined in this section) or ‘‘Adult participant’’ (as defined
in this section).
Expansion payments means financial
assistance made available to a sponsoring organization for its administrative expenses associated with expanding a food service program to day care
homes located in low-income or rural
areas. These expansion payments may
include administrative expenses associated with outreach and recruitment of
unlicensed family or group day care
homes and the allowable licensing-related expenses of such homes.
Facility means a sponsored center or
a family day care home.
Family means, in the case of children,
a group of related or nonrelated individuals, who are not residents of an institution or boarding house, but who
are living as one economic unit or, in
the case of adult participants, the
adult participant, and if residing with
the adult participant, the spouse and
dependent(s) of the adult participant.
FDPIR household means any individual or group of individuals which is
currently certified to receive assistance as a household under the Food
Distribution Program on Indian Reservations.
Fiscal Year means a period of 12 calendar months beginning October 1 of
any year and ending with September 30
of the following year.
FNS means the Food and Nutrition
Service of the Department.
FNSRO means the appropriate Regional Office of the Food and Nutrition
Service.
182
VerDate Sep<11>2014
10:57 May 01, 2019
Jkt 247015
PO 00000
Frm 00192
Fmt 8010
Sfmt 8010
Q:\07\7V4.TXT
PC31
kpayne on VMOFRWIN702 with $$_JOB
Food and Nutrition Service, USDA
§ 226.2
Food service equipment assistance
means Federal financial assistance formerly made available to State agencies
to assist institutions in the purchase
or rental of equipment to enable institutions to establish, maintain or expand food service under the Program.
Food service management company
means an organization other than a
public or private nonprofit school, with
which an institution may contract for
preparing and, unless otherwise provided for, delivering meals, with or
without milk for use in the Program.
For-profit center means a child care
center, outside-school-hours care center, or adult day care center providing
nonresidential care to adults or children that does not qualify for tax-exempt status under the Internal Revenue Code of 1986. For-profit centers
serving adults must meet the criteria
described in paragraph (a) of this definition. For-profit centers serving children must meet the criteria described
in paragraphs (b)(1) or (b)(2) of this definition, except that children who only
participate in the at-risk afterschool
snack and/or meal component of the
Program must not be considered in determining the percentages under paragraphs (b)(1) or (b)(2) of this definition.
(a) A for-profit center serving adults
must meet the definition of Adult day
care center as defined in this section
and, during the calendar month preceding initial application or reapplication, the center receives compensation
from amounts granted to the States
under title XIX or title XX and twentyfive percent of the adults enrolled in
care are beneficiaries of title XIX, title
XX, or a combination of titles XIX and
XX of the Social Security Act.
(b) A for-profit center serving children must meet the definition of Child
care center or Outside-school-hours care
center as defined in this section and one
of the following conditions during the
calendar month preceding initial application or reapplication:
(1) Twenty-five percent of the children in care (enrolled or licensed capacity, whichever is less) are eligible
for free or reduced-price meals; or
(2) Twenty-five percent of the children in care (enrolled or licensed capacity, whichever is less) receive benefits from title XX of the Social Secu-
rity Act and the center receives compensation from amounts granted to the
States under title XX.
Foster child means a child who is formally placed by a court or a State
child welfare agency, as defined in
§ 245.2 of this chapter.
Free meal means a meal served under
the Program to:
(a) A participant from a family which
meets the income standards for free
school meals, or
(b) A foster child, or
(c) A child who is automatically eligible for free meals by virtue of SNAP,
FDPIR, or TANF benefits, or
(d) A child who is a Head Start participant, or
(e) A child who is receiving temporary housing and meal services from
an approved emergency shelter, or
(f) A child participating in an approved at-risk afterschool care program, or
(g) An adult participant who is automatically eligible for free meals by virtue of SNAP or FDPIR benefits, or
(h) An adult who is an SSI or Medicaid participant.
Functionally impaired adult means
chronically impaired disabled persons
18 years of age or older, including victims of Alzheimer’s disease and related
disorders with neurological and organic
brain dysfunction, who are physically
or mentally impaired to the extent
that their capacity for independence
and their ability to carry out activities
of daily living is markedly limited. Activities of daily living include, but are
not limited to, adaptive activities such
as cleaning, shopping, cooking, taking
public transportation, maintaining a
residence, caring appropriately for
one’s grooming or hygiene, using telephones and directories, or using a post
office. Marked limitations refer to the
severity of impairment, and not the
number of limited activities, and occur
when the degree of limitation is such
as to seriously interfere with the ability to function independently.
Group living arrangement means residential communities which may or
may not be subsidized by federal, State
or local funds but which are private
residences housing an individual or a
group of individuals who are primarily
responsible for their own care and who
183
VerDate Sep<11>2014
10:57 May 01, 2019
Jkt 247015
PO 00000
Frm 00193
Fmt 8010
Sfmt 8010
Q:\07\7V4.TXT
PC31
kpayne on VMOFRWIN702 with $$_JOB
§ 226.2
7 CFR Ch. II (1–1–19 Edition)
maintain a presence in the community
but who may receive on-site monitoring.
Head Start participant means a child
currently receiving assistance under a
Federally-funded Head Start Program
who is categorically eligible for free
meals in the CACFP by virtue of meeting Head Start’s low-income criteria.
Household means ‘‘family’’, as defined
in § 226.2 (‘‘Family’’).
Household contact means a contact
made by a sponsoring organization or a
State agency to an adult member of a
household with a child in a family day
care home or a child care center in
order to verify the attendance and enrollment of the child and the specific
meal service(s) which the child routinely receives while in care.
Income standards means the familysize and income standards prescribed
annually by the Secretary for determining eligibility for free and reducedprice meals under the National School
Lunch Program and the School Breakfast Program.
Income to the program means any
funds used in an institution’s food service program, including, but not limited
to all monies, other than Program payments, received from other Federal,
State, intermediate, or local government sources; participant’s payments
for meals and food service fees; income
from any food sales to adults; and
other income, including cash donations
or grants from organizations or individuals.
Independent center means a child care
center, at-risk afterschool care center,
emergency
shelter,
outside-schoolhours care center or adult day care
center which enters into an agreement
with the State agency to assume final
administrative and financial responsibility for Program operations.
Independent governing board of directors means, in the case of a nonprofit
organization, or in the case of a forprofit institution required to have a
board of directors, a governing board
which meets regularly and has the authority to hire and fire the institution’s executive director.
Infant cereal means any iron-fortified
dry cereal specially formulated for and
generally recognized as cereal for infants that is routinely mixed with
breast milk or iron-fortified infant formula prior to consumption.
Infant formula means any iron-fortified formula intended for dietary use
solely as a food for normal, healthy infants; excluding those formulas specifically formulated for infants with inborn errors of metabolism or digestive
or absorptive problems. Infant formula,
as served, must be in liquid state at
recommended dilution.
Institution means a sponsoring organization, child care center, at-risk
afterschool care center, outside-schoolhours care center, emergency shelter
or adult day care center which enters
into an agreement with the State agency to assume final administrative and
financial responsibility for Program
operations.
Internal controls means the policies,
procedures, and organizational structure of an institution designed to reasonably assure that:
(a) The Program achieves its intended result;
(b) Program resources are used in a
manner that protects against fraud,
abuse, and mismanagement and in accordance with law, regulations, and
guidance; and
(c) Timely and reliable Program information is obtained, maintained, reported, and used for decision-making.
Key Element Reporting System (KERS)
means a comprehensive national system for reporting critical key element
performance data on the operation of
the program in institutions.
Low-income area means a geographical area in which at least 50 percent of the children are eligible for free
or reduced price school meals under the
National School Lunch Program and
the School Breakfast Program, as determined in accordance with paragraphs (b) and (c), definition of tier I
day care home.
Meals means food which is served to
enrolled participants at an institution,
child care facility or adult day care facility and which meets the nutritional
requirements set forth in this part.
However, children participating in atrisk afterschool care centers, emergency shelters, or outside-schoolshours care centers do not have to be
enrolled.
184
VerDate Sep<11>2014
10:57 May 01, 2019
Jkt 247015
PO 00000
Frm 00194
Fmt 8010
Sfmt 8010
Q:\07\7V4.TXT
PC31
kpayne on VMOFRWIN702 with $$_JOB
Food and Nutrition Service, USDA
§ 226.2
Medicaid means Title XIX of the Social Security Act.
Medicaid participant means an adult
participant who receives assistance
under title XIX of the Social Security
Act, the Grant to States for Medical
Assistance Programs—Medicaid.
Milk means pasteurized fluid types of
unflavored or flavored whole milk,
lowfat milk, skim milk, or cultured
buttermilk which meet State and local
standards for such milk, except that, in
the meal pattern for infants (0 to 1
year of age), milk means breast milk
or iron-fortified infant formula. In
Alaska, Hawaii, American Samoa,
Guam, Puerto Rico, the Trust Territory of the Pacific Islands, the Northern Mariana Islands, and the Virgin Islands if a sufficient supply of such
types of fluid milk cannot be obtained,
‘‘milk’’ shall include reconstituted or
recombined milk. All milk should contain vitamins A and D at levels specified by the Food and Drug Administration and be consistent with State and
local standards for such milk.
National disqualified list means the
list, maintained by the Department, of
institutions, responsible principals and
responsible individuals, and day care
homes disqualified from participation
in the Program.
New institution means an institution
applying to participate in the Program
for the first time, or an institution applying to participate in the Program
after a lapse in participation.
Nonpricing program means an institution, child care facility, or adult day
care facility in which there is no separate identifiable charge made for meals
served to participants.
Nonprofit food service means all food
service operations conducted by the institution principally for the benefit of
enrolled participants, from which all of
the Program reimbursement funds are
used solely for the operations or improvement of such food service.
Nonresidential means that the same
participants are not maintained in care
for more than 24 hours on a regular
basis.
Notice means a letter sent by certified mail, return receipt (or the
equivalent private delivery service), by
facsimile, or by email, that describes
an action proposed or taken by a State
agency or FNS with regard to an institution’s Program reimbursement or
participation. Notice also means a letter sent by certified mail, return receipt (or the equivalent private delivery service), by facsimile, or by email,
that describes an action proposed or
taken by a sponsoring organization
with regard to a day care home’s participation. The notice must specify the
action being proposed or taken and the
basis for the action, and is considered
to be received by the institution or day
care home when it is delivered, sent by
facsimile, or sent by email. If the notice is undeliverable, it is considered to
be received by the institution, responsible principal or responsible individual, or day care home five days after
being sent to the addressee’s last
known mailing address, facsimile number, or email address.
OIG means the Office of the Inspector
General of the Department.
Operating costs means expenses incurred by an institution in serving
meals to participants under the Program, and allowed by the State agency
financial management instruction.
Outside-school-hours care center means
a public or private nonprofit institution or facility (except day care
homes), or a For-profit center as defined
in this section, that is licensed or approved in accordance with § 226.6(d)(1)
to provide organized nonresidential
child care services to children during
hours outside of school. Outside-schoolhours care centers may participate in
the Program as independent centers or
under the auspices of a sponsoring organization.
Participants means ‘‘Children’’ or
‘‘Adult participants’’ as defined in this
section.
Personal property means property of
any kind except real property. It may
be tangible—having physical existence—or intangible—having no physical existence such as patents, inventions, and copyrights.
Persons with disabilities means persons
of any age who have one or more disabilities, as determined by the State,
and who are enrolled in an institution
or child care facility serving a majority of persons who are age 18 and under.
185
VerDate Sep<11>2014
10:57 May 01, 2019
Jkt 247015
PO 00000
Frm 00195
Fmt 8010
Sfmt 8010
Q:\07\7V4.TXT
PC31
kpayne on VMOFRWIN702 with $$_JOB
§ 226.2
7 CFR Ch. II (1–1–19 Edition)
Pricing program means an institution,
child care facility, or adult day care facility in which a separate identifiable
charge is made for meals served to participants.
Principal means any individual who
holds a management position within,
or is an officer of, an institution or a
sponsored center, including all members of the institution’s board of directors or the sponsored center’s board of
directors.
Program means the Child and Adult
Care Food Program authorized by section 17 of the National School Lunch
Act, as amended.
Program payments means financial assistance in the form of start-up payments, expansion payments, advance
payments, or reimbursement paid or
payable to institutions for operating
costs and administrative costs.
Reduced-price meal means a meal
served under the Program to a participant from a family that meets the income
standards
for
reduced-price
school meals. Any separate charge imposed must be less than the full price
of the meal, but in no case more than
40 cents for a lunch or supper, 30 cents
for a breakfast, and 15 cents for a
snack. Neither the participant nor any
member of his family may be required
to work in the food service program for
a reduced-price meal.
Reimbursement means Federal financial assistance paid or payable to institutions for Program costs within the
rates assigned by the State agency.
Renewing institution means an institution that is participating in the Program at the time it submits a renewal
application.
Responsible principal or responsible individual means:
(a) A principal, whether compensated
or uncompensated, who the State agency or FNS determines to be responsible
for an institution’s serious deficiency;
(b) Any other individual employed
by, or under contract with, an institution or sponsored center, who the State
agency or FNS determines to be responsible for an institution’s serious
deficiency; or
(c) An uncompensated individual who
the State agency or FNS determines to
be responsible for an institution’s serious deficiency.
Rural area means any geographical
area in a county which is not a part of
a Metropolitan Statistical Area or any
‘‘pocket’’ within a Metropolitan Statistical Area which, at the option of the
State agency and with FNSRO concurrence, is determined to be geographically isolated from urban areas.
SSI participant means an adult participant who receives assistance under
title XVI of the Social Security Act,
the Supplemental Security Income
(SSI) for the Aged, Blind and Disabled
Program.
School year means a period of 12 calendar months beginning July 1 of any
year and ending June 30 of the following year.
Seriously deficient means the status of
an institution or a day care home that
has been determined to be non-compliant in one or more aspects of its operation of the Program.
Snack means a meal supplement that
meets the meal pattern requirements
specified in § 226.20(b)(6) or (c)(4).
SNAP household means any individual
or group of individuals which is currently certified to receive assistances
as a household from SNAP, the Supplemental Nutrition Assistance Program,
as defined in § 245.2 of this chapter.
Sponsoring organization means a public or nonprofit private organization
that is entirely responsible for the administration of the food program in:
(a) One or more day care homes;
(b) A child care center, emergency
shelter, at-risk afterschool care center,
outside-school-hours care center, or
adult day care center which is a legally
distinct entity from the sponsoring organization;
(c) Two or more child care centers,
emergency shelters, at-risk afterschool
care centers, outside-school-hours care
center, or adult day care centers; or
(d) Any combination of child care
centers, emergency shelters, at-risk
afterschool care centers, outsideschool-hours care centers, adult day
care centers, and day care homes. The
term ‘‘sponsoring organization’’ also
includes an organization that is entirely responsible for administration of
the Program in any combination of two
or more child care centers, at-risk
afterschool care centers, adult day care
centers or outside-school-hours care
186
VerDate Sep<11>2014
10:57 May 01, 2019
Jkt 247015
PO 00000
Frm 00196
Fmt 8010
Sfmt 8010
Q:\07\7V4.TXT
PC31
kpayne on VMOFRWIN702 with $$_JOB
Food and Nutrition Service, USDA
§ 226.2
centers, which meet the definition of
For-profit center in this section and are
part of the same legal entity as the
sponsoring organization.
Start-up payments means financial assistance made available to a sponsoring
organization for its administrative expenses associated with developing or
expanding a food service program in
day care homes and initiating successful Program operations. These start-up
payments may include administrative
expenses associated with outreach and
recruitment of unlicensed family or
group day care homes and the allowable licensing-related expenses of such
homes.
State means any of the 50 States, the
District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam, American Samoa, the
Trust Territory of the Pacific Islands,
and the Northern Mariana Islands.
State agency means the State educational agency or any other State
agency that has been designated by the
Governor or other appropriate executive, or by the legislative authority of
the State, and has been approved by
the Department to administer the Program within the State or in States in
which FNS administers the Program,
FNSRO. This also may include a State
agency other than the existing CACFP
State Agency, when such agency is designated by the Governor of the State to
administer only the adult day care
component of the CACFP.
State agency list means an actual
paper or electronic list, or the retrievable paper records, maintained by the
State agency, that includes a synopsis
of information concerning seriously deficient institutions and providers terminated for cause in that State. The
list must be made available to FNS
upon request, and must include the following information:
(a) Institutions determined to be seriously deficient by the State agency,
including the names and mailing addresses of the institutions, the basis for
each serious deficiency determination,
and the status of the institutions as
they move through the possible subsequent stages of corrective action, proposed termination, suspension, agreement termination, and/or disqualification, as applicable;
(b) Responsible principals and responsible individuals who have been disqualified from participation by the
State agency, including their names,
mailing addresses, and dates of birth;
and
(c) Day care home providers whose
agreements have been terminated for
cause by a sponsoring organization in
the State, including their names, mailing addresses, and dates of birth.
State Children’s Health Insurance Program (SCHIP) means the State medical
assistance program under title XXI of
the Social Security Act (42 U.S.C.
1397aa et seq.).
Suspended means the status of an institution or day care home that is temporarily ineligible for participation (including Program payments).
Suspension review means the review
provided, upon the institution’s request, to an institution that has been
given a notice of intent to suspend participation (including Program payments), based on a determination that
the institution has knowingly submitted a false or fraudulent claim.
Suspension review official means the
independent and impartial official who
conducts the suspension review.
Termination for cause means the termination of a day care home’s Program
agreement by the sponsoring organization due to the day care home’s violation of the agreement.
TANF recipient means an individual
or household receiving assistance (as
defined in 45 CFR 260.31) under a Stateadministered Temporary Assistance to
Needy Families program.
Termination for convenience means
termination of a day care home’s Program agreement by either the sponsoring organization or the day care
home, due to considerations unrelated
to either party’s performance of Program responsibilities under the agreement.
Tier I day care home means (a) a day
care home that is operated by a provider whose household meets the income standards for free or reducedprice meals, as determined by the sponsoring organization based on a completed free and reduced price application, and whose income is verified by
the sponsoring organization of the
home in accordance with § 226.23(h)(6);
187
VerDate Sep<11>2014
10:57 May 01, 2019
Jkt 247015
PO 00000
Frm 00197
Fmt 8010
Sfmt 8010
Q:\07\7V4.TXT
PC31
kpayne on VMOFRWIN702 with $$_JOB
§ 226.3
7 CFR Ch. II (1–1–19 Edition)
(b) A day care home that is located in
an area served by a school enrolling
students in which at least 50 percent of
the total number of children enrolled
are certified eligible to receive free or
reduced price meals; or
(c) A day care home that is located in
a geographic area, as defined by FNS
based on census data, in which at least
50 percent of the children residing in
the area are members of households
which meet the income standards for
free or reduced price meals.
Tier II day care home means a day
care home that does not meet the criteria for a Tier I day care home.
Title XVI means Title XVI of the Social Security Act which authorizes the
Supplemental Security Income for the
Aged, Blind, and Disabled Program—
SSI.
Title XIX means Title XIX of the Social Security Act which authorizes the
Grants to States for Medical Assistance Programs—Medicaid.
Title XX means Title XX of the Social
Security Act.
Tofu means a commercially prepared
soy-bean derived food, made by a process in which soybeans are soaked,
ground, mixed with water, heated, filtered, coagulated, and formed into
cakes. Basic ingredients are whole soybeans, one or more food-grade coagulates (typically a salt or acid), and
water.
Unannounced review means an on-site
review for which no prior notification
is given to the facility or institution.
USDA implementing regulations include the following: 2 CFR part 400,
Uniform Administrative Requirements,
Cost Principles, and Audit Requirements for Federal Awards; 2 CFR part
415, General Program Administrative
Regulations; 2 CFR part 416, General
Program Administrative Regulations
for Grants and Cooperative Agreements
to State and Local Governments; and 2
CFR part 418, New Restrictions on Lobbying.
Verification means a review of the information reported by institutions to
the State agency regarding the eligibility of participants for free or reduced-price meals, and, in addition, for
a pricing program, confirmation of eligibility for free or reduced-price benefits under the program. Verification for
a pricing program shall include confirmation of income eligibility and, at
State discretion, any other information required on the application which
is defined as documentation in § 226.2.
Such verification may be accomplished
by examining information (e.g., wage
stubs, etc.) provided by the household
or other sources of information as specified in § 226.23(h)(2)(iv). However, if a
SNAP, FDPIR or TANF case number is
provided for a child, verification for
such child shall include only confirmation that the child is included in a currently certified SNAP or FDPIR household or is a TANF recipient. If a Head
Start statement of income eligibility is
provided for a child, verification for
such child shall include only confirmation that the child is a Head Start participant. For an adult participant, if a
SNAP or FDPIR case number or SSI or
Medicaid
assistance
identification
number is provided, verification for
such participant shall include only
confirmation that the participant is included in a currently certified SNAP or
FDPIR household or is a current SSI or
Medicaid participant.
Whole grains means foods that consist
of intact, ground, cracked, or flaked
grain seed whose principal anatomical
components—the starchy endosperm,
germ, and bran—are present in the
same relative proportions as they exist
in the intact grain seed.
Yogurt means commercially coagulated milk products obtained by the
fermentation of specific bacteria, that
meet milk fat or milk solid requirements to which flavoring foods or ingredients may be added. These products are covered by the Food and Drug
Administration’s Standard of Identity
for yogurt, lowfat yogurt, and nonfat
yogurt, (21 CFR 131.200), (21 CFR
131.203), (21 CFR 131.206), respectively.
[47 FR 36527, Aug. 20, 1982; 47 FR 46072, Oct.
15, 1982]
EDITORIAL NOTE: For FEDERAL REGISTER citations affecting § 226.2, see the List of CFR
Sections Affected, which appears in the
Finding Aids section of the printed volume
and at www.govinfo.gov.
§ 226.3 Administration.
(a) Within the Department, FNS
shall act on behalf of the Department
in the administration of the Program.
188
VerDate Sep<11>2014
10:57 May 01, 2019
Jkt 247015
PO 00000
Frm 00198
Fmt 8010
Sfmt 8010
Q:\07\7V4.TXT
PC31
Food and Nutrition Service, USDA
§ 226.4
(b) Within the States, responsibility
for the administration of the Program
shall be in the State agency, except
that if FNS has continuously administered the Program in any State since
October 1, 1980, FNS shall continue to
administer the Program in that State.
A State in which FNS administers the
Program may, upon request to FNS,
assume administration of the Program.
(c) Each State agency desiring to
take part in the Program shall enter
into a written agreement with the Department for the administration of the
Program in the State in accordance
with the provisions of this part. This
agreement shall cover the operation of
the Program during the period specified therein and may be extended by
consent of both parties.
(d) FNSRO shall, in each State in
which it administers the Program,
have available all funds and assume all
responsibilities of a State agency as set
forth in this part.
kpayne on VMOFRWIN702 with $$_JOB
Subpart B—Assistance to States
§ 226.4 Payments to States and use of
funds.
(a) Availability of funds. For each fiscal year based on funds provided to the
Department, FNS must make funds
available to each State agency to reimburse institutions for their costs in
connection with food service operations, including administrative expenses, under this part. Funds must be
made available in an amount no less
than the sum of the totals obtained
under paragraphs (b), (c), (d), (e), (f),
(g), and (j) of this section. However, in
any fiscal year, the aggregate amount
of assistance provided to a State under
this part must not exceed the sum of
the Federal funds provided by the
State to participating institutions
within the State for that fiscal year
and any funds used by the State under
paragraphs (j) and (l) of this section.
(b) Center funds. For meals served to
participants in child care centers,
adult day care centers and outsideschool-hours care centers, funds shall
be made available to each State agency
in an amount no less than the sum of
the products obtained by multiplying:
(1) The number of breakfasts served
in the Program within the State to
participants from families that do not
satisfy the eligibility standards for free
and reduced-price school meals enrolled in institutions by the national
average payment rate for breakfasts
for such participants under section 4 of
the Child Nutrition Act of 1966;
(2) The number of breakfasts served
in the Program within the State to
participants from families that satisfy
the eligibility standards for free school
meals enrolled in institutions by the
national average payment rate for free
breakfasts under section 4 of the Child
Nutrition Act of 1966;
(3) The number of breakfasts served
to participants from families that satisfy the eligibility standard for reduced-price school meals enrolled in institutions by the national average payment rate for reduced-price school
breakfasts under section 4 of the Child
Nutrition Act of 1966;
(4) The number of lunches and suppers served in the Program within the
State by the national average payment
rate for lunches under section 4 of the
National School Lunch Act. (All
lunches and suppers served in the State
are funded under this provision);
(5) The number of lunches and suppers served in the Program within the
State to participants from families
that satisfy the eligibility standard for
free school meals enrolled in institutions by the national average payment
rate for free lunches under section 11 of
the National School Lunch Act;
(6) The number of lunches and suppers served in the Program within the
State to participants from families
that satisfy the eligibility standard for
reduced-price school meals enrolled in
institutions by the national average
payment rate for reduced-price lunches
under section 11 of the National School
Lunch Act;
(7) The number of snacks served in
the Program within the State to participants from families that do not satisfy the eligibility standards for free
and reduced-price school meals enrolled in institutions by 2.75 cents;
(8) The number of snacks served in
the Program within the State to participants from families that satisfy the
eligibility standard for free school
meals enrolled in institutions by 30
cents;
189
VerDate Sep<11>2014
10:57 May 01, 2019
Jkt 247015
PO 00000
Frm 00199
Fmt 8010
Sfmt 8010
Q:\07\7V4.TXT
PC31
kpayne on VMOFRWIN702 with $$_JOB
§ 226.4
7 CFR Ch. II (1–1–19 Edition)
(9) The number of snacks served in
the Program within the State to participants from families that satisfy the
eligibility standard for reduced-price
school meals enrolled in institutions
by 15 cents.
(c) Emergency shelter funds. For meals
and snacks served to children in emergency shelters, funds will be made
available to each State agency in an
amount equal to the total calculated
by multiplying the number of meals
and snacks served in the Program
within the State to such children by
the national average payment rate for
free meals and free snacks under section 11 of the National School Lunch
Act.
(d) At-risk afterschool care center
funds. For snacks served to children in
at-risk afterschool care centers, funds
will be made available to each State
agency in an amount equal to the total
calculated by multiplying the number
of snacks served in the Program within
the State to such children by the national average payment rate for free
snacks under section 11 of the National
School Lunch Act. For at-risk afterschool meals and at-risk afterschool
snacks served to children, funds will be
made available to each eligible State
agency in an amount equal to the total
calculated by multiplying the number
of at-risk afterschool meals and the
number of at-risk afterschool snacks
served in the Program within the State
by the national average payment rate
for free meals and free snacks, respectively, under section 11 of the Richard
B. Russell National School Lunch Act.
(e) Day care home funds. For meals
served to children in day care homes,
funds shall be made available to each
State agency in an amount no less
than the sum of products obtained by
multiplying:
(1) The number of breakfasts served
in the Program within the State to
children enrolled in tier I day care
homes by the current tier I day care
home rate for breakfasts;
(2) The number of breakfasts served
in the Program within the State to
children enrolled in tier II day care
homes that have been determined eligible for free or reduced price meals by
the current tier I day care home rate
for breakfasts;
(3) The number of breakfasts served
in the Program within the State to
children enrolled in tier II day care
homes that do not satisfy the eligibility standards for free or reduced
price meals, or to children from whose
households applications were not collected, by the current tier II day care
home rate for breakfasts;
(4) The number of lunches and suppers served in the Program within the
State to children enrolled in tier I day
care homes by the current tier I day
care home rate for lunches/suppers;
(5) The number of lunches and suppers served in the Program within the
State to children enrolled in tier II day
care homes that have been determined
eligible for free or reduced price meals
by the current tier I day care home
rate for lunches/suppers;
(6) The number of lunches and suppers served in the Program within the
State to children enrolled in tier II day
care homes that do not satisfy the eligibility standards for free or reduced
price meals, or to children from whose
households applications were not collected, by the current tier II day care
home rate for lunches/suppers;
(7) The number of snacks served in
the Program within the State to children enrolled in tier I day care homes
by the current tier I day care home
rate for snacks;
(8) The number of snacks served in
the Program within the State to children enrolled in tier II day care homes
that have been determined eligible for
free or reduced price meals by the current tier I day care home rate for
snacks; and
(9) The number of snacks served in
the Program within the State to children enrolled in tier II day care homes
that do not satisfy the eligibility
standards for free or reduced price
meals, or to children from whose
households applications were not collected, by the current tier II day care
home rate for snacks.
(f) Administrative funds. For administrative payments to day care home
sponsoring organizations, funds shall
be made available to each State agency
in an amount not less than the product
obtained each month by multiplying
190
VerDate Sep<11>2014
10:57 May 01, 2019
Jkt 247015
PO 00000
Frm 00200
Fmt 8010
Sfmt 8010
Q:\07\7V4.TXT
PC31
kpayne on VMOFRWIN702 with $$_JOB
Food and Nutrition Service, USDA
§ 226.5
the number of day care homes participating under each sponsoring organization within the State by the applicable
rates specified in § 226.12(a)(3).
(g) Start-up and expansion funds. For
start-up and expansion payments to eligible sponsoring organizations, funds
shall be made available to each State
agency in an amount equal to the total
amount of start-up and expansion payments made in the most recent period
for which reports are available for that
State or on the basis of estimates by
FNS.
(h) Funding assurance. FNS shall ensure that, to the extent funds are appropriated, each State has sufficient
Program funds available for providing
start-up, expansion and advance payments in accordance with this part.
(i) Rate adjustments. FNS shall publish a notice in the FEDERAL REGISTER
to announce each rate adjustment.
FNS shall adjust the following rates on
the specified dates:
(1) The rates for meals, including
snacks, served in tier I and tier II day
care homes shall be adjusted annually,
on July 1 (beginning July 1, 1997), on
the basis of changes in the series for
food at home of the Consumer Price
Index for All Urban Consumers published by the Department of Labor.
Such adjustments shall be rounded to
the nearest lower cent based on
changes measured over the most recent
twelve-month period for which data are
available. The adjustments shall be
computed using the unrounded rate in
effect for the preceding school year.
(2) The rates for meals, including
snacks, served in child care centers,
emergency shelters, at-risk afterschool
care centers, adult day care centers
and outside-school-hours care centers
will be adjusted annually, on July 1, on
the basis of changes in the series for
food away from home of the Consumer
Price Index for All Urban Consumers
published by the Department of Labor.
Such adjustment must be rounded to
the nearest lower cent, based on
changes measured over the most recent
twelve-month period for which data are
available. The adjustment to the rates
must be computed using the unrounded
rate in effect for the preceding year.
(3) The rate for administrative payments to day care home sponsoring or-
ganizations shall be adjusted annually,
on July 1, on the basis of changes in
the series for all items of the Consumer
Price Index for All Urban Consumers
published by the Department of Labor.
Such adjustments shall be made to the
nearest dollar based on changes measured over the most recent twelvemonth period for which data are available.
(j) Audit funds. For the expense of
conducting audits and reviews under
§ 226.8, funds shall be made available to
each State agency in an amount equal
to one and one-half percent of the Program reimbursement provided to institutions within the State during the
second fiscal year preceding the fiscal
year for which these funds are to be
made available. The amount of assistance provided to a State under this
paragraph in any fiscal year may not
exceed the State’s expenditures under
§ 226.8 during such fiscal year.
(k) Method of funding. FNS shall authorize funds for State agencies in accordance with 2 CFR part 200, subpart
D, and USDA implementing regulations 2 CFR part 400 and part 415, as applicable.
(l) Special developmental projects. The
State agency may use in carrying out
special developmental projects an
amount not to exceed one percent of
Program funds used in the second prior
fiscal year. Special developmental
projects shall conform to FNS guidance
and be approved in writing by FNS.
[47 FR 36527, Aug. 20, 1982, as amended at 52
FR 36906, Oct. 2, 1987; 53 FR 52588, Dec. 28,
1988; 62 FR 902, Jan. 7, 1997; 63 FR 9728, Feb.
26, 1998; 69 FR 53536, Sept. 1, 2004; 71 FR 4,
Jan. 3, 2006; 71 FR 39518, July 13, 2006; 72 FR
41603, 41604, July 31, 2007; 75 FR 16327, Apr. 1,
2010; 76 FR 34569, June 13, 2011; 78 FR 13451,
Feb. 28, 2013; 81 FR 66492, Sept. 28, 2016]
EDITORIAL NOTE: At 75 FR 16327, Apr. 1,
2010, § 226.4 was amended in paragraph (d) by
inserting ‘‘Richard B. Russell’’ before ‘‘National School Lunch Program’’ in the first
sentence;; however, the amendment could
not be incorporated due to inaccurate
amendatory instruction.
§ 226.5
Donation of commodities.
(a) USDA foods available under section 6 of this Act, section 416 of the Agricultural Act of 1949 (7 U.S.C. 1431) or
purchased under section 32 of the Act
191
VerDate Sep<11>2014
10:57 May 01, 2019
Jkt 247015
PO 00000
Frm 00201
Fmt 8010
Sfmt 8010
Q:\07\7V4.TXT
PC31
§ 226.6
7 CFR Ch. II (1–1–19 Edition)
of August 24, 1935 (7 U.S.C. 1431), section 709 of the Food and Agriculture
Act of 1965 (7 U.S.C. 1446a–1), or other
authority, and donated by the Department shall be made available to each
State.
(b) The value of such commodities
donated to each State for each school
year shall be, at a minimum, the
amount obtained by multiplying the
number of reimbursable lunches and
suppers served in participating institutions in that State during the preceding school year by the rate for commodities established under section 6(e)
of the Act for the current school year.
Adjustments shall be made at the end
of each school year to reflect the difference between the number of reimbursable lunches and suppers served
during the preceding year and the number served during the current year, and
subsequent commodity entitlement
shall be based on the adjusted meal
counts. At the discretion of FNS, current-year adjustments may be made for
significant variations in the number of
reimbursable meals served. Such current-year adjustments will not be routine and will only be made for unusual
problems encountered in a State, such
as a disaster that necessitates institutional closures for a prolonged period
of time. CACFP State agencies electing
to receive cash-in-lieu of commodities
will receive payments based on the
number of reimbursable meals actually
served during the current school year.
[47 FR 36527, Aug. 20, 1982, as amended at 62
FR 23618, May 1, 1997]
kpayne on VMOFRWIN702 with $$_JOB
Subpart C—State Agency
Provisions
§ 226.6 State agency administrative responsibilities.
(a) State agency personnel. Each State
agency must provide sufficient consultative, technical, and managerial personnel to:
(1) Administer the Program;
(2) Provide sufficient training and
technical assistance to institutions;
(3) Monitor Program performance;
(4) Facilitate expansion of the Program in low-income and rural areas;
and
(5) Ensure effective operation of the
Program by participating institutions.
(b) Program applications and agreements. Each State agency must establish application review procedures, in
accordance with paragraphs (b)(1)
through (b)(3) of this section, to determine the eligibility of new institutions, renewing institutions, and facilities for which applications are submitted by sponsoring organizations.
The State agency must enter into written agreements with institutions in accordance with paragraph (b)(4) of this
section.
(1) Application procedures for new institutions. Each State agency must establish application procedures to determine the eligibility of new institutions
under this part. At a minimum, such
procedures must require that institutions submit information to the State
agency in accordance with paragraph
(f) of this section. For new private nonprofit and proprietary child care institutions, such procedures must also include a pre-approval visit by the State
agency to confirm the information in
the institution’s application and to further assess its ability to manage the
Program. The State agency must establish
factors,
consistent
with
§ 226.16(b)(1), that it will consider in determining whether a new sponsoring
organization has sufficient staff to perform required monitoring responsibilities at all of its sponsored facilities.
As part of the review of the sponsoring
organization’s management plan, the
State agency must determine the appropriate level of staffing for each
sponsoring organization, consistent
with the staffing range of monitors set
forth at § 226.16(b)(1) and the factors it
has established. The State agency must
ensure that each new sponsoring organization applying for participation
after July 29, 2002 meets this requirement. In addition, the State agency’s
application review procedures must ensure that the following information is
included in a new institution’s application:
(i) Participant eligibility information.
Centers must submit current information on the number of enrolled participants who are eligible for free, reducedprice and paid meals;
(ii) Enrollment information. Sponsoring organizations of day care homes
must submit current information on:
192
VerDate Sep<11>2014
10:57 May 01, 2019
Jkt 247015
PO 00000
Frm 00202
Fmt 8010
Sfmt 8010
Q:\07\7V4.TXT
PC31
kpayne on VMOFRWIN702 with $$_JOB
Food and Nutrition Service, USDA
§ 226.6
(A) The total number of children enrolled in all homes in the sponsorship;
(B) An assurance that day care home
providers’ own children whose meals
are claimed for reimbursement in the
Program are eligible for free or reduced-price meals;
(C) The total number of tier I and
tier II day care homes that it sponsors;
(D) The total number of children enrolled in tier I day care homes;
(E) The total number of children enrolled in tier II day care homes; and
(F) The total number of children in
tier II day care homes that have been
identified as eligible for free or reduced-price meals;
(iii) Nondiscrimination statement. Institutions must submit their nondiscrimination policy statement and a
media release, unless the State agency
has issued a Statewide media release
on behalf of all institutions;
(iv) Management plan. Sponsoring organizations must submit a complete
management plan that includes:
(A) Detailed information on the organization’s management and administrative structure;
(B) A list or description of the staff
assigned to Program monitoring, in accordance with the requirements set
forth at § 226.16(b)(1);
(C) An administrative budget that includes projected CACFP administrative
earnings and expenses;
(D) The procedures to be used by the
organization to administer the Program in, and disburse payments to, the
child care facilities under its sponsorship; and
(E) For sponsoring organizations of
family day care homes, a description of
the system for making tier I day care
home determinations, and a description of the system of notifying tier II
day care homes of their options for reimbursement;
(v) Budget. An institution must submit a budget that the State agency
must review in accordance with
§ 226.7(g);
(vi) Documentation of licensing/approval. All centers and family day care
homes must document that they meet
Program licensing/approval requirements;
(vii) Documentation of tax-exempt status. All private nonprofit institutions
must document their tax-exempt status;
(viii) At-risk afterschool care centers.
Institutions (independent at-risk afterschool care centers and sponsoring organizations of at-risk afterschool care
centers) must submit documentation
sufficient to determine that each atrisk afterschool care center meets the
program eligibility requirements in
§ 226.17a(a), and sponsoring organizations must submit documentation that
each sponsored at-risk afterschool care
center meets the area eligibility requirements in § 226.17a(i).
(ix) Documentation of for-profit center
eligibility. Institutions must document
that each for-profit center for which
application is made meets the definition of a For-profit center, as set forth
at § 226.2;
(x) Preference for commodities/cash-inlieu of commodities. Institutions must
state their preference to receive commodities or cash-in-lieu of commodities;
(xi) Providing benefits to unserved facilities or participants—(A) Criteria. The
State agency must develop criteria for
determining whether a new sponsoring
organization’s participation will help
ensure the delivery of benefits to otherwise unserved facilities or participants, and must disseminate these criteria to new sponsoring organizations
when they request information about
applying to the Program; and
(B) Documentation. The new sponsoring organization must submit documentation that its participation will
help ensure the delivery of benefits to
otherwise unserved facilities or participants in accordance with the State
agency’s criteria;
(xii) Presence on the National disqualified list. If an institution or one of its
principals is on the National disqualified list and submits an application,
the State agency may not approve the
application. If a sponsoring organization submits an application on behalf
of a facility, and either the facility or
any of its principals is on the National
disqualified list, the State agency may
not approve the application. In accordance with paragraph (k)(3)(vii) of this
section, in this circumstance, the State
193
VerDate Sep<11>2014
10:57 May 01, 2019
Jkt 247015
PO 00000
Frm 00203
Fmt 8010
Sfmt 8010
Q:\07\7V4.TXT
PC31
kpayne on VMOFRWIN702 with $$_JOB
§ 226.6
7 CFR Ch. II (1–1–19 Edition)
agency’s refusal to consider the application is not subject to administrative
review.
(xiii) Ineligibility for other publicly
funded programs—(A) General. A State
agency is prohibited from approving an
institution’s application if, during the
past seven years, the institution or any
of its principals have been declared ineligible for any other publicly funded
program by reason of violating that
program’s requirements. However, this
prohibition does not apply if the institution or the principal has been fully
reinstated in, or determined eligible
for, that program, including the payment of any debts owed;
(B) Certification. Institutions must
submit:
(1) A statement listing the publicly
funded programs in which the institution and its principals have participated in the past seven years; and
(2) A certification that, during the
past seven years, neither the institution nor any of its principals have been
declared ineligible to participate in
any other publicly funded program by
reason of violating that program’s requirements; or
(3) In lieu of the certification, documentation that the institution or the
principal previously declared ineligible
was later fully reinstated in, or determined eligible for, the program, including the payment of any debts owed; and
(C) Follow-up. If the State agency has
reason to believe that the institution
or its principals were determined ineligible to participate in another publicly
funded program by reason of violating
that program’s requirements, the State
agency must follow up with the entity
administering the publicly funded program to gather sufficient evidence to
determine whether the institution or
its principals were, in fact, determined
ineligible;
(xiv) Information on criminal convictions. (A) A State agency is prohibited
from approving an institution’s application if the institution or any of its
principals has been convicted of any
activity that occurred during the past
seven years and that indicated a lack
of business integrity. A lack of business integrity includes fraud, antitrust
violations, embezzlement, theft, forgery, bribery, falsification or destruc-
tion of records, making false statements, receiving stolen property, making false claims, obstruction of justice,
or any other activity indicating a lack
of business integrity as defined by the
State agency; and
(B) Institutions must submit a certification that neither the institution
nor any of its principals has been convicted of any activity that occurred
during the past seven years and that
indicated a lack of business integrity.
A lack of business integrity includes
fraud, antitrust violations, embezzlement, theft, forgery, bribery, falsification or destruction of records, making
false statements, receiving stolen property, making false claims, obstruction
of justice, or any other activity indicating a lack of business integrity as
defined by the State agency;
(xv) Certification of truth of applications and submission of names and addresses. Institutions must submit a certification that all information on the
application is true and correct, along
with the name, mailing address, and
date of birth of the institution’s executive director and chairman of the board
of directors or, in the case of a for-profit center that does not have an executive director or is not required to have
a board of directors, the owner of the
for-profit center;
(xvi) Outside employment policy. Sponsoring organizations must submit an
outside employment policy. The policy
must restrict other employment by
employees that interferes with an employee’s performance of Program-related duties and responsibilities, including outside employment that constitutes a real or apparent conflict of
interest. Sponsoring organizations that
are participating on July 29, 2002, must
submit an outside employment policy
not later than September 27, 2002. The
policy will be effective unless disapproved by the State agency;
(xvii) Bond. Sponsoring organizations
applying for initial participation on or
after June 20, 2000, must submit a bond,
if such bond is required by State law,
regulation, or policy. If the State agency requires a bond for sponsoring organizations pursuant to State law, regulation, or policy, the State agency
194
VerDate Sep<11>2014
10:57 May 01, 2019
Jkt 247015
PO 00000
Frm 00204
Fmt 8010
Sfmt 8010
Q:\07\7V4.TXT
PC31
kpayne on VMOFRWIN702 with $$_JOB
Food and Nutrition Service, USDA
§ 226.6
must submit a copy of that requirement and a list of sponsoring organizations posting a bond to the appropriate
FNSRO on an annual basis; and
(xviii) Compliance with performance
standards. Each new institution must
submit information sufficient to document that it is financially viable, is administratively capable of operating the
Program in accordance with this part,
and has internal controls in effect to
ensure accountability. To document
this, any new institution must demonstrate in its application that it is capable of operating in conformance with
the following performance standards.
The State agency must only approve
the applications of those new institutions that meet these performance
standards, and must deny the applications of those new institutions that do
not meet the standards. In ensuring
compliance with these performance
standards, the State agency should use
its discretion in determining whether
the institution’s application, in conjunction with its past performance in
CACFP, establishes to the State agency’s satisfaction that the institution
meets the performance standards.
(A) Performance Standard 1—Financial
viability and financial management. The
new institution must be financially
viable. Program funds must be expended and accounted for in accordance
with the requirements of this part,
FNS Instruction 796–2 (‘‘Financial
Management in the Child and Adult
Care Food Program’’), and 2 CFR part
200, subpart D and USDA implementing
regulations 2 CFR part 400 and part 415.
To demonstrate financial viability, the
new institution must document that it
meets the following criteria:
(1) Description of need/recruitment. A
new sponsoring organization must
demonstrate in its management plan
that its participation will help ensure
the delivery of Program benefits to
otherwise unserved facilities or participants, in accordance with criteria developed by the State agency pursuant
to paragraph (b)(1)(x) of this section. A
new sponsoring organization must
demonstrate that it will use appropriate practices for recruiting facilities, consistent with paragraph (p) of
this section and any State agency requirements;
(2) Fiscal resources and financial history. A new institution must demonstrate that it has adequate financial
resources to operate the CACFP on a
daily basis, has adequate sources of
funds to continue to pay employees and
suppliers during periods of temporary
interruptions in Program payments
and/or to pay debts when fiscal claims
have been assessed against the institution, and can document financial viability (for example, through audits, financial statements, etc.); and
(3) Budgets. Costs in the institution’s
budget must be necessary, reasonable,
allowable, and appropriately documented;
(B) Performance Standard 2—Administrative capability. The new institution
must be administratively capable. Appropriate and effective management
practices must be in effect to ensure
that the Program operates in accordance with this part. To demonstrate
administrative capability, the new institution must document that it meets
the following criteria:
(1) Has an adequate number and type
of qualified staff to ensure the operation of the Program in accordance
with this part;
(2) If a sponsoring organization, documents in its management plan that it
employs staff sufficient to meet the
ratio of monitors to facilities, taking
into account the factors that the State
agency will consider in determining a
sponsoring
organization’s
staffing
needs, as set forth in § 226.16(b)(1); and
(3) If a sponsoring organization, has
Program policies and procedures in
writing that assign Program responsibilities and duties, and ensure compliance with civil rights requirements;
and
(C) Performance Standard 3—Program
accountability. The new institution
must have internal controls and other
management systems in effect to ensure fiscal accountability and to ensure
that the Program will operate in accordance with the requirements of this
part. To demonstrate Program accountability, the new institution must
document that it meets the following
criteria:
(1) Governing board of directors. Has
adequate oversight of the Program by
195
VerDate Sep<11>2014
10:57 May 01, 2019
Jkt 247015
PO 00000
Frm 00205
Fmt 8010
Sfmt 8010
Q:\07\7V4.TXT
PC31
kpayne on VMOFRWIN702 with $$_JOB
§ 226.6
7 CFR Ch. II (1–1–19 Edition)
an independent governing board of directors as defined at § 226.2;
(2) Fiscal accountability. Has a financial system with management controls
specified in writing. For new sponsoring organizations, these written
operational policies must assure:
(i) Fiscal integrity and accountability for all funds and property received, held, and disbursed;
(ii) The integrity and accountability
of all expenses incurred;
(iii) That claims will be processed accurately, and in a timely manner;
(iv) That funds and property are properly safeguarded and used, and expenses incurred, for authorized Program purposes; and
(v) That a system of safeguards and
controls is in place to prevent and detect improper financial activities by
employees;
(3) Recordkeeping. Maintains appropriate records to document compliance
with Program requirements, including
budgets, accounting records, approved
budget amendments, and, if a sponsoring organization, management plans
and appropriate records on facility operations;
(4) Sponsoring organization operations.
If a new sponsoring organization, documents in its management plan that it
will:
(i) Provide adequate and regular
training of sponsoring organization
staff and sponsored facilities in accordance with §§ 226.15(e)(12) and (e)(14) and
226.16(d)(2) and (d)(3);
(ii) Perform monitoring in accordance with § 226.16(d)(4), to ensure that
sponsored facilities accountably and
appropriately operate the Program;
(iii) If a sponsor of family day care
homes, accurately classify day care
homes as tier I or tier II in accordance
with § 226.15(f); and
(iv) Have a system in place to ensure
that administrative costs funded from
Program reimbursements do not exceed
regulatory
limits
set
forth
at
§§ 226.12(a) and 226.16(b)(1); and
(5) Meal service and other operational
requirements. Independent centers and
facilities will follow practices that result in the operation of the Program in
accordance with the meal service, recordkeeping, and other operational requirements of this part. These prac-
tices must be documented in the independent center’s application or in the
sponsoring organization’s management
plan and must demonstrate that independent centers or sponsored facilities
will:
(i) Provide meals that meet the meal
patterns set forth in § 226.20;
(ii) Comply with licensure or approval requirements set forth in paragraph (d) of this section;
(iii) Have a food service that complies
with applicable State and local health
and sanitation requirements;
(iv) Comply with civil rights requirements;
(v) Maintain complete and appropriate records on file; and
(vi) Claim reimbursement only for eligible meals.
(2) Application procedures for renewing
institutions. Each State agency must establish application procedures to determine the eligibility of renewing institutions under this part. Renewing institutions must not be required to submit a free and reduced-price policy
statement or a nondiscrimination
statement unless they make substantive changes to either statement.
The State agency must require each renewing institution participating in the
Program to reapply for participation at
a time determined by the State agency,
except that no institution may be allowed to participate for less than 12 or
more than 36 calendar months under an
existing application, except when the
State agency determines that unusual
circumstances warrant reapplication in
less than 12 months. The State agency
must establish factors, consistent with
§ 226.16(b)(1), that it will consider in determining whether a renewing sponsoring organization has sufficient staff
to perform required monitoring responsibilities at all of its sponsored facilities. As part of the review of the renewing sponsoring organization’s management plan, the State agency must determine the appropriate level of staffing for the sponsoring organization,
consistent with the staffing range of
monitors set forth at § 226.16(b)(1) and
the factors it has established. The
State agency must ensure that each
currently participating sponsoring organization meets this requirement no
later than July 29, 2003. At a minimum,
196
VerDate Sep<11>2014
10:57 May 01, 2019
Jkt 247015
PO 00000
Frm 00206
Fmt 8010
Sfmt 8010
Q:\07\7V4.TXT
PC31
kpayne on VMOFRWIN702 with $$_JOB
Food and Nutrition Service, USDA
§ 226.6
the application review procedures established by the State agency must require that renewing institutions submit information to the State agency in
accordance with paragraph (f) of this
section. In addition, the State agency’s
application review procedures must ensure that the following information is
included in a renewing institution’s application:
(i) Management plan. For renewing
sponsoring organizations, a complete
management plan that meets the requirements of paragraphs (b)(1)(iv),
(b)(1)(v), (f)(1)(vi), and (f)(3)(i) of this
section and § 226.7(g);
(ii) Presence on the National disqualified list. If, during the State agency’s
review of its application, a renewing
institution or one of its principals is
determined to be on the National disqualified list, the State agency may
not approve the application. If a renewing sponsoring organization submits an
application on behalf of a facility, and
the State agency determines that either the facility or any of its principals
is on the National disqualified list, the
State agency may not approve the application. In accordance with paragraph (k)(3)(vii) of this section, in this
circumstance, the State agency’s refusal to consider the application is not
subject to an administrative review.
(iii) Ineligibility for other publicly
funded programs—(A) General. A State
agency is prohibited from approving a
renewing institution’s application if,
during the past seven years, the institution or any of its principals have
been declared ineligible for any other
publicly funded program by reason of
violating that program’s requirements.
However, this prohibition does not
apply if the institution or the principal
has been fully reinstated in, or determined eligible for, that program, including the payment of any debts owed;
(B) Certification. Renewing institutions must submit:
(1) A statement listing any publicly
funded programs in which the institution and its principals have begun to
participate since the institution’s previous application; and
(2) A certification that, during the
past seven years, neither the institution nor any of its principals have been
declared ineligible to participate in
any other publicly funded program by
reason of violating that program’s requirements; or
(3) In lieu of the certification, documentation that the institution or the
principal previously declared ineligible
was later fully reinstated in, or determined eligible for, the program, including the payment of any debts owed; and
(C) Follow-up. If the State agency has
reason to believe that the renewing institution or any of its principals were
determined ineligible to participate in
another publicly funded program by
reason of violating that program’s requirements, the State agency must follow up with the entity administering
the publicly funded program to gather
sufficient
evidence
to
determine
whether the institution or its principals were, in fact, determined ineligible;
(iv) Information on criminal convictions. (A) A State agency is prohibited
from approving a renewing institution’s application if the institution or
any of its principals have been convicted of any activity that occurred
during the past seven years and that
indicated a lack of business integrity.
A lack of business integrity includes
fraud, antitrust violations, embezzlement, theft, forgery, bribery, falsification or destruction of records, making
false statements, receiving stolen property, making false claims, obstruction
of justice, or any other activity indicating a lack of business integrity as
defined by the State agency; and
(B) Renewing institutions must submit a certification that neither the institution nor any of its principals have
been convicted of any activity that occurred during the past seven years and
that indicated a lack of business integrity. A lack of business integrity includes fraud, antitrust violations, embezzlement, theft, forgery, bribery, falsification or destruction of records,
making false statements, receiving stolen property, making false claims, obstruction of justice, or any other activity indicating a lack of business integrity as defined by the State agency;
(v) Certification of truth of applications
and submission of names and addresses.
Renewing institutions must submit a
certification that all information on
the application is true and correct,
197
VerDate Sep<11>2014
10:57 May 01, 2019
Jkt 247015
PO 00000
Frm 00207
Fmt 8010
Sfmt 8010
Q:\07\7V4.TXT
PC31
kpayne on VMOFRWIN702 with $$_JOB
§ 226.6
7 CFR Ch. II (1–1–19 Edition)
along with the name, mailing address,
and date of birth of the institution’s
executive director and chairman of the
board of directors or, in the case of a
for-profit center that does not have an
executive director or is not required to
have a board of directors, the owner of
the for-profit center;
(vi) Outside employment policy. Renewing sponsoring organizations must submit an outside employment policy. The
policy must restrict other employment
by employees that interferes with an
employee’s performance of Program-related duties and responsibilities, including outside employment that constitutes a real or apparent conflict of
interest. Sponsoring organizations that
are participating on July 29, 2002, must
submit an outside employment policy
not later than September 27, 2002. The
policy will be effective unless disapproved by the State agency;
(vii) Compliance with performance
standards. Each renewing institution
must submit information sufficient to
document that it is financially viable,
is administratively capable of operating the Program in accordance with
this part, and has internal controls in
effect to ensure accountability. To document this, any renewing institution
must demonstrate in its application
that it is capable of operating in conformance with the following performance standards. The State agency must
only approve the applications of those
renewing institutions that meet these
performance standards, and must deny
the applications of those that do not
meet the standards. In ensuring compliance with these performance standards, the State agency should use its
discretion in determining whether the
institution’s application, in conjunction with its past performance in
CACFP, establishes to the State agency’s satisfaction that the institution
meets the standards.
(A) Performance Standard 1—Financial
viability and financial management. The
renewing institution must be financially viable. Program funds must be
expended and accounted for in accordance with the requirements of this
part, FNS Instruction 796–2 (‘‘Financial
Management in the Child and Adult
Care Food Program’’), and 2 CFR part
200, subpart D and USDA implementing
regulations 2 CFR part 400 and part 415.
To demonstrate financial viability, the
renewing institution must document
that it meets the following criteria:
(1) Description of need/recruitment. A
renewing sponsoring organization must
demonstrate that it will use appropriate practices for recruiting facilities, consistent with paragraph (p) of
this section and any State agency requirements;
(2) Fiscal resources and financial history. A renewing institution must demonstrate that it has adequate financial
resources to operate the CACFP on a
daily basis, has adequate sources of
funds to continue to pay employees and
suppliers during periods of temporary
interruptions in Program payments
and/or to pay debts when fiscal claims
have been assessed against the institution, and can document financial viability (for example, through audits, financial statements, etc.); and
(3) Budgets. Costs in the renewing institution’s budget must be necessary,
reasonable, allowable, and appropriately documented;
(B) Performance Standard 2—Administrative capability. The renewing institution must be administratively capable.
Appropriate and effective management
practices must be in effect to ensure
that the Program operates in accordance with this part. To demonstrate
administrative capability, the renewing institution must document that it
meets the following criteria:
(1) Has an adequate number and type
of qualified staff to ensure the operation of the Program in accordance
with this part;
(2) If a sponsoring organization, documents in its management plan that it
employs staff sufficient to meet the
ratio of monitors to facilities, taking
into account the factors that the State
agency will consider in determining a
sponsoring
organization’s
staffing
needs, as set forth in § 226.16(b)(1); and
(3) If a sponsoring organization, has
Program policies and procedures in
writing that assign Program responsibilities and duties, and ensure compliance with civil rights requirements;
and
(C) Performance Standard 3—Program
accountability. The renewing institution must have internal controls and
198
VerDate Sep<11>2014
10:57 May 01, 2019
Jkt 247015
PO 00000
Frm 00208
Fmt 8010
Sfmt 8010
Q:\07\7V4.TXT
PC31
kpayne on VMOFRWIN702 with $$_JOB
Food and Nutrition Service, USDA
§ 226.6
other management systems in effect to
ensure fiscal accountability and to ensure that the Program operates in accordance with the requirements of this
part. To demonstrate Program accountability, the renewing institution
must document that it meets the following criteria:
(1) Governing board of directors. Has
adequate oversight of the Program by
an independent governing board of directors as defined at § 226.2;
(2) Fiscal accountability. Has a financial system with management controls
specified in writing. For sponsoring organizations, these written operational
policies must assure:
(i) Fiscal integrity and accountability for all funds and property received, held, and disbursed;
(ii) The integrity and accountability
of all expenses incurred;
(iii) That claims are processed accurately, and in a timely manner;
(iv) That funds and property are properly safeguarded and used, and expenses incurred, for authorized Program purposes; and
(v) That a system of safeguards and
controls is in place to prevent and detect improper financial activities by
employees;
(3) Recordkeeping. Maintains appropriate records to document compliance
with Program requirements, including
budgets, accounting records, approved
budget amendments, and, if a sponsoring organization, management plans
and appropriate records on facility operations;
(4) Sponsoring organization operations.
A renewing sponsoring organization
must document in its management
plan that it will:
(i) Provide adequate and regular
training of sponsoring organization
staff and sponsored facilities in accordance with §§ 226.15(e)(12) and (e)(14) and
226.16(d)(2) and (d)(3);
(ii) Perform monitoring in accordance with § 226.16(d)(4), to ensure that
sponsored facilities accountably and
appropriately operate the Program;
(iii) If a sponsor of family day care
homes, accurately classify day care
homes as tier I or tier II in accordance
with § 226.15(f); and
(iv) Have a system in place to ensure
that administrative costs funded from
Program reimbursements do not exceed
regulatory
limits
set
forth
at
§§ 226.12(a) and 226.16(b)(1); and
(5) Meal service and other operational
requirements. All independent centers
and facilities must follow practices
that result in the operation of the Program in accordance with the meal service, recordkeeping, and other operational requirements of this part.
These practices must be documented in
the independent center’s application or
in the sponsoring organization’s management plan and must demonstrate
that independent centers or sponsored
facilities:
(i) Provide meals that meet the meal
patterns set forth in § 226.20;
(ii) Comply with licensure or approval requirements set forth in paragraph (d) of this section;
(iii) Have a food service that complies
with applicable State and local health
and sanitation requirements;
(iv) Comply with civil rights requirements;
(v) Maintain complete and appropriate records on file; and
(vi) Claim reimbursement only for eligible meals.
(3) State agency notification requirements. Any new or renewing institution
applying for participation in the Program must be notified in writing of approval or disapproval by the State
agency, within 30 calendar days of the
State agency’s receipt of a complete
application. Whenever possible, State
agencies should provide assistance to
institutions that have submitted an incomplete application. Any disapproved
applicant institution or family day
care home must be notified of the reasons for its disapproval and its right to
appeal under paragraph (k) or (l), respectively, of this section.
(4) Program agreements. (i) The State
agency must require each institution
that has been approved for participation in the Program to enter into a
permanent agreement governing the
rights and responsibilities of each
party. The existence of a valid permanent agreement, however, does not
eliminate the need for an institution to
comply with the reapplication and related provisions at paragraphs (b) and
(f) of this section; nor does it limit the
State agency’s ability to terminate the
199
VerDate Sep<11>2014
10:57 May 01, 2019
Jkt 247015
PO 00000
Frm 00209
Fmt 8010
Sfmt 8010
Q:\07\7V4.TXT
PC31
kpayne on VMOFRWIN702 with $$_JOB
§ 226.6
7 CFR Ch. II (1–1–19 Edition)
agreement as provided under paragraph
(c) of this section.
(ii) The Program agreement must
provide that the institution accepts
final financial and administrative responsibility for management of a proper, efficient, and effective food service,
and will comply with all requirements
under this part. In addition, the agreement must state that the sponsor must
comply with all requirements of title
VI of the Civil Rights Act of 1964, title
IX of the Education Amendments of
1972, section 504 of the Rehabilitation
Act of 1973, the Age Discrimination Act
of 1975 and the Department’s regulations concerning nondiscrimination
(parts 15, 15a and 15b of this title), including requirements for racial and
ethnic participation data collection,
public
notification
of
the
nondiscrimination policy, and reviews to
assure compliance with such policy, to
the end that no person may, on the
grounds of race, color, national origin,
sex, age, or disability, be excluded from
participation in, be denied the benefits
of, or be otherwise subjected to discrimination under, the Program.
(iii) The Program agreement must
also notify the institution of the right
of the State agency, the Department,
and other State or Federal officials to
make announced or unannounced reviews of their operations during the institution’s normal hours of child or
adult care operations, and that anyone
making such reviews must show photo
identification that demonstrates that
they are employees of one of these entities.
(c) Denial of applications and termination of agreements—(1) Denial of a new
institution’s application—(i) General. If a
new institution’s application does not
meet all of the requirements in paragraph (b) of this section and in
§§ 226.15(b) and 226.16(b), the State agency must deny the application. If, in reviewing a new institution’s application, the State agency determines that
the institution has committed one or
more serious deficiency listed in paragraph (c)(1)(ii) of this section, the
State agency must initiate action to:
(A) Deny the new institution’s application; and
(B) Disqualify the new institution
and the responsible principals and re-
sponsible individuals (e.g., the person
who signs the application).
(ii) List of serious deficiencies for new
institutions. The list of serious deficiencies is not identical for each category of institution (new, renewing,
participating) because the type of information likely to be available to the
State agency is different, depending on
whether the State agency is reviewing
a new or renewing institution’s application or is conducting a review of a
participating institution. Serious deficiencies for new institutions are:
(A) Submission of false information
on the institution’s application, including but not limited to a determination
that the institution has concealed a
conviction for any activity that occurred during the past seven years and
that indicates a lack of business integrity. A lack of business integrity includes fraud, antitrust violations, embezzlement, theft, forgery, bribery, falsification or destruction of records,
making false statements, receiving stolen property, making false claims, obstruction of justice, or any other activity indicating a lack of business integrity as defined by the State agency; or
(B) Any other action affecting the institution’s ability to administer the
Program in accordance with Program
requirements.
(iii) Serious deficiency notification procedures for new institutions. If the State
agency determines that a new institution has committed one or more serious deficiency listed in paragraph
(c)(1)(ii) of this section, the State agency must use the following procedures
to provide the institution and the responsible principals and responsible individuals with notice of the serious deficiency(ies) and an opportunity to
take corrective action.
(A) Notice of serious deficiency. The
State agency must notify the institution’s executive director and chairman
of the board of directors that the institution has been determined to be seriously deficient. The notice must identify the responsible principals and responsible individuals (e.g., for new institutions, the person who signed the
application) and must be sent to those
persons as well. The State agency may
200
VerDate Sep<11>2014
10:57 May 01, 2019
Jkt 247015
PO 00000
Frm 00210
Fmt 8010
Sfmt 8010
Q:\07\7V4.TXT
PC31
kpayne on VMOFRWIN702 with $$_JOB
Food and Nutrition Service, USDA
§ 226.6
specify in the notice different corrective action, and time periods for completing the corrective action, for the
institution and the responsible principals and responsible individuals. At
the same time the notice is issued, the
State agency must add the institution
to the State agency list, along with the
basis for the serious deficiency determination, and provide a copy of the notice to the appropriate FNSRO. The notice must also specify:
(1) The serious deficiency(ies);
(2) The actions to be taken to correct
the serious deficiency(ies);
(3) The time allotted to correct the
serious deficiency(ies) in accordance
with paragraph (c)(4) of this section.
(4) That the serious deficiency determination is not subject to administrative review;
(5) That failure to fully and permanently correct the serious deficiency(ies) within the allotted time
will result in denial of the institution’s
application and the disqualification of
the institution and the responsible
principals and responsible individuals;
(6) That the State agency will not
pay any claims for reimbursement for
eligible meals served or allowable administrative expenses incurred until
the State agency has approved the institution’s application and the institution has signed a Program agreement;
and
(7) That the institution’s withdrawal
of its application, after having been notified that it is seriously deficient, will
still result in the institution’s formal
termination by the State agency and
placement of the institution and its responsible principals and individuals on
the National disqualified list; and
(8) That, if the State agency does not
possess the date of birth for any individual named as a ‘‘responsible principal or individual’’ in the serious deficiency notice, the submission of that
person’s date of birth is a condition of
corrective action for the institution
and/or individual.
(B) Successful corrective action. (1) If
corrective action has been taken to
fully and permanently correct the serious deficiency(ies) within the allotted
time and to the State agency’s satisfaction, the State agency must:
(i) Notify the institution’s executive
director and chairman of the board of
directors, and the responsible principals and responsible individuals, that
the State agency has temporarily defer
its serious deficiency determination;
and
(ii) Offer the new institution the opportunity to resubmit its application.
If the new institution resubmits its application, the State agency must complete its review of the application
within 30 days after receiving a complete and correct application.
(2) If corrective action is complete
for the institution but not for all of the
responsible principals and responsible
individuals (or vice versa), the State
agency must:
(i) Continue with the actions (as set
forth in paragraph (c)(1)(iii)(C) of this
section) against the remaining parties;
(ii) At the same time the notice is
issued, the State agency must also update the State agency list to indicate
that the serious deficiency(ies) has(ve)
been corrected and provide a copy of
the notice to the appropriate FNSRO;
and
(iii) If the new institution has corrected the serious deficiency(ies), offer
it the opportunity to resubmit its application. If the new institution resubmits its application, the State agency
must complete its review of the application within 30 days after receiving a
complete and correct application.
(3) If the State agency initially determines that the institution’s corrective
action is complete, but later determines that the serious deficiency(ies)
has recurred, the State agency must
move immediately to issue a notice of
intent to terminate and disqualify the
institution, in accordance with paragraph (c)(1)(iii)(C) of this section.
(C) Application denial and proposed
disqualification. If timely corrective action is not taken to fully and permanently correct the serious deficiency(ies), the State agency must notify the institution’s executive director
and chairman of the board of directors,
and the responsible principals and responsible individuals, that the institution’s application has been denied. At
the same time the notice is issued, the
State agency must also update the
State agency list and provide a copy of
201
VerDate Sep<11>2014
10:57 May 01, 2019
Jkt 247015
PO 00000
Frm 00211
Fmt 8010
Sfmt 8010
Q:\07\7V4.TXT
PC31
kpayne on VMOFRWIN702 with $$_JOB
§ 226.6
7 CFR Ch. II (1–1–19 Edition)
the notice to the appropriate FNSRO.
The notice must also specify:
(1) That the institution’s application
has been denied and the State agency
is proposing to disqualify the institution and the responsible principals and
responsible individuals;
(2) The basis for the actions; and
(3) The procedures for seeking an administrative review (in accordance
with paragraph (k) of this section) of
the application denial and proposed
disqualifications.
(D) Program payments. The State
agency is prohibited from paying any
claims for reimbursement from a new
institution for eligible meals served or
allowable administrative expenses incurred until the State agency has approved its application and the institution and State agency have signed a
Program agreement.
(E) Disqualification. When the time
for requesting an administrative review expires or when the administrative review official upholds the State
agency’s denial and proposed disqualifications, the State agency must notify
the institution’s executive director and
chairman of the board of directors, and
the responsible principals and responsible individuals that the institution
and the responsible principal and responsible individuals have been disqualified. At the same time the notice
is issued, the State agency must also
update the State agency list and provide a copy of the notice and the mailing address and date of birth for each
responsible principal and responsible
individual to the appropriate FNSRO.
(2) Denial of a renewing institution’s
application—(i) General. If a renewing
institution’s application does not meet
all of the requirements in paragraph (b)
of this section and in §§ 226.15(b) and
226.16(b), the State agency must deny
the application. If, in reviewing a renewing institution’s application, the
State agency determines that the institution has committed one or more serious deficiency listed in paragraph
(c)(2)(ii) of this section, the State agency must initiate action to deny the renewing institution’s application and
initiate action to disqualify the renewing institution and the responsible
principals and responsible individuals.
(ii) List of serious deficiencies for renewing institutions. The list of serious
deficiencies is not identical for each
category of institution (new, renewing,
participating) because the type of information likely to be available to the
State agency is different, depending on
whether the State agency is reviewing
a new or renewing institution’s application or is conducting a review of a
participating institution. Serious deficiencies for renewing institutions are:
(A) Submission of false information
on the institution’s application, including but not limited to a determination
that the institution has concealed a
conviction for any activity that occurred during the past seven years and
that indicates a lack of business integrity. A lack of business integrity includes fraud, antitrust violations, embezzlement, theft, forgery, bribery, falsification or destruction of records,
making false statements, receiving stolen property, making false claims, obstruction of justice, or any other activity indicating a lack of business integrity as defined by the State agency;
(B) Failure to operate the Program in
conformance with the performance
standards set forth in paragraphs
(b)(1)(xviii) and (b)(2)(vii) of this section;
(C) Failure to comply with the bid
procedures and contract requirements
of applicable Federal procurement regulations;
(D) Use of a food service management
company that is in violation of health
codes;
(E) Failure by a sponsoring organization of day care homes to properly
classify day care homes as tier I or tier
II in accordance with § 226.15(f);
(F) Failure by a sponsoring organization to properly train or monitor sponsored facilities in accordance with
§ 226.16(d);
(G) Failure to perform any of the
other financial and administrative responsibilities required by this part;
(H) Failure to properly implement
and administer the day care home termination and administrative review
provisions set forth at paragraph (l) of
this section and § 226.16(l); or
(I) Any other action affecting the institution’s ability to administer the
202
VerDate Sep<11>2014
10:57 May 01, 2019
Jkt 247015
PO 00000
Frm 00212
Fmt 8010
Sfmt 8010
Q:\07\7V4.TXT
PC31
kpayne on VMOFRWIN702 with $$_JOB
Food and Nutrition Service, USDA
§ 226.6
Program in accordance with Program
requirements.
(iii) Serious deficiency notification procedures for renewing institutions. If the
State agency determines that a renewing institution has committed one or
more serious deficiency listed in paragraph (c)(2)(ii) of this section, the
State agency must use the following
procedures to provide the institution
and the responsible principals and responsible individuals notice of the serious deficiency(ies) and an opportunity
to take corrective action.
(A) Notice of serious deficiency. The
State agency must notify the institution’s executive director and chairman
of the board of directors that the institution has been determined to be seriously deficient. The notice must identify the responsible principals and responsible individuals and must be sent
to those persons as well. The State
agency may specify in the notice different corrective action, and time periods for completing the corrective action, for the institution and the responsible principals and responsible individuals. At the same time the notice
is issued, the State agency must add
the institution to the State agency
list, along with the basis for the serious deficiency determination, and provide a copy of the notice to the appropriate FNSRO. The notice must also
specify:
(1) The serious deficiency(ies);
(2) The actions to be taken to correct
the serious deficiency(ies);
(3) The time allotted to correct the
serious deficiency(ies) in accordance
with paragraph (c)(4) of this section;
(4) That the serious deficiency determination is not subject to administrative review.
(5) That failure to fully and permanently correct the serious deficiency(ies) within the allotted time
will result in the State agency’s denial
of the institution’s application, the
proposed termination of the institution’s agreement and the proposed disqualification of the institution and the
responsible principals and responsible
individuals;
(6) That the institution’s voluntary
termination of its agreement with the
State agency after having been notified
that it is seriously deficient will still
result in the institution’s formal termination by the State agency and
placement of the institution and its responsible principals and responsible individuals on the National disqualified
list; and
(7) That, if the State agency does not
possess the date of birth for any individual named as a ‘‘responsible principal or individual’’ in the serious deficiency notice, the submission of that
person’s date of birth is a condition of
corrective action for the institution
and/or individual.
(B) Successful corrective action. (1) If
corrective action has been taken to
fully and permanently correct the serious deficiency(ies) within the allotted
time and to the State agency’s satisfaction, the State agency must:
(i) Notify the institution’s executive
director and chairman of the board of
directors, and the responsible principals and responsible individuals, that
the State agency has temporarily defer
its serious deficiency determination;
and
(ii) Offer the renewing institution the
opportunity to resubmit its application. If the renewing institution resubmits its application, the State agency
must complete its review of the application within 30 days after receiving a
complete and correct application.
(2) If corrective action is complete
for the institution but not for all of the
responsible principals and responsible
individuals (or vice versa), the State
agency must:
(i) Continue with the actions (as set
forth in paragraph (c)(2)(iii)(C) of this
section) against the remaining parties;
(ii) At the same time the notice is
issued, the State agency must also update the State agency list to indicate
that the serious deficiency(ies) has(ve)
been corrected and provide a copy of
the notice to the appropriate FNSRO;
and
(iii) If the renewing institution has
corrected the serious deficiency(ies),
offer it the opportunity to resubmit its
application. If the renewing institution
resubmits its application, the State
agency must complete its review of the
application within 30 days after receiving a complete and correct application.
(3) If the State agency initially determines that the institution’s corrective
203
VerDate Sep<11>2014
10:57 May 01, 2019
Jkt 247015
PO 00000
Frm 00213
Fmt 8010
Sfmt 8010
Q:\07\7V4.TXT
PC31
kpayne on VMOFRWIN702 with $$_JOB
§ 226.6
7 CFR Ch. II (1–1–19 Edition)
action is complete, but later determines that the serious deficiency(ies)
have recurred, the state agency must
move immediately to issue a notice of
intent to terminate and disqualify the
institution, in accordance with paragraph (c)(2)(iii)(C) of this section.
(C) Application denial and proposed
disqualification. If timely corrective action is not taken to fully and permanently correct the serious deficiency(ies), the State agency must notify the institution’s executive director
and chairman of the board of directors,
and the responsible principals and responsible individuals, that the institution’s application has been denied. At
the same time the notice is issued, the
State agency must update the State
agency list and provide a copy of the
notice to the appropriate FNSRO. The
notice must also specify:
(1) That the institution’s application
has been denied and the State agency
is proposing to terminate the institution’s agreement and to disqualify the
institution and the responsible principals and responsible individuals;
(2) The basis for the actions;
(3) That, if the institution voluntarily terminates its agreement after
receiving the notice of the proposed
termination, the institution and the
responsible principals and responsible
individuals will be disqualified;
(4) The procedures for seeking an administrative review (in accordance
with paragraph (k) of this section) of
the application denial and proposed
disqualifications; and
(5) That the institution may continue
to participate in the Program and receive Program reimbursement for eligible meals served and allowable administrative costs incurred until its administrative review is completed.
(D) Agreement termination and disqualification. When the time for requesting an administrative review expires or when the administrative review official upholds the State agency’s denial of the institution’s application, the proposed termination, and the
proposed disqualifications, the State
agency must:
(1) Notify the institution’s executive
director and chairman of the board of
directors, and the responsible principals and responsible individuals, that
the agreement has been terminated and
that the institution and the responsible principals and responsible individuals have been disqualified;
(2) Update the State agency list at
the time such notice is issued; and
(3) Provide a copy of the notice and
the mailing address and date of birth
for each responsible principal and responsible individual to the appropriate
FNSRO.
(3) Termination of a participating institution’s agreement. (i) General. If the
State agency holds an agreement with
an institution operating in more than
one State that has been disqualified
from the Program by another State
agency and placed on the National disqualified list, the State agency must
terminate the institution’s agreement
effective no later than 45 days of the
date of the institution’s disqualification by the other State agency. At the
same time the notice of termination is
issued, the State agency must add the
institution to the State agency list and
indicate that the institution’s agreement has been terminated and provide
a copy of the notice to the appropriate
FNSRO. If the State agency determines
that a participating institution has
committed one or more serious deficiency listed in paragraph (c)(3)(ii) of
this section, the State agency must initiate action to terminate the agreement
of a participating institution and initiate action to disqualify the institution and any responsible principals and
responsible individuals.
(ii) List of serious deficiencies for participating institutions. The list of serious
deficiencies is not identical for each
category of institution (new, renewing,
participating) because the type of information likely to be available to the
State agency is different, depending on
whether the State agency is reviewing
a new or renewing institution’s application or is conducting a review of a
participating institution. Serious deficiencies for participating institutions
are:
(A) Submission of false information
on the institution’s application, including but not limited to a determination
that the institution has concealed a
conviction for any activity that occurred during the past seven years and
204
VerDate Sep<11>2014
10:57 May 01, 2019
Jkt 247015
PO 00000
Frm 00214
Fmt 8010
Sfmt 8010
Q:\07\7V4.TXT
PC31
kpayne on VMOFRWIN702 with $$_JOB
Food and Nutrition Service, USDA
§ 226.6
that indicates a lack of business integrity. A lack of business integrity includes fraud, antitrust violations, embezzlement, theft, forgery, bribery, falsification or destruction of records,
making false statements, receiving stolen property, making false claims, obstruction of justice, or any other activity indicating a lack of business integrity as defined by the State agency;
(B) Permitting an individual who is
on the National disqualified list to
serve in a principal capacity with the
institution or, if a sponsoring organization, permitting such an individual to
serve as a principal in a sponsored center or as a day care home;
(C) Failure to operate the Program in
conformance with the performance
standards set forth in paragraphs
(b)(1)(xviii) and (b)(2)(vii) of this section;
(D) Failure to comply with the bid
procedures and contract requirements
of applicable Federal procurement regulations;
(E) Failure to return to the State
agency any advance payments that exceeded the amount earned for serving
eligible meals, or failure to return disallowed start-up or expansion payments;
(F) Failure to maintain adequate
records;
(G) Failure to adjust meal orders to
conform to variations in the number of
participants;
(H) Claiming reimbursement for
meals not served to participants;
(I) Claiming reimbursement for a significant number of meals that do not
meet Program requirements;
(J) Use of a food service management
company that is in violation of health
codes;
(K) Failure of a sponsoring organization to disburse payments to its facilities in accordance with the regulations
at § 226.16(g) and (h) or in accordance
with its management plan;
(L) Claiming reimbursement for
meals served by a for-profit child care
center or a for-profit outside-schoolhours care center during a calendar
month in which less than 25 percent of
the children in care (enrolled or licensed capacity, whichever is less)
were eligible for free or reduced-price
meals or were title XX beneficiaries;
(M) Claiming reimbursement for
meals served by a for-profit adult day
care center during a calendar month in
which less than 25 percent of its enrolled adult participants were title XIX
or title XX beneficiaries;
(N) Failure by a sponsoring organization of day care homes to properly
classify day care homes as tier I or tier
II in accordance with § 226.15(f);
(O) Failure by a sponsoring organization to properly train or monitor sponsored facilities in accordance with
§ 226.16(d);
(P) Use of day care home funds by a
sponsoring organization to pay for the
sponsoring organization’s administrative expenses;
(Q) Failure to perform any of the
other financial and administrative responsibilities required by this part;
(R) Failure to properly implement
and administer the day care home termination and administrative review
provisions set forth at paragraph (l) of
this section and § 226.16(l);
(S) The fact the institution or any of
the institution’s principals have been
declared ineligible for any other publicly funded program by reason of violating that program’s requirements.
However, this prohibition does not
apply if the institution or the principal
has been fully reinstated in, or is now
eligible to participate in, that program, including the payment of any
debts owed;
(T) Conviction of the institution or
any of its principals for any activity
that occurred during the past seven
years and that indicates a lack of business integrity. A lack of business integrity includes fraud, antitrust violations, embezzlement, theft, forgery,
bribery, falsification or destruction of
records, making false statements, receiving stolen property, making false
claims, obstruction of justice, or any
other activity indicating a lack of
business integrity as defined by the
State agency; or
(U) Any other action affecting the institution’s ability to administer the
Program in accordance with Program
requirements.
(iii) Serious deficiency notification procedures for participating institutions. If
the State agency determines that a
205
VerDate Sep<11>2014
10:57 May 01, 2019
Jkt 247015
PO 00000
Frm 00215
Fmt 8010
Sfmt 8010
Q:\07\7V4.TXT
PC31
kpayne on VMOFRWIN702 with $$_JOB
§ 226.6
7 CFR Ch. II (1–1–19 Edition)
participating institution has committed one or more serious deficiency
listed in paragraph (c)(3)(ii) of this section, the State agency must use the
following procedures to provide the institution and the responsible principals
and responsible individuals notice of
the serious deficiency(ies) and an opportunity to take corrective action.
However, if the serious deficiency(ies)
constitutes an imminent threat to the
health or safety of participants, or the
institution has engaged in activities
that threaten the public health or safety, the State agency must follow the
procedures in paragraph (c)(5)(i) of this
section instead of the procedures
below. Further, if the serious deficiency is the submission of a false or
fraudulent claim, in addition to the
procedures below, the State agency
may suspend the institution’s participation in accordance with paragraph
(c)(5)(ii) of this section.
(A) Notice of serious deficiency. The
State agency must notify the institution’s executive director and chairman
of the board of directors that the institution has been determined seriously
deficient. The notice must identify the
responsible principals and responsible
individuals and must be sent to those
persons as well. The State agency may
specify in the notice different corrective action and time periods for completing the corrective action for the institution and the responsible principals
and responsible individuals. At the
same time the notice is issued, the
State agency must add the institution
to the State agency list, along with the
basis for the serious deficiency determination, and provide a copy of the notice to the appropriate FNSRO. The notice must also specify:
(1) The serious deficiency(ies);
(2) The actions to be taken to correct
the serious deficiency(ies);
(3) The time allotted to correct the
serious deficiency(ies) in accordance
with paragraph (c)(4) of this section;
(4) That the serious deficiency determination is not subject to administrative review.
(5) That failure to fully and permanently correct the serious deficiency(ies) within the allotted time
will result in the State agency’s proposed termination of the institution’s
agreement and the proposed disqualification of the institution and the responsible principals and responsible individuals;
(6) That the institution’s voluntary
termination of its agreement with the
State agency after having been notified
that it is seriously deficient will still
result in the instituion’s formal termination by the State agency and placement of the institution and its responsible principals and responsible individuals on the National disqualified list;
and
(7) That, if the State agency does not
possess the date of birth for any individual named as a ‘‘responsible principal or individual’’ in the serious deficiency notice, the submission of that
person’s date of birth is a condition of
corrective action for the institution
and/or individual.
(B) Successful corrective action. (1) If
corrective action has been taken to
fully and permanently correct the serious deficiency(ies) within the allotted
time and to the State agency’s satisfaction, the State agency must:
(i) Notify the institution’s executive
director and chairman of the board of
directors, and the responsible principals and responsible individuals, that
the State agency has temporarily defer
its serious deficiency determination;
and
(ii) Offer the participating institution
the opportunity to resubmit its application. If the participating institution
resubmits its application, the State
agency must complete its review of the
application within 30 days after receiving a complete and correct application.
(2) If corrective action is complete
for the institution but not for all of the
responsible principals and responsible
individuals (or vice versa), the State
agency must:
(i) Continue with the actions (as set
forth in paragraph (c)(3)(iii)(C) of this
section) against the remaining parties;
(ii) At the same time the notice is
issued, the State agency must also update the State agency list to indicate
that the serious deficiency(ies) has(ve)
been corrected and provide a copy of
the notice to the appropriate FNSRO;
and
206
VerDate Sep<11>2014
10:57 May 01, 2019
Jkt 247015
PO 00000
Frm 00216
Fmt 8010
Sfmt 8010
Q:\07\7V4.TXT
PC31
kpayne on VMOFRWIN702 with $$_JOB
Food and Nutrition Service, USDA
§ 226.6
(iii) If the participating institution
has
corrected
the
serious
deficiency(ies), offer it the opportunity to
resubmit its application. If the participating institution resubmits its application, the State agency must complete its review of the application
within 30 days after receiving a complete and correct application.
(3) If the State agency initially determines that the institution’s corrective
action is complete, but later determines that the serious deficiency(ies)
has recurred, the State agency must
move immediately to issue a notice of
intent to terminate and disqualify the
institution, in accordance with paragraph (c)(1)(iii)(C) of this section.
(C) Proposed termination and proposed
disqualification. If timely corrective action is not taken to fully and permanently correct the serious deficiency(ies), the State agency must notify the institution’s executive director
and chairman of the board of directors,
and the responsible principals and responsible individuals, that the State
agency is proposing to terminate the
institution’s agreement and to disqualify the institution and the responsible principals and responsible individuals. At the same time the notice is
issued, the State agency must also update the State agency list and provide
a copy of the notice to the appropriate
FNSRO. The notice must also specify:
(1) That the State agency is proposing to terminate the institution’s
agreement and to disqualify the institution and the responsible principals
and responsible individuals;
(2) The basis for the actions;
(3) That, if the institution voluntarily terminates its agreement after
receiving the notice of proposed termination, the institution and the responsible principals and responsible individuals will be disqualified.
(4) The procedures for seeking an administrative review (in accordance
with paragraph (k) of this section) of
the application denial and proposed
disqualifications; and
(5) That, unless participation has
been suspended, the institution may
continue to participate and receive
Program reimbursement for eligible
meals served and allowable administra-
tive costs incurred until its administrative review is completed.
(D) Program payments and extended
agreement. If the participating institution must renew its application, or its
agreement expires, before the end of
the time allotted for corrective action
and/or the conclusion of any administrative review requested by the participating institution:
(1) The State agency must temporarily extend its current agreement
with the participating institution and
continue to pay any valid unpaid
claims for reimbursement for eligible
meals served and allowable administrative expenses incurred; and
(2) During this period, the State
agency may base administrative payments to the institution on the institution’s previous approved budget, or
may base administrative payments to
the institution on the budget submitted by the institution as part of its
renewal application; and
(3) The actions set forth in paragraphs
(c)(3)(iii)(D)(1)
and
(c)(3)(iii)(D)(2) of this section must be
taken either until the serious deficiency(ies) is corrected or until the institution’s agreement is terminated,
including the period of any administrative review;
(E) Agreement termination and disqualification. When the time for requesting an administrative review expires or when the administrative review official upholds the State agency’s proposed termination and disqualifications, the State agency must:
(1) Notify the institution’s executive
director and chairman of the board of
directors, and the responsible principals and responsible individuals, that
the institution’s agreement has been
terminated and that the institution
and the responsible principals and responsible individuals have been disqualified;
(2) Update the State agency list at
the time such notice is issued; and
(3) Provide a copy of the notice and
the mailing address and date of birth
for each responsible principal and responsible individual to the appropriate
FNSRO.
207
VerDate Sep<11>2014
10:57 May 01, 2019
Jkt 247015
PO 00000
Frm 00217
Fmt 8010
Sfmt 8010
Q:\07\7V4.TXT
PC31
kpayne on VMOFRWIN702 with $$_JOB
§ 226.6
7 CFR Ch. II (1–1–19 Edition)
(4) Corrective action timeframes—(i)
General. Except as noted in this paragraph (c)(4), the State agency is prohibited from allowing more than 90 days
for corrective action from the date the
institution receives the serious deficiency notice.
(ii) Unlawful practices. If the State
agency determines that the institution
has engaged in unlawful practices, submitted false or fraudulent claims or
other information to the State agency,
or been convicted of or concealed a
criminal background, the State agency
is prohibited from allowing more than
30 days for corrective action.
(iii) Long-term changes. For serious
deficiencies requiring the long-term revision of management systems or processes, the State agency may permit
more than 90 days to complete the corrective action as long as a corrective
action plan is submitted to and approved by the State agency within 90
days (or such shorter deadline as the
State agency may establish). The corrective action must include milestones
and a definite completion date that the
State agency will monitor. The determination of serious deficiency will remain in effect until the State agency
determines that the serious deficiency(ies) has(ve) been fully and permanently corrected within the allotted
time.
(5) Suspension of an institution’s participation. A State agency is prohibited
from suspending an institution’s participation (including all Program payments) except for the reasons set forth
in this paragraph (c)(5).
(i) Public health or safety—(A) General.
If State or local health or licensing officials have cited an institution for serious health or safety violations, the
State agency must immediately suspend the institution’s Program participation, initiate action to terminate the
institution’s agreement, and initiate
action to disqualify the institution and
the responsible principals and responsible individuals prior to any formal
action to revoke the institution’s licensure or approval. If the State agency determines that there is an imminent threat to the health or safety of
participants at an institution, or that
the institution has engaged in activities that threaten the public health or
safety, the State agency must immediately notify the appropriate State or
local licensing and health authorities
and take action that is consistent with
the recommendations and requirements of those authorities. An imminent threat to the health or safety of
participants and engaging in activities
that threaten the public health or safety constitute serious deficiencies; however, the State agency must use the
procedures in this paragraph (c)(5)(i)
(instead of the procedures in paragraph
(c)(3) of this section) to provide the institution notice of the suspension of
participation, serious deficiency, proposed termination of the institution’s
agreement, and proposed disqualification of the responsible principals and
responsible individuals.
(B) Notice of suspension, serious deficiency, proposed termination, and proposed disqualification. The State agency
must notify the institution’s executive
director and chairman of the board of
directors that the institution’s participation (including Program payments)
has been suspended, that the institution has been determined to be seriously deficient, and that the State
agency proposes to terminate the institution’s agreement and to disqualify
the institution and the responsible
principals and responsible individuals.
The notice must also identify the responsible principals and responsible individuals and must be sent to those
persons as well. At the same time this
notice is sent, the State agency must
add the institution and the responsible
principals and responsible individuals
to the State agency list, along with the
basis for the serious deficiency determination and provide a copy of the notice to the appropriate FNSRO. The notice must also specify:
(1) That the State agency is suspending the institution’s participation
(including Program payments), proposing to terminate the institution’s
agreement, and proposing to disqualify
the institution and the responsible
principals and responsible individuals;
(2) The serious deficiency(ies);
(3) That, if the institution voluntary
terminates its agreement with the
State agency after having been notified
of the proposed termination, the institution and the responsible principals
208
VerDate Sep<11>2014
10:57 May 01, 2019
Jkt 247015
PO 00000
Frm 00218
Fmt 8010
Sfmt 8010
Q:\07\7V4.TXT
PC31
kpayne on VMOFRWIN702 with $$_JOB
Food and Nutrition Service, USDA
§ 226.6
and responsible individuals will be disqualified;
(4) That the serious deficiency determination is not subject to administrative review;
(5) The procedures for seeking an administrative review (consistent with
paragraph (k) of this section) of the
suspension, proposed termination, and
proposed disqualifications; and
(6) That, if the administrative review
official overturns the suspension, the
institution may claim reimbursement
for eligible meals served and allowable
administrative costs incurred during
the suspension period.
(C) Agreement termination and disqualification. When the time for requesting
an administrative review expires or
when the administrative review official
upholds the State agency’s proposed
termination and disqualifications, the
State agency must:
(1) Notify the institution’s executive
director and chairman of the board of
directors, and the responsible principals and responsible individuals, that
the institution’s agreement has been
terminated and that the institution
and the responsible principals and responsible individuals have been disqualified;
(2) Update the State agency list at
the time such notice is issued; and
(3) Provide a copy of the notice and
the mailing address and date of birth
for each responsible principal and responsible individual to the appropriate
FNSRO.
(D) Program payments. The State
agency is prohibited from paying any
claims for reimbursement from a suspended institution. However, if the suspended institution prevails in the administrative review of the proposed
termination, the State agency must
pay any claims for reimbursement for
eligible meals served and allowable administrative costs incurred during the
suspension period.
(ii) False or fraudulent claims—(A)
General. If the State agency determines
that an institution has knowingly submitted a false or fraudulent claim, the
State agency may initiate action to
suspend the institution’s participation
and must initiate action to terminate
the institution’s agreement and initiate action to disqualify the institu-
tion and the responsible principals and
responsible individuals (in accordance
with paragraph (c)(3) of this section).
The submission of a false or fraudulent
claim constitutes a serious deficiency
as set forth in paragraph (c)(3)(ii) of
this section, which lists serious deficiencies for participating institutions.
If the State agency wishes to suspend
the institution’s participation, it must
use the following procedures to issue
the notice of proposed suspension of
participation at the same time it issues
the serious deficiency notice, which
must include the information described
in paragraph (c)(3)(iii)(A) of this section.
(B) Proposed suspension of participation. If the State agency decides to propose to suspend an institution’s participation due to the institution’s submission of a false or fraudulent claim,
it must notify the institution’s executive director and chairman of the board
of directors that the State agency intends to suspend the institution’s participation (including all Program payments) unless the institution requests
a review of the proposed suspension. At
the same time the notice is issued, the
State agency must also update the
State agency list and provide a copy of
the notice to the appropriate FNSRO.
The notice must identify the responsible principals and responsible individuals and must be sent to those persons
as well. The notice must also specify:
(1) That the State agency is proposing to suspend the institution’s participation;
(2) That the proposed suspension is
based on the institution’s submission
of a false or fraudulent claim, as described in the serious deficiency notice;
(3) The effective date of the suspension (which may be no earlier than 10
days after the institution receives the
suspension notice);
(4) The name, address and telephone
number of the suspension review official who will conduct the suspension
review; and
(5) That if the institution wishes to
have a suspension review, it must request a review and submit to the suspension review official written documentation opposing the proposed suspension within 10 days of the institution’s receipt of the notice.
209
VerDate Sep<11>2014
10:57 May 01, 2019
Jkt 247015
PO 00000
Frm 00219
Fmt 8010
Sfmt 8010
Q:\07\7V4.TXT
PC31
kpayne on VMOFRWIN702 with $$_JOB
§ 226.6
7 CFR Ch. II (1–1–19 Edition)
(C) Suspension review. If the institution requests a review of the State
agency’s proposed suspension of participation, the suspension review must
be heard by a suspension review official
who must:
(1) Be an independent and impartial
person other than, and not accountable
to, any person involved in the decision
to initiate suspension proceedings;
(2) Immediately notify the State
agency that the institution has contested the proposed suspension and
must obtain from the State agency its
notice of proposed suspension of participation, along with all supporting
documentation; and
(3) Render a decision on suspension of
participation within 10 days of the
deadline for receiving the institution’s
documentation opposing the proposed
suspension.
(D) Suspension review decision. If the
suspension review official determines
that the State agency’s proposed suspension is not appropriate, the State
agency is prohibited from suspending
participation. If the suspension review
official determines, based on a preponderance of the evidence, that the State
agency’s action was appropriate, the
State agency must suspend the institution’s participation (including all Program payments), effective on the date
of the suspension review decision. The
State agency must notify the institution’s executive director and chairman
of the board of directors, and the responsible principals and responsible individuals, that the institution’s participation has been suspended. At the
same time the notice is issued, the
State agency must also update the
State agency list and provide a copy of
the notice to the appropriate FNSRO.
The notice must also specify:
(1) That the State agency is suspending the institution’s participation
(including Program payments);
(2) The effective date of the suspension (the date of the suspension review
decision);
(3) The procedures for seeking an administrative review (in accordance
with paragraph (k) of this section) of
the suspension; and
(4) That if the administrative review
official overturns the suspension, the
institution may claim reimbursement
for eligible meals served and allowable
administrative costs incurred during
the suspension period.
(E) Program payments. A State agency
is prohibited from paying any claims
for reimbursement submitted by a suspended institution. However, if the institution suspended for the submission
of false or fraudulent claims is a sponsoring organization, the State agency
must ensure that sponsored facilities
continue to receive reimbursement for
eligible meals served during the suspension period. If the suspended institution prevails in the administrative
review of the proposed termination, the
State agency must pay any valid unpaid claims for reimbursement for eligible meals served and allowable administrative costs incurred during the
suspension period.
(F) Maximum time for suspension.
Under no circumstances may the suspension of participation remain in effect for more than 120 days following
the suspension review decision.
(6) FNS determination of serious deficiency—(i) General. FNS may determine
independently that a participating institution has committed one or more
serious deficiency listed in paragraph
(c)(3)(ii) of this section, which lists serious deficiencies for participating institutions.
(ii) Serious deficiency notification procedures. If FNS determines that an institution has committed one or more
serious deficiency listed in paragraph
(c)(3)(ii) of this section (the list of serious deficiencies for participating institutions), FNS will use the following
procedures to provide the institution
and the responsible principals and responsible individuals with notice of the
serious deficiency(ies) and an opportunity to take corrective action.
(A) Notice of serious deficiency. FNS
will notify the institution’s executive
director and chairman of the board of
directors that the institution has been
found to be seriously deficient. The notice will identify the responsible principals and responsible individuals and
will be sent to them as well. FNS may
specify in the notice different corrective action and time periods for completing the corrective action, for the
210
VerDate Sep<11>2014
10:57 May 01, 2019
Jkt 247015
PO 00000
Frm 00220
Fmt 8010
Sfmt 8010
Q:\07\7V4.TXT
PC31
kpayne on VMOFRWIN702 with $$_JOB
Food and Nutrition Service, USDA
§ 226.6
institution and the responsible principals and responsible individuals. The
notice will also specify:
(1) The serious deficiency(ies);
(2) The actions to be taken to correct
the serious deficiency(ies);
(3) The time allotted to correct the
serious deficiency(ies) in accordance
with paragraph (c)(4) of this section;
(4) That failure to fully and permanently correct the serious deficiency(ies) within the allotted time, or
the institution’s voluntary termination of its agreement(s) with any
State agency after having been notified
that it is seriously deficient, will result
in the proposed disqualification of the
institution and the responsible principals and responsible individuals and
the termination of its agreement(s)
with all State agencies; and
(5) That the serious deficiency determination is not subject to administrative review.
(B) Suspension of participation. If FNS
determines that there is an imminent
threat to the health or safety of participants at an institution, or that the
institution has engaged in activities
that threaten the public health or safety, any State agency that holds an
agreement with the institution must
suspend the participation of the institution. If FNS determines that the institution has submitted a false or
fraudulent claim, it may require any
State agency that holds an agreement
with the institution to initiate action
to suspend the institution’s participation for false or fraudulent claims in
accordance with paragraph (c)(5)(ii) of
this section (which deals with an institution’s suspension by a State agency
for submission of false or fraudulent
claims). In both cases, FNS will provide the State agency the information
necessary to support these actions and,
in the case of a false and fraudulent
claim, will provide an individual to
serve as the suspension review official
if requested by the State agency.
(C) Successful corrective action. (1) If
corrective action has been taken to
fully and permanently correct the serious deficiency(ies) within the allotted
time and to FNS’s satisfaction, FNS
will notify the institution’s executive
director and chairman of the board of
directors, and the responsible prin-
cipals and responsible individuals, that
it has temporarily defer its serious deficiency determination; and
(2) If corrective action is complete
for the institution but not for all of the
responsible principals and responsible
individuals (or vice versa), FNS will
continue with the actions (as set forth
in paragraph (c)(6)(ii)(D) of this section) against the remaining parties.
(3) If FNS initially determines that
the institution’s corrective action is
complete, but later determines that
the serious deficiency(ies) has recurred, FNS will move immediately to
issue a notice of intent to terminate
and disqualify the institution, in accordance with paragraph (c)(6)(ii)(D) of
this section.
(D) Proposed disqualification. If timely
corrective action is not taken to fully
and permanently correct the serious
deficiency(ies), FNS will notify the institution’s executive director and
chairman of the board of directors, and
the responsible principals and responsible individuals, that FNS is proposing
to disqualify them. The notice will also
specify:
(1) That FNS is proposing to disqualify the institution and the responsible principals and responsible individuals;
(2) The basis for the actions;
(3) That, if the institution seeks to
voluntarily terminate its agreement
after receiving the notice of proposed
disqualification, the institution and
the responsible principals and responsible individuals will be disqualified;
(4) The procedures for seeking an administrative review (in accordance
with paragraph (k) of this section) of
the proposed disqualifications;
(5) That unless participation has been
suspended, the institution may continue to participate and receive Program reimbursement for eligible meals
served and allowable administrative
costs incurred until its administrative
review is completed; and
(6) That if the institution does not
prevail in the administrative review,
any State agency holding an agreement with the institution will be required to terminate that agreement
and the institution is prohibited from
seeking an administrative review of
211
VerDate Sep<11>2014
10:57 May 01, 2019
Jkt 247015
PO 00000
Frm 00221
Fmt 8010
Sfmt 8010
Q:\07\7V4.TXT
PC31
kpayne on VMOFRWIN702 with $$_JOB
§ 226.6
7 CFR Ch. II (1–1–19 Edition)
the termination of the agreement by
the State agency(ies).
(E) Disqualification. When the time
for requesting an administrative review expires or when the administrative review official upholds FNS’s proposed disqualifications, FNS will notify the institution’s executive director
and chairman of the board of directors,
and the responsible principals and responsible individuals, that the institution and the responsible principal or
responsible individual have been disqualified.
(F) Program payments. If the State
agency holds an agreement with an institution that FNS has determined to
be seriously deficient, the State agency
must continue to pay any valid unpaid
claims for reimbursement for eligible
meals served and allowable administrative expenses incurred until the serious
deficiency(ies) is corrected or the State
agency terminates the institution’s
agreement, including the period of any
administrative review, unless participation has been suspended.
(G) Required State agency action. (1)
Disqualified institutions. If the State
agency holds an agreement with an institution that FNS determines to be seriously deficient and subsequently disqualifies, the State agency must terminate the institution’s agreement effective no later than 45 days after the
date of the institution’s disqualification by FNS. As noted in paragraph
(k)(3)(iv) of this section, the termination is not subject to administrative
review. At the same time the notice of
termination is issued, the State agency
must add the institution to the State
agency list and provide a copy of the
notice to the appropriate FNSRO.
(2) Disqualified principals. If the State
agency holds an agreement with an institution whose principal FNS determines to be seriously deficient and subsequently disqualifies, the State agency must determine the institution to
be seriously deficient and initiate action to terminate and disqualify the institution in accordance with the procedures in paragraph (c)(3) of this section. The State agency must initiate
these actions no later than 45 days
after the date of the principal’s disqualification by FNS.
(7) National disqualified list—(i) Maintenance and availability of list. FNS will
maintain the National disqualified list
and make it available to all State
agencies and all sponsoring organizations.
(ii) Effect on institutions. No organization on the National disqualified list
may participate in the Program as an
institution. As noted in paragraphs
(b)(1)(xii) and (b)(2)(ii) of this section,
the State agency must must not approve the application of a new or renewing institution if the institution is
on the National disqualified list. In addition, as noted in paragraphs (c)(3)(i)
and (c)(6)(ii)(G)(1) of this section, the
State agency must terminate the
agreement of any participating institution that is disqualified by another
State agency or by FNS.
(iii) Effect on sponsored centers. No organization on the National disqualified
list may participate in the Program as
a sponsored center. As noted in
§ 226.16(b) and paragraphs (b)(1)(xii) and
(b)(2)(ii) of this section, a sponsoring
organization is prohibited from submitting an application on behalf of a sponsored facility (and a State agency is
prohibited from approving such an application) if the facility is on the National disqualified list.
(iv) Effect on individuals. No individual on the National disqualified list
may serve as a principal in any institution or facility or as a day care home
provider.
(A) Principal for an institution or a
sponsored facility. As noted in paragraphs (b)(1)(xii) and (b)(2)(ii) of this
section, the State agency must must
not approve the application of a new or
renewing institution if any of the institution’s principals is on the National
disqualified list. As noted in paragraphs (c)(3)(ii)(B) and (c)(6)(ii)(G)(2) of
this section, the State agency must declare an institution seriously deficient
and initiate action to terminate the institution’s agreement and disqualify
the institution if the institution permits an individual who is on the National disqualified list to serve in a
principal capacity for the institution
or one of its facilities.
(B) Principal for a sponsored facility.
As noted in § 226.16(b) and paragraphs
(b)(1)(xii) and (b)(2)(ii) of this section, a
212
VerDate Sep<11>2014
10:57 May 01, 2019
Jkt 247015
PO 00000
Frm 00222
Fmt 8010
Sfmt 8010
Q:\07\7V4.TXT
PC31
kpayne on VMOFRWIN702 with $$_JOB
Food and Nutrition Service, USDA
§ 226.6
sponsoring organization is prohibited
from submitting an application on behalf of a sponsored facility (or a State
agency from approving such an application) if any of the facility’s principals
are on the National disqualified list.
(C) Serving as a day care home. As
noted in § 226.16(b) and paragraphs
(b)(1)(xii) and (b)(2)(ii) of this section, a
sponsoring organization is prohibited
from submitting an application on behalf of a sponsored facility (and a State
agency is prohibited from approving
such an application) if the facility is on
the National disqualified list.
(v) Removal of institutions, principals,
and individuals from the list. Once included on the National disqualified
list, an institution and responsible
principals and responsible individuals
remain on the list until such time as
FNS, in consultation with the appropriate State agency, determines that
the serious deficiency(ies) that led to
their placement on the list has(ve)
been corrected, or until seven years
have elapsed since they were disqualified from participation. However, if the
institution, principal or individual has
failed to repay debts owed under the
Program, they will remain on the list
until the debt has been repaid.
(vi) Removal of day care homes from the
list. Once included on the National disqualified list, a day care home will remain on the list until such time as the
State agency determines that the serious deficiency(ies) that led to its placement on the list has(ve) been corrected,
or until seven years have elapsed since
its agreement was terminated for
cause. However, if the day care home
has failed to repay debts owed under
the Program, it will remain on the list
until the debt has been repaid.
(8) State agency list—(i) Maintenance
of the State agency list. The State agency must maintain a State agency list
(in the form of an actual paper or electronic
list
or
retrievable
paper
records). The list must be made available to FNS upon request, and must include the following information:
(A) Institutions determined to be seriously deficient by the State agency,
including the names and mailing addresses of the institutions and the status of the institutions as they move
through the possible subsequent stages
of corrective action, proposed termination, suspension, agreement termination, and/or disqualification, as applicable;
(B) Responsible principals and individuals who have been disqualified
from participation by the State agency, including their names, mailing addresses, and dates of birth; and
(C) Day care home providers whose
agreements have been terminated for
cause by a sponsoring organization in
the State, including their names, mailing addresses, and dates of birth.
(ii) Referral of disqualified day care
homes to FNS. Within 10 days of receiving a notice of termination and disqualification from a sponsoring organization, the State agency must provide
the appropriate FNSRO the name,
mailing address, and date of birth of
each day care home provider whose
agreement is terminated for cause on
or after July 29, 2002.
(iii) Prior lists of disqualified day care
homes. If on July 29, 2002 the State
agency maintains a list of day care
homes that have been disqualified from
participation, the State agency may
continue to prohibit participation by
those day care homes. However, the
State agency must remove a day care
home from its prior list no later than
the time at which the State agency determines
that
the
serious
deficiency(ies) that led to the day care
home’s placement on the list has(ve)
been corrected or July 29, 2009 (unless
the day care home has failed to repay
debts owed under the Program). If the
day care home has failed to repay its
debt, the State agency may keep the
day care home on its prior list until
the debt has been repaid.
(d) Licensing/approval for institutions
or facilities providing child care. This
section prescribes State agency responsibilities to ensure that child care centers, at-risk afterschool care centers,
outside-school-hours care centers, and
day care homes meet the licensing/approval criteria set forth in this part.
Emergency shelters are exempt from
licensing/approval requirements contained in this section but must meet
the requirements of paragraph (d)(2) to
be eligible to participate in the Program. Independent centers shall submit
213
VerDate Sep<11>2014
10:57 May 01, 2019
Jkt 247015
PO 00000
Frm 00223
Fmt 8010
Sfmt 8010
Q:\07\7V4.TXT
PC31
kpayne on VMOFRWIN702 with $$_JOB
§ 226.6
7 CFR Ch. II (1–1–19 Edition)
such documentation to the State agency on their own behalf.
(1) General. Each State agency must
establish procedures to annually review information submitted by institutions to ensure that all participating
child care centers, at-risk afterschool
care centers, outside-school hours care
centers, and day care homes:
(i) Are licensed or approved by Federal, State, or local authorities, provided that institutions that are approved for Federal programs on the
basis of State or local licensing are not
eligible for the Program if their licenses lapse or are terminated; or
(ii) Are complying with applicable
procedures to renew licensing or approval in situations where the State
agency has no information that licensing or approval will be denied; or
(iii) Demonstrate compliance with
applicable State or local child care
standards to the State agency, if licensing is not available; or
(iv) Demonstrate compliance with
CACFP child care standards to the
State agency, if licensing or approval
is not available; or
(v) If Federal, State or local licensing
or approval is not otherwise required,
at-risk afterschool care centers and
outside-school-hours care centers must
meet State or local health and safety
standards. When State or local health
and safety standards have not been established, State agencies are encouraged to work with appropriate State
and local officials to create such standards. Meeting these standards will remain a precondition for any afterschool center’s eligibility for CACFP
nutrition benefits.
(2) Health and safety requirements for
emergency shelters. To be eligible to participate in the Program, emergency
shelters must meet applicable State or
local health and safety standards.
(3) CACFP child care standards. When
licensing or approval is not available,
independent child care centers, and
sponsoring organizations on behalf of
their child care centers or day care
homes, may elect to demonstrate compliance, annually, with the following
CACFP child care standards or other
standards specified in paragraph (d)(4)
of this section:
(i) Staff/child ratios. (A) Day care
homes provide care for no more than 12
children at any one time. One home
caregiver is responsible for no more
than 6 children ages 3 and above, or no
more than 5 children ages 0 and above.
No more than 2 children under the age
of 3 are in the care of 1 caregiver. The
home provider’s own children who are
in care and under the age of 14 are
counted in the maximum ratios of
caregivers to children.
(B) Child care centers do not fall
below the following staff/child ratios:
(1) For children under 6 weeks of
age—1:1;
(2) For children ages 6 weeks up to 3
years—1:4;
(3) For children ages 3 years up to 6
years—1:6;
(4) For children ages 6 years up to 10
years—1:15; and
(5) For children ages 10 and above—
1:20.
(ii) Nondiscrimination. Day care services are available without discrimination on the basis of race, color, national origin, sex, age, or handicap.
(iii) Safety and sanitation. (A) A current health/sanitation permit or satisfactory report of an inspection conducted by local authorities within the
past 12 months shall be submitted.
(B) A current fire/building safety permit or satisfactory report of an inspection conducted by local authorities
within the past 12 months shall be submitted.
(C) Fire drills are held in accordance
with local fire/building safety requirements.
(iv) Suitability of facilities. (A) Ventilation, temperature, and lighting are
adequate for children’s safety and comfort.
(B) Floors and walls are cleaned and
maintained in a condition safe for children.
(C) Space and equipment, including
rest arrangements for preschool age
children, are adequate for the number
of age ranges of participating children.
(v) Social services. Independent centers, and sponsoring organizations in
coordination with their facilities, have
procedures for referring families of
children in care to appropriate local
health and social service agencies.
214
VerDate Sep<11>2014
10:57 May 01, 2019
Jkt 247015
PO 00000
Frm 00224
Fmt 8010
Sfmt 8010
Q:\07\7V4.TXT
PC31
kpayne on VMOFRWIN702 with $$_JOB
Food and Nutrition Service, USDA
§ 226.6
(vi) Health services. (A) Each child is
observed daily for indications of difficulties in social adjustment, illness,
neglect, and abuse, and appropriate action is initiated.
(B) A procedure is established to ensure prompt notification of the parent
or guardian in the event of a child’s illness or injury, and to ensure prompt
medical treatment in case of emergency.
(C) Health records, including records
of medical examinations and immunizations, are maintained for each enrolled child. (Not applicable to day
care homes.)
(D) At least one full-time staff member is currently qualified in first aid,
including artificial respiration techniques. (Not applicable to day care
homes.)
(E) First aid supplies are available.
(F) Staff members undergo initial
and periodic health assessments.
(vii) Staff training. The institution
provides for orientation and ongoing
training in child care for all caregivers.
(viii) Parental involvement. Parents
are afforded the opportunity to observe
their children in day care.
(ix) Self-evaluation. The institution
has established a procedure for periodic
self-evaluation on the basis of CACFP
child care standards.
(4) Alternate approval procedures. Each
State agency shall establish procedures
to review information submitted by institutions for centers or homes for
which licensing or approval is not
available in order to establish eligibility for the Program. Licensing or
approval is not available when (i) no
Federal, State, or local licensing/approval standards have been established
for child care centers, or day care
homes; or (ii) no mechanism exists to
determine compliance with licensing/
approval standards. In these situations,
independent centers, and sponsoring
organizations on behalf of their facilities, may choose to demonstrate compliance with either CACFP child care
standards, applicable State child care
standards, or applicable local child
care standards. State agencies shall
provide information about applicable
State child care standards and CACFP
child care standards to institutions,
but may require institutions electing
to demonstrate compliance with applicable local child care standards to
identify and submit these standards.
The State agency may permit independent centers, and sponsoring organizations on behalf of their facilities,
to submit self-certification forms, and
may grant approval without first conducting a compliance review at the
center or facility. But the State agency
shall require submission of health/sanitation and fire/safety permits or certificates for all independent centers
and facilities seeking alternate child
care standards approval. Compliance
with applicable child care standards
are subject to review in accordance
with § 226.6(o).
(e) Licensing/approval for adult day
care centers. This paragraph prescribes
State agency responsibilities to ensure
that adult day care centers meet the licensing/approval criteria set forth in
this part. Sponsoring organizations
shall submit to the State agency documentation that facilities under their
jurisdiction are in compliance with licensing/approval requirements. Independent adult day care centers shall
submit such documentation to the
State agency on their own behalf. Each
State agency shall establish procedures
to annually review information submitted by institutions to ensure that
all participating adult day care centers
either:
(1) Are licensed or approved by Federal, State or local authorities, provided that institutions which are approved for Federal programs on the
basis of State or local licensing shall
not be eligible for the Program if their
licenses lapse or are terminated; or
(2) Are complying with applicable
procedures to renew licensing or approval in situations where the State
agency has no information that licensing or approval will be denied.
(f) Miscellaneous responsibilities. State
agencies must require institutions to
comply with the applicable provisions
of this part and must provide or collect
the information specified in this paragraph (f).
(1) Annual responsibilities. In addition
to its other responsibilities under this
part, each State agency must annually:
(i) Inform institutions that are pricing programs of their responsibility to
215
VerDate Sep<11>2014
10:57 May 01, 2019
Jkt 247015
PO 00000
Frm 00225
Fmt 8010
Sfmt 8010
Q:\07\7V4.TXT
PC31
kpayne on VMOFRWIN702 with $$_JOB
§ 226.6
7 CFR Ch. II (1–1–19 Edition)
ensure that free and reduced-price
meals are served to participants unable
to pay the full price;
(ii) Provide to all institutions a copy
of the income standards to be used by
institutions for determining the eligibility of participants for free and reduced-price meals under the Program;
(iii) Require centers to submit current eligibility information on enrolled
participants, in order to calculate a
blended rate or claiming percentage in
accordance with § 226.9(b);
(iv) Require each sponsoring organization to submit an administrative
budget with sufficiently detailed information concerning projected CACFP
administrative earnings and expenses,
as well as other non-Program funds to
be used in Program administration, for
the State agency to determine the allowability, necessity, and reasonableness of all proposed expenditures, and
to assess the sponsoring organization’s
capability to manage Program funds.
The administrative budget must demonstrate that the sponsoring organization will expend and account for funds
in accordance with regulatory requirements, FNS Instruction 796–2 (‘‘Financial Management in the Child and
Adult Care Food Program’’), 2 CFR
part 200, subpart D and USDA implementing regulations 2 CFR part 400 and
part 415, and applicable Office of Management and Budget circulars. In addition, the administrative budget submitted by a sponsor of centers must
demonstrate that the administrative
costs to be charged to the Program do
not exceed 15 percent of the meal reimbursements estimated or actually
earned during the budget year, unless
the State agency grants a waiver in accordance with § 226.7(g);
(v) Require each institution to issue
a media release, unless the State agency has issued a Statewide media release on behalf of all its institutions;
(vi) Require each independent center
to provide information concerning its
licensing/approval status, and require
each sponsoring organization to provide information concerning the licensing/approval status of its facilities, unless the State agency has other means
of confirming the licensing/approval
status of any independent center or facility providing care;
(vii) Require each sponsoring organization to submit verification that all
facilities under its sponsorship have
adhered to the training requirements
set forth in Program regulations; and
(viii) Comply with the following requirements for tiering of day care
homes:
(A) Coordinate with the State agency
that administers the National School
Lunch Program (the NSLP State agency) to ensure the receipt of a list of
schools in the State in which at least
one-half of the children enrolled are
certified eligible to receive free or reduced-price meals. The State agency
must provide the list of schools to
sponsoring organizations of day care
homes by February 15 each year unless
the NSLP State agency has elected to
base data for the list on a month other
than October. In that case, the State
agency must provide the list to sponsoring organizations of day care homes
within 15 calendar days of its receipt
from the NSLP State agency.
(B) For tiering determinations of day
care homes that are based on school or
census data, the State agency must ensure that sponsoring organizations of
day care homes use the most recent
available
data,
as
described
in
§ 226.15(f).
(C) For tiering determinations of day
care homes that are based on the provider’s household income, the State
agency must ensure that sponsoring organizations annually determine the eligibility of each day care home, as described in § 226.15(f).
(D) The State agency must provide
all sponsoring organizations of day
care homes in the State with a listing
of State-funded programs, participation in which by a parent or child will
qualify a meal served to a child in a
tier II home for the tier I rate of reimbursement.
(E) The State agency must require
each sponsoring organization of family
day care homes to submit to the State
agency a list of family day care home
providers receiving tier I benefits on
the basis of their participation in the
SNAP. Within 30 days of receiving this
list, the State agency will provide this
list to the State agency responsible for
the administration of the SNAP.
216
VerDate Sep<11>2014
10:57 May 01, 2019
Jkt 247015
PO 00000
Frm 00226
Fmt 8010
Sfmt 8010
Q:\07\7V4.TXT
PC31
kpayne on VMOFRWIN702 with $$_JOB
Food and Nutrition Service, USDA
§ 226.6
(ix) Comply with the following requirements for determining the eligibility of at-risk afterschool care centers:
(A) Coordinate with the NSLP State
agency to ensure the receipt of a list of
schools in the State in which at least
one-half of the children enrolled are
certified eligible to receive free or reduced-price meals. The State agency
must provide the list of schools to
independent at-risk afterschool care
centers and sponsoring organizations of
at-risk afterschool care centers upon
request. The list must represent data
from the preceding October, unless the
NSLP State agency has elected to base
data for the list on a month other than
October. If the NSLP State agency
chooses a month other than October, it
must do so for the entire State.
(B) The State agency must determine
the area eligibility for each independent at-risk afterschool care center. The State agency must use the
most recent data available, as described in § 226.6(f)(1)(ix)(A). The State
agency must use attendance area information that it has obtained, or verified
with the appropriate school officials to
be current, within the last school year.
(C) The State agency must determine
the area eligibility of each sponsored
at-risk afterschool care center based on
the documentation submitted by the
sponsoring organization in accordance
with § 226.15(g).
(D) The State agency must determine
whether the afterschool care programs
of at-risk afterschool care centers meet
the requirements of § 226.17a(b) before
the centers begin participating in the
Program.
(2) Triennial Responsibilities—(i) General reapplication requirements. At intervals not to exceed 36 months, each
State agency must require participating institutions to reapply to continue their participation and must require sponsoring organizations to submit a management plan with the elements set forth in § 226.6(b)(1)(iv).
(ii) Redeterminations of afterschool program eligibility. The State agency must
determine whether institutions reapplying as at-risk afterschool care
centers continue to meet the eligibility
requirements,
as
described
in
§ 226.17a(b).
(3) Responsibilities at other time intervals—(i) Day care home tiering redeterminations based on school data. As described in § 226.15(f), tiering determinations are valid for five years if based on
school data. The State agency must ensure that the most recent available
data is used if the determination of a
day care home’s eligibility as a tier I
day care home is made using school
data. The State agency must not routinely require annual redeterminations
of the tiering status of tier I day care
homes based on updated school data.
However, a sponsoring organization,
the State agency, or FNS may change
the determination if information becomes available indicating that a day
care home is no longer in a qualified
area.
(ii) Area eligibility redeterminations for
at-risk afterschool care centers. Area eligibility determinations are valid for
five years for at-risk afterschool care
centers that are already participating
in the Program. The State agency may
determine the date in the fifth year
when the next five-year cycle of area
eligibility will begin. The State agency
must redetermine the area eligibility
for each independent at-risk afterschool care center in accordance with
§ 226.6(f)(1)(ix)(B). The State agency
must redetermine the area eligibility
of each sponsored at-risk afterschool
care center based on the documentation submitted by the sponsoring organization in accordance with § 226.15(g).
The State agency must not routinely
require annual redeterminations of
area eligibility based on updated
school data during the five-year period,
except in cases where the State agency
has determined it is most efficient to
incorporate area eligibility decisions
into the three-year application cycle.
However, a sponsoring organization,
the State agency, or FNS may change
the determination if information becomes available indicating that an atrisk afterschool care center is no
longer area eligible.
(iii) State agency transmittal of census
data. Upon receipt of census data from
FNS (on a decennial basis), the State
agency must provide each sponsoring
organization of day care homes with
census data showing areas in the State
217
VerDate Sep<11>2014
10:57 May 01, 2019
Jkt 247015
PO 00000
Frm 00227
Fmt 8010
Sfmt 8010
Q:\07\7V4.TXT
PC31
kpayne on VMOFRWIN702 with $$_JOB
§ 226.6
7 CFR Ch. II (1–1–19 Edition)
in which at least 50 percent of the children are from households meeting the
income standards for free or reducedprice meals.
(iv) Additional institution requirements.
At intervals and in a manner specified
by the State agency, but not more frequently than annually, the State agency may:
(A) Require independent centers to
submit a budget with sufficiently detailed information and documentation
to enable the State agency to make an
assessment of the independent center’s
qualifications to manage Program
funds. Such budget must demonstrate
that the independent center will expend and account for funds in accordance with regulatory requirements,
FNS Instruction 796–2 (‘‘Financial
Management in the Child and Adult
Care Food Program’’), and 2 CFR part
200, subpart D and USDA implementing
regulations 2 CFR part 400 and part 415
and applicable Office of Management
and Budget circulars;
(B) Request institutions to report
their commodity preference;
(C) Require a private nonprofit institution to submit evidence of tax exempt status in accordance with
§ 226.15(a);
(D) Require for-profit institutions to
submit documentation on behalf of
their centers of:
(1) Eligibility of at least 25 percent of
children in care (enrolled or licensed
capacity, whichever is less) for free or
reduced-price meals; or
(2) Compensation received under title
XX of the Social Security Act of nonresidential day care services and certification that at least 25 percent of
children in care (enrolled or licensed
capacity, whichever is less) were title
XX beneficiaries during the most recent calendar month.
(E) Require for-profit adult care centers to submit documentation that
they are currently providing nonresidential day care services for which
they receive compensation under title
XIX or title XX of the Social Security
Act, and certification that not less
than 25 percent of enrolled participants
in each such center during the most recent calendar month were title XIX or
title XX beneficiaries;
(F) Request each institution to indicate its choice to receive all, part or
none of advance payments, if the State
agency chooses to make advance payments available; and
(G) Perform verification in accordance with § 226.23(h) and paragraph
(m)(4) of this section. State agencies
verifying the information on free and
reduced-price applications must ensure
that verification activities are conducted without regard to the participant’s race, color, national origin, sex,
age, or disability.
(g) Program expansion. Each State
agency must take action to expand the
availability of benefits under this Program, and must conduct outreach to
potential sponsoring organizations of
family day care homes that might administer the Program in low-income or
rural areas.
(h) Commodity distribution. The State
agency must require new institutions
to state their preference to receive
commodities or cash-in-lieu of commodities when they apply, and may periodically inquire as to participating
institutions’ preference to receive commodities or cash-in-lieu of commodities. State agencies must annually
provide institutions with information
on foods available in plentiful supply,
based on information provided by the
Department. Each institution electing
cash-in-lieu of commodities shall receive such payments. Each institution
which elects to receive commodities
shall have commodities provided to it
unless the State agency, after consultation with the State commodity
distribution agency, demonstrates to
FNS that distribution of commodities
to the number of such institutions
would be impracticable. The State
agency may then, with the concurrence
of FNS, provide cash-in-lieu of commodities for all institutions. A State
agency request for cash-in-lieu of all
commodities shall be submitted to
FNS not later than May 1 of the school
year preceding the school year for
which the request is made. The State
agency shall, by June 1 of each year,
submit a list of institutions which have
elected to receive commodities to the
State commodity distribution agency,
unless FNS has approved a request for
218
VerDate Sep<11>2014
10:57 May 01, 2019
Jkt 247015
PO 00000
Frm 00228
Fmt 8010
Sfmt 8010
Q:\07\7V4.TXT
PC31
kpayne on VMOFRWIN702 with $$_JOB
Food and Nutrition Service, USDA
§ 226.6
cash-in-lieu of commodities for all institutions. The list shall be accompanied by information on the average
daily number of lunches and suppers to
be served to participants by each such
institution.
(i) Standard contract. Each State
agency shall develop a standard contract in accordance with § 226.21 and
provide for its use between institutions
and food service management companies. The contract shall expressly and
without exception stipulate:
(1) The institution shall provide the
food service management company
with a list of the State agency approved child care centers, day care
homes, adult day care centers, and outside-school-hours care centers to be
furnished meals by the food service
management company, and the number
of meals, by type, to be delivered to
each location;
(2) The food service management
company shall maintain such records
(supported by invoices, receipts or
other evidence) as the institution will
need to meet its responsibilities under
this part, and shall promptly submit
invoices and delivery reports to the institution no less frequently than
monthly;
(3) The food service management
company shall have Federal, State or
local health certification for the plant
in which it proposes to prepare meals
for use in the Program, and it shall ensure that health and sanitation requirements are met at all times. In addition, the State agency may require
the food service management company
to provide for meals which it prepares
to be periodically inspected by the
local health department or an independent agency to determine bacteria
levels in the meals being prepared.
These bacteria levels shall conform to
the standards which are applied by the
local health authority with respect to
the level of bacteria which may be
present in meals prepared or served by
other establishments in the locality.
Results of these inspections shall be
submitted to the institution and to the
State agency;
(4) The meals served under the contract shall conform to the cycle menus
upon which the bid was based, and to
menu changes agreed upon by the insti-
tution and food service management
company;
(5) The books and records of the food
service management company pertaining to the institution’s food service
operation shall be available for inspection and audit by representatives of
the State agency, of the Department,
and of the U.S. General Accounting Office at any reasonable time and place,
for a period of 3 years from the date of
receipt of final payment under the contract, or in cases where an audit requested by the State agency or the Department remains unresolved, until
such time as the audit is resolved;
(6) The food service management
company shall operate in accordance
with current Program regulations;
(7) The food service management
company shall not be paid for meals
which are delivered outside of the
agreed upon delivery time, are spoiled
or unwholesome at the time of delivery, or do not otherwise meet the meal
requirements contained in the contract;
(8) Meals shall be delivered in accordance with a delivery schedule prescribed in the contract;
(9) Increases and decreases in the
number of meal orders may be made by
the institution, as needed, within a
prior notice period mutually agreed
upon in the contract;
(10) All meals served under the Program shall meet the requirements of
§ 226.20;
(11) All breakfasts, lunches, and suppers delivered for service in outsideschool-hours care centers shall be unitized, with or without milk, unless the
State agency determines that unitization would impair the effectiveness of
food service operations. For meals delivered to child care centers and day
care homes, the State agency may require unitization, with or without
milk, of all breakfasts, lunches, and
suppers only if the State agency has
evidence which indicates that this requirement is necessary to ensure compliance with § 226.20.
(j) Procurement provisions. State agencies must require institutions to adhere to the procurement provisions set
forth in § 226.22 and must determine
that all meal procurements with food
service management companies are in
219
VerDate Sep<11>2014
10:57 May 01, 2019
Jkt 247015
PO 00000
Frm 00229
Fmt 8010
Sfmt 8010
Q:\07\7V4.TXT
PC31
kpayne on VMOFRWIN702 with $$_JOB
§ 226.6
7 CFR Ch. II (1–1–19 Edition)
conformance with bid and contractual
requirements of § 226.22.
(k) Administrative reviews for institutions and responsible principals and responsible individuals—(1) General. The
State agency must develop procedures
for offering administrative reviews to
institutions and responsible principals
and responsible individuals. The procedures must be consistent with paragraph (k) of this section.
(2) Actions subject to administrative review. Except as provided in § 226.8(g),
the State agency must offer an administrative review for the following actions:
(i) Application denial. Denial of a new
or renewing institution’s application
for participation (see paragraph (b) of
this section, on State agency review of
an institution’s application; and paragraphs (c)(1) and (c)(2) of this section,
on State agency denial of a new or renewing institution’s application);
(ii) Denial of sponsored facility application. Denial of an application submitted by a sponsoring organization on
behalf of a facility;
(iii) Notice of proposed termination.
Proposed termination of an institution’s
agreement
(see
paragraphs
(c)(2)(iii)(C),
(c)(3)(iii)(C),
and
(c)(5)(i)(B) of this section, dealing with
proposed termination of agreements
with renewing institutions, participating institutions, and participating
institutions suspended for health or
safety violations);
(iv) Notice of proposed disqualification
of a responsible principal or responsible
individual. Proposed disqualification of
a responsible principal or responsible
individual (see paragraphs (c)(1)(iii)(C),
(c)(2)(iii)(C),
(c)(3)(iii)(C),
and
(c)(5)(i)(B) of this section, dealing with
proposed disqualification of responsible
principals or responsible individuals in
new, renewing, and participating institutions, and participating institutions
suspended for health or safety violations);
(v) Suspension of participation. Suspension of an institution’s participation (see paragraphs (c)(5)(i)(B) and
(c)(5)(ii)(D) of this section, dealing with
suspension for health or safety reasons
or submission of a false or fraudulent
claim);
(vi) Start-up or expansion funds denial.
Denial of an institution’s application
for start-up or expansion payments (see
§ 226.7(h));
(vii) Advance denial. Denial of a request for an advance payment (see
§ 226.10(b));
(viii) Recovery of advances. Recovery
of all or part of an advance in excess of
the claim for the applicable period. The
recovery may be through a demand for
full repayment or an adjustment of
subsequent payments (see § 226.10(b)(3));
(ix) Claim denial. Denial of all or a
part of an institution’s claim for reimbursement (except for a denial based on
a late submission under § 226.10(e)) (see
§§ 226.10(f) and 226.14(a));
(x) Claim deadline exceptions and requests for upward adjustments to a claim.
Decision by the State agency not to
forward to FNS an exception request
by an institution for payment of a late
claim, or a request for an upward adjustment to a claim (see § 226.10(e));
(xi) Overpayment demand. Demand for
the remittance of an overpayment (see
§ 226.14(a)); and
(xii) Other actions. Any other action
of the State agency affecting an institution’s participation or its claim for
reimbursement.
(3) Actions not subject to administrative
review. The State agency is prohibited
from offering administrative reviews of
the following actions:
(i) FNS decisions on claim deadline exceptions and requests for upward adjustments to a claim. A decision by FNS to
deny an exception request by an institution for payment of a late claim, or
for an upward adjustment to a claim
(see § 226.10(e));
(ii) Determination of serious deficiency.
A determination that an institution is
seriously deficient (see paragraphs
(c)(1)(iii)(A), (c)(2)(iii)(A), (c)(3)(iii)(A),
and (c)(5)(i)(B) of this section, dealing
with proposed disqualification of responsible principals or responsible individuals in new, renewing, and participating institutions, and participating
institutions suspended for health or
safety violations);
(iii) State agency determination that
corrective action is inadequate. A determination by the State agency that the
220
VerDate Sep<11>2014
10:57 May 01, 2019
Jkt 247015
PO 00000
Frm 00230
Fmt 8010
Sfmt 8010
Q:\07\7V4.TXT
PC31
kpayne on VMOFRWIN702 with $$_JOB
Food and Nutrition Service, USDA
§ 226.6
corrective action taken by an institution or by a responsible principal or individual does not completely and permanently correct a serious deficiency;
(iv) Disqualification and placement on
State agency list and National disqualified list. Disqualification of an institution or a responsible principal or responsible individual, and the subsequent placement on the State agency
list and the National disqualified list
(see
paragraphs
(c)(1)(iii)(E),
(c)(2)(iii)(E),
(c)(3)(iii)(E),
and
(c)(5)(i)(C) of this section, dealing with
proposals to disqualify related to new,
renewing, and participating institutions, and in institutions suspended for
health or safety violations);
(v) Termination. Termination of a participating institution’s agreement, including termination of a participating
institution’s agreement based on the
disqualification of the institution by
another State agency or FNS (see paragraphs (c)(3)(i) and (c)(7)(ii) of this section);
(vi) State agency or FNS decision regarding removal from the National disqualified list. A determination, by either the State agency or by FNS, that
the corrective action taken by an institution or a responsible principal or individual is not adequate to warrant the
removal of the institution or the responsible principal or individual from
the National disqualified list; or
(vii) State agency’s refusal to consider
an application submitted by an institution
or facility on the National disqualified
list. The State agency’s refusal to consider an institution’s application when
either the institution or one of its principals is on the National disqualified
list, or the State agency’s refusal to
consider an institution’s submission of
an application on behalf of a facility
when either the facility or one of its
principals is on the National disqualified list.
(4) Provision of administrative review
procedures to institutions and responsible
principals and responsible individuals.
The State agency’s administrative review procedures must be provided:
(i) Annually to all institutions;
(ii) To an institution and to each responsible principal and responsible individual when the State agency takes
any action subject to an administra-
tive review as described in paragraph
(k)(2) of this section; and
(iii) Any other time upon request.
(5) Procedures. Except as described in
paragraph (k)(9) of this section, which
sets forth the circumstances under
which an abbreviated administrative
review is held, the State agency must
follow the procedures in this paragraph
(k)(5) when an institution or a responsible principal or responsible individual
appeals any action subject to administrative review as described in paragraph (k)(2) of this section.
(i) Notice of action. The institution’s
executive director and chairman of the
board of directors, and the responsible
principals and responsible individuals,
must be given notice of the action
being taken or proposed, the basis for
the action, and the procedures under
which the institution and the responsible principals or responsible individuals may request an administrative review of the action.
(ii) Time to request administrative review. The request for administrative review must be submitted in writing not
later than 15 days after the date the
notice of action is received, and the
State agency must acknowledge the receipt of the request for an administrative review within 10 days of its receipt
of the request.
(iii) Representation. The institution
and the responsible principals and responsible individuals may retain legal
counsel, or may be represented by another person.
(iv) Review of record. Any information
on which the State agency’s action was
based must be available to the institution and the responsible principals and
responsible individuals for inspection
from the date of receipt of the request
for an administrative review.
(v) Opposition. The institution and
the responsible principals and responsible individuals may refute the findings contained in the notice of action
in person or by submitting written documentation to the administrative review official. In order to be considered,
written documentation must be submitted to the administrative review official not later than 30 days after receipt of the notice of action.
(vi) Hearing. A hearing must be held
by the administrative review official in
221
VerDate Sep<11>2014
10:57 May 01, 2019
Jkt 247015
PO 00000
Frm 00231
Fmt 8010
Sfmt 8010
Q:\07\7V4.TXT
PC31
kpayne on VMOFRWIN702 with $$_JOB
§ 226.6
7 CFR Ch. II (1–1–19 Edition)
addition to, or in lieu of, a review of
written information only if the institution or the responsible principals and
responsible individuals request a hearing in the written request for an administrative review. If the institution’s
representative, or the responsible principals or responsible individuals or
their representative, fail to appear at a
scheduled hearing, they waive the right
to a personal appearance before the administrative review official, unless the
administrative review official agrees to
reschedule the hearing. A representative of the State agency must be allowed to attend the hearing to respond
to the testimony of the institution and
the responsible principals and responsible individuals and to answer questions posed by the administrative review official. If a hearing is requested,
the institution, the responsible principals and responsible individuals, and
the State agency must be provided
with at least 10 days advance notice of
the time and place of the hearing.
(vii) Administrative review official. The
administrative review official must be
independent and impartial. This means
that, although the administrative review official may be an employee of the
State agency, he/she must not have
been involved in the action that is the
subject of the administrative review, or
have a direct personal or financial interest in the outcome of the administrative review. The institution and the
responsible principals and responsible
individuals must be permitted to contact the administrative review official
directly if they so desire.
(viii) Basis for decision. The administrative review official must make a determination based solely on the information provided by the State agency,
the institution, and the responsible
principals and responsible individuals,
and based on Federal and State laws,
regulations, policies, and procedures
governing the Program.
(ix) Time for issuing a decision. Within
60 days of the State agency’s receipt of
the request for an administrative review, the administrative review official
must inform the State agency, the institution’s executive director and
chairman of the board of directors, and
the responsible principals and responsible individuals, of the administrative
review’s outcome. This timeframe is an
administrative requirement for the
State agency and may not be used as a
basis for overturning the State agency’s action if a decision is not made
within the specified timeframe.
(x) Final decision. The determination
made by the administrative review official is the final administrative determination to be afforded the institution
and the responsible principals and responsible individuals.
(6) Federal audit findings. FNS may
assert a claim against the State agency, in accordance with the procedures
set forth in § 226.14(c), when an administrative review results in the dismissal of a claim against an institution
asserted by the State agency based
upon Federal audit findings.
(7) Record of result of administrative reviews. The State agency must maintain
searchable records of all administrative reviews and their disposition.
(8) Combined administrative reviews for
responsible principals and responsible individuals. The State agency must conduct the administrative review of the
proposed disqualification of the responsible principals and responsible individuals as part of the administrative review of the application denial, proposed termination, and/or proposed disqualification of the institution with
which the responsible principals or responsible individuals are associated.
However, at the administrative review
official’s discretion, separate administrative reviews may be held if the institution does not request an administrative review or if either the institution or the responsible principal or responsible individual demonstrates that
their interests conflict.
(9) Abbreviated administrative review.
The State agency must limit the administrative review to a review of written submissions concerning the accuracy of the State agency’s determination if the application was denied or
the State agency proposes to terminate
the institution’s agreement because:
(i) The information submitted on the
application was false (see paragraphs
(c)(1)(ii)(A),
(c)(2)(ii)(A),
and
(c)(3)(ii)(A) of this section);
(ii) The institution, one of its sponsored facilities, or one of the principals
of the institution or its facilities is on
222
VerDate Sep<11>2014
10:57 May 01, 2019
Jkt 247015
PO 00000
Frm 00232
Fmt 8010
Sfmt 8010
Q:\07\7V4.TXT
PC31
kpayne on VMOFRWIN702 with $$_JOB
Food and Nutrition Service, USDA
§ 226.6
the national disqualified list (see paragraph (b)(12) of this section);
(iii) The institution, one of its sponsored facilities, or one of the principals
of the institution or its facilities is ineligible to participate in any other
publicly funded program by reason of
violation of the requirements of the
program (see paragraph (b)(13) and
(c)(3)(ii)(S) of this section); or
(iv) The institution, one of its sponsored facilities, or one of the principals
of the institution or its facilities has
been convicted for any activity that indicates a lack of business integrity (see
paragraphs (b)(14) and (c)(3)(ii)(T) of
this section).
(10) Effect of State agency action. The
State agency’s action must remain in
effect during the administrative review. The effect of this requirement on
particular State agency actions is as
follows.
(i) Overpayment demand. During the
period of the administrative review,
the State agency is prohibited from
taking action to collect or offset the
overpayment. However, the State agency must assess interest beginning with
the initial demand for remittance of
the
overpayment
and
continuing
through the period of administrative
review unless the administrative review official overturns the State agency’s action.
(ii) Recovery of advances. During the
administrative review, the State agency must continue its efforts to recover
advances in excess of the claim for reimbursement for the applicable period.
The recovery may be through a demand
for full repayment or an adjustment of
subsequent payments.
(iii) Program payments. The availability of Program payments during an
administrative review of the denial of a
new institution’s application, denial of
a renewing institution’s application,
proposed termination of a participating institution’s agreement, and
suspension of an institution are addressed in paragraphs (c)(1)(iii)(D),
(c)(2)(iii)(D), (c)(3)(iii)(D), (c)(5)(i)(D),
and (c)(5)(ii)(E), respectively, of this
section.
(l) Administrative reviews for day care
homes—(1) General. The State agency
must ensure that, when a sponsoring
organization proposes to terminate its
Program agreement with a day care
home for cause, the day care home is
provided an opportunity for an administrative review of the proposed termination. The State agency may do this
either by electing to offer a State-level
administrative review, or by electing
to require the sponsoring organization
to offer an administrative review. The
State agency must notify the appropriate FNSRO of its election under this
option, or any change it later makes
under this option, by September 25,
2002 or within 30 days of any subsequent change under this option. The
State agency must make the same
election with regard to who offers the
administrative review to any day care
home in the Program in that State.
The State agency or the sponsoring organization must develop procedures for
offering and providing these administrative reviews, and these procedures
must be consistent with this paragraph
(l).
(2) Actions subject to administrative review. The State agency or sponsoring
organization must offer an administrative review to a day care home that appeals a notice of intent to terminate
their agreement for cause or a suspension
of
their
participation
(see
§§ 226.16(l)(3)(iii) and (l)(4)(ii)).
(3) Actions not subject to administrative
review. Neither the State agency nor
the sponsoring organization is required
to offer an administrative review for
reasons other than those listed in paragraph (l)(2) of this section.
(4) Provision of administrative review
procedures to day care homes. The administrative review procedures must be
provided:
(i) Annually to all day care homes;
(ii) To a day care home when the
sponsoring organization takes any action subject to an administrative review as described in paragraph (l)(2) of
this section; and
(iii) Any other time upon request.
(5) Procedures. The State agency or
sponsoring organization, as applicable
(depending on the State agency’s election pursuant to paragraph (l)(1) of this
section) must follow the procedures in
this paragraph (l)(5) when a day care
home requests an administrative review of any action described in paragraph (l)(2) of this section.
223
VerDate Sep<11>2014
10:57 May 01, 2019
Jkt 247015
PO 00000
Frm 00233
Fmt 8010
Sfmt 8010
Q:\07\7V4.TXT
PC31
kpayne on VMOFRWIN702 with $$_JOB
§ 226.6
7 CFR Ch. II (1–1–19 Edition)
(i) Uniformity. The same procedures
must apply to all day care homes.
(ii) Representation. The day care home
may retain legal counsel, or may be
represented by another person.
(iii) Review of record and opposition.
The day care home may review the
record on which the decision was based
and refute the action in writing. The
administrative review official is not required to hold a hearing.
(iv) Administrative review official. The
administrative review official must be
independent and impartial. This means
that, although the administrative review official may be an employee of the
State agency or an employee or board
member of the sponsoring organization, he/she must not have been involved in the action that is the subject
of the administrative review or have a
direct personal or financial interest in
the outcome of the administrative review;
(v) Basis for decision. The administrative review official must make a determination based on the information provided by the sponsoring organization
and the day care home and on Federal
and State laws, regulations, polices,
and procedures governing the Program.
(vi) Time for issuing a decision. The administrative review official must inform the sponsoring organization and
the day care home of the administrative review’s outcome within the period of time specified in the State
agency’s or sponsoring organization’s
administrative review procedures. This
timeframe is an administrative requirement for the State agency or
sponsoring organization and may not
be used as a basis for overturning the
termination if a decision is not made
within the specified timeframe.
(vii) Final decision. The determination made by the administrative review
official is the final administrative determination to be afforded the day care
home.
(m) Program assistance—(1) General.
The State agency must provide technical and supervisory assistance to institutions and facilities to facilitate effective Program operations, monitor
progress toward achieving Program
goals, and ensure compliance with all
requirements of title VI of the Civil
Rights Act of 1964, title IX of the Edu-
cation amendments of 1972, section 504
of the Rehabilitation Act of 1973, the
Age Discrimination Act of 1975, and the
Department’s regulations concerning
nondiscrimination (parts 15, 15a, and
15b of this title). The State agency
must maintain documentation of supervisory assistance activities, including reviews conducted, corrective actions prescribed, and follow-up efforts.
(2) Review priorities. In choosing institutions for review, in accordance with
paragraph (m)(6) of this section, the
State agency must target for more frequent review institutions whose prior
review included a finding of serious deficiency.
(3) Review content. As part of its conduct of reviews, the State agency must
assess each institution’s compliance
with the requirements of this part pertaining to:
(i) Recordkeeping;
(ii) Meal counts;
(iii) Administrative costs;
(iv) Any applicable instructions and
handbooks issued by FNS and the Department to clarify or explain this
part, and any instructions and handbooks issued by the State agency
which are not inconsistent with the
provisions of this part;
(v) Facility licensing and approval;
(vi) Compliance with the requirements for annual updating of enrollment forms;
(vii) If an independent center, observation of a meal service;
(viii) If a sponsoring organization,
training and monitoring of facilities;
(ix) If a sponsoring organization of
day care homes, implementation of the
serious deficiency and termination procedures for day care homes and, if such
procedures have been delegated to
sponsoring organizations in accordance
with paragraph (l)(1) of this section,
the administrative review procedures
for day care homes;
(x) If a sponsoring organization, implementation of the household contact
system established by the State agency
pursuant to paragraph (m)(5) of this
section;
(xi) If a sponsoring organization of
day care homes, the requirements for
classification of tier I and tier II day
care homes; and
(xii) All other Program requirements.
224
VerDate Sep<11>2014
10:57 May 01, 2019
Jkt 247015
PO 00000
Frm 00234
Fmt 8010
Sfmt 8010
Q:\07\7V4.TXT
PC31
kpayne on VMOFRWIN702 with $$_JOB
Food and Nutrition Service, USDA
§ 226.6
(4) Review of sponsored facilities. As
part of each required review of a sponsoring organization, the State agency
must select a sample of facilities, in
accordance with paragraph (m)(6) of
this section. As part of such reviews,
the State agency must conduct
verification of Program applications in
accordance with § 226.23(h) and must
compare enrollment and attendance
records (except in those outside-schoolhours care centers, at-risk afterschool
care centers, and emergency shelters
where enrollment records are not required and the sponsoring organization’s review results for that facility to
meal counts submitted by those facilities for five days.
(5) Household contacts. As part of
their monitoring of institutions, State
agencies must establish systems for
making household contacts to verify
the enrollment and attendance of participating children. Such systems must
specify the circumstances under which
household contacts will be made, as
well as the procedures for conducting
household contacts. In addition, State
agencies must establish a system for
sponsoring organizations to use in
making household contacts as part of
their review and oversight of participating facilities. Such systems must
specify the circumstances under which
household contacts will be made, as
well as the procedures for conducting
household contacts. State agencies
must submit to FNSROs, no later than
April 1, 2005, the policies and procedures they have developed governing
household contacts conducted by both
the State agency, as part of institution
and facility reviews conducted in accordance with this paragraph (m), and
by sponsoring organizations as part of
the facility review process described in
§ 226.16(d)(5).
(6) Frequency and number of required
institution reviews. The State agency
must annually review at least 33.3 percent of all institutions. At least 15 percent of the total number of facility reviews required must be unannounced.
The State agency must review institutions according to the following schedule:
(i) Independent centers and sponsoring organizations of 1 to 100 facilities must be reviewed at least once
every three years. A review of such a
sponsoring organization must include
reviews of 10 percent of the sponsoring
organization’s facilities;
(ii) Sponsoring organizations with
more than 100 facilities must be reviewed at least once every two years.
These reviews must include reviews of
5 percent of the first 1,000 facilities and
2.5 percent of the facilities in excess of
1,000; and
(iii) New institutions that are sponsoring organizations of five or more facilities must be reviewed within the
first 90 days of Program operations.
(n) Program irregularities. Each State
agency shall promptly investigate
complaints received or irregularities
noted in connection with the operation
of the Program, and shall take appropriate action to correct any irregularities. State agencies shall maintain on
file evidence of such investigations and
actions. FNS and OIG may make investigations at the request of the State
agency, or whenever FNS or OIG determines that investigations are appropriate.
(o) Child care standards compliance.
The State agency shall, when conducting administrative reviews of child
care centers, and day care homes approved by the State agency under paragraph (d)(3) of this section, determine
compliance with the child care standards used to establish eligibility, and
the institution shall ensure that all
violations are corrected and the State
shall ensure that the institution has
corrected all violations. If violations
are not corrected within the specified
timeframe for corrective action, the
State agency must issue a notice of serious deficiency in accordance with
paragraph (c) of this section or
§ 226.16(l), as appropriate. However, if
the health or safety of the children is
imminently threatened, the State
agency or sponsoring organization
must follow the procedures set forth at
paragraph (c)(5)(i) of this section, or
§ 226.16(l)(4), as appropriate. The State
agency may deny reimbursement for
meals served to attending children in
excess of authorized capacity.
(p) Sponsoring organization agreement.
Each State agency shall develop and
provide for the use of a standard form
225
VerDate Sep<11>2014
10:57 May 01, 2019
Jkt 247015
PO 00000
Frm 00235
Fmt 8010
Sfmt 8010
Q:\07\7V4.TXT
PC31
kpayne on VMOFRWIN702 with $$_JOB
§ 226.7
7 CFR Ch. II (1–1–19 Edition)
of written permanent agreement between each day care home sponsoring
organization and all day care homes
participating in the Program under
such organization. Nothing in the preceding sentence shall be construed to
limit the ability of the sponsoring organization to suspend or terminate the
permanent agreement in accordance
with § 226.16(l). The State agency must
also include in this agreement its policy to restrict transfers of day care
homes between sponsoring organizations. The policy must restrict the
transfers to no more frequently than
once per year, except under extenuating circumstances, such as termination of the sponsoring organization’s
agreement or other circumstances defined by the State agency. However,
the State agency may, at the request
of the sponsor, approve an agreement
developed by the sponsor. State agencies may develop a similar form for use
between sponsoring organizations and
other types of facilities.
(q) Following its reviews of institutions and facilities under §§ 226.6(m)
and 226.23(h) conducted prior to July 1,
1988, the State agency shall report data
on key elements of program operations
on a form designated by FNS. These
key elements include but are not limited to the program areas of meal requirements, determination of eligibility for free and reduced price meals,
and the accuracy of reimbursement
claims. These forms shall be submitted
within 90 days of the completion of the
data collection for the institutions except that, if the State has elected to
conduct reviews of verification separate from its administrative reviews,
the State shall retain data until all
key elements have been reviewed and
shall report all data for each institution on one form within 90 days of the
completion of the data collection for
all key elements for that institution.
States shall ensure that all key element data for an institution is collected during a 12-month period.
(r) WIC program information. State
agencies must provide information on
the importance and benefits of the Special Supplemental Nutrition Program
for Women, Infants, and Children (WIC)
and WIC income eligibility guidelines,
to participating institutions. In addi-
tion, the State agency must ensure
that:
(1) Participating family day care
homes and sponsored child care centers
receive this information, and periodic
updates of this information, from their
sponsoring organizations or the State
agency; and
(2) The parents of enrolled children
also receive this information.
[47 FR 36527, Aug. 20, 1982]
EDITORIAL NOTE: For FEDERAL REGISTER citations affecting § 226.6, see the List of CFR
Sections Affected, which appears in the
Finding Aids section of the printed volume
and at www.govinfo.gov.
§ 226.7 State agency responsibilities
for financial management.
(a) This section prescribes standards
of financial management systems in
administering Program funds by the
State agency and institutions.
(b) Each State agency shall maintain
an acceptable financial management
system, adhere to financial management standards and otherwise carry
out financial management policies in
accordance with 2 CFR part 200, subpart D and USDA implementing regulations 2 CFR part 400 and part 415, as applicable. State agencies or FNSRO’s,
where applicable, shall also have a system in place for monitoring and reviewing the institutions’ documentation of their nonprofit status to ensure
that all Program reimbursement funds
are used: (1) Solely for the conduct of
the food service operation; or (2) to improve such food service operations,
principally for the benefit of the participants.
(c) Management evaluations and audits. State agencies shall provide FNS
with full opportunity to conduct management evaluations (including visits
to institutions and facilities) of all operations of the State agency under the
Program and shall provide OIG with
full opportunity to conduct audits (including visits to institutions and facilities) of all operations of the State
agency under the Program. Within 60
calendar days of receipt of each management evaluation report, the State
agency shall submit to FNSRO a written plan for correcting serious deficiencies, including specific timeframes
for accomplishing corrective actions
226
VerDate Sep<11>2014
10:57 May 01, 2019
Jkt 247015
PO 00000
Frm 00236
Fmt 8010
Sfmt 8010
Q:\07\7V4.TXT
PC31
kpayne on VMOFRWIN702 with $$_JOB
Food and Nutrition Service, USDA
§ 226.7
and initiating follow-up efforts. If a
State agency makes a showing of good
cause, however, FNS may allow more
than 60 days in which to submit a plan.
Each State agency shall make available its records, including records of
the receipt and expenditure of funds,
upon request by FNS or OIG. OIG shall
also have the right to make audits of
the records and operation of any institution.
(d) Reports. Each State agency shall
submit to FNS the final Report of the
Child and Adult Care Food Program
(FNS 44) for each month which shall be
limited to claims submitted in accordance with § 226.10(e) and which shall be
postmarked and/or submitted no later
than 90 days following the last day of
the month covered by the report.
States shall not receive Program funds
for any month for which the final report is not submitted within this time
limit unless FNS grants an exception.
Upward adjustments to a State agency’s report shall not be made after 90
days from the month covered by the report unless authorized by FNS. Downward adjustments shall always be
made, without FNS authorization, regardless of when it is determined that
such adjustments are necessary. Adjustments shall be reported to FNS in
accordance with procedures established
by FNS. Each State agency shall also
submit to FNS a quarterly Financial
Status Report (FNS–777) on the use of
Program funds. Such reports shall be
postmarked and/or submitted no later
than 30 days after the end of each fiscal
year quarter. Obligations shall be reported only for the fiscal year in which
they occur. A final Financial Status
Report for each fiscal year shall be
postmarked and/or submitted to FNS
within 120 days after the end of the fiscal year. FNS shall not be responsible
for reimbursing unpaid Program obligations reported later than 120 days
after the close of the fiscal year in
which they were incurred.
(e) Annual plan. Each State shall submit to the Secretary for approval by
August 15 of each year an annual plan
for the use of State administrative expense funds, including a staff formula
for State personnel.
(f) Rate assignment. Each State agency must require institutions (other
than emergency shelters, at-risk afterschool care centers, and sponsoring organizations of emergency shelters, atrisk afterschool care centers, or day
care homes) to submit, not less frequently than annually, information
necessary to assign rates of reimbursement as outlined in § 226.9.
(g) Budget approval. The State agency
must review institution budgets and
must limit allowable administrative
claims by each sponsoring organization
to the administrative costs approved in
its budget. The budget must demonstrate the institution’s ability to
manage Program funds in accordance
with this part, FNS Instruction 796–2
(‘‘Financial Management in the Child
and Adult Care Food Program’’), 2 CFR
part 200, subpart D and USDA implementing regulations 2 CFR part 400 and
part 415, and applicable Office of Management and Budget circulars. Sponsoring organizations must submit an
administrative budget to the State
agency annually, and independent centers must submit budgets as frequently
as required by the State agency. Budget levels may be adjusted to reflect
changes in Program activities. If the
institution does not intend to use nonCACFP funds to support any required
CACFP functions, the institution’s
budget must identify a source of nonProgram funds that could be used to
pay overclaims or other unallowable
costs. If the institution intends to use
any non-Program resources to meet
CACFP requirements, these non-Program funds should be accounted for in
the institution’s budget, and the institution’s budget must identify a source
of non-Program funds that could be
used to pay overclaims or other unallowable costs. For sponsoring organizations of centers, the State agency is
prohibited from approving the sponsoring organization’s administrative
budget, or any amendments to the
budget, if the administrative budget
shows the Program will be charged for
administrative costs in excess of 15 percent of the meal reimbursements estimated to be earned during the budget
year. However, the State agency may
waive this limit if the sponsoring organization provides justification that it
requires Program funds in excess of 15
percent to pay its administrative costs
227
VerDate Sep<11>2014
10:57 May 01, 2019
Jkt 247015
PO 00000
Frm 00237
Fmt 8010
Sfmt 8010
Q:\07\7V4.TXT
PC31
kpayne on VMOFRWIN702 with $$_JOB
§ 226.8
7 CFR Ch. II (1–1–19 Edition)
and if the State agency is convinced
that the institution will have adequate
funding to provide meals meeting the
requirements of § 226.20. The State
agency must document all waiver approvals and denials in writing, and
must provide a copy of all such letters
to the appropriate FNSRO.
(h) Start-up and expansion payments.
Each State agency shall establish procedures for evaluating requests for
start-up and expansion payments,
issuing these payments to eligible
sponsoring organizations, and monitoring the use of these payments.
(i) Advance payments. Each State
agency shall establish procedures for
issuing advance payments by the first
day of each month and comparing
these payments with earned reimbursement on a monthly basis. The State
agency shall maintain on file a statement of the State’s law and policy governing the use of interest earned on advanced funds by sponsors, institutions,
child care facilities and adult day care
facilities.
(j) Recovery of overpayments. Each
State agency shall establish procedures
to recover outstanding start-up, expansion and advance payments from institutions which, in the opinion of the
State agency, will not be able to earn
these payments.
(k) Claims processing. Each State
agency shall establish procedures for
institutions to properly submit claims
for reimbursement. Such procedures
must include State agency edit checks,
including but not limited to ensuring
that payments are made only for approved meal types and that the number
of meals for which reimbursement is
provided does not exceed the product of
the total enrollment times operating
days times approved meal types. All
valid claims shall be paid within 45 calendar days of receipt. Within 15 calendar days of receipt of any incomplete
or incorrect claim which must be revised for payment, the State agency
shall notify the institution as to why
and how such claim must be revised. If
the State agency disallows partial or
full payment for a claim for reimbursement, it shall notify the institution
which submitted the claim of its right
to appeal under § 226.6(k). State agencies may permit disallowances to be
appealed separately from claims for reimbursement.
(l) Participation controls. The State
agency may establish control procedures to ensure that payment is not
made for meals served to participants
attending in excess of the authorized
capacity of each independent center,
adult day care facility or child care facility.
(m) Financial management system.
Each State agency must establish a financial management system in accordance with 2 CFR part 200, subpart D,
and USDA implementing regulations 2
CFR parts 400, 415, and 416, as applicable, and FNS guidance to identify allowable Program costs and set standards for institutional recordkeeping
and reporting. These standards must:
(1) Prohibit claiming reimbursement
for meals provided by a participant’s
family, except as authorized by
§§ 226.18(e) and 226.20(b)(2), (g)(1)(ii), and
(g)(2)(ii); and
(2) Allow the cost of the meals served
to adults who perform necessary food
service labor under the Program, except in day care homes. The State
agency must provide guidance on financial management requirements to
each institution and facility.
[47 FR 36527, Aug. 20, 1982]
EDITORIAL NOTE: For FEDERAL REGISTER citations affecting § 226.7, see the List of CFR
Sections Affected, which appears in the
Finding Aids section of the printed volume
and at www.govinfo.gov.
§ 226.8 Audits.
(a) Unless otherwise exempt, audits
at the State and institution levels
must be conducted in accordance with
2 CFR part 200, subpart F, Appendices
X and XI, Data Collection Form and
Compliance Supplement, respectively
and USDA implementing regulations 2
CFR parts 400, 415 and 416. State agencies must establish audit policy for forprofit institutions. However, the audit
policy established by the State agency
must not conflict with the authority of
the State agency or the Department to
perform, or cause to be performed, audits, reviews, agreed-upon procedures
engagements, or other monitoring activities.
(b) The funds provided to the State
agency under § 226.4(j) may be made
228
VerDate Sep<11>2014
10:57 May 01, 2019
Jkt 247015
PO 00000
Frm 00238
Fmt 8010
Sfmt 8010
Q:\07\7V4.TXT
PC31
kpayne on VMOFRWIN702 with $$_JOB
Food and Nutrition Service, USDA
§ 226.9
available to institutions to fund a portion of organization-wide audits made
in accordance with 2 CFR part 200, subpart F and USDA implementing regulations 2 CFR part 400 and part 415. The
funds provided to an institution for an
organization-wide audit must be determined in accordance with 2 CFR part
200, subpart F and USDA implementing
regulations 2 CFR part 400 and part 415.
(c) Funds provided under § 226.4(j)
may be used by the State agency to
conduct program-specific audits of institutions not subject to organizationwide audits, or for which the State
agency considers program specific audits to be needed. The State agency
may use any funds remaining after all
required program-specific audits have
been performed to conduct administrative reviews or agreed-upon procedures
engagements of institutions.
(d) Funds provided under § 226.4(j)
may only be obligated during the fiscal
year for which those funds are allocated. If funds provided under § 226.4(i)
are not sufficient to meet the requirements of this section, the State agency
may then use available State administrative expense funds to conduct audits, provided that the State agency is
arranging for the audits and has not
passed the responsibility down to the
institution.
(e) Full use of Federal funds. States
and State agencies must support the
full use of Federal funds provided to
State agencies under 226.4(j) of this
part to support State audit activities,
and exclude such funds from State
budget restrictions or limitations, including hiring freezes, work furloughs,
and travel restrictions.
(f) In conducting management evaluations, reviews, or audits in a fiscal
year, the State agency, FNS, or OIG
may disregard an overpayment if the
overpayment does not exceed $600. A
State agency may establish, through
State law, regulation or procedure, an
alternate disregard threshold that does
not exceed $600. This disregard may be
made once per each management evaluation, review, or audit per Program
within a fiscal year. However, no overpayment is to be disregarded where
there is substantial evidence of violations of criminal law or civil fraud
statutes.
(g) While OIG shall rely to the fullest
extent feasible upon State sponsored
audits, OIG may, whenever it considers
necessary:
(1) Make audits on a statewide basis;
(2) Perform on-site test audits;
(3) Review audit reports and related
working papers of audits performed by
or for State agencies.
(h) State agencies are not required to
provide a hearing to an institution for
State actions taken on the basis of a
Federal audit determination. If a State
agency does not provide a hearing in
such situations, FNS will provide a
hearing, upon request, in accordance
with procedures set forth in § 226.6(k).
[47 FR 36527, Aug. 20, 1982, as amended at 50
FR 8580, Mar. 4, 1985; 51 FR 4295, Feb. 4, 1986;
52 FR 5526, Feb. 25, 1987; 53 FR 52590, Dec. 28,
1988; Amdt. 22, 55 FR 1378, Jan. 14, 1990; 67 FR
43490, June 27, 2002; 69 FR 53543, Sept. 1, 2004;
70 FR 43261, July 27, 2005; 71 FR 5, Jan. 3, 2006;
71 FR 30563, May 30, 2006; 72 FR 41607, July 31,
2007; 76 FR 37982, June 29, 2011; 81 FR 66493,
Sept. 28, 2016]
Subpart D—Payment Provisions
§ 226.9 Assignment of rates of reimbursement for centers.
(a) The State agency shall assign
rates of reimbursement, not less frequently than annually, on the basis of
family-size and income information reported by each institution. However,
no rates should be assigned for emergency shelters and at-risk afterschool
care centers. Assigned rates of reimbursement may be changed more frequently than annually if warranted by
changes in family-size and income information. Assigned rates of reimbursement shall be adjusted annually
to reflect changes in the national average payment rates.
(b) Except for emergency shelters and
at-risk afterschool care centers, the
State agency must either:
(1) Require that institutions submit
each month’s figures for meals served
daily to participants from families
meeting the eligibility standards for
free meals, to participants from families meeting the eligibility standards
for reduced-price meals, and to participants from families not meeting such
guidelines; or
229
VerDate Sep<11>2014
10:57 May 01, 2019
Jkt 247015
PO 00000
Frm 00239
Fmt 8010
Sfmt 8010
Q:\07\7V4.TXT
PC31
kpayne on VMOFRWIN702 with $$_JOB
§ 226.10
7 CFR Ch. II (1–1–19 Edition)
(2) Establish claiming percentages,
not less frequently than annually, for
each institution on the basis of the
number of enrolled participants eligible for free, reduced-price, and paid
meals, except that children who only
participate in emergency shelters or
the at-risk afterschool care component
of the Program must not be considered
to be enrolled participants for the purpose of establishing claiming percentages; or
(3) Determine a blended per-meal
rate of reimbursement, not less frequently than annually, by adding the
products obtained by multiplying the
applicable national average payment
rate of reimbursement for each category (free, reduced-price, paid) by the
claiming percentage for that category.
(c) States have two methods of reimbursing institutions. The method chosen by the State agency must be applied to all institutions participating
in the Program in that State. These
methods are:
(1) Meals times rates payment, which
involves reimbursing an institution for
meals served at the assigned rate for
each meal. This method entails no
comparison to the costs incurred by
the institution for the meal service;
and,
(2) Meals times rates or actual costs,
whichever is the lesser, which involves
reimbursing an institution for meals
served at the assigned rate for each
meal or at the level of the costs actually incurred by the institution for the
meal service. This method does entail a
comparison of the costs incurred to the
meal rates, with the costs being a limiting factor on the level of reimbursement an institution may receive.
(d) In those States where the State
agency has chosen the option to implement a meals times rates payment system State-wide, the State agency may
elect to pay an institution’s final claim
for reimbursement for the fiscal year
at higher reassigned rates of reimbursement for lunches and suppers;
however, the reassigned rates may not
exceed the applicable maximum rates
of reimbursement established under
§ 210.11(b) of the National School Lunch
Program regulations. In those States
which use the method of comparing
meals times rates or actual costs,
whichever is lesser, the total payments
made to an institution shall not exceed
the total net costs incurred for the fiscal year.
[47 FR 36527, Aug. 20, 1982, as amended at 48
FR 21530, May 13, 1983; 53 FR 52590, Dec. 28,
1988; Amdt. 22, 55 FR 1378, Jan. 14, 1990; 71 FR
5, Jan. 3, 2006; 72 FR 41607, July 31, 2007; 75 FR
16327, Apr. 1, 2010]
§ 226.10
Program payment procedures.
(a) If a State agency elects to issue
advance payments to all or some of the
participating institutions in the State,
it must provide such advances no later
than the first day of each month to
those eligible institutions electing to
receive advances in accordance with
§ 226.6 (f)(3)(iv)(F). Advance payments
shall equal the full level of claims estimated by the State agency to be submitted in accordance with paragraph
(c) of this section, considering prior reimbursement claims and other information such as fluctuations in enrollment. The institution may decline to
receive all or any part of the advance.
(b) For each fiscal year, the amount
of payment made, including funds advanced to an institution, shall not exceed the amount of valid reimbursement claimed by that institution. To
ensure that institutions do not receive
excessive advance payments, the State
agency shall observe the following procedures:
(1) After three advance payments
have been made to an institution, the
State agency shall ensure that no subsequent advance is made until the
State agency has validated the institution’s claim for reimbursement for the
third month prior to the month for
which the next advance is to be paid.
(2) If the State agency has audit or
monitoring evidence of extensive program deficiencies or other reasons to
believe that an institution will not be
able to submit a valid claim for reimbursement, advance payments shall be
withheld until the claim is received or
the deficiencies are corrected.
(3) Each month the State agency
shall compare incoming claims against
advances to ensure that the level of
funds authorized under paragraph (a) of
this section does not exceed the claims
for reimbursement received from the
230
VerDate Sep<11>2014
10:57 May 01, 2019
Jkt 247015
PO 00000
Frm 00240
Fmt 8010
Sfmt 8010
Q:\07\7V4.TXT
PC31
kpayne on VMOFRWIN702 with $$_JOB
Food and Nutrition Service, USDA
§ 226.10
institution. Whenever this process indicates that excessive advances have
been authorized, the State agency shall
either demand full repayment or adjust
subsequent payments, including advances.
(4) If, as a result of year end reconciliation as required by 2 CFR part
200, subpart D and USDA implementing
regulations 2 CFR part 400 and part 415,
as applicable, the State agency determines that reimbursement earned by
an institution during a fiscal year is
less than the amount paid, including
funds advanced to that institution, the
State agency shall demand repayment
of the outstanding balance or adjust
subsequent payments.
(c) Claims for Reimbursement shall
report information in accordance with
the financial management system established by the State agency, and in
sufficient detail to justify the reimbursement claimed and to enable the
State agency to provide the final Report of the Child and Adult Care Food
Program (FNS 44) required under
§ 226.7(d). In submitting a Claim for Reimbursement, each institution shall
certify that the claim is correct and
that records are available to support
that claim. For each month in which
independent for-profit child care centers and independent for-profit outsideschool-hours care centers claim reimbursement, they must submit the number and percentage of children in care
(enrolled or licensed capacity, whichever is less) that documents at least 25
percent are eligible for free or reducedprice meals or are title XX beneficiaries. However, children who only
receive at-risk afterschool snacks and/
or at-risk afterschool meals must not
be considered in determining this eligibility. Sponsoring organizations of forprofit child care centers or for-profit
outside-school-hours care centers must
submit the number and percentage of
children in care (enrolled or licensed
capacity, whichever is less) that documents that at least 25 percent are eligible for free or reduced-price meals or
are title XX beneficiaries. Sponsoring
organizations of such centers must not
submit a claim for any for-profit center
in which less than 25 percent of the
children in care (enrolled or licensed
capacity, whichever is less) during the
claim month were eligible for free or
reduced-price meals or were title XX
beneficiaries. Independent for-profit
adult day care centers shall submit the
percentages of enrolled adult participants receiving title XIX or title XX
benefits for the month claimed for
months in which not less than 25 percent of enrolled adult participants were
title XIX or title XX beneficiaries.
Sponsoring organizations of such adult
day care centers shall submit the percentage of enrolled adult participants
receiving title XIX or title XX benefits
for each center for the claim. Sponsoring organizations of such centers
shall not submit claims for adult day
care centers in which less than 25 percent of enrolled adult participants were
title XIX or title XX beneficiaries for
the month claimed. Prior to submitting its consolidated monthly claim to
the State agency, each sponsoring organization must perform edit checks
on each facility’s meal claim. At a
minimum, the sponsoring organization’s edit checks must:
(1) Verify that each facility has been
approved to serve the types of meals
claimed; and
(2) Compare the number of children
enrolled for care at each facility, multiplied by the number of days on which
the facility is approved to serve meals,
to the total number of meals claimed
by the facility for that month. Discrepancies between the facility’s meal
claim and its enrollment must be subjected to more thorough review to determine if the claim is accurate.
(d) All records to support the claim
shall be retained for a period of three
years after the date of submission of
the final claim for the fiscal year to
which they pertain, except that if audit
findings have not been resolved, the
records shall be retained beyond the
end of the three year period as long as
may be required for the resolution of
the issues raised by the audit. All accounts and records pertaining to the
Program shall be made available, upon
request, to representatives of the State
agency, of the Department, and of the
U.S. Government Accountability Office
for audit or review, at a reasonable
time and place.
(e) Unless otherwise approved by
FNS, the Claim for Reimbursement for
231
VerDate Sep<11>2014
10:57 May 01, 2019
Jkt 247015
PO 00000
Frm 00241
Fmt 8010
Sfmt 8010
Q:\07\7V4.TXT
PC31
§ 226.11
7 CFR Ch. II (1–1–19 Edition)
kpayne on VMOFRWIN702 with $$_JOB
any month shall cover only Program
operations for that month except if the
first or last month of Program operations in any fiscal year contains 10 operating days or less, such month may
be added to the Claim for Reimbursement for the appropriate adjacent
month; however, Claims for Reimbursement may not combine operations occurring in two fiscal years. A final
Claim for Reimbursement shall be
postmarked and/or submitted to the
State agency not later than 60 days following the last day of the full month
covered by the claim. State agencies
may establish shorter deadlines at
their discretion. Claims not postmarked and/or submitted within 60
days shall not be paid with Program
funds unless FNS determines that an
exception should be granted. The State
agency shall promptly take corrective
action with respect to any Claim for
Reimbursement as determined necessary through its claim review process
or otherwise. In taking such corrective
action, State agencies may make upward adjustments in Program funds
claimed on claims filed within the 60
day deadline if such adjustments are
completed within 90 days of the last
day of the claim month and are reflected in the final Report of the Child
and Adult Care Food Programs (FNS–
44) for the claim month which is required under 226.7(d). Upward adjustments in Program funds claimed which
are not reflected in the final FNS–44
for the claim month shall not be made
unless authorized by FNS. Downward
adjustments in Program funds claimed
shall always be made without FNS authorization regardless of when it is determined that such adjustments are
necessary.
(f) If, based on the results of audits,
investigations, or other reviews, a
State agency has reason to believe that
an institution, child or adult care facility, or food service management company has engaged in unlawful acts with
respect to Program operations, the evidence found in audits, investigations,
or other reviews is a basis for non-payment of claims for reimbursement.
[47 FR 36527, Aug. 20, 1982, as amended by
Amdt. 5, 49 FR 18988, May 4, 1984; 50 FR 26975,
July 1, 1985; 53 FR 52590, Dec. 28, 1988; Amdt.
22, 55 FR 1378, Jan. 14, 1990; 62 FR 23618, May
1, 1997; 69 FR 53543, Sept. 1, 2004; 70 FR 43261,
July 27, 2005; 71 FR 39519, July 13, 2006; 72 FR
41607, July 31, 2007; 75 FR 16327, Apr. 1, 2010;
76 FR 22798, Apr. 25, 2011; 76 FR 34571, June
13, 2011; 81 FR 66492, Sept. 28, 2016]
§ 226.11 Program payments for centers.
(a) Requirement for agreements. Payments must be made only to institutions operating under an agreement
with the State agency for the meal
types specified in the agreement served
at approved child care centers, at-risk
afterschool care centers, adult day care
centers, emergency shelters, and outside-school-hours care centers. A State
agency may develop a policy under
which centers are reimbursed for meals
served in accordance with provisions of
the Program in the calendar month
preceding the calendar month in which
the agreement is executed, or the State
agency may develop a policy under
which centers receive reimbursement
only for meals served in approved centers on and after the effective date of
the Program agreement. If the State
agency’s policy permits centers to earn
reimbursement for meals served prior
to the execution of a Program agreement, program reimbursement must
not be received by the center until the
agreement is executed.
(b) Institutions—(1) Edit checks of
sponsored centers. Prior to submitting
its consolidated monthly claim to the
State agency, each sponsoring organization must conduct reasonable edit
checks on the sponsored centers’ meal
claims, which at a minimum, must include those edit checks specified at
§ 226.10(c).
(2) Child and adult care institutions.
Each child care institution and each
adult day care institution must report
each month to the State agency the
total number of Program meals, by
type (breakfasts, lunches, suppers, and
snacks), served to children or adult
participants, respectively, except as
provided in paragraph (b)(3) of this section.
232
VerDate Sep<11>2014
10:57 May 01, 2019
Jkt 247015
PO 00000
Frm 00242
Fmt 8010
Sfmt 8010
Q:\07\7V4.TXT
PC31
kpayne on VMOFRWIN702 with $$_JOB
Food and Nutrition Service, USDA
§ 226.11
(3) For-profit center exception. Forprofit child care centers, including forprofit at-risk afterschool care centers
and outside-school-hours care centers,
must provide the reports required in
paragraph (b)(2) of this section only for
calendar months during which at least
25 percent of the children in care (enrolled or licensed capacity, whichever
is less) were eligible for free or reduced-price meals or were title XX
beneficiaries. However, children who
only receive at-risk afterschool snacks
and/or at-risk afterschool meals must
not be considered in determining this
eligibility. For-profit adult day care
centers must provide the reports required in paragraph (b)(2) of this section only for calendar months during
which at least 25 percent of enrolled
adult participants were beneficiaries of
title XIX, title XX, or a combination of
titles XIX and XX.
(c) Reimbursement—(1) Child and adult
care institutions. Each State agency
must base reimbursement to each approved child care center and adult day
care center on actual time of service
meal counts of meals, by type, served
to children or adult participants multiplied by the assigned rates of reimbursement, except as provided in paragraph (c)(4) of this section. In the case
of a sponsoring organization of family
day care homes, each State agency
must base reimbursement to each approved family day care home on daily
meal counts recorded by the provider.
(2) At-risk afterschool care institutions.
Except as provided in paragraph (c)(4)
of this section, State agencies must
base reimbursement to each at-risk
afterschool care center on the number
of at-risk afterschool snacks and/or atrisk afterschool meals that are served
to children.
(3) Emergency shelters. Each State
agency must base reimbursement to
each emergency shelter on the number
of meals served to children multiplied
by the free rates for meals and snacks.
(4) For-profit center exception. Forprofit child care centers, including forprofit at-risk and outside-school-hours
care centers, must be reimbursed only
for the calendar months during which
at least 25 percent of the children in
care (enrolled or licensed capacity,
whichever is less) were eligible for free
or reduced-price meals or were title XX
beneficiaries. However, children who
only receive at-risk afterschool snacks
and/or at-risk afterschool meals must
not be considered in determining this
eligibility. For-profit adult day care
centers must be reimbursed only for
the calendar months during which at
least 25 percent of enrolled adult participants were beneficiaries of title
XIX, title XX, or a combination of titles XIX and XX.
(5) Computation of reimbursement. Except for at-risk afterschool care centers and emergency shelters, the State
agency must compute reimbursement
by either:
(i) Actual counts. Base reimbursement
to institutions on actual time of service counts of meals served, and multiply the number of meals, by type,
served to participants that are eligible
to receive free meals, participants eligible to receive reduced-price meals,
and participants not eligible for free or
reduced-price meals by the applicable
national average payment rate; or
(ii) Claiming percentages. Apply the
applicable claiming percentage or percentages to the total number of meals,
by type, served to participants and
multiply the product or products by
the assigned rate of reimbursement for
each meal type; or
(iii) Blended rates. Multiply the assigned blended per meal rate of reimbursement by the total number of
meals, by type, served to participants.
(d) Limits on reimbursement. If the
State agency elects to reimburse its institutions according to the lesser of
rates or actual costs, total Program
payments to an institution during any
fiscal year, including any cash payments in lieu of commodities, shall not
exceed allowable Program operating
and administrative costs, less income
to the Program. The State agency may
limit payments for administrative
costs to the amount approved in the
annual administrative budget of the institution. The State agency may prohibit an institution from using payments for operating costs to pay for administrative expenses.
233
VerDate Sep<11>2014
10:57 May 01, 2019
Jkt 247015
PO 00000
Frm 00243
Fmt 8010
Sfmt 8010
Q:\07\7V4.TXT
PC31
§ 226.12
7 CFR Ch. II (1–1–19 Edition)
(e) Institution recordkeeping. Each institution shall maintain records as prescribed by the State agency’s financial
management system.
[47 FR 36527, Aug. 20, 1982, as amended at 48
FR 21530, May 13, 1983; 52 FR 36907, Oct. 2,
1987; 53 FR 52590, Dec. 28, 1988; 62 FR 23618,
May 1, 1997; 69 FR 53543, Sept. 1, 2004; 70 FR
43262, July 27, 2005; 71 FR 5, Jan. 3, 2006; 72 FR
41607, July 31, 2007; 75 FR 16327, Apr. 1, 2010;
76 FR 34571, June 13, 2011]
kpayne on VMOFRWIN702 with $$_JOB
§ 226.12 Administrative payments to
sponsoring organizations for day
care homes.
(a) General. Sponsoring organizations
for day care homes shall receive payments for administrative costs. During
any fiscal year, administrative costs
payments to a sponsoring organization
may not exceed the lesser of (1) actual
expenditures for the costs of administering the Program less income to
the Program, or (2) the amount of administrative costs approved by the
State agency in the sponsoring organization’s budget, or (3) the sum of the
products obtained by multiplying each
month the sponsoring organization’s:
(i) Initial 50 day care homes by 42
dollars;
(ii) Next 150 day care homes by 32
dollars;
(iii) Next 800 day care homes by 25
dollars; and
(iv) Additional day care homes by 22
dollars.
During any fiscal year, administrative
payments to a sponsoring organization
may not exceed 30 percent of the total
amount of administrative payments
and food service payments for day care
home operations.
(b) Start-up and expansion payments.
(1) Prospective sponsoring organizations of day care homes, participating
sponsoring organizations of child care
centers or outside-school-hours care
centers, independent centers, and participating sponsoring organizations of
less than 50 homes which meet the criteria in paragraph (b)(2) of this section
shall be entitled to receive start-up
payments to develop or expand successful Program operations in day care
homes. Participating sponsoring organizations of day care homes which
meet the criteria in paragraph (b)(2) of
this section shall be entitled to receive
expansion payments to initiate or expand Program operations in day care
homes in low-income or rural areas.
The State agency shall approve startup payments only once for any eligible
sponsoring organization, but may approve expansion payments for any eligible sponsoring organization more
than once, provided that: the request
must be for expansion into an area(s)
other than that specified in their initial or prior request; and 12 months has
elapsed since the sponsoring organization has satisfied all obligations under
its initial or prior expansion agreement. Eligible sponsoring organizations which have received start-up payments shall be eligible to apply for expansion payments at a date no earlier
than 12 months after it has satisfied all
its obligations under its start-up agreement with the State agency.
(2) Sponsoring organizations which
apply for start-up or expansion payments shall evidence:
(i) Public status or tax exempt status
under the Internal Revenue Code of
1986;
(ii) An organizational history of managing funds and ongoing activities (i.e.,
administering public or private programs);
(iii) An acceptable and realistic plan
for recruiting day care homes to participate in the Program (such as the
method of contacting providers), which
may be based on estimates of the number of day care homes to be recruited
and information supporting their existence, and in the case of sponsoring organizations applying for expansion
payments, documentation that the day
care homes to be recruited are located
in low-income or rural areas; and
(iv) An acceptable preliminary sponsoring organization management plan
including, but not limited to, plans for
preoperational visits and training.
(3) The State agency shall deny startup and expansion payments to applicant sponsoring organizations which
fail to meet the criteria of paragraph
(b)(2) of this section or which have not
been financially responsible in the operation of other programs funded by
Federal, State, or local governments.
The State agency shall notify the sponsoring organization of the reasons for
234
VerDate Sep<11>2014
10:57 May 01, 2019
Jkt 247015
PO 00000
Frm 00244
Fmt 8010
Sfmt 8010
Q:\07\7V4.TXT
PC31
kpayne on VMOFRWIN702 with $$_JOB
Food and Nutrition Service, USDA
§ 226.13
denial and allow the sponsoring organization full opportunity to submit evidence on appeal as provided for in
§ 226.6(k). Any sponsoring organization
applying for start-up or expansion
funds shall be notified of approval or
disapproval by the State agency in
writing within 30 calendar days of filing a complete and correct application.
If a sponsoring organization submits an
incomplete application, the State
agency shall notify the sponsoring organization within 15 calendar days of
receipt of the application and shall
provide technical assistance, if necessary, to the sponsoring organization
for the purpose of completing its application.
(4) Sponsoring organizations which
apply for and meet the criteria for
start-up or expansion payments shall
enter into an agreement with the State
agency. The agreement shall specify:
(i) Activities which the sponsoring
organization will undertake to initiate
or expand Program operations in day
care homes;
(ii) The amount of start-up or expansion payments to be issued to the sponsoring organization, together with an
administrative budget detailing the
costs which the sponsoring organization shall incur, document, and claim;
(iii) The time allotted to the sponsoring organization for the initiation
or expansion of Program operations in
family day care homes;
(iv) The responsibility of the applicant sponsoring organization to repay,
upon demand by the State agency,
start-up or expansion payments not expended in accordance with the agreement.
(5) Upon execution of the agreement,
the State agency shall issue a start-up
or expansion payment to the sponsoring organization in an amount equal
to not less than one, but not more than
two month’s anticipated administrative reimbursement to the sponsoring
organization as determined by the
State agency. However, no sponsoring
organization may receive start-up or
expansion payments for more than 50
day care homes. Eligible sponsoring organizations with fewer than 50 homes
under their jurisdiction at the time of
application for start-up payments may
receive such payments for up to 50
homes, less the number of homes under
their jurisdiction. Eligible sponsoring
organizations applying for expansion
funds may receive at a maximum such
payments for up to 50 homes at the
currently assigned administrative payment for the first 50 homes. In determining the amount of start-up or expansion payments to be made to a
sponsoring organization, the State
agency shall consider the anticipated
level of start-up or expansion costs to
be incurred by the sponsoring organization and alternate sources of funds
available to the sponsoring organization.
(6) Upon expiration of the time allotted to the sponsoring organization for
initiating or expanding Program operations in day care homes, the State
agency shall obtain and review documentation of activities performed and
costs incurred by the sponsoring organization under the terms of the startup or expansion agreement. If the sponsoring organization has not made every
reasonable effort to carry out the activities specified in the agreement, the
State agency shall demand repayment
of all or part of the payment. The sponsoring organization may retain startup or expansion payments for all day
care homes which initiate Program operations. However, no sponsoring organization may retain any start-up or expansion payments in excess of its actual costs for the expenditures specified in the agreement.
[47 FR 36527, Aug. 20, 1982; 47 FR 46072, Oct.
15, 1982, as amended at 53 FR 52590, Dec. 28,
1988; 63 FR 9728, Feb. 26, 1998; 67 FR 43490,
June 27, 2002]
§ 226.13 Food service payments to
sponsoring organizations for day
care homes.
(a) Payments shall be made only to
sponsoring
organizations
operating
under an agreement with the State
agency for the meal types specified in
the agreement served to enrolled nonresident children and eligible enrolled
children of day care home providers, at
approved day care homes.
(b) Each sponsoring organization
shall report each month to the State
agency the total number of meals, by
type (breakfasts, lunches, suppers, and
snacks) and by category (tier I and tier
235
VerDate Sep<11>2014
10:57 May 01, 2019
Jkt 247015
PO 00000
Frm 00245
Fmt 8010
Sfmt 8010
Q:\07\7V4.TXT
PC31
kpayne on VMOFRWIN702 with $$_JOB
§ 226.13
7 CFR Ch. II (1–1–19 Edition)
II), served to children enrolled in approved day care homes. Prior to submitting its consolidated monthly claim
to the State agency, each sponsoring
organization must conduct reasonable
edit checks on the day care homes’
meal claims which, at a minimum, include those edit checks specified at
§ 226.10(c).
(c) Each sponsoring organization
shall receive payment for meals served
to children enrolled in approved day
care homes at the tier I and tier II reimbursement rates, as applicable based
on daily meal counts taken in the
home, and as established by law and
adjusted in accordance with § 226.4.
However, the rates for lunches and suppers shall be reduced by the value of
commodities
established
under
§ 226.5(b) for all sponsoring organizations for day care homes which have
elected to receive commodities. For
tier I day care homes, the full amount
of food service payments shall be disbursed to each day care home on the
basis of the number of meals served, by
type, to enrolled children. For tier II
day care homes, the full amount of
food service payments shall be disbursed to each day care home on the
basis of the number of meals served to
enrolled children by type, and by category (tier I and tier II) as determined
in accordance with paragraphs (d)(2)
and (d)(3) of this section. However, the
sponsoring organization may withhold
from Program payments to each home
an amount equal to costs incurred for
the provision of Program foodstuffs or
meals by the sponsoring organization
on behalf of the home and with the
home provider’s written consent.
(d) As applicable, each sponsoring organization for day care homes shall:
(1) Require that tier I day care homes
submit the number of meals served, by
type, to enrolled children.
(2) Require that tier II day care
homes in which the provider elects not
to have the sponsoring organization
identify enrolled children who are eligible for free or reduced price meals
submit the number of meals served, by
type, to enrolled children.
(3) Not more frequently than annually, select one of the methods described in paragraphs (d)(3) (i)–(iii) of
this section for all tier II day care
homes in which the provider elects to
have the sponsoring organization identify enrolled children who are eligible
for free or reduced price meals. In such
homes, the sponsoring organization
shall either:
(i) Require that such day care homes
submit the number and types of meals
served each day to each enrolled child
by name. The sponsoring organization
shall use the information submitted by
the homes to produce an actual count,
by type and by category (tier I and tier
II), of meals served in the homes; or
(ii) Establish claiming percentages,
not less frequently than semiannually,
for each such day care home on the
basis of one month’s data concerning
the number of enrolled children determined eligible for free or reduced-price
meals. Sponsoring organizations shall
obtain one month’s data by collecting
either enrollment lists (which show the
name of each enrolled child in the day
care home), or attendance lists (which
show, by days or meals, the rate of participation of each enrolled child in the
day care home). The State agency may
require a sponsoring organization to
recalculate the claiming percentage for
any of its day care homes before the required semiannual calculation if the
State agency has reason to believe that
a home’s percentage of income-eligible
children has changed significantly or
was incorrectly established in the previous calculation. Under this system,
day care homes shall be required to
submit the number of meals served, by
type, to enrolled children; or
(iii) Determine a blended per-meal
rate of reimbursement, not less frequently than semiannually, for each
such day care home by adding the products obtained by multiplying the applicable rates of reimbursement for each
category (tier I and tier II) by the
claiming percentage for that category,
as established in accordance with paragraph (d)(3)(ii) of this section. The
State agency may require a sponsoring
organization to recalculate the blended
rate for any of its day care homes before the required semiannual calculation if the State agency has reason to
believe that a home’s percentage of income-eligible children has changed significantly or was incorrectly established in the previous calculation.
236
VerDate Sep<11>2014
10:57 May 01, 2019
Jkt 247015
PO 00000
Frm 00246
Fmt 8010
Sfmt 8010
Q:\07\7V4.TXT
PC31
Food and Nutrition Service, USDA
§ 226.14
Under this system, day care homes
shall be required to submit the number
of meals served, by type, to enrolled
children.
kpayne on VMOFRWIN702 with $$_JOB
[47 FR 36527, Aug. 20, 1982, as amended at 62
FR 903, Jan. 7, 1997; 62 FR 5519, Feb. 6, 1997;
63 FR 9105, Feb. 24, 1998; 69 FR 53544, Sept. 1,
2004; 72 FR 41603, July 31, 2007]
§ 226.14 Claims against institutions.
(a) State agencies shall disallow any
portion of a claim for reimbursement
and recover any payment to an institution not properly payable under this
part. State agencies may consider
claims for reimbursement not properly
payable if an institution does not comply with the recordkeeping requirements contained in this part. The
State agency may permit institutions
to pay overclaims over a period of one
or more years. However, the State
agency must assess interest beginning
with the date stipulated in the State
agency’s demand letter, or 30 days
after the date of the demand letter,
whichever date is later. Further, when
an institution requests and is granted
an administrative review of the State
agency’s overpayment demand, the
State agency is prohibited from taking
action to collect or offset the overpayment until the administrative review is
concluded. The State agency must
maintain searchable records of funds
recovery activities. If the State agency
determines that a sponsoring organization of centers has spent more than 15
percent of its meal reimbursements for
a budget year for administrative costs
(or more than any higher limit established pursuant to a waiver granted
under § 226.7(g)), the State agency must
take appropriate fiscal action. In addition, except with approval from the appropriate FNSRO, State agencies shall
consider claims for reimbursement not
payable when an institution fails to
comply with the recordkeeping requirements that pertain to records directly supporting claims for reimbursement. Records that directly support
claims for reimbursement include, but
are not limited to, daily meal counts,
menu records, and enrollment and attendance records, as required by
§ 226.15(e). State agencies shall assert
overclaims against any sponsoring organization of day care homes which
misclassifies a day care home as a tier
I
day
care
home
unless
the
misclassification is determined to be
inadvertent under guidance issued by
FNS. However, the State agency shall
notify the institution of the reasons for
any disallowance or demand for repayment, and allow the institution full opportunity to submit evidence on appeal
as provided for in § 226.6(k). Miminum
State agency collection procedures for
unearned payments shall include:
(1) Written demand to the institution
for the return of improper payments;
(2) if, after 30 calendar days, the institution fails to remit full payment or
agree to a satisfactory repayment
schedule, a second written demand for
the return of improper payments sent
by certified mail return receipt requested; and (3) if, after 60 calendar
days, the institution fails to remit full
payment or agree to a satisfactory repayment schedule, the State agency
shall refer the claim against the institution to appropriate State or Federal
authorities for pursuit of legal remedies.
(b) In the event that the State agency finds that an institution which prepares its own meals is failing to meet
the meal requirements of § 226.20, the
State agency need not disallow payment or collect an overpayment arising
out of such failure if the institution
takes such other action as, in the opinion of the State agency, will have a
corrective effect. However, the State
agency shall not disregard any overpayments or waive collection action
arising from the findings of Federal audits.
(c) If FNS does not concur with the
State agency’s action in paying an institution or in failing to collect an
overpayment, FNS shall notify the
State agency of its intention to assert
a claim against the State agency. In all
such cases, the State agency shall have
full opportunity to submit evidence
concerning the action taken. The State
agency shall be liable to FNS for failure to collect an overpayment, unless
FNS determines that the State agency
has conformed with this part in issuing
237
VerDate Sep<11>2014
10:57 May 01, 2019
Jkt 247015
PO 00000
Frm 00247
Fmt 8010
Sfmt 8010
Q:\07\7V4.TXT
PC31
§ 226.15
7 CFR Ch. II (1–1–19 Edition)
the payment and has exerted reasonable efforts to recover the improper
payment.
[47 FR 36527, Aug. 20, 1982; 47 FR 46072, Oct.
15, 1982, as amended at 50 FR 8580, Mar. 4,
1985; 53 FR 52590, Dec. 28, 1988; 62 FR 903, Jan.
7, 1997; 64 FR 72260, Dec. 27, 1999; 67 FR 43490,
June 27, 2002; 69 FR 53544, Sept. 1, 2004; 76 FR
34571, June 13, 2011]
kpayne on VMOFRWIN702 with $$_JOB
Subpart E—Operational Provisions
§ 226.15 Institution provisions.
(a) Tax exempt status. Except for forprofit centers and sponsoring organizations of such centers, institutions must
be public, or have tax exempt status
under the Internal Revenue Code of
1986.
(b) New applications and renewals.
Each institution must submit to the
State agency with its application all
information required for its approval
as set forth in § 226.6(b) and 226.6(f).
Such information must demonstrate
that a new institution has the administrative and financial capability to operate the Program in accordance with
this part and with the performance
standards set forth in § 226.6(b)(1)(xviii),
and that a renewing institution has the
administrative and financial capability
to operate the Program in accordance
with this part and with the performance
standards
set
forth
in
§ 226.6(b)(2)(vii).
(c) Responsibility. Each institution
shall accept final administrative and
financial responsibility for Program
operations. No institution may contract out for management of the Program.
(d) Staffing. Each institution shall
provide adequate supervisory and operational personnel for management and
monitoring of the Program.
(e) Recordkeeping. Each institution
shall establish procedures to collect
and maintain all program records required under this part, as well as any
records required by the State agency.
Failure to maintain such records shall
be grounds for the denial of reimbursement for meals served during the period covered by the records in question
and for the denial of reimbursement for
costs associated with such records. At
a minimum, the following records shall
be collected and maintained:
(1) Copies of all applications and supporting documents submitted to the
State agency;
(2) Documentation of the enrollment
of each participant at centers (except
for outside-school-hours care centers,
emergency shelters, and at-risk afterschool care centers). All types of centers, except for emergency shelters and
at-risk afterschool care centers, must
maintain information used to determine eligibility for free or reducedprice meals in accordance with
§ 226.23(e)(1). For child care centers,
such documentation of enrollment
must be updated annually, signed by a
parent or legal guardian, and include
information on each child’s normal
days and hours of care and the meals
normally received while in care.
(3) Documentation of: The enrollment of each child at day care homes;
information used to determine the eligibility of enrolled providers’ children
for free or reduced price meals; information used to classify day care homes
as tier I day care homes, including official source documentation obtained
from school officials when the classification is based on school data; and information used to determine the eligibility of enrolled children in tier II day
care homes that have been identified as
eligible for free or reduced price meals
in accordance with § 226.23(e)(1). Such
documentation of enrollment must be
updated annually, signed by a parent
or legal guardian, and include information on each child’s normal days and
hours of care and the meals normally
received while in care.
(4) Daily records indicating the number of participants in attendance and
the daily meal counts, by type (breakfast, lunch, supper, and snacks), served
to family day care home participants,
or the time of service meal counts, by
type (breakfast, lunch, supper, and
snacks), served to center participants.
State agencies may require family day
care homes to record meal counts at
the time of meal service only in day
care homes providing care for more
than 12 children in a single day, or in
day care homes that have been found
seriously deficient due to problems
with their meal counts and claims.
(5) Except at day care homes, daily
records indicating the number of
238
VerDate Sep<11>2014
10:57 May 01, 2019
Jkt 247015
PO 00000
Frm 00248
Fmt 8010
Sfmt 8010
Q:\07\7V4.TXT
PC31
kpayne on VMOFRWIN702 with $$_JOB
Food and Nutrition Service, USDA
§ 226.15
meals, by type, served to adults performing labor necessary to the food
service;
(6) Copies of invoices, receipts, or
other records required by the State
agency financial management instruction to document:
(i) Administrative costs claimed by
the institution;
(ii) Operating costs claimed by the
institution except sponsoring organizations of day care homes; and
(iii) Income to the Program.
(7) Copies of all claims for reimbursement submitted to the State agency;
(8) Receipts for all Program payments received from the State agency;
(9) If applicable, information concerning the dates and amounts of disbursement to each child care facility
or adult day care facility under its auspices;
(10) Copies of menus, and any other
food service records required by the
State agency;
(11) If applicable, information concerning the location and dates of each
child care or adult day care facility review, any problems noted, and the corrective action prescribed and effected;
(12) Information on training session
date(s) and location(s), as well as topics presented and names of participants; and
(13) Documentation of nonprofit food
service to ensure that all Program reimbursement funds are used: (i) Solely
for the conduct of the food service operation; or (ii) to improve such food
service operations, principally for the
benefit of the enrolled participants.
(14) For sponsoring organizations,
records documenting the attendance at
annual training of each staff member
with
monitoring
responsibilities.
Training must include instruction, appropriate to the level of staff experience and duties, on the Program’s meal
patterns, meal counts, claims submission and claim review procedures, recordkeeping requirements, and an explanation of the Program’s reimbursement system.
(f) Day care home classifications. Each
sponsoring organization of day care
homes shall determine which of the
day care homes under its sponsorship
are eligible as tier I day care homes. A
sponsoring organization may use cur-
rent school or census data provided by
the State agency or free and reduced
price applications collected from day
care home providers in making a determination for each day care home. When
using school or census data for making
tier I day care home determinations, a
sponsoring organization shall first consult school data, except in cases in
which busing or other bases of attendance, such as magnet or charter
schools, result in school data not being
representative of an attendance area’s
household income levels. In these
cases, census data should generally be
consulted instead of school data. A
sponsoring organization may also use
census data if, after reasonable efforts
are made, as defined by the State agency, the sponsoring organization is unable to obtain local school attendance
area information. A sponsoring organization may also consult census data
after having consulted school data
which fails to support a tier I day care
home determination for rural areas
with geographically large school attendance areas, for other areas in
which a school’s free and reduced price
enrollment is above 40 percent, or in
other cases with State agency approval. However, if a sponsoring organization believes that a segment of an
otherwise eligible school attendance
area is above the criteria for free or reduced price meals, then the sponsoring
organization shall consult census data
to determine whether the homes in
that area qualify as tier I day care
homes based on census data. If census
data does not support a tier I classification, then the sponsoring organization shall reclassify homes in segments
of such areas as tier II day care homes
unless the individual providers can
document tier I eligibility on the basis
of their household income. When making tier I day care home determinations based on school data, a sponsoring organization shall use attendance area information that it has obtained, or verified with appropriate
school officials to be current, within
the last school year. Determinations of
a day care home’s eligibility as a tier I
day care home shall be valid for one
year if based on a provider’s household
income, five years if based on school
data, or until more current data are
239
VerDate Sep<11>2014
10:57 May 01, 2019
Jkt 247015
PO 00000
Frm 00249
Fmt 8010
Sfmt 8010
Q:\07\7V4.TXT
PC31
kpayne on VMOFRWIN702 with $$_JOB
§ 226.16
7 CFR Ch. II (1–1–19 Edition)
available if based on census data. However, a sponsoring organization, State
agency, or FNS may change the determination if information becomes available indicating that a home is no
longer in a qualified area. The State
agency shall not routinely require annual redeterminations of the tiering
status of tier I day care homes based
on updated school data.
(g) Area eligibility determinations for
at-risk afterschool care centers. Sponsoring organizations of at-risk afterschool care centers must provide information, as required by the State agency, which permits the State agency to
determine whether the centers they
sponsor are located in eligible areas.
Such information may include the
most recent free and reduced-price
school data available pursuant to
§ 226.6(f)(1)(ix) and attendance area information that it has obtained, or
verified with the appropriate school officials to be current, within the last
school year.
(h) Payment to employees. No institution that is a sponsoring organization
of family day care homes and that employs more than one person is permitted to base payment (including bonuses or gratuities) to its employees,
contractors, or family day care home
providers solely on the number of new
family day care homes recruited for
the sponsoring organization’s Program.
(i) Claims submission. Each institution
shall submit claims for reimbursement
to the State agency in accordance with
§ 226.10.
(j) Program agreement. Each institution shall enter into a Program agreement with the State agency in accordance with § 226.6(b)(4).
(k) Commodities. Each institution receiving commodities shall ensure proper commodity utilization.
(l) Special Milk Program. No institution may participate in both the Child
and Adult Care Food Program and the
Special Milk Program at the same
time.
(m) Elderly feeding programs. Institutions which are school food authorities
(as defined in part 210 of this chapter)
may use facilities, equipment and personnel supported by funds provided
under this part to support a nonprofit
nutrition program for the elderly, in-
cluding a program funded under the
Older Americans Act of 1965 (42 U.S.C.
3001 et seq.).
(n) Regulations and guidance. Each institution must comply with all regulations issued by FNS and the Department, all instructions and handbooks
issued by FNS and the Department to
clarify or explain existing regulations,
and all regulations, instructions and
handbooks issued by the State agency
that are consistent with the provisions
established in Program regulations.
(o) Information on WIC. Each institution (other than outside-school-hours
care centers, at-risk afterschool care
centers, emergency shelters, and adult
day care centers) must ensure that parents of enrolled children are provided
with current information on the benefits and importance of the Special Supplemental Nutrition Program for
Women, Infants, and Children (WIC)
and the eligibility requirements for
WIC participation.
[47 FR 36527, Aug. 20, 1982]
EDITORIAL NOTE: For FEDERAL REGISTER citations affecting § 226.15, see the List of CFR
Sections Affected, which appears in the
Finding Aids section of the printed volume
and at www.govinfo.gov.
§ 226.16 Sponsoring organization provisions.
(a) Each sponsoring organization
shall comply with all provisions of
§ 226.15.
(b) Each sponsoring organization
must submit to the State agency with
its application all information required
for its approval, and the approval of
the facilities under its jurisdiction, as
set forth in §§ 226.6(b) and 226.6(f). The
application must demonstrate that the
institution has the administrative and
financial capability to operate the Program in accordance with the Program
regulations. In addition to the information required in §§ 226.6(b) and 226.6(f),
the application must include:
(1) A sponsoring organization management plan and administrative budget, in accordance with §§ 226.6(b)(1)(iv),
226.6(b)(1)(v), 226.6(b)(2)(i), 226.6(f)(2)(i),
and 226.7(g), which includes information sufficient to document the sponsoring organization’s compliance with
the performance standards set forth at
§ 226.6(b)(1)(xviii) and 226.6(b)(2)(vii). As
240
VerDate Sep<11>2014
10:57 May 01, 2019
Jkt 247015
PO 00000
Frm 00250
Fmt 8010
Sfmt 8010
Q:\07\7V4.TXT
PC31
kpayne on VMOFRWIN702 with $$_JOB
Food and Nutrition Service, USDA
§ 226.16
part of its management plan, a sponsoring organization of day care homes
must document that, to perform monitoring, it will employ the equivalent of
one full-time staff person for each 50 to
150 day care homes it sponsors. As part
of its management plan, a sponsoring
organization of centers must document
that, to perform monitoring, it will
employ the equivalent of one full-time
staff person for each 25 to 150 centers it
sponsors. It is the State agency’s responsibility to determine the appropriate level of staffing for monitoring
for each sponsoring organization, consistent with these specified ranges and
factors that the State agency will use
to determine the appropriate level of
monitoring staff for each sponsor. The
monitoring staff equivalent may include the employee’s time spent on
scheduling, travel time, review time,
follow-up activity, report writing, and
activities related to the annual updating of children’s enrollment forms.
Sponsoring organizations that were
participating in the Program on July
29, 2002, were to have submitted, no
later than July 29, 2003, a management
plan or plan amendment that meets
the monitoring staffing requirement.
For sponsoring organizations of centers, the portion of the administrative
costs to be charged to the Program
may not exceed 15 percent of the meal
reimbursements estimated or actually
earned during the budget year, unless
the State agency grants a waiver in accordance with § 226.7(g). A sponsoring
organization of centers must include in
the administrative budget all administrative costs, whether incurred by the
sponsoring organization or its sponsored centers. If at any point a sponsoring organization determines that
the meal reimbursements estimated to
be earned during the budget year will
be lower than that estimated in its administrative budget, the sponsoring organization must amend its administrative budget to stay within the 15 percent limitation (or any higher limit established pursuant to a waiver granted
under § 226.7(g)) or seek a waiver. Failure to do so will result in appropriate
fiscal action in accordance with
§ 226.14(a).
(2) An application for participation,
or renewal materials, for each child
care and adult day care facility accompanied by all necessary supporting documentation;
(3) Timely information concerning
the eligibility status of child care and
adult day care facilities (such as licensing/approval actions);
(4) For sponsoring organizations applying for initial participation on or
after June 20, 2000, if required by State
law, regulation, or policy, a bond in the
form prescribed by such law, regulation, or policy;
(5) A copy of the sponsoring organization’s notice to parents, in a form and,
to the maximum extent practicable,
language easily understandable by the
participant’s parents or guardians. The
notice must inform them of their facility’s participation in CACFP, the
Program’s benefits, the name and telephone number of the sponsoring organization, and the name and telephone
number of the State agency responsible
for administration of CACFP;
(6) If the sponsoring organization
chooses to establish procedures for determining a day care home seriously
deficient that supplement the procedures in paragraph (l) of this section, a
copy of those supplemental procedures.
If the State agency has made the sponsoring organization responsible for the
administrative review of a proposed
termination of a day care home’s
agreement for cause, pursuant to
§ 226.6(l)(1), a copy of the sponsoring organization’s administrative review procedures. The sponsoring organization’s
supplemental serious deficiency and
administrative review procedures must
comply with paragraph (l) of this section and § 226.6(l);
(7) A copy of their outside employment policy. The policy must restrict
other employment by employees that
interferes with an employee’s performance of Program-related duties and responsibilities, including outside employment that constitutes a real or apparent conflict of interest; and
(8) For sponsoring organizations of
day care homes, the name, mailing address, and date of birth of each provider.
(c) Each sponsoring organization
shall accept final administrative and
financial responsibility for food service
operations in all child care and adult
241
VerDate Sep<11>2014
10:57 May 01, 2019
Jkt 247015
PO 00000
Frm 00251
Fmt 8010
Sfmt 8010
Q:\07\7V4.TXT
PC31
kpayne on VMOFRWIN702 with $$_JOB
§ 226.16
7 CFR Ch. II (1–1–19 Edition)
day care facilities under its jurisdiction.
(d) Each sponsoring organization
must provide adequate supervisory and
operational personnel for the effective
management and monitoring of the
program at all facilities it sponsors.
Each sponsoring organization must employ monitoring staff sufficient to
meet the requirements of paragraph
(b)(1) of this section. At a minimum,
Program assistance must include:
(1) Pre-approval visits to each child
care and adult day care facility for
which application is made to discuss
Program benefits and verify that the
proposed food service does not exceed
the capability of the child care facility;
(2) Training on Program duties and
responsibilities to key staff from all
sponsored facilities prior to the beginning of Program operations. At a minimum, such training must include instruction, appropriate to the level of
staff experience and duties, on the Program’s meal patterns, meal counts,
claims submission and review procedures, recordkeeping requirements, and
reimbursement system. Attendance by
key staff, as defined by the State agency, is mandatory;
(3) Additional mandatory training
sessions for key staff from all sponsored child care and adult day care facilities not less frequently than annually. At a minimum, such training
must include instruction, appropriate
to the level of staff experience and duties, on the Program’s meal patterns,
meal counts, claims submission and review procedures, recordkeeping requirements, and reimbursement system. Attendance by key staff, as defined by the State agency, is mandatory;
(4)(i) Review elements. Reviews that
assess whether the facility has corrected problems noted on the previous
review(s), a reconciliation of the facility’s meal counts with enrollment and
attendance records for a five-day period, as specified in paragraph (d)(4)(ii)
of this section, and an assessment of
the facility’s compliance with the Program requirements pertaining to:
(A) The meal pattern;
(B) Licensing or approval;
(C) Attendance at training;
(D) Meal counts;
(E) Menu and meal records; and
(F) The annual updating and content
of enrollment forms (if the facility is
required to have enrollment forms on
file, as specified in §§ 226.15(e)(2) and
226.15(e)(3)).
(ii) Reconciliation of meal counts. Reviews must examine the meal counts
recorded by the facility for five consecutive days during the current and/or
prior claiming period. For each day examined, reviewers must use enrollment
and attendance records (except in those
outside-school-hours care centers, atrisk afterschool care centers, and
emergency shelters where enrollment
records are not required) to determine
the number of participants in care during each meal service and attempt to
reconcile those numbers to the numbers of breakfasts, lunches, suppers,
and/or snacks recorded in the facility’s
meal count for that day. Based on that
comparison, reviewers must determine
whether the meal counts were accurate. If there is a discrepancy between
the number of participants enrolled or
in attendance on the day of review and
prior meal counting patterns, the reviewer must attempt to reconcile the
difference and determine whether the
establishment of an overclaim is necessary.
(iii) Frequency and type of required facility reviews. Sponsoring organizations
must review each facility three times
each year, except as described in paragraph (d)(4)(iv) of this section. In addition:
(A) At least two of the three reviews
must be unannounced;
(B) At least one unannounced review
must include observation of a meal
service;
(C) At least one review must be made
during each new facility’s first four
weeks of Program operations; and
(D) Not more than six months may
elapse between reviews.
(iv) Averaging of required reviews. If a
sponsoring organization conducts one
unannounced review of a facility in a
year and finds no serious deficiencies
(as described in paragraph (l)(2) of this
section, regardless of the type of facility), the sponsoring organization may
choose not to conduct a third review of
the facility that year, and may make
its second review announced, provided
242
VerDate Sep<11>2014
10:57 May 01, 2019
Jkt 247015
PO 00000
Frm 00252
Fmt 8010
Sfmt 8010
Q:\07\7V4.TXT
PC31
kpayne on VMOFRWIN702 with $$_JOB
Food and Nutrition Service, USDA
§ 226.16
that the sponsoring organization conducts an average of three reviews of all
of its facilities that year, and that it
conducts an average of two unannounced reviews of all of its facilities
that year. When the sponsoring organization uses this averaging provision,
and a specific facility receives two reviews in one review year, its first review in the next review year must
occur no more than nine months after
the previous review.
(v) Follow-up reviews. If, in conducting a facility review, a sponsoring
organization detects one or more serious deficiency, the next review of that
facility must be unannounced. Serious
deficiencies are those described at
paragraph (l)(2) of this section, regardless of the type of facility.
(vi) Notification of unannounced reviews. Sponsoring organizations of centers must provide each center with
written notification of the right of the
sponsoring organization, the State
agency, the Department, and other
State and Federal officials to make announced or unannounced reviews of its
operations during the center’s normal
hours of operation, and must also notify sponsored centers that anyone
making such reviews must show photo
identification that demonstrates that
they are employees of one of these entities. For sponsored centers participating on July 29, 2002, the sponsoring
organization was to have provided this
notice no later than August 29, 2002.
For sponsored centers that are approved after July 29, 2002, the sponsoring organization must provide the
notice before meal service under the
Program begins. Sponsoring organizations must provide day care homes notification of unannounced visits in accordance with § 226.18(b)(1).
(vii) Other requirements pertaining to
unannounced reviews. Unannounced reviews must be made only during the facility’s normal hours of operation, and
monitors making such reviews must
show photo identification that demonstrates that they are employees of
the sponsoring organization, the State
agency, the Department, or other State
and Federal agencies authorized to
audit or investigate Program operations.
(viii) Imminent threat to health or safety. Sponsoring organizations that discover in a facility conduct or conditions that pose an imminent threat to
the health or safety of participating
children or the public, must immediately notify the appropriate State or
local licensing or health authorities
and take action that is consistent with
the recommendations and requirements of those authorities.
(5) For sponsoring organizations, as
part of their monitoring of facilities,
compliance with the household contact
requirements established pursuant to
§ 226.6(m)(5) of this part.
(e) Each sponsoring organization
shall comply with the recordkeeping
requirements established in §§ 226.10(d)
and 226.15(e) and any recordkeeping requirements established by the State
agency in order to justify the administrative payments made in accordance
with § 226.12(a). Failure to maintain
such records shall be grounds for the
denial of reimbursement.
(f) The State agency may require a
sponsoring organization to enter into
separate agreements for the administration of separate types of facilities
(child care centers, day care homes,
adult day care centers, emergency shelters, at-risk afterschool care centers,
and outside-school-hours care centers).
(g) Each sponsoring organization
electing to receive advance payments
of program funds for day care homes
shall disburse the full amount of such
payments within five working days of
receipt from the State agency. If the
sponsor requests the full operating advance to which it is entitled, the advances to day care homes shall be the
full amount which the sponsor expects
the home to earn based on the number
of meals projected to be served to enrolled children during the period covered by the advance multiplied by the
applicable payment rate as specified in
§ 226.13(c). If a sponsor elects to receive
only a part of the operating advance to
which it is entitled, or if the full operating advance is insufficient to provide
a full advance to each home, the advance shall be disbursed to its homes in
a manner and an amount the sponsor
deems appropriate. Each sponsor shall
disburse any reimbursement payments
for food service due to each day care
243
VerDate Sep<11>2014
10:57 May 01, 2019
Jkt 247015
PO 00000
Frm 00253
Fmt 8010
Sfmt 8010
Q:\07\7V4.TXT
PC31
kpayne on VMOFRWIN702 with $$_JOB
§ 226.16
7 CFR Ch. II (1–1–19 Edition)
home within five working days of receipt from the State agency. Such payment shall be based on the number of
meals served to enrolled children at
each day care home, less any payments
advanced to such home. However, the
sponsoring organization may withhold
from Program payments to each home
an amount equal to food service operating costs incurred by the sponsoring
organization in behalf of the home and
with the home provider’s written consent. If payments from the State agency are not sufficient to provide all day
care homes under the sponsoring organization’s jurisdiction with advance
payments and reimbursement payments, available monies shall be used
to provide all due reimbursement payments before advances are disbursed.
(h) Sponsoring organizations shall
make payments of program funds to
child care centers, adult day care centers, emergency shelters, at-risk afterschool care centers, or outside-schoolhours care centers within five working
days of receipt from the State agency,
on the basis of the management plan
approved by the State agency, and may
not exceed the Program costs documented at each facility during any fiscal year; except in those States where
the State agency has chosen the option
to implement a meals times rates payment system. In those States which
implement this optional method of reimbursement, such disbursements may
not exceed the rates times the number
of meals documented at each facility
during any fiscal year.
(i) Disbursements of advance payments may be withheld from child and
adult day care facilities which fail to
submit reports required by § 226.15(e).
(j) A for-profit organization shall be
eligible to serve as a sponsoring organization for for-profit centers which have
the same legal identity as the organization, but shall not be eligible to
sponsor for-profit centers which are legally distinct from the organization,
day care homes, or public or private
nonprofit centers.
(k) Before sponsoring organizations
expend administrative funds to assist
family day care homes in becoming licensed, they shall obtain the following
information from each such home: a
completed free and reduced price appli-
cation which documents that the provider meets the Program’s income
standards; evidence of its application
for licensing and official documentation of the defects that are impeding
its licensing approval; and a completed
CACFP application. These funding requests are limited to $300 per home and
are only available to each home once.
(l) Termination of agreements for
cause—(1) General. The sponsoring organization must initiate action to terminate the agreement of a day care home
for cause if the sponsoring organization
determines the day care home has committed one or more serious deficiency
listed in paragraph (l)(2) of this section.
(2) List of serious deficiencies for day
care homes. Serious deficiencies for day
care homes are:
(i) Submission of false information
on the application;
(ii) Submission of false claims for reimbursement;
(iii)
Simultaneous
participation
under more than one sponsoring organization;
(iv) Non-compliance with the Program meal pattern;
(v) Failure to keep required records;
(vi) Conduct or conditions that
threaten the health or safety of a
child(ren) in care, or the public health
or safety;
(vii) A determination that the day
care home has been convicted of any
activity that occurred during the past
seven years and that indicated a lack
of business integrity. A lack of business integrity includes fraud, antitrust
violations, embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements, receiving stolen property, making false claims, obstruction of justice,
or any other activity indicating a lack
of business integrity as defined by the
State agency, or the concealment of
such a conviction;
(viii) Failure to participate in training; or
(ix) Any other circumstance related
to non-performance under the sponsoring organization-day care home
agreement, as specified by the sponsoring organization or the State agency.
244
VerDate Sep<11>2014
10:57 May 01, 2019
Jkt 247015
PO 00000
Frm 00254
Fmt 8010
Sfmt 8010
Q:\07\7V4.TXT
PC31
kpayne on VMOFRWIN702 with $$_JOB
Food and Nutrition Service, USDA
§ 226.16
(3) Serious deficiency notification procedures. If the sponsoring organization
determines that a day care home has
committed one or more serious deficiency listed in paragraph (l)(2) of this
section, the sponsoring organization
must use the following procedures to
provide the day care home notice of the
serious deficiency(ies) and offer it an
opportunity to take corrective action.
However, if the serious deficiency(ies)
constitutes an imminent threat to the
health or safety of participants, or the
day care home has engaged in activities that threaten the public health or
safety, the sponsoring organization
must follow the procedures in paragraph (l)(4) of this section instead of
those in this paragraph (l)(3).
(i) Notice of serious deficiency. The
sponsoring organization must notify
the day care home that it has been
found to be seriously deficient. The
sponsoring organization must provide a
copy of the serious deficiency notice to
the State agency. The notice must
specify:
(A) The serious deficiency(ies);
(B) The actions to be taken by the
day care home to correct the serious
deficiency(ies);
(C) The time allotted to correct the
serious deficiency(ies) (as soon as possible, but not to exceed 30 days);
(D) That the serious deficiency determination is not subject to administrative review.
(E) That failure to fully and permanently correct the serious deficiency(ies) within the allotted time
will result in the sponsoring organization proposed termination of the day
care home’s agreement and the proposed disqualification of the day care
home and its principals; and
(F) That the day care home’s voluntary termination of its agreement
with the sponsoring organization after
having been notified that it is seriously
deficient will still result in the day
care home’s formal termination by the
sponsoring organization and placement
of the day care home and its principals
on the National disqualified list.
(ii) Successful corrective action. If the
day care home corrects the serious deficiency(ies) within the allotted time
and to the sponsoring organization’s
satisfaction, the sponsoring organiza-
tion must notify the day care home
that it has temporarily defer its determination of serious deficiency. The
sponsoring organization must also provide a copy of the notice to the State
agency. However, if the sponsoring organization accepts the provider’s corrective action, but later determines
that the corrective action was not permanent or complete, the sponsoring organization must then propose to terminate the provider’s Program agreement
and disqualify the provider, as set forth
in paragraph (l)(3)(iii) of this section.
(iii) Proposed termination of agreement
and proposed disqualification. If timely
corrective action is not taken to fully
and permanently correct the serious
deficiency(ies) cited, the sponsoring organization must issue a notice proposing to terminate the day care
home’s agreement for cause. The notice
must explain the day care home’s opportunity for an administrative review
of the proposed termination in accordance with § 226.6(l). The sponsoring organization must provide a copy of the
notice to the State agency. The notice
must:
(A) Inform the day care home that it
may continue to participate and receive Program reimbursement for eligible meals served until its administrative review is concluded;
(B) Inform the day care home that
termination of the day care home’s
agreement will result in the day care
home’s termination for cause and disqualification; and
(C) State that if the day care home
seeks to voluntarily terminate its
agreement after receiving the notice of
intent to terminate, the day care home
will still be placed on the National disqualified list.
(iv) Program payments. The sponsoring organization must continue to
pay any claims for reimbursement for
eligible meals served until the serious
deficiency(ies) is corrected or the day
care home’s agreement is terminated,
including the period of any administrative review.
(v) Agreement termination and disqualification. The sponsoring organization
must immediately terminate the day
care home’s agreement and disqualify
the day care home when the administrative review official upholds the
245
VerDate Sep<11>2014
10:57 May 01, 2019
Jkt 247015
PO 00000
Frm 00255
Fmt 8010
Sfmt 8010
Q:\07\7V4.TXT
PC31
kpayne on VMOFRWIN702 with $$_JOB
§ 226.16
7 CFR Ch. II (1–1–19 Edition)
sponsoring organization’s proposed termination and proposed disqualification, or when the day care home’s opportunity to request an administrative
review expires. At the same time the
notice is issued, the sponsoring organization must provide a copy of the termination and disqualification letter to
the State agency.
(4) Suspension of participation for day
care homes.
(i) General. If State or local health or
licensing officials have cited a day care
home for serious health or safety violations, the sponsoring organization
must immediately suspend the home’s
CACFP participation prior to any formal action to revoke the home’s licensure or approval. If the sponsoring organization determines that there is an
imminent threat to the health or safety of participants at a day care home,
or that the day care home has engaged
in activities that threaten the public
health or safety, and the licensing
agency cannot make an immediate onsite visit, the sponsoring organization
must immediately notify the appropriate State or local licensing and
health authorities and take action that
is consistent with the recommendations and requirements of those authorities. An imminent threat to the
health or safety of participants and engaging in activities that threaten the
public health or safety constitute serious deficiencies; however, the sponsoring organization must use the procedures in this paragraph (l)(4) (and not
the procedures in paragraph (l)(3) of
this section) to provide the day care
home notice of the suspension of participation, serious deficiency, and proposed termination of the day care
home’s agreement.
(ii) Notice of suspension, serious deficiency, and proposed termination. The
sponsoring organization must notify
the day care home that its participation has been suspended, that the day
care home has been determined seriously deficient, and that the sponsoring organization proposes to terminate the day care home’s agreement for
cause, and must provide a copy of the
notice to the State agency. The notice
must:
(A) Specify the serious deficiency(ies)
found and the day care home’s opportunity for an administrative review of
the proposed termination in accordance with § 226.6(l);
(B) State that participation (including all Program payments) will remain
suspended until the administrative review is concluded;
(C) Inform the day care home that if
the administrative review official overturns the suspension, the day care
home may claim reimbursement for eligible meals served during the suspension;
(D) Inform the day care home that
termination of the day care home’s
agreement will result in the placement
of the day care home on the National
disqualified list; and
(E) State that if the day care home
seeks to voluntarily terminate its
agreement after receiving the notice of
proposed termination, the day care
home will still be terminated for cause
and disqualified.
(iii) Agreement termination and disqualification. The sponsoring organization must immediately terminate the
day care home’s agreement and disqualify the day care home when the administrative review official upholds
the sponsoring organization’s proposed
termination, or when the day care
home’s opportunity to request an administrative review expires.
(iv) Program payments. A sponsoring
organization is prohibited from making
any Program payments to a day care
home that has been suspended until
any administrative review of the proposed termination is completed. If the
suspended day care home prevails in
the administrative review of the proposed termination, the sponsoring organization must reimburse the day
care home for eligible meals served
during the suspension period.
(m) Sponsoring organizations of family day care homes must not make payments to employees or contractors
solely on the basis of the number of
homes recruited. However, such employees or contractors may be paid or
246
VerDate Sep<11>2014
10:57 May 01, 2019
Jkt 247015
PO 00000
Frm 00256
Fmt 8010
Sfmt 8010
Q:\07\7V4.TXT
PC31
Food and Nutrition Service, USDA
§ 226.17
evaluated on the basis of recruitment
activities accomplished.
kpayne on VMOFRWIN702 with $$_JOB
[47 FR 36527, Aug. 20, 1982; 47 FR 46072, Oct.
15, 1982, as amended at 48 FR 21530, May 13,
1983; 50 FR 8580, Mar. 4, 1985; 50 FR 26975,
July 1, 1985; 53 FR 52591, Dec. 28, 1988; 63 FR
9729, Feb. 26, 1998; 64 FR 72260, Dec. 27, 1999;
67 FR 43490, June 27, 2002; 69 FR 53544, Sept.
1, 2004; 71 FR 5, Jan. 3, 2006; 72 FR 41608, July
31, 2007; 76 FR 34571, June 13, 2011; 78 FR
13451, Feb. 28, 2013]
§ 226.17 Child care center provisions.
(a) Child care centers may participate in the Program either as independent centers or under the auspices
of a sponsoring organization; provided,
however, that public and private nonprofit centers shall not be eligible to
participate in the Program under the
auspices of a for-profit sponsoring organization. Child care centers participating as independent centers shall
comply with the provisions of § 226.15.
(b) All child care centers, independent or sponsored, shall meet the
following requirements
(1) Child care centers must have Federal, State, or local licensing or approval to provide day care services to
children. Child care centers, which are
complying with applicable procedures
to renew licensing or approval, may
participate in the Program during the
renewal process, unless the State agency has information that indicates that
renewal will be denied. If licensing or
approval is not available, a child care
center may participate if it demonstrates compliance with the CACFP
child care standards or any applicable
State or local child care standards to
the State agency.
(2) Except for for-profit centers, child
care centers shall be public, or have
tax exempt status under the Internal
Revenue Code of 1986.
(3) Each child care center participating in the Program must serve one
or more of the following meal types—
breakfast; lunch; supper; and snack.
Reimbursement must not be claimed
for more than two meals and one snack
or one meal and two snacks provided
daily to each child.
(4) Each child care center participating in the Program shall claim only
the meal types specified in its approved
application in accordance with the
meal pattern requirements specified in
§ 226.20. For-profit child care centers
may not claim reimbursement for
meals served to children in any month
in which less than 25 percent of the
children in care (enrolled or licensed
capacity, whichever is less) were eligible for free or reduced price meals or
were title XX beneficiaries. However,
children who only receive at-risk afterschool snacks and/or at-risk afterschool meals must not be included in
this percentage. Menus and any other
nutritional records required by the
State agency shall be maintained to
document compliance with such requirements.
(5) A child care center with preschool
children may also be approved to serve
a breakfast, snack, and supper to
school-age children participating in an
outside-school-hours
care
program
meeting the criteria of § 226.19(b) that
is distinct from its day care program
for preschool-age children. The State
agency may authorize the service of
lunch to such participating children
who attend a school that does not offer
a lunch program, provided that the
limit of two meals and one snack, or
one meal and two snacks, per child per
day is not exceeded.
(6) A child care center with preschool
children may also be approved to serve
a snack to school age children participating in an afterschool care program
meeting the requirements of § 226.17a
that is distinct from its day care program for preschool children, provided
that the limit of two meals, and one
snack, or one meal and two snacks, per
child per day is not exceeded.
(7) A child care center may utilize existing school food service facilities or
obtain meals from a school food service
facility, and the pertinent requirements of this part shall be embodied in
a written agreement between the child
care center and school. The center
shall maintain responsibility for all
Program requirements set forth in this
part.
(8) Child care centers shall collect
and maintain documentation of the enrollment of each child, including information used to determine eligibility
for free and reduced price meals in accordance with § 226.23(e)(1). In addition,
Head Start participants need only have
247
VerDate Sep<11>2014
10:57 May 01, 2019
Jkt 247015
PO 00000
Frm 00257
Fmt 8010
Sfmt 8010
Q:\07\7V4.TXT
PC31
§ 226.17a
7 CFR Ch. II (1–1–19 Edition)
a Head Start statement of income eligibility, or a statement of Head Start
enrollment from an authorized Head
Start representative, to be eligible for
free meal benefits under the CACFP.
Such documentation of enrollment
must be updated annually, signed by a
parent or legal guardian, and include
information on each child’s normal
days and hours of care and the meals
normally received while in care.
(9) Each child care center must maintain daily records of time of service
meal counts by type (breakfast, lunch,
supper, and snacks) served to enrolled
children, and to adults performing
labor necessary to the food service.
(10) Each child care center must require key staff, as defined by the State
agency, to attend Program training
prior to the center’s participation in
the Program, and at least annually
thereafter, on content areas established by the State agency.
(c) Each child care center shall comply with the recordkeeping requirements established in § 226.10(d), in paragraph (b) of this section and, if applicable, in § 226.15(e). Failure to maintain
such records shall be grounds for the
denial of reimbursement.
(d) If so instructed by its sponsoring
organization, a sponsored center must
distribute to parents a copy of the
sponsoring organization’s notice to
parents.
[47 FR 36527, Aug. 20, 1982, as amended at 52
FR 36907, Oct. 2, 1987; 53 FR 52591, Dec. 28,
1988; 54 FR 26724, June 26, 1989; Amdt. 22, 55
FR 1378, Jan. 14, 1990; 61 FR 25554, May 22,
1996; 62 FR 23619, May 1, 1997; 63 FR 9729, Feb.
26, 1998; 64 FR 72261, Dec. 27, 1999; 67 FR 43493,
June 27, 2002; 69 FR 53546, Sept. 1, 2004; 70 FR
43262, July 27, 2005; 72 FR 41608, July 31, 2007;
75 FR 16328, Apr. 1, 2010; 78 FR 13451, Feb. 28,
2013]
kpayne on VMOFRWIN702 with $$_JOB
§ 226.17a At-risk afterschool care center provisions.
(a) Organizations eligible to receive reimbursement for at-risk afterschool snacks
and at-risk afterschool meals—(1) Eligible
organizations. To receive reimbursement for at-risk afterschool snacks, organizations must meet the criteria in
paragraphs (a)(1)(i) through (a)(1)(iv) of
this section. To receive reimbursement
for at-risk afterschool meals, organizations must meet the criteria in para-
graphs (a)(1)(i) through (a)(1)(v) of this
section.
(i) Organizations must meet the definition of an At-risk afterschool care center in § 226.2. An organization may participate in the Program either as an
independent center or as a child care
facility under the auspices of a sponsoring organization. Public and private
nonprofit centers may not participate
under the auspices of a for-profit sponsoring organization.
(ii) Organizations must operate an eligible afterschool care program, as described in paragraph (b) of this section.
(iii) Organizations must meet the licensing/approval
requirements
in
§ 226.6(d)(1).
(iv) Except for for-profit centers, atrisk afterschool care centers must be
public, or have tax-exempt status
under the Internal Revenue Code of
1986 or be currently participating in
another Federal program requiring
nonprofit status.
(v) Organizations eligible to be reimbursed for at-risk afterschool meals
must be located in one of the eligible
States designated by law or selected by
the Secretary as directed by law.
(2) Limitations. (i) To be reimbursed
for at-risk afterschool snacks and/or
at-risk afterschool meals, all organizations must:
(A) Serve the at-risk afterschool
snacks and/or at-risk afterschool meals
to children who are participating in an
approved afterschool care program; and
(B) Not exceed the authorized capacity of the at-risk afterschool care center.
(ii) In any calendar month, a for-profit center must be eligible to participate in the Program as described in the
definition of For-profit center in § 226.2.
However, children who only receive atrisk afterschool snacks and/or at-risk
afterschool meals must not be considered in determining this eligibility.
(b) Eligible at-risk afterschool care programs—(1) Eligible programs. To be eligible for reimbursement, an afterschool
care program must:
(i) Be organized primarily to provide
care for children after school or on
weekends, holidays, or school vacations during the regular school year
(an at-risk afterschool care center may
248
VerDate Sep<11>2014
10:57 May 01, 2019
Jkt 247015
PO 00000
Frm 00258
Fmt 8010
Sfmt 8010
Q:\07\7V4.TXT
PC31
kpayne on VMOFRWIN702 with $$_JOB
Food and Nutrition Service, USDA
§ 226.17a
not claim snacks during summer vacation, unless it is located in the attendance area of a school operating on a
year-round calendar);
(ii) Have organized, regularly scheduled activities (i.e., in a structured and
supervised environment);
(iii) Include education or enrichment
activities; and
(iv) Except for Emergency shelters as
defined in § 226.2, be located in an eligible area, as described in paragraph (i)
of this section.
(2) Eligibility limitation. Organized
athletic programs engaged in interscholastic or community level competitive sports are not eligible afterschool care programs.
(c) Eligibility requirements for children.
At-risk afterschool snacks and/or atrisk afterschool meals are reimbursable only if served to children who are
participating in an approved afterschool care program and who either are
age 18 or under at the start of the
school year or meet the definition of
Persons with disabilities in § 226.2.
(d) Licensing requirements for at-risk
afterschool care centers. In accordance
with § 226.6(d)(1), if Federal, State or
local licensing or approval is not otherwise required, at-risk afterschool care
centers must meet State or local
health and safety standards. When
State or local health and safety standards have not been established, State
agencies are encouraged to work with
appropriate State and local officials to
create such standards. Meeting these
standards will remain a precondition
for any afterschool center’s eligibility
for CACFP nutrition benefits. In cases
where Federal, State or local licensing
or approval is required, at-risk afterschool care centers that are complying
with applicable procedures to renew licensing or approval may participate in
the Program during the renewal process, unless the State agency has information that indicates the renewal will
be denied.
(e) Application procedures—(1) Application. An official of the organization
must make written application to the
State agency for any afterschool care
program that it wants to operate as an
at-risk afterschool care center.
(2) Required information. At a minimum, an organization must submit:
(i) An indication that the applicant
organization meets the eligibility criteria for organizations as specified in
paragraph (a) of this section;
(ii) A description of how the afterschool care program(s) meets the eligibility criteria in paragraph (b) of this
section;
(iii) In the case of a sponsoring organization, a list of all applicant afterschool care centers;
(iv) Documentation that permits the
State agency to confirm that all applicant afterschool care centers are located in an eligible area, as described
in paragraph (i) of this section; and
(v) Other information required as a
condition of eligibility in the CACFP
must be submitted with an application
for participation in accordance with
§ 226.6(b)(1).
(f) State agency action on applications—(1) State agency approval. The
State agency must determine the eligibility of the afterschool care program
for each sponsored afterschool care
center based on the information submitted by the sponsoring organization
in accordance with §§ 226.6(b)(1) and
226.15(g) and the requirements of this
section. The State agency must determine the eligibility of the afterschool
care programs of independent afterschool care centers based on the information submitted by the independent
center in accordance with § 226.6(b)(1)
and the requirements of this section.
The State agency must determine the
area eligibility of independent at-risk
afterschool care centers in accordance
with
the
requirements
of
§ 226.6(f)(1)(ix)(B). An approved organization must enter into an agreement
with the State agency as described in
paragraph (f)(2) of this section.
(2) Agreement. The State agency must
enter into a permanent agreement with
an institution approved to operate one
or more at-risk afterschool care centers pursuant to § 226.6(b)(4). The agreement must describe the approved afterschool care program(s) and list the approved center(s). The agreement must
also require the institution to comply
with the applicable requirements of
this part.
(g) Application process in subsequent
years. To continue participating in the
249
VerDate Sep<11>2014
10:57 May 01, 2019
Jkt 247015
PO 00000
Frm 00259
Fmt 8010
Sfmt 8010
Q:\07\7V4.TXT
PC31
kpayne on VMOFRWIN702 with $$_JOB
§ 226.17a
7 CFR Ch. II (1–1–19 Edition)
Program, independent at-risk afterschool care centers or sponsoring organizations of at-risk afterschool care
centers must reapply at time intervals
required by the State agency, as described in § 226.6(b)(3) and (f)(2). Sponsoring organizations of at-risk afterschool care centers must provide area
eligibility data in compliance with the
provisions of § 226.15(g). In accordance
with § 226.6(f)(3)(ii), State agencies
must determine the area eligibility of
each independent at-risk afterschool
care center that is reapplying to participate in the Program.
(h) Changes to participating centers.
Independent at-risk afterschool care
centers or sponsors of at-risk afterschool care centers must advise the
State agency of any substantive
changes to the afterschool care program. Sponsoring organizations that
want to add new at-risk afterschool
care centers must provide the State
agency with the information sufficient
to demonstrate that the new centers
meet the requirements of this section.
(i) Area eligibility. Except for emergency shelters, at-risk afterschool care
centers must be located in an area described in paragraph (a) of the Eligible
area definition in § 226.2 and in paragraph (i)(1) of this section.
(1) Definition. An at-risk afterschool
care center is in an eligible area if it is
located in the attendance area of a
school in which at least 50 percent of
the enrolled children are certified eligible for free or reduced-price school
meals.
(2) Data used. Area eligibility determinations must be based on the total
number of children approved for free
and reduced-price school meals for the
preceding October, or another month
designated by the State agency that
administers the National School Lunch
Program (the NSLP State agency). If
the NSLP State agency chooses a
month other than October, it must do
so for the entire State.
(3) Frequency of area eligibility determinations. Area eligibility determinations are valid for five years. The State
agency may determine the date in the
fifth year in which the next five-year
cycle of area eligibility will begin. The
State agency must not routinely require redeterminations of area eligi-
bility based on updated school data
during the five-year period, except in
cases where the State agency has determined it is most efficient to incorporate area eligibility decisions into
the three-year application cycle. However, a sponsoring organization, the
State agency, or FNS may change the
determination of area eligibility if information becomes available indicating
that an at-risk afterschool care center
is no longer area eligible.
(j) Cost of at-risk afterschool snacks
and meals. All at-risk afterschool
snacks and at-risk afterschool meals
served under this section must be provided at no charge to participating
children.
(k) Limit on daily reimbursements. Only
one at-risk afterschool snack and, in
eligible States, one at-risk afterschool
meal per child per day may be claimed
for reimbursement. An at-risk afterschool care center that provides care to
a child under another component of the
Program during the same day may not
claim reimbursement for more than
two meals and one snack, or one meal
and two snacks, per child per day, including the at-risk afterschool snack
and the at-risk afterschool meal. All
meals and snacks must be claimed in
accordance with the requirements for
the applicable component of the Program.
(l) Meal pattern requirements for at-risk
afterschool snacks and at-risk afterschool
meals. At-risk afterschool snacks must
meet the meal pattern requirements
for snacks in § 226.20(b)(6) and/or (c)(4);
at-risk afterschool meals must meet
the meal pattern requirements for
meals in § 226.20(b)(6) and/or (c)(1),
(c)(2), or (c)(3).
(m) Time periods for snack and meal
services—(1) At-risk afterschool snacks.
When school is in session, the snack
must be served after the child’s school
day. With State agency approval, the
snack may be served at any time on
weekends and vacations during the regular school year. Afterschool snacks
may not be claimed during summer vacation, unless an at-risk afterschool
care center is located in the attendance
area of a school operating on a yearround calendar.
(2) At-risk afterschool meals. When
school is in session, the meal must be
250
VerDate Sep<11>2014
10:57 May 01, 2019
Jkt 247015
PO 00000
Frm 00260
Fmt 8010
Sfmt 8010
Q:\07\7V4.TXT
PC31
Food and Nutrition Service, USDA
§ 226.18
kpayne on VMOFRWIN702 with $$_JOB
served after the child’s school day.
With State agency approval, any one
meal may be served (breakfast, lunch,
or supper) per day on weekends and vacations during the regular school year.
Afterschool meals may not be claimed
during summer vacation, unless an atrisk afterschool care center is located
in the attendance area of a school operating on a year-round calendar.
(n) Reimbursement rates. At-risk afterschool snacks are reimbursed at the
free rate for snacks. At-risk afterschool meals are reimbursed at the respective free rates for breakfast, lunch,
or supper
(o) Recordkeeping requirements. In addition to the other records required by
this part, at-risk afterschool care centers must maintain:
(1) Daily attendance rosters, sign-in
sheets or, with State agency approval,
other methods which result in accurate
recording of daily attendance;
(2) The number of at-risk afterschool
snacks prepared or delivered for each
snack service and/or, in eligible States,
the number of at-risk afterschool
meals prepared or delivered for each
meal service;
(3) The number of at-risk afterschool
snacks served to participating children
for each snack service and/or, in eligible States, the number of at-risk afterschool meals served to participating
children for each meal service; and
(4) Menus for each at-risk afterschool
snack service and each at-risk afterschool meal service.
(p) Reporting requirements. In addition
to other reporting requirements under
this part, at-risk afterschool care centers must report the total number of
at-risk afterschool snacks and/or (in eligible States) the total number of atrisk afterschool meals served to eligible children based on daily attendance
rosters or sign-in sheets.
(q) Monitoring requirements. State
agencies must monitor independent
centers in accordance with § 226.6(m).
Sponsoring organizations of at-risk
afterschool care centers must monitor
their centers in accordance with
§ 226.16(d)(4).
[72 FR 41608, July 31, 2007, as amended at 75
FR 16328, Apr. 1, 2010; 78 FR 13451, Feb. 28,
2013]
§ 226.18
Day care home provisions.
(a) Day care homes shall have current Federal, State or local licensing
or approval to provide day care services to children. Day care homes which
cannot obtain their license because
they lack the funding to comply with
licensing standards may request a total
limit per home of $300 in administrative funds from a sponsoring organization to assist them in obtaining their
license. Day care homes that, at the
option of their sponsoring organization, receive administrative funds for
licensing-related expenses must complete documentation requested by their
sponsor as described in § 226.16(k) prior
to receiving any funds. The agreement
must be signed by the sponsoring organization and the provider and must include the provider’s full name, mailing
address, and date of birth. Day care
homes which are complying with applicable procedures to renew licensing or
approval may participate in the Program during the renewal process, unless the State agency has information
which indicates that renewal will be
denied. If licensing or approval is not
available, a day care home may participate in the Program if:
(1) It receives title XX funds for providing child care; or
(2) It demonstrates compliance with
CACFP child care standards or applicable State or local child care standards
to the State agency.
(b) Day care homes participating in
the program shall operate under the
auspices of a public or private nonprofit sponsoring organization. Sponsoring organizations shall enter into a
written permanent agreement with
each sponsored day care home which
specifies the rights and responsibilities
of both parties. Nothing in the preceding sentence shall be construed to
limit the ability of the sponsoring organization to suspend or terminate the
permanent agreement in accordance
with § 226.16(l). This agreement shall be
developed by the State agency, unless
the State agency elects, at the request
of the sponsor, to approve an agreement developed by the sponsor. At a
minimum, the agreement shall embody:
251
VerDate Sep<11>2014
10:57 May 01, 2019
Jkt 247015
PO 00000
Frm 00261
Fmt 8010
Sfmt 8010
Q:\07\7V4.TXT
PC31
kpayne on VMOFRWIN702 with $$_JOB
§ 226.18
7 CFR Ch. II (1–1–19 Edition)
(1) The right of the sponsoring organization, the State agency, the Department, and other State and Federal officials to make announced or unannounced reviews of the day care home’s
operations and to have access to its
meal service and records during normal
hours of operation.
(2) The responsibility of the sponsoring organization to require key
staff, as defined by the State agency,
to receive Program training prior to
the day care home’s participation in
the Program, and at least annually
thereafter, on content areas established by the State agency, and the responsibility of the day care home to
participate in that training;
(3) The responsibility of the day care
home to prepare and serve meals which
meet the meal patterns specified in
§ 226.20;
(4) The responsibility of the day care
home to maintain records of menus,
and of the number of meals, by type,
served to enrolled children;
(5) The responsibility of the day care
home to promptly inform the sponsoring organization about any change
in the number of children enrolled for
care or in its licensing or approval status;
(6) The meal types approved for reimbursement to the day care home by the
State agency;
(7) The right of the day care home to
receive in a timely manner the full
food service rate for each meal served
to enrolled children for which the sponsoring organization has received payment from the State agency. However,
if, with the home provider’s consent,
the sponsoring organization will incur
costs for the provision of program foodstuffs or meals in behalf of the home,
and subtract such costs from Program
payments to the home, the particulars
of this arrangement shall be specified
in the agreement. The sponsoring organization must not withhold Program
payments to any family day care home
for any other reason, except that the
sponsoring organization may withhold
from the provider any amounts that
the sponsoring organization has reason
to believe are invalid, due to the provider having submitted a false or erroneous meal count;
(8) The right of the sponsoring organization or the day care home to terminate the agreement for cause or, subject to stipulations by the State agency, convenience;
(9) A prohibition of any sponsoring
organization fee to the day care home
for its Program administrative services;
(10) If the State agency has approved
a time limit for submission of meal
records by day care homes, that time
limit shall be stated in the agreement;
(11) The responsibility of the sponsoring organization to inform tier II
day care homes of all of their options
for receiving reimbursement for meals
served to enrolled children. These options include: electing to have the
sponsoring organization attempt to
identify all income-eligible children
enrolled in the day care home, through
collection of free and reduced price applications and/or possession by the
sponsoring organization or day care
home of other proof of a child or household’s participation in a categorically
eligible program, and receiving tier I
rates of reimbursement for the meals
served to identified income-eligible
children; electing to have the sponsoring organization identify only those
children for whom the sponsoring organization or day care home possess documentation of the child or household’s
participation in a categorically eligible
program, under the expanded categorical eligibility provision contained in
§ 226.23(e)(1), and receiving tier I rates
of reimbursement for the meals served
to these children; or receiving tier II
rates of reimbursement for all meals
served to enrolled children;
(12) The responsibility of the sponsoring organization, upon the request
of a tier II day care home, to collect
applications and determine the eligibility of enrolled children for free or
reduced price meals;
(13) The State agency’s policy to restrict transfers of day care homes between sponsoring organizations;
(14) The responsibility of the day care
home to notify their sponsoring organization in advance whenever they are
planning to be out of their home during
the meal service period. The agreement
must also state that, if this procedure
252
VerDate Sep<11>2014
10:57 May 01, 2019
Jkt 247015
PO 00000
Frm 00262
Fmt 8010
Sfmt 8010
Q:\07\7V4.TXT
PC31
kpayne on VMOFRWIN702 with $$_JOB
Food and Nutrition Service, USDA
§ 226.19
is not followed and an unannounced review is conducted when the children
are not present in the day care home,
claims for meals that would have been
served during the unannounced review
will be disallowed;
(15) The day care home’s opportunity
to request an administrative review if
a sponsoring organization issues a notice of proposed termination of the day
care home’s Program agreement, or if a
sponsoring organization suspends participation due to health and safety concerns, in accordance with § 226.6(1)(2);
and
(16) If so instructed by its sponsoring
organization, the day care home’s responsibility to distribute to parents a
copy of the sponsoring organization’s
notice to parents.
(c) Each day care home must serve
one or more of the following meal
types—breakfast, lunch, supper, and
snack. Reimbursement may not be
claimed for more than two meals and
one snack, or one meal and two snacks,
provided daily to each child.
(d) Each day care home participating
in the program shall serve the meal
types specified in its approved application in accordance with the meal pattern requirements specified in § 226.20.
Menu records shall be maintained to
document compliance with these requirements. Meals shall be served at no
separate charge to enrolled children;
(e) Each day care home must maintain on file documentation of each
child’s enrollment and must maintain
daily records of the number of children
in attendance and the number of meals,
by type, served to enrolled children.
Such documentation of enrollment
must be updated annually, signed by a
parent or legal guardian, and include
information on each child’s normal
days and hours of care and the meals
normally received while in care. Each
tier II day care home in which the provider elects to have the sponsoring organization identify enrolled children
who are eligible for free or reduced
price meals, and in which the sponsoring organization employs a meal
counting and claiming system in accordance with § 226.13(d)(3)(i), shall
maintain and submit each month to
the sponsoring organization daily
records of the number and types of
meals served to each enrolled child by
name. Payment may be made for meals
served to the provider’s own children
only when (1) such children are enrolled and participating in the child
care program during the time of the
meal service, (2) enrolled nonresident
children are present and participating
in the child care program and (3) providers’ children are eligible to receive
free or reduced-price meals. Reimbursement may not be claimed for
meals served to children who are not
enrolled, or for meals served at any one
time to children in excess of the
home’s authorized capacity or for
meals served to providers’ children who
are not eligible for free or reducedprice meals.
(f) The State agency may not require
a day care home or sponsoring organization to maintain documentation of
home operating costs.
(g) Each day care home shall comply
with the recordkeeping requirements
established in § 226.10(d) and in this section. Failure to maintain such records
shall be grounds for the denial of reimbursement.
[47 FR 36527, Aug. 20, 1982]
EDITORIAL NOTE: For FEDERAL REGISTER citations affecting § 226.18, see the List of CFR
Sections Affected, which appears in the
Finding Aids section of the printed volume
and at www.govinfo.gov.
§ 226.19 Outside-school-hours care center provisions.
(a) Outside-school-hours care centers
may participate in the Program either
as independent centers or under the
auspices of a sponsoring organization;
Provided, however, That public and private nonprofit centers shall not be eligible to participate in the Program
under the auspices of a for-profit sponsoring organization. Outside-schoolhours care centers participating as
independent centers shall comply with
the provisions of § 226.15.
(b) All outside-school-hours care centers, independent or sponsored, shall
meet the following requirements:
(1) In accordance with § 226.6(d)(1), if
Federal, State or local licensing or approval is not otherwise required, outside-school-hours care centers must
meet State or local health and safety
standards. When State or local health
253
VerDate Sep<11>2014
10:57 May 01, 2019
Jkt 247015
PO 00000
Frm 00263
Fmt 8010
Sfmt 8010
Q:\07\7V4.TXT
PC31
kpayne on VMOFRWIN702 with $$_JOB
§ 226.19
7 CFR Ch. II (1–1–19 Edition)
and safety standards have not been established, State agencies are encouraged to work with appropriate State
and local officials to create such standards. Meeting these standards will remain a precondition for any outsideschool-hours care center’s eligibility
for CACFP nutrition benefits. In cases
where Federal, State or local licensing
or approval is required, outside-schoolhours care centers that are complying
with applicable procedures to renew licensing or approval may participate in
the Program during the renewal process, unless the State agency has information that indicates the renewal will
be denied.
(2) Except for for-profit centers, outside-school-hours care centers shall be
public, or have tax-exempt status
under the Internal Revenue Code of
1986.
(3) Nonresidential public or private
nonprofit schools which provide organized child care programs for school
children may participate in the Program as outside-school-hours care centers if:
(i) Children participate in a regularly
scheduled program that meets the criteria of paragraph (b)(1) of this section.
The program is organized for the purpose of providing services to children
and is distinct from any extracurricular programs organized primarily for scholastic, cultural, or athletic purposes; and
(ii) Separate Program records are
maintained.
(4) Outside-school-hours care centers
shall be eligible to serve one or more of
the following meal types: breakfasts,
snacks and suppers. In addition, outside-school-hours care centers shall be
eligible to serve lunches to enrolled
children during periods of school vacation, including weekends and holidays,
and to children attending schools
which do not offer a lunch program.
Notwithstanding the eligibility of outside-school-hours care centers to serve
Program meals to children on school
vacation, including holidays and weekends, such centers shall not operate
under the Program on weekends only.
(5) Each outside-school-hours care
center participating in the Program
shall claim only the meal types specified in its approved application and
served in compliance with the meal
pattern requirements of § 226.20. Reimbursement may not be claimed for
more than two meals and one snack
provided daily to each child or for
meals served to children at any one
time in excess of authorized capacity.
For-profit centers may not claim reimbursement for meals served to children
in any month in which less than 25 percent of the children in care (enrolled or
licensed capacity, whichever is less)
were eligible for free or reduced price
meals or were title XX beneficiaries.
(6) Each outside-school-hours care
center must require key operational
staff, as defined by the State agency,
to attend Program training prior to
the center’s participation in the Program, and at least annually thereafter,
on content areas established by the
State agency. Each meal service must
be supervised by an adequate number
of operational personnel who have been
trained in Program requirements as
outlined in this section. Operational
personnel must ensure that:
(i) Meals are served only to children
and to adults who perform necessary
food service labor;
(ii) Meals served to children meet the
meal pattern requirements specified in
§ 226.20;
(iii) Meals served are consumed on
the premises of the centers;
(iv) Accurate records are maintained;
and
(v) The number of meals prepared or
ordered is promptly adjusted on the
basis of participation trends.
(7) Each outside-school-hours care
center shall accurately maintain the
following records:
(i) Information used to determine eligibility for free or reduced price meals
in accordance with § 226.23(e)(1);
(ii) Number of meals prepared or delivered for each meal service;
(iii) Daily menu records for each
meal service;
(iv) Number of meals served to children at each meal service;
(v) Number of children in attendance
during each meal service;
(vi) Number of meals served to adults
performing necessary food service
labor for each meal service; and
254
VerDate Sep<11>2014
10:57 May 01, 2019
Jkt 247015
PO 00000
Frm 00264
Fmt 8010
Sfmt 8010
Q:\07\7V4.TXT
PC31
Food and Nutrition Service, USDA
§ 226.19a
(vii) All other records required by the
State agency financial management
system.
(8) An outside-school-hours care center may utilize existing school food
service facilities or obtain meals from
a school food service facility, and the
pertinent requirements of this part
shall be embodied in a written agreement between the outside-school-hours
care center and the school. The center
shall maintain responsibility for all
Program requirements set forth in this
part.
(c) Each outside-school-hours care
center shall comply with the recordkeeping requirements established in
§ 226.10(d), in paragraph (b) of this section and, if applicable, in § 226.15(e).
Failure to maintain such records shall
be grounds for the denial of reimbursement.
kpayne on VMOFRWIN702 with $$_JOB
[47 FR 36527, Aug. 20, 1982, as amended at 52
FR 36907, Oct. 2, 1987; 54 FR 26724, June 26,
1989; Amdt. 22, 55 FR 1378, Jan. 14, 1990; 56 FR
58175, Nov. 16, 1991; 61 FR 25554, May 22, 1996;
62 FR 23619, May 1, 1997; 64 FR 72261, Dec. 27,
1999; 67 FR 43493, June 27, 2002; 69 FR 53546,
Sept. 1, 2004; 70 FR 43262, July 27, 2005; 72 FR
41603, 41610, July 31, 2007]
§ 226.19a Adult day care center provisions.
(a) Adult day care centers may participate in the Program either as independent centers or under the auspices
of a sponsoring organization; provided,
however, that public and private nonprofit centers shall not be eligible to
participate in the Program under the
auspices of a for-profit sponsoring organization. Adult day care centers participating as independent centers shall
comply with the provisions of § 226.15.
(b) All adult day care centers, independent or sponsored, shall meet the
following requirements:
(1) Adult day care centers shall provide a community-based group program
designed to meet the needs of functionally impaired adults through an individual plan of care. Such a program
shall be a structured, comprehensive
program that provides a variety of
health, social and related support services to enrolled adult participants.
(2) Adult day care centers shall provide care and services directly or under
arrangements made by the agency or
organization whereby the agency or or-
ganization
maintains
professional
management responsibility for all such
services.
(3) Adult day care centers shall have
Federal, State or local licensing or approval to provide day care services to
functionally impaired adults (as defined in § 226.2) or individuals 60 years
of age or older in a group setting outside their home or a group living arrangement on a less than 24-hour basis.
Adult day care centers which are complying with applicable procedures to
renew licensing or approval may participate in the Program during the renewal process, unless the State agency
has information which indicates that
renewal will be denied.
(4) Except for for-profit centers, adult
day care centers shall be public, or
have tax-exempt status under the Internal Revenue Code of 1986.
(5) Each adult day care center participating in the Program must serve
one or more of the following meal
types—breakfast, lunch, supper, and
snack. Reimbursement may not be
claimed for more than two meals and
one snack, or one snack and two meals,
provided daily to each adult participant.
(6) Each adult day care center participating in the Program shall claim
only the meal types specified in its approved application in accordance with
the meal pattern requirements specified in § 226.20. Participating centers
may not claim CACFP reimbursement
for meals claimed under part C of title
III of the Older Americans Act of 1965.
Reimbursement may not be claimed for
meals served to persons who are not
enrolled, or for meals served to participants at any one time in excess of the
center’s authorized capacity, or for any
meal served at a for-profit center during a calendar month when less than 25
percent of enrolled participants were
title XIX or title XX beneficiaries.
Menus and any other nutritional
records required by the State agency
shall be maintained to document compliance with such requirements.
(7) An adult day care center may obtain meals from a school food service
facility, and the pertinent requirements of this part shall be embodied in
255
VerDate Sep<11>2014
10:57 May 01, 2019
Jkt 247015
PO 00000
Frm 00265
Fmt 8010
Sfmt 8010
Q:\07\7V4.TXT
PC31
§ 226.20
7 CFR Ch. II (1–1–19 Edition)
kpayne on VMOFRWIN702 with $$_JOB
a written agreement between the center and school. The center shall maintain responsibility for all Program requirements set forth in this part.
(8) Adult day care centers shall collect and maintain documentation of
the enrollment of each adult participant including information used to determine eligibility for free and reduced
price meals in accordance with
§ 226.23(e)(1).
(9) Each adult day care center must
maintain daily records of time of service meal counts by type (breakfast,
lunch, supper, and snacks) served to
enrolled participants, and to adults
performing labor necessary to the food
service.
(10) Each adult day care center shall
maintain records on the age of each enrolled person. In addition, each adult
day care center shall maintain records
which demonstrate that each enrolled
person under the age of 60 meets the
functional impairment eligibility requirements established under the definition of ‘‘functionally impaired adult’’
contained in this part. Finally, each
adult day care center shall maintain
records which document that qualified
adult day care participants reside in
their own homes (whether alone or
with spouses, children or guardians) or
in group living arrangements as defined in § 226.2.
(11) Each adult day care center must
require key operational staff, as defined by the State agency, to attend
Program training prior to the facility’s
participation in the Program, and at
least annually thereafter, on content
areas established by the State agency.
Each meal service must be supervised
by an adequate number of operational
personnel who have been trained in
Program requirements as outlined in
this section.
(c) Each adult day care center shall
comply with the recordkeeping requirements established in § 226.10(d), in
paragraph (b) of this section and, if applicable, in § 226.15(e). Failure to main-
tain such records shall be grounds for
the denial of reimbursement.
[53 FR 52591, Dec. 28, 1988, as amended by
Amdt. 22, 55 FR 1378, Jan. 14, 1990; 61 FR
25554, May 22, 1996; 62 FR 23619, May 1, 1997;
64 FR 72261, Dec. 27, 1999; 67 FR 43493, June
27, 2002; 69 FR 53546, Sept. 1, 2004; 72 FR 41610,
July 31, 2007]
§ 226.20 Requirements for meals.
(a) Food components. Except as otherwise provided in this section, each
meal served in the Program must contain, at a minimum, the indicated food
components:
(1) Fluid milk. Fluid milk must be
served as a beverage or on cereal, or a
combination of both, as follows:
(i) Children 1 year old. Children one
year of age must be served unflavored
whole milk.
(ii) Children 2 through 5 years old.
Children two through five years old
must be served either unflavored lowfat (1 percent) or unflavored fat-free
(skim) milk.
(iii) Children 6 years old and older.
Children six years old and older must
be served milk that is low-fat (1 percent fat or less) or fat-free (skim). Milk
may be unflavored or flavored from
July 1, 2018, through June 30, 2019
(school year 2018–2019).
(iv) Adults. Adults must be served
milk that is low-fat (1 percent fat or
less) or fat-free (skim). Milk may be
unflavored or flavored from July 1,
2018, through June 30, 2019 (school year
2018–2019). Six ounces (weight) or 3⁄4 cup
(volume) of yogurt may be used to fulfill the equivalent of 8 ounces of fluid
milk once per day. Yogurt may be
counted as either a fluid milk substitute or as a meat alternate, but not
as both in the same meal.
(2) Vegetables. A serving may contain
fresh, frozen, or canned vegetables, dry
beans and peas (legumes), or vegetable
juice. All vegetables are credited based
on their volume as served, except that
1 cup of leafy greens counts as 1⁄2 cup of
vegetables.
(i) Pasteurized, full-strength vegetable juice may be used to fulfill the
entire requirement. Vegetable juice or
fruit juice may only be served at one
meal, including snack, per day.
(ii) Cooked dry beans or dry peas may
be counted as either a vegetable or as
256
VerDate Sep<11>2014
10:57 May 01, 2019
Jkt 247015
PO 00000
Frm 00266
Fmt 8010
Sfmt 8010
Q:\07\7V4.TXT
PC31
kpayne on VMOFRWIN702 with $$_JOB
Food and Nutrition Service, USDA
§ 226.20
a meat alternate, but not as both in
the same meal.
(3) Fruits. A serving may contain
fresh, frozen, canned, dried fruits, or
fruit juice. All fruits are based on their
volume as served, except that 1⁄4 cup of
dried fruit counts as 1⁄2 cup of fruit.
(i) Pasteurized, full-strength fruit
juice may be used to fulfill the entire
requirement. Fruit juice or vegetable
juice may only be served at one meal,
including snack, per day.
(ii) A vegetable may be used to meet
the entire fruit requirement at lunch
and supper. When two vegetables are
served at lunch or supper, two different
kinds of vegetables must be served.
(4) Grains—(i) Enriched and whole
grains. All grains must be made with
enriched or whole grain meal or flour.
(A) At least one serving per day,
across all eating occasions of bread, cereals, and grains, must be whole grainrich. Whole grain-rich foods contain at
least 50 percent whole grains and the
remaining grains in the food are enriched, and must meet the whole grainrich criteria specified in FNS guidance.
(B) A serving may contain whole
grain-rich or enriched bread, cornbread, biscuits, rolls, muffins, and
other bread products; or whole grainrich, enriched, or fortified cereal grain,
cooked pasta or noodle products, or
breakfast cereal; or any combination of
these foods.
(ii) Breakfast cereals. Breakfast cereals are those as defined by the Food
and Drug Administration in 21 CFR
170.3(n)(4) for ready-to-eat and instant
and regular hot cereals. Breakfast cereals must contain no more than 6 grams
of sugar per dry ounce (no more than
21.2 grams sucrose and other sugars per
100 grams of dry cereal).
(iii) Desserts. Grain-based desserts do
not count towards meeting the grains
requirement.
(5) Meat and meat alternates. (i) Meat
and meat alternates must be served in
a main dish, or in a main dish and one
other menu item. The creditable quantity of meat and meat alternates must
be the edible portion as served of:
(A) Lean meat, poultry, or fish;
(B) Alternate protein products;
(C) Cheese, or an egg;
(D) Cooked dry beans or peas;
(E) Peanut butter; or
(F) Any combination of these foods.
(ii) Nuts and seeds. Nuts and seeds and
their butters are allowed as meat alternates in accordance with FNS guidance. For lunch and supper meals, nuts
or seeds may be used to meet one-half
of the meat and meat alternate component. They must be combined with
other meat and meat alternates to
meet the full requirement for a reimbursable lunch or supper.
(A) Nut and seed meals or flours may
be used only if they meet the requirements for alternate protein products
established in appendix A of this part.
(B) Acorns, chestnuts, and coconuts
cannot be used as meat alternates because of their low protein and iron content.
(iii) Yogurt. Four ounces (weight) or
1⁄2 cup (volume) of yogurt equals one
ounce of the meat and meat alternate
component. Yogurt may be used to
meet all or part of the meat and meat
alternate component as follows:
(A) Yogurt may be plain or flavored,
unsweetened, or sweetened;
(B) Yogurt must contain no more
than 23 grams of total sugars per 6
ounces;
(C) Noncommercial or commercial
standardized yogurt products, such as
frozen yogurt, drinkable yogurt products, homemade yogurt, yogurt flavored products, yogurt bars, yogurt
covered fruits or nuts, or similar products are not creditable; and
(D) For adults, yogurt may only be
used as a meat alternate when it is not
also being used as a fluid milk substitute in the same meal.
(iv) Tofu and soy products. Commercial tofu and soy products may be used
to meet all or part of the meat and
meat alternate component in accordance with FNS guidance and appendix
A of this part. Non-commercial and
non-standardized tofu and soy products
cannot be used.
(v) Beans and peas (legumes). Cooked
dry beans and peas may be used to
meet all or part of the meat and meat
alternate component. Beans and peas
include black beans, garbanzo beans,
lentils, kidney beans, mature lima
beans, navy beans, pinto beans, and
split peas. Beans and peas may be
counted as either a meat alternate or
257
VerDate Sep<11>2014
10:57 May 01, 2019
Jkt 247015
PO 00000
Frm 00267
Fmt 8010
Sfmt 8010
Q:\07\7V4.TXT
PC31
kpayne on VMOFRWIN702 with $$_JOB
§ 226.20
7 CFR Ch. II (1–1–19 Edition)
as a vegetable, but not as both in the
same meal.
(vi) Other meat alternates. Other meat
alternates, such as cheese, eggs, and
nut butters may be used to meet all or
part of the meat and meat alternate
component.
(b) Infant meals—(1) Feeding infants.
Foods in reimbursable meals served to
infants ages birth through 11 months
must be of a texture and a consistency
that are appropriate for the age and development of the infant being fed.
Foods must also be served during a
span of time consistent with the infant’s eating habits.
(2) Breastmilk and iron-fortified formula. Breastmilk or iron-fortified infant formula, or portions of both, must
be served to infants birth through 11
months of age. An institution or facility must offer at least one type of ironfortified infant formula. Meals containing breastmilk or iron-fortified infant formula supplied by the institution or facility, or by the parent or
guardian, are eligible for reimbursement.
(i) Parent or guardian provided
breastmilk or iron-fortified formula. A
parent or guardian may choose to accept the offered formula, or decline the
offered formula and supply expressed
breastmilk or an iron-fortified infant
formula instead. Meals in which a
mother directly breastfeeds her child
at the child care institution or facility
are also eligible for reimbursement.
When a parent or guardian chooses to
provide breastmilk or iron-fortified infant formula and the infant is consuming solid foods, the institution or
facility must supply all other required
meal components in order for the meal
to be reimbursable.
(ii) Breastfed infants. For some
breastfed infants who regularly consume less than the minimum amount
of breastmilk per feeding, a serving of
less than the minimum amount of
breastmilk may be offered. In these situations, additional breastmilk must be
offered at a later time if the infant will
consume more.
(3) Solid foods. The gradual introduction of solid foods may begin at six
months of age, or before or after six
months of age if it is developmentally
appropriate for the infant and in accordance with FNS guidance.
(4) Infant meal pattern. Infant meals
must have, at a minimum, each of the
food components indicated, in the
amount that is appropriate for the infant’s age.
(i) Birth through 5 months—(A) Breakfast. Four to 6 fluid ounces of
breastmilk or iron-fortified infant formula, or portions of both.
(B) Lunch or supper. Four to 6 fluid
ounces of breastmilk or iron-fortified
infant formula, or portions of both.
(C) Snack. Four to 6 fluid ounces of
breastmilk or iron-fortified infant formula, or portions of both.
(ii) 6 through 11 months. Breastmilk
or iron-fortified formula, or portions of
both, is required. Meals are reimbursable when institutions and facilities
provide all the components in the meal
pattern that the infant is developmentally ready to accept.
(A) Breakfast, lunch, or supper. Six to
8 fluid ounces of breastmilk or iron-fortified infant formula, or portions of
both; and 0 to 4 tablespoons of iron-fortified dry infant cereal, meat, fish,
poultry, whole egg, cooked dry beans,
or cooked dry peas; or 0 to 2 ounces
(weight) of cheese; or 0 to 4 ounces (volume) of cottage cheese; or 0 to 4 ounces
of yogurt; and 0 to 2 tablespoons of vegetable, fruit, or portions of both. Fruit
juices and vegetable juices must not be
served.
(B) Snack. Two to 4 fluid ounces of
breastmilk or iron-fortified infant formula; and 0 to 1⁄2 slice bread; or 0–2
crackers; or 0–4 tablespoons infant cereal or ready-to-eat cereals; and 0 to 2
tablespoons of vegetable or fruit, or
portions of both. Fruit juices and vegetable juices must not be served. A serving of grains must be whole grain-rich,
enriched meal, or enriched flour.
(5) Infant meal pattern table. The minimum amounts of food components to
serve to infants, as described in paragraph (b)(4) of this section, are:
258
VerDate Sep<11>2014
10:57 May 01, 2019
Jkt 247015
PO 00000
Frm 00268
Fmt 8010
Sfmt 8010
Q:\07\7V4.TXT
PC31
§ 226.20
(c) Meal patterns for children age 1
through 18 and adult participants. Institutions and facilities must serve the
food components and quantities speci-
fied in the following meal patterns for
children and adult participants in
order to qualify for reimbursement.
259
VerDate Sep<11>2014
10:57 May 01, 2019
Jkt 247015
PO 00000
Frm 00269
Fmt 8010
Sfmt 8010
Q:\07\7V4.TXT
PC31
ER01NO16.146
kpayne on VMOFRWIN702 with $$_JOB
Food and Nutrition Service, USDA
§ 226.20
7 CFR Ch. II (1–1–19 Edition)
kpayne on VMOFRWIN702 with $$_JOB
(1) Breakfast. Fluid milk, vegetables
or fruit, or portions of both, and grains
are required components of the breakfast meal. Meat and meat alternates
may be used to meet the entire grains
requirement a maximum of three times
per week. The minimum amounts of
food components to be served at breakfast are as follows:
260
VerDate Sep<11>2014
10:57 May 01, 2019
Jkt 247015
PO 00000
Frm 00270
Fmt 8010
Sfmt 8010
Q:\07\7V4.TXT
PC31
§ 226.20
261
VerDate Sep<11>2014
10:57 May 01, 2019
Jkt 247015
PO 00000
Frm 00271
Fmt 8010
Sfmt 8006
Q:\07\7V4.TXT
PC31
ER30NO17.000
kpayne on VMOFRWIN702 with $$_JOB
Food and Nutrition Service, USDA
§ 226.20
7 CFR Ch. II (1–1–19 Edition)
The minimum amounts of food components to be served at lunch and supper
are as follows:
262
VerDate Sep<11>2014
10:57 May 01, 2019
Jkt 247015
PO 00000
Frm 00272
Fmt 8010
Sfmt 8010
Q:\07\7V4.TXT
PC31
ER30NO17.001
kpayne on VMOFRWIN702 with $$_JOB
(2) Lunch and supper. Fluid milk,
meat and meat alternates, vegetables,
fruits, and grains are required components in the lunch and supper meals.
§ 226.20
263
VerDate Sep<11>2014
10:57 May 01, 2019
Jkt 247015
PO 00000
Frm 00273
Fmt 8010
Sfmt 8006
Q:\07\7V4.TXT
PC31
ER30NO17.002
kpayne on VMOFRWIN702 with $$_JOB
Food and Nutrition Service, USDA
§ 226.20
7 CFR Ch. II (1–1–19 Edition)
milk may comprise only one component of the snack. The minimum
amounts of food components to be
served at snacks are as follows:
264
VerDate Sep<11>2014
10:57 May 01, 2019
Jkt 247015
PO 00000
Frm 00274
Fmt 8010
Sfmt 8010
Q:\07\7V4.TXT
PC31
ER30NO17.003
kpayne on VMOFRWIN702 with $$_JOB
(3) Snack. Serve two of the following
five components: Fluid milk, meat and
meat alternates, vegetables, fruits, and
grains. Fruit juice, vegetable juice, and
§ 226.20
265
VerDate Sep<11>2014
10:57 May 01, 2019
Jkt 247015
PO 00000
Frm 00275
Fmt 8010
Sfmt 8006
Q:\07\7V4.TXT
PC31
ER30NO17.004
kpayne on VMOFRWIN702 with $$_JOB
Food and Nutrition Service, USDA
7 CFR Ch. II (1–1–19 Edition)
(d) Food preparation. Deep-fat fried
foods that are prepared on-site cannot
be part of the reimbursable meal. For
this purpose, deep-fat frying means
cooking by submerging food in hot oil
or other fat. Foods that are pre-fried,
flash-fried, or par-fried by a commercial manufacturer may be served, but
must be reheated by a method other
than frying.
(e) Unavailability of fluid milk—(1)
Temporary. When emergency conditions
prevent an institution or facility normally having a supply of milk from
temporarily obtaining milk deliveries,
the State agency may approve the
service of breakfast, lunches, or suppers without milk during the emergency period.
(2) Continuing. When an institution or
facility is unable to obtain a supply of
milk on a continuing basis, the State
agency may approve service of meals
without milk, provided an equivalent
266
VerDate Sep<11>2014
10:57 May 01, 2019
Jkt 247015
PO 00000
Frm 00276
Fmt 8010
Sfmt 8010
Q:\07\7V4.TXT
PC31
ER30NO17.005
kpayne on VMOFRWIN702 with $$_JOB
§ 226.20
kpayne on VMOFRWIN702 with $$_JOB
Food and Nutrition Service, USDA
§ 226.20
amount of canned, whole dry or fat-free
dry milk is used in the preparation of
the components of the meal set forth in
paragraph (a) of this section.
(f) Statewide substitutions. In American Samoa, Puerto Rico, Guam, and
the Virgin Islands, the following variations from the meal requirements are
authorized: a serving of starchy vegetable, such as yams, plantains, or
sweet potatoes, may be substituted for
the grains requirement.
(g) Exceptions and variations in reimbursable meals—(1) Exceptions for disability reasons. Reasonable substitutions must be made on a case-by-case
basis for foods and meals described in
paragraphs (a), (b), and (c) of this section for individual participants who are
considered to have a disability under 7
CFR 15b.3 and whose disability restricts their diet.
(i) A written statement must support
the need for the substitution. The
statement must include recommended
alternate foods, unless otherwise exempted by FNS, and must be signed by
a licensed physician or licensed health
care professional who is authorized by
State law to write medical prescriptions.
(ii) A parent, guardian, adult participant, or a person on behalf of an adult
participant may supply one or more
components of the reimbursable meal
as long as the institution or facility
provides at least one required meal
component.
(2) Exceptions for non-disability reasons. Substitutions may be made on a
case-by-case basis for foods and meals
described in paragraphs (a), (b), and (c)
of this section for individual participants without disabilities who cannot
consume the regular meal because of
medical or special dietary needs.
(i) A written statement must support
the need for the substitution. The
statement must include recommended
alternate foods, unless otherwise exempted by FNS. Except for substitutions of fluid milk, as set forth
below, the statement must be signed by
a recognized medical authority.
(ii) A parent, guardian, adult participant, or a person on behalf of an adult
participant may supply one component
of the reimbursable meal as long as the
component meets the requirements de-
scribed in paragraphs (a), (b), and (c) of
this section and the institution or facility provides the remaining components.
(3) Fluid milk substitutions for non-disability reasons. Non-dairy fluid milk
substitutions that provide the nutrients listed in the following table and
are fortified in accordance with fortification guidelines issued by the Food
and Drug Administration may be provided for non-disabled children and
adults who cannot consume fluid milk
due to medical or special dietary needs
when requested in writing by the
child’s parent or guardian, or by, or on
behalf of, an adult participant. An institution or facility need only offer the
non-dairy beverage that it has identified as an allowable fluid milk substitute according to the following
table.
Nutrient
Calcium ..................................
Protein ...................................
Vitamin A ...............................
Vitamin D ...............................
Magnesium ............................
Phosphorus ............................
Potassium ..............................
Riboflavin ...............................
Vitamin B–12 .........................
Per cup (8 fl oz)
276 mg.
8 g.
500 IU.
100 IU.
24 mg.
222 mg.
349 mg.
0.44 mg.
1.1 mcg.
(h) Special variations. FNS may approve variations in the food components of the meals on an experimental
or continuing basis in any institution
or facility where there is evidence that
such variations are nutritionally sound
and are necessary to meet ethnic, religious, economic, or physical needs.
(i) Meals prepared in schools. The
State agency must allow institutions
and facilities which serve meals to
children 5 years old and older and are
prepared in schools participating in the
National School Lunch and School
Breakfast Programs to substitute the
meal pattern requirements of the regulations governing those Programs (7
CFR parts 210 and 220, respectively) for
the meal pattern requirements contained in this section.
(j) Meal planning. Institutions and facilities must plan for and order meals
on the basis of current participant
trends, with the objective of providing
only one meal per participant at each
meal service. Records of participation
and of ordering or preparing meals
267
VerDate Sep<11>2014
10:57 May 01, 2019
Jkt 247015
PO 00000
Frm 00277
Fmt 8010
Sfmt 8010
Q:\07\7V4.TXT
PC31
kpayne on VMOFRWIN702 with $$_JOB
§ 226.20, Nt.
7 CFR Ch. II (1–1–19 Edition)
must be maintained to demonstrate
positive action toward this objective.
In recognition of the fluctuation in
participation levels which makes it difficult to estimate precisely the number
of meals needed and to reduce the resultant waste, any excess meals that
are ordered may be served to participants and may be claimed for reimbursement, unless the State agency determines that the institution or facility has failed to plan and prepare or
order meals with the objective of providing only one meal per participant at
each meal service.
(k) Time of meal service. State agencies may require any institution or facility to allow a specific amount of
time to elapse between meal services
or require that meal services not exceed a specified duration.
(l) Sanitation. Institutions and facilities must ensure that in storing, preparing, and serving food proper sanitation and health standards are met
which conform with all applicable
State and local laws and regulations.
Institutions and facilities must ensure
that adequate facilities are available
to store food or hold meals.
(m) Donated commodities. Institutions
and facilities must efficiently use in
the Program any foods donated by the
Department and accepted by the institution or facility.
(n) Family style meal service. Family
style is a type of meal service which allows children and adults to serve themselves from common platters of food
with the assistance of supervising
adults. Institutions and facilities
choosing to exercise this option must
be in compliance with the following
practices:
(1) A sufficient amount of prepared
food must be placed on each table to
provide the full required portions of
each of the components, as outlined in
paragraphs (c)(1) and (2) of this section,
for all children or adults at the table
and to accommodate supervising adults
if they wish to eat with the children
and adults.
(2) Children and adults must be allowed to serve the food components
themselves, with the exception of
fluids (such as milk). During the course
of the meal, it is the responsibility of
the supervising adults to actively en-
courage each child and adult to serve
themselves the full required portion of
each food component of the meal pattern. Supervising adults who choose to
serve the fluids directly to the children
or adults must serve the required minimum quantity to each child or adult.
(3) Institutions and facilities which
use family style meal service may not
claim second meals for reimbursement.
(o) Offer versus serve. (1) Each adult
day care center and at-risk afterschool
program must offer its participants all
of the required food servings as set
forth in paragraphs (c)(1) and (c)(2) of
this section. However, at the discretion
of the adult day care center or at-risk
afterschool program, participants may
be permitted to decline:
(i) For adults. (A) One of the four food
items required at breakfast (one serving of fluid milk; one serving of vegetable or fruit, or a combination of
both; and two servings of grains, or
meat or meat alternates);
(B) Two of the five food components
required at lunch (fluid milk; vegetables; fruit; grain; and meat or meat alternate); and
(C) One of the four food components
required at supper (vegetables; fruit;
grain; and meat or meat alternate).
(ii) For children. Two of the five food
components required at supper (fluid
milk; vegetables; fruit; grain; and meat
or meat alternate).
(2) In pricing programs, the price of
the reimbursable meal must not be affected if a participant declines a food
item.
(p) Prohibition on using foods and beverages as punishments or rewards. Meals
served under this part must contribute
to the development and socialization of
children. Institutions and facilities
must not use foods and beverages as
punishments or rewards.
[81 FR 24377, Apr. 25, 2016, as amended at 81
FR 75677, Nov. 1, 2016; 83 FR 56716, Nov. 30,
2017]
EFFECTIVE DATE NOTE: At 83 FR 63791, Dec.
12, 2018. § 226.20 was amended in paragraphs
(a)(1)(iii) and (iv), by removing the words
‘‘from July 1, 2018, through June 30, 2019
(school year 2018–2019)’’, and by revising the
tables in paragraphs (c)(1) through (3), effective Feb. 11, 2019. For the convenience of the
user, the revised text is set forth as follows:
268
VerDate Sep<11>2014
10:57 May 01, 2019
Jkt 247015
PO 00000
Frm 00278
Fmt 8010
Sfmt 8003
Q:\07\7V4.TXT
PC31
Food and Nutrition Service, USDA
§ 226.20
§ 226.20, Nt.
Requirements for meals.
*
*
*
*
(c) * * *
(1) * * *
*
CHILD AND ADULT CARE FOOD PROGRAM—BREAKFAST
Minimum quantities
Food components and food items 1
Ages 1–2
Ages 3–5
Ages 6–12
Ages 13–
18 2
(at-risk
afterschool
programs
and emergency
shelters)
Adult participants
Select the Appropriate Components for a Reimbursable Meal
Fluid
Milk 3
.............................................
Vegetables, fruits, or portions of both 4
Grains (oz eq): 5 6 7
Whole grain-rich or enriched
bread.
Whole grain-rich or enriched
bread product, such as biscuit, roll, or muffin.
Whole grain-rich, enriched, or
fortified cooked breakfast
cereal 8, cereal grain, and/or
pasta.
Whole grain-rich, enriched or
fortified ready-to-eat breakfast cereal (dry, cold) 8 9.
Flakes or rounds ......
Puffed cereal ............
Granola .....................
4 fluid
ounces.
1⁄4 cup .......
...................
1⁄2 slice ......
6 fluid
ounces.
1⁄2 cup .......
...................
1⁄2 slice ......
8 fluid
ounces.
1⁄2 cup .......
.
1 slice .......
8 fluid
ounces.
1⁄2 cup .......
1 slice .......
2 slices.
⁄ serving
1 serving ...
1 serving ...
2 servings.
⁄ cup .......
⁄ serving
12
14
⁄ cup .......
14
12
...................
...................
.
12
⁄ cup .......
⁄ cup .......
1⁄8 cup .......
12
34
34
12
⁄ cup .......
⁄ cup .......
⁄ cup .......
18
⁄ cup .......
1 cup .........
11⁄4 cup .....
1⁄4 cup .......
⁄ cup .......
8 fluid ounces.
⁄ cup.
12
12
1 cup.
1 cup .........
11⁄4 cup .....
1⁄4 cup .......
2 cups.
21⁄2 cup.
1⁄2 cup.
Endnotes:
1 Must serve all three components for a reimbursable meal. Offer versus serve is an option for at-risk afterschool participants.
2 Larger portion sizes than specified may need to be served to children 13 through 18 years old to meet their nutritional needs.
3 Must be unflavored whole milk for children age one. Must be unflavored low-fat (1 percent fat or less) or unflavored fat-free
(skim) milk for children two through five years old. Must be low-fat (1 percent fat or less) or fat-free (skim) milk for children six
years old and older and adults, and may be unflavored or flavored. For adult participants, 6 ounces (weight) or 3⁄4 cup (volume)
of yogurt may be used to meet the equivalent of 8 ounces of fluid milk once per day when yogurt is not served as a meat alternate in the same meal.
4 Pasteurized full-strength juice may only be used to meet the vegetable or fruit requirement at one meal, including snack, per
day.
5 At least one serving per day, across all eating occasions, must be whole grain-rich. Grain-based desserts do not count towards meeting the grains requirement.
6 Meat and meat alternates may be used to meet the entire grains requirement a maximum of three times a week. One ounce
of meat and meat alternates is equal to one ounce equivalent of grains.
7 Beginning October 1, 2019, ounce equivalents are used to determine the quantity of creditable grains.
8 Breakfast cereals must contain no more than 6 grams of sugar per dry ounce (no more than 21.2 grams sucrose and other
sugars per 100 grams of dry cereal).
9 Beginning October 1, 2019, the minimum serving size specified in this section for ready-to-eat breakfast cereals must be
served. Until October 1, 2019, the minimum serving size for any type of ready-to-eat breakfast cereal is 1⁄4 cup for children ages
1–2; 1⁄3 cup for children ages 3–5; 3⁄4 cup for children ages 6–12, and 1 1⁄2 cups for adult participants.
(2) * * *
CHILD AND ADULT CARE FOOD PROGRAM—LUNCH AND SUPPER
Minimum quantities
Food components and food
items 1
kpayne on VMOFRWIN702 with $$_JOB
Ages 1–2
Ages 3–5
Ages 6–12
Ages 13–
18 2
(at-risk
afterschool
programs
and emergency
shelters)
Adult participants
Select the Appropriate Components for a Reimbursable Meal
Fluid Milk 3 .............................................
4 fluid
ounces.
6 fluid
ounces.
8 fluid
ounces.
8 fluid
ounces.
8 fluid ounces. 4
269
VerDate Sep<11>2014
10:57 May 01, 2019
Jkt 247015
PO 00000
Frm 00279
Fmt 8010
Sfmt 8003
Q:\07\7V4.TXT
PC31
§ 226.20, Nt.
7 CFR Ch. II (1–1–19 Edition)
CHILD AND ADULT CARE FOOD PROGRAM—LUNCH AND SUPPER—Continued
Minimum quantities
Food components and food items 1
kpayne on VMOFRWIN702 with $$_JOB
Meat/meat alternates (edible portion as
served):
Lean meat, poultry, or fish .....
Tofu, soy products, or alternate protein products 5.
Cheese ...................................
Large egg ...............................
Cooked dry beans or peas .....
Peanut butter or soy nut butter or other nut or seed butters.
Yogurt, plain or flavored unsweetened or sweetened 6.
The following may be used to
meet no more than 50% of
the requirement:
Peanuts, soy nuts,
tree nuts, or seeds,
as listed in program guidance, or
an
equivalent
quantity of any
combination of the
above meat/meat
alternates (1 ounce
of nuts/seeds = 1
ounce of cooked
lean meat, poultry,
or fish).
Vegetables 7 ..........................................
Fruits 7 8
Grains (oz eq): 9 10
Whole grain-rich or enriched
bread.
Whole grain-rich or enriched
bread product, such as biscuit, roll, or muffin.
Whole grain-rich, enriched, or
fortified cooked breakfast
cereal11, cereal grain, and/
or pasta.
Ages 1–2
Ages 3–5
...................
...................
.
1 ounce .....
1 ounce .....
1 ⁄ ounces
11⁄2 ounces
2 ounces ...
2 ounces ...
2 ounces ...
2 ounces ...
2 ounces.
2 ounces.
1 ounce .....
1⁄2 ..............
1⁄4 cup .......
2 Tbsp ......
11⁄2 ounces
3⁄4 ..............
3⁄8 cup .......
3 Tbsp ......
2 ounces ...
1 ................
1⁄2 cup .......
4 Tbsp ......
2 ounces ...
1 ................
1⁄2 cup .......
4 Tbsp ......
2 ounces.
1.
1⁄2 cup.
4 Tbsp.
4 ounces or
1⁄2 cup.
6 ounces or
3⁄4 cup.
8 ounces or
1 cup.
8 ounces or
1 cup.
8 ounces or 1 cup.
1 ounce =
50%.
1 ounce = 50%.
12
⁄ ounce =
50%.
Ages 6–12
Ages 13–
18 2
(at-risk
afterschool
programs
and emergency
shelters)
Adult participants
12
⁄ ounce =
50%.
34
1 ounce =
50%.
18
⁄ cup .......
⁄ cup .......
...................
1⁄2 slice ......
14
⁄ cup .......
⁄ cup .......
...................
1⁄2 slice ......
12
12
12
18
14
14
14
12
.
1 slice .......
1 slice .......
2 slices.
⁄ serving
1 serving ...
1 serving ...
2 servings.
⁄ cup .......
12
⁄ serving
12
⁄ cup .......
14
12
14
⁄ cup .......
⁄ cup .......
⁄ cup .......
⁄ cup .......
⁄ cup .......
⁄ cup .......
12
⁄ cup.
⁄ cup.
1 cup.
Endnotes:
1 Must serve all five components for a reimbursable meal. Offer versus serve is an option for at-risk afterschool and adult participants.
2 Larger portion sizes than specified may need to be served to children 13 through 18 years old to meet their nutritional needs.
3 Must be unflavored whole milk for children age one. Must be unflavored low-fat (1 percent fat or less) or unflavored fat-free
(skim) milk for children two through five years old. Must be low-fat (1 percent fat or less) or fat-free (skim) milk for children six
years old and older and adults, and may be unflavored or flavored. For adult participants, 6 ounces (weight) or 3⁄4 cup (volume)
of yogurt may be used to meet the equivalent of 8 ounces of fluid milk once per day when yogurt is not served as a meat alternate in the same meal.
4 A serving of fluid milk is optional for suppers served to adult participants.
5 Alternate protein products must meet the requirements in Appendix A to part 226 of this chapter.
6 Yogurt must contain no more than 23 grams of total sugars per 6 ounces.
7 Pasteurized full-strength juice may only be used to meet the vegetable or fruit requirement at one meal, including snack, per
day.
8 A vegetable may be used to meet the entire fruit requirement. When two vegetables are served at lunch or supper, two different kinds of vegetables must be served.
9 At least one serving per day, across all eating occasions, must be whole grain-rich. Grain-based desserts do not count towards the grains requirement.
10 Beginning October 1, 2019, ounce equivalents are used to determine the quantity of the creditable grain.
11 Breakfast cereals must contain no more than 6 grams of sugar per dry ounce (no more than 21.2 grams sucrose and other
sugars per 100 grams of dry cereal).
270
VerDate Sep<11>2014
10:57 May 01, 2019
Jkt 247015
PO 00000
Frm 00280
Fmt 8010
Sfmt 8003
Q:\07\7V4.TXT
PC31
Food and Nutrition Service, USDA
§ 226.20, Nt.
(3) * * *
CHILD AND ADULT CARE FOOD PROGRAM—SNACK
Minimum quantities
Food components and food items 1
Ages
1–2
Ages
3–5
Ages 13–
18 2
(at-risk
afterschool
programs
and emergency
shelters)
Ages
6–12
Adult participants
Select Two of the Five Components for a Reimbursable Meal
Fluid Milk 3 .............................................
kpayne on VMOFRWIN702 with $$_JOB
Meat/meat alternates (edible portion as
served):
Lean meat, poultry, or fish .....
Tofu, soy products, or alternate protein products 4.
Cheese ...................................
Large egg ...............................
Cooked dry beans or peas .....
Peanut butter or soy nut butter or other nut or seed butters.
Yogurt, plain or flavored unsweetened or sweetened 5.
Peanuts, soy nuts, tree nuts,
or seeds.
Vegetables 6 ..........................................
6
Fruits ...................................................
Grains (oz eq): 7 8
Whole grain-rich or enriched
bread.
Whole grain-rich or enriched
bread product, such as biscuit, roll, or muffin.
Whole grain-rich, enriched, or
fortified cooked breakfast
cereal 9, cereal grain, and/or
pasta.
Whole grain-rich, enriched, or
fortified ready-to-eat breakfast cereal (dry, cold) 9 10.
Flakes or rounds ......
Puffed cereal ............
Granola .....................
4 fluid
ounces.
6 fluid
ounces.
8 fluid
ounces.
8 fluid
ounces.
8 fluid ounces.
1 ounce .....
1 ounce .....
1 ounce.
1 ounce.
12
⁄ ounce ...
⁄ ounce ...
12
12
12
⁄ ounce ...
⁄ ounce ...
1 ounce .....
1 ounce .....
12
⁄ ounce ...
⁄ ..............
1⁄8 cup .......
1 Tbsp ......
12
12
12
⁄ ounce ...
⁄ ..............
⁄ cup .......
1 Tbsp ......
1 ounce .....
1⁄2 ..............
1⁄4 cup .......
2 Tbsp ......
2 ounces or
1⁄4 cup.
1⁄2 ounce ...
2 ounces or
1⁄4 cup.
1⁄2 ounce ...
4 ounces or
1⁄2 cup.
1 ounce .....
18
14
4 ounces or
1⁄2 cup.
1 ounce .....
4 ounces or 1⁄2 cup.
⁄ cup .......
⁄ cup .......
1 ounce.
⁄ cup .......
⁄ cup .......
12
34
34
12
12
12
34
34
12
⁄ slice ......
12
⁄ serving
12
14
⁄ cup .......
14
12
⁄ cup .......
⁄ cup .......
1⁄8 cup .......
12
34
34
12
⁄ cup .......
⁄ cup .......
1 ounce.
⁄ .
⁄ cup.
2 Tbsp.
12
14
12
12
⁄ cup .......
⁄ cup .......
1 ounce .....
⁄ ..............
⁄ cup .......
2 Tbsp ......
12
⁄ cup.
⁄ cup.
⁄ slice ......
1 slice .......
1 slice .......
1 slice.
⁄ serving
1 serving ...
1 serving ...
1 serving.
⁄ cup .......
12
12
12
⁄ cup .......
⁄ cup .......
⁄ cup .......
1 cup .........
11⁄4 cup .....
1⁄4 cup .......
1 cup .........
11⁄4 cup .....
1⁄4 cup .......
1 cup.
11⁄4 cup.
1⁄4 cup.
18
⁄ cup .......
⁄ cup .......
⁄ cup.
ENDNOTES:
1 Select two of the five components for a reimbursable snack. Only one of the two components may be a beverage.
2 Larger portion sizes than specified may need to be served to children 13 through 18 years old to meet their nutritional needs.
3 Must be unflavored whole milk for children age one. Must be unflavored low-fat (1 percent fat or less) or unflavored fat-free
(skim) milk for children two through five years old. Must be low-fat (1 percent fat or less) or fat-free (skim) milk for children six
years old and older and adults, and may be unflavored or flavored. For adult participants, 6 ounces (weight) or 3⁄4 cup (volume)
of yogurt may be used to meet the equivalent of 8 ounces of fluid milk once per day when yogurt is not served as a meat alternate in the same meal.
4 Alternate protein products must meet the requirements in Appendix A to Part 226 of this chapter.
5 Yogurt must contain no more than 23 grams of total sugars per 6 ounces.
6 Pasteurized full-strength juice may only be used to meet the vegetable or fruit requirement at one meal, including snack, per
day.
7At least one serving per day, across all eating occasions, must be whole grain-rich. Grain-based desserts do not count towards the grains requirement.
8 Beginning October 1, 2019, ounce equivalents are used to determine the quantity of the creditable grains.
9 Breakfast cereals must contain no more than 6 grams of sugar per dry ounce (no more than 21.2 grams sucrose and other
sugars per 100 grams of dry cereal).
10 Beginning October 1, 2019, the minimum serving size specified in this section for ready-to-eat breakfast cereals must be
served. Until October 1, 2019, the minimum serving size for any type of ready-to-eat breakfast cereal is 1⁄4 cup for children ages
1–2; 1⁄3 cup for children ages 3–5; and 3⁄4 cup for children ages 6–12, children ages 13–18, and adult participants.
271
VerDate Sep<11>2014
10:57 May 01, 2019
Jkt 247015
PO 00000
Frm 00281
Fmt 8010
Sfmt 8003
Q:\07\7V4.TXT
PC31
§ 226.21
kpayne on VMOFRWIN702 with $$_JOB
*
7 CFR Ch. II (1–1–19 Edition)
*
*
*
*
§ 226.21 Food
service
management
companies.
(a) Any institution may contract
with a food service management company. An institution which contracts
with a food service management company shall remain responsible for ensuring that the food service operation
conforms to its agreement with the
State agency. All procurements of
meals from food service management
companies shall adhere to the procurement standards set forth in § 226.22.
Public institutions shall follow applicable State or local laws governing bid
procedures. In the absence of any applicable State or local laws, and in addition to the procurement provisions set
forth in § 226.22, the State agency may
mandate that each institution with
Program meal contracts of an aggregate value in excess of $10,000 formally
advertise such contracts and comply
with the following procedures intended
to prevent fraud, waste, and Program
abuse:
(1) All proposed contracts shall be
publicly announced at least once 14 calendar days prior to the opening of bids.
The announcement shall include the
time and place of the bid opening;
(2) The institution shall notify the
State agency at least 14 calendar days
prior to the opening of the bids of the
time and place of the bid opening;
(3) The invitation to bid shall not
provide for loans or any other monetary benefit or terms or conditions to
be made to institutions by food service
management companies;
(4) Nonfood items shall be excluded
from the invitation to bid, except
where such items are essential to the
conduct of the food service;
(5) The invitation to bid shall not
specify special meal requirements to
meet ethnic or religious needs unless
special requirements are necessary to
meet the needs of the participants to
be served;
(6) The bid shall be publicly opened;
(7) All bids totaling $50,000 or more
shall be submitted to the State agency
for approval before acceptance. All bids
shall be submitted to the State agency
for approval before accepting a bid
which exceeds the lowest bid. State
agencies shall respond to any request
for approval within 10 working days of
receipt;
(8) The institutions shall inform the
State agency of the reason for selecting the food service management company chosen. State agencies may require institutions to submit copies of
all bids submitted under this section.
(b) The institution and the food service management company shall enter
into a standard contract as required by
§ 226.6(i). However, public institutions
may, with the approval of the State
agency, use their customary form of
contract if it incorporates the provisions of § 226.6(i).
(c) A copy of the contract between
each institution and food service management company shall be submitted
to the State agency prior to the beginning of Program operations under the
subject contract.
(d) Each proposed additional provision to the standard form of contract
shall be submitted to the State agency
for approval.
(e) A food service management company may not subcontract for the total
meal, with or without milk, or for the
assembly of the meal.
[47 FR 36527, Aug. 20, 1982, as amended at 53
FR 52594, Dec. 28, 1988]
§ 226.22 Procurement standards.
(a) This section establishes standards
and guidelines for the procurement of
foods, supplies, equipment, and other
goods and services. These standards are
furnished to ensure that such materials
and services are obtained efficiently
and economically and in compliance
with the provisions of applicable Federal law and Executive orders.
(b) These standards shall not relieve
the institution of any contractual responsibilities under its contracts. The
institution is responsible, in accordance with good administrative practice
and sound business judgment, for the
settlement of all contractual and administrative issues arising out of procurements entered into in support of
the Program. These include, but are
not limited to: source evaluation, protests of award, disputes, and claims.
Violations of the law shall be referred
to the local, State, or Federal authority having proper jurisdiction.
272
VerDate Sep<11>2014
10:57 May 01, 2019
Jkt 247015
PO 00000
Frm 00282
Fmt 8010
Sfmt 8010
Q:\07\7V4.TXT
PC31
Food and Nutrition Service, USDA
§ 226.22
kpayne on VMOFRWIN702 with $$_JOB
(c) Institutions may use their own
procedures for procurement with Program funds to the extent that:
(1) Procurements by public institutions comply with applicable State or
local laws and standards set forth in 2
CFR part 200, subpart D and USDA implementing regulations 2 CFR part 400
and part 415;
(2) Procurements by private nonprofit institutions comply with standards set forth in 2 CFR part 200, subpart D and USDA implementing regulations 2 CFR part 400 and part 415; and
(3) All procurements comply with the
procurement requirements in paragraphs (d) through (m) of this section.
(d) Institutions shall maintain a
written code of standards of conduct
which shall govern the performance of
their officers, employees or agents engaged in the award and administration
of contracts supported by Program
payments. No employee, officer or
agent of the grantee shall participate
in selection, or in the award or administration of a contract supported by
Federal funds if a conflict of interest,
real or apparent, would be involved.
Such a conflict would arise when:
(1) The employee, officer or agent;
(2) Any member of his immediate
family;
(3) His or her partner; or
(4) An organization which employs,
or is about to employ, any of the
above, has a financial or other interest
in the firm selected for award.
The institution’s officers, employees or
agents shall neither solicit nor accept
gratuities, favors or anything of monetary value from contractors, potential
contractors, or parties to subagreements. Institutions may set minimum
rules where the financial interest is
not substantial or the gift is an unsolicited item of nominal intrinsic value.
To the extent permitted by State or
local law or regulations, such standards of conduct shall provide for penalties, sanctions, or other disciplinary
actions for violations of such standards
by the institution’s officers, employees, or agents, or by contractors or
their agents.
(e) The institution shall establish
procurement procedures which provide
that proposed procurement actions
shall be reviewed by institution offi-
cials to avoid the purchase of unnecessary or duplicative items. Where appropriate, an analysis shall be made of
lease versus purchase alternatives, and
any other appropriate analysis to determine which approach would be the
most economical.
(f) Affirmative steps shall be taken
to assure that small and minority businesses are utilized when possible. Affirmative steps shall include the following:
(1) Including qualified small and minority businesses on solicitation lists;
(2) Assuring that small and minority
businesses are solicited whenever they
are potential sources;
(3) When economically feasible, dividing total requirements into smaller
tasks or quantities so as to permit
maximum small and minority business
participation;
(4) Where the requirement permits,
establishing delivery schedules which
will encourage participation by small
and minority businesses;
(5) Using the services and assistance
of the Small Business Administration
and the Minority Business Enterprise
of the Department of Commerce as required;
(6) If any subcontracts are to be let,
requiring the prime contractor to take
the affirmative steps in paragraphs (b)
(1) through (5) of this section; and
(7) Taking similar appropriate affirmative action in support of women’s
business enterprises.
(g) All procurement transactions, regardless of whether by sealed bids or by
negotiation and without regard to dollar value, shall be conducted in a manner that provides maximum open and
free competition consistent with this
section. Procurement procedures shall
not restrict or eliminate competition.
Examples of what is considered to be
restrictive of competition include, but
are not limited to (1) placing unreasonable requirements on firms in order for
them to qualify to do business, (2) noncompetitive practices between firms,
(3) organizational conflicts of interest,
and (4) unnecessary experience and
bonding requirements.
(h) The institution shall have written
selection procedures which shall provide, as a minimum, the following procedural requirements:
273
VerDate Sep<11>2014
10:57 May 01, 2019
Jkt 247015
PO 00000
Frm 00283
Fmt 8010
Sfmt 8010
Q:\07\7V4.TXT
PC31
kpayne on VMOFRWIN702 with $$_JOB
§ 226.22
7 CFR Ch. II (1–1–19 Edition)
(1) Solicitations of offers, whether by
competitive sealed bids or competitive
negotiation, shall:
(i) Incorporate a clear and accurate
description of the technical requirements for the material, product, or
service to be procured. Such description shall not, in competitive procurements, contain features which unduly
restrict competition. The description
may include a statement of the qualitative nature of the material, product
or service to be procured, and when
necessary, shall set forth those minimum essential characteristics and
standards to which it must conform if
it is to satisfy its intended use. Detailed product specifications should be
avoided if at all possible. When it is
impractical or uneconomical to make a
clear and accurate description of the
technical requirements, a ‘‘brand name
or equal’’ description may be used as a
means to define the performance or
other salient requirements of a procurement. The specific features of the
named brand which must be met by
offerors shall be clearly stated; and
(ii) Clearly set forth all requirements
which offerors must fulfill and all
other factors to be used in evaluating
bids or proposals.
(2) Awards shall be made only to responsible contractors that possess the
potential ability to perform successfully under the terms and conditions of
a proposed procurement. Consideration
shall be given to such matters as contractor integrity, compliance with public policy, record of past performance,
and financial and technical resources.
(i) Program procurements shall be
made by one of the following methods:
(1) Small purchase procedures are
those relatively simple and informal
procurement methods that are sound
and appropriate for the procurement of
services, supplies or other property,
costing in the aggregate not more than
$10,000. Institutions shall comply with
State or local small purchase dollar
limits under $10,000. If small purchase
procedures are used for a procurement
under the Program, price or rate
quotation shall be obtained from an
adequate number of qualified sources;
or
(2) In competitive sealed bids (formal
advertising), sealed bids are publicly
solicited and a firm-fixed-price contract (lump sum or unit price) is
awarded to the responsible bidder
whose bid, conforming with all the material terms and conditions of the invitation for bids, is lowest in price.
(i) In order for formal advertising to
be feasible, appropriate conditions
must be present, including as a minimum, the following:
(A) A complete, adequate and realistic specification or purchase description is available.
(B) Two or more responsible suppliers
are willing and able to compete effectively for the institution’s business.
(C) The procurement lends itself to a
firm-fixed price contract, and selection
of the successful bidder can appropriately be made principally on the
basis of price.
(ii) If formal advertising is used for a
procurement under the Program, the
following requirements shall apply:
(A) A sufficient time prior to the
date set for opening of bids, bids shall
be solicited from an adequate number
of known suppliers. In addition, the invitation shall be publicly advertised.
(B) The invitation for bids, including
specifications and pertinent attachments, shall clearly define the items or
services needed in order for the bidders
to properly respond to the invitation.
(C) All bids shall be opened publicly
at the time and place stated in the invitation for bids.
(D) A firm-fixed-price contract award
shall be made by written notice to that
responsible bidder whose bid, conforming to the invitation for bids, is
lowest. Where specified in the bidding
documents, factors such as discounts,
transportation costs and life cycle
costs shall be considered in determining which bid is lowest. Payment
discounts may only be used to determine low bid when prior experience of
the grantee indicates that such discounts are generally taken.
(E) Any or all bids may be rejected
when there are sound documented business reasons in the best interest of the
Program.
(3) In competitive negotiation, proposals are requested from a number of
sources and the Request for Proposal is
publicized. Negotiations are normally
conducted with more than one of the
274
VerDate Sep<11>2014
10:57 May 01, 2019
Jkt 247015
PO 00000
Frm 00284
Fmt 8010
Sfmt 8010
Q:\07\7V4.TXT
PC31
kpayne on VMOFRWIN702 with $$_JOB
Food and Nutrition Service, USDA
§ 226.22
sources submitting offers, and either a
fixed-price or cost-reimbursable type
contract is awarded, as appropriate.
Competitive negotiation may be used if
conditions are not appropriate for the
use of formal advertising. If competitive negotiation is used for a procurement under a grant, the following requirements shall apply:
(i) Proposals shall be solicited from
an adequate number of qualified
sources to permit reasonable competition consistent with the nature and requirements of the procurement. The
Request for Proposals shall be publicized and reasonable requests by
other sources to compete shall be honored to the maximum extent practicable:
(ii) The Request for Proposal shall
identify all significant evaluation factors, including price or cost where required and their relative importance;
(iii) The institution shall provide
mechanisms for technical evaluation of
the proposal received, determinations
of responsible offerors for the purpose
of written or oral discussions, and selection for contract award; and
(iv) Award may be made to the responsible offeror whose proposal will be
most advantageous to the procuring
party, price and other factors considered. Unsuccessful offerors should be
notified promptly.
(4) Noncompetitive negotiation is
procurement through solicitation of a
proposal from only one source, or after
solicitation of a number of sources,
competition is determined inadequate.
Noncompetitive negotiation may be
used when the award of a contract is
infeasible under small purchase, competitive bidding (formal advertising),
or competitive negotiation procedures.
Circumstances under which a contract
may be awarded by noncompetitive negotiation are limited to the following:
(i) The item is available only from a
single source;
(ii) Public exigency or emergency
when the urgency for the requirement
will not permit a delay incident to
competitive solicitation;
(iii) FNS authorizes noncompetitive
negotiation; or
(iv) After solicitation of a number of
sources, competition is determined inadequate.
(j) The cost plus a percentage of cost
method of contracting shall not be
used. Instructions shall perform some
form of cost or price analysis in connection with every procurement action
including contract modifications. Costs
or prices based on estimated costs for
contracts under the Program shall be
allowed only to the extent that costs
incurred or cost estimates included in
negotiated prices are consistent with
Federal cost principles.
(k)
Institutions
shall
maintain
records sufficient to detail the significant history of a procurement. These
records shall include, but are not necessarily limited to information pertinent to the following: rationale for the
method of procurement, selection of
contract type, contractor selection or
rejection, and the basis for the cost or
price.
(l) In addition to provisions defining
a sound and complete procurement
contract, institutions shall include the
following contract provisions or conditions in all procurement contracts and
subcontracts as required by the provision, Federal Law or FNS:
(1) Contracts other than small purchases shall contain provisions or conditions which will allow for administrative, contractual, or legal remedies
in instances where contractors violate
or breach contract terms, and provide
for such sanctions and penalties as
may be appropriate;
(2) All contracts in excess of $10,000
shall contain suitable provisions for
termination by the institution including the manner by which it will be effected and the basis for settlement. In
addition, such contracts shall describe
conditions under which the contract
may be terminated for default as well
as conditions where the contract may
be
terminated
because
of
circumstances beyond the control of the
contractor;
(3) All contracts awarded in excess of
$10,000 by institutions and their contractors shall contain a provision requiring compliance with Executive
Order 11246, entitled ‘‘Equal Employment Opportunity,’’ as amended by Executive Order 11375, and as supplemented in Department of Labor regulations (41 CFR part 60);
275
VerDate Sep<11>2014
10:57 May 01, 2019
Jkt 247015
PO 00000
Frm 00285
Fmt 8010
Sfmt 8010
Q:\07\7V4.TXT
PC31
kpayne on VMOFRWIN702 with $$_JOB
§ 226.22
7 CFR Ch. II (1–1–19 Edition)
(4) Where applicable, all contracts
awarded by institutions in excess of
$2,500 which involve the employment of
mechanics or laborers shall include a
provision for compliance with section
103 of the Contract Work Hours and
Safety Standards Act (40 U.S.C. 327
through 330) as supplemented by Department of Labor regulations (29 CFR
part 5). Under section 103 of the Act,
each contractor shall be required to
compute the wages of every mechanic
and laborer on the basis of a standard
work day of 8 hours and a standard
work week of 40 hours. Work in excess
of the standard work day or week is
permissible provided that the worker is
compensated at a rate of not less than
11⁄2 times the basic rate of pay for all
hours worked in excess of 8 hours in
any calendar day or 40 hours in the
work week. These requirements do not
apply to the purchases of supplies or
materials or articles ordinarily available on the open market, or contracts
for transportation or transmission of
intelligence;
(5) The contract shall include notice
of USDA requirements and regulations
pertaining to reporting and patent
rights under any contract involving research, developmental, experimental or
demonstration work with respect to
any discovery or invention which
arises or is developed in the course of
or under such contract, and of USDA
requirements and regulations pertaining to copyrights and rights in
data. These requirements are found in 2
CFR part 200, subpart D and Appendix
II, Contract Provisions for Non-Federal
Entity
Contracts
Under
Federal
Awards and USDA implementing regulations 2CFR part 400 and part 415. All
negotiated contracts (except those
awarded by small purchases procedures) awarded by institutions shall include a provision to the effect that the
institution, FNS, the Comptroller General of the United States or any of
their duly authorized representatives,
shall have access to any books, documents, papers, and records of the contractor which are directly pertinent to
that specific contract, for the purpose
of making audit, examination, excerpts, and transcriptions. Institutions
shall require contractors to maintain
all required records for three years
after institutions make final payment
and all other pending matters are
closed;
(6) Contracts and subcontracts of
amounts in excess of $100,000 shall contain a provision which requires compliance with all applicable standards, orders, or requirements issued under section 306 of the Clean Air Act (42 U.S.C.
1837(h)), section 508 of the Clean Water
Act (33 U.S.C. 1368), Executive Order
11738, and Environmental Protection
Agency regulations (40 CFR part 15),
which prohibit the use under nonexempt Federal contracts, grants or
loans of facilities included on the EPA
List of Violating Facilities. The provision shall require reporting of violations to FNS and to the U.S. EPA Assistant Administrator for Enforcement
(EN–329); and
(7) Contracts shall recognize mandatory standards and policies relating to
energy efficiency which are contained
in the State energy efficiency conservation plan issued in compliance
with the Energy Policy and Conservation Act (Pub. L. 94–163).
(m) Institutions shall maintain a
contract administration system insuring that contractors perform in accordance with the terms, conditions, and
specifications of their contracts or purchase orders.
(n) Geographic preference. (1) Institutions participating in the Program
may apply a geographic preference
when procuring unprocessed locally
grown or locally raised agricultural
products. When utilizing the geographic preference to procure such
products, the institution making the
purchase has the discretion to determine the local area to which the geographic preference option will be applied;
(2) For the purpose of applying the
optional geographic preference in paragraph (n)(1) of this section, ‘‘unprocessed locally grown or locally raised
agricultural products’’ means only
those agricultural products that retain
their inherent character. The effects of
the following food handling and preservation techniques shall not be considered as changing an agricultural product into a product of a different kind or
character: Cooling; refrigerating; freezing; size adjustment made by peeling,
276
VerDate Sep<11>2014
10:57 May 01, 2019
Jkt 247015
PO 00000
Frm 00286
Fmt 8010
Sfmt 8010
Q:\07\7V4.TXT
PC31
Food and Nutrition Service, USDA
§ 226.23
slicing, dicing, cutting, chopping,
shucking,
and
grinding;
forming
ground products into patties without
any additives or fillers; drying/dehydration; washing; packaging (such as
placing eggs in cartons), vacuum packing and bagging (such as placing vegetables in bags or combining two or
more types of vegetables or fruits in a
single package); addition of ascorbic
acid or other preservatives to prevent
oxidation of produce; butchering livestock and poultry; cleaning fish; and
the pasteurization of milk.
kpayne on VMOFRWIN702 with $$_JOB
[47 FR 36527, Aug. 20, 1982, as amended at 71
FR 39519, July 13, 2006; 76 FR 22607, Apr. 22,
2011; 81 FR 66492, Sept. 28, 2016]
§ 226.23 Free and reduced-price meals.
(a) The State agency must not enter
into a Program agreement with a new
institution until the institution has
submitted, and the State agency has
approved, a written policy statement
concerning free and reduced-price
meals to be used in all child and adult
day care facilities under its jurisdiction, as described in paragraph (b) of
this section. The State agency must
not require an institution to revise its
free and reduced-price policy statement or its nondiscrimination statement unless the institution makes a
substantive change to either policy.
Pending approval of a revision to these
statements, the existing policy must
remain in effect.
(b) Institutions that may not serve
meals at a separate charge to children
(including emergency shelters, at-risk
afterschool care centers, and sponsoring organizations of emergency
shelters, at-risk afterschool care centers, and day care homes) and other institutions that elect to serve meals at
no separate charge must develop a policy statement consisting of an assurance to the State agency that all participants are served the same meals at
no separate charge, regardless of race,
color, national origin, sex, age, or disability and that there is no discrimination in the course of the food service.This statement shall also contain
an assurance that there will be no identification of children in day care homes
in which meals are reimbursed at both
the tier I and tier II reimbursement
rates, and that the sponsoring organi-
zation will not make any free and reduced price eligibility information concerning individual households available
to day care homes and will otherwise
limit the use of such information to
persons directly connected with the administration and enforcement of the
Program.
(c) Independent centers and sponsoring organizations of centers which
charge separately for meals shall develop a policy statement for determining eligibility for free and reducedprice meals which shall include the following:
(1) The specific criteria to be used in
determining eligibility for free and reduced-price meals. The institution’s
standards of eligibility shall conform
to the Secretary’s income standards;
(2) A description of the method or
methods to be used in accepting applications from families for free and reduced-price meals. These methods will
ensure that applications are accepted
from households on behalf of a foster
child and children who receive SNAP,
FDPIR, or TANF assistance, or for
adult participants who receive SNAP,
FDPIR, SSI, or Medicaid assistance;
(3) A description of the method or
methods to be used to collect payments
from those participants paying the full
or reduced price of the meal which will
protect the anonymity of the participants receiving a free or reduced-price
meal;
(4) An assurance which provides that
the institution will establish a hearing
procedure for use when benefits are denied or terminated as a result of
verification:
(i) A simple, publicly announced
method for a family to make an oral or
written request for a hearing;
(ii) An opportunity for the family to
be assisted or represented by an attorney or other person in presenting its
appeal;
(iii) An opportunity to examine, prior
to and during the hearing, the documents and records presented to support
the decision under appeal;
(iv) That the hearing shall be held
with reasonable promptness and convenience to the family and that adequate notice shall be given to the family as to the time and place of the hearing;
277
VerDate Sep<11>2014
10:57 May 01, 2019
Jkt 247015
PO 00000
Frm 00287
Fmt 8010
Sfmt 8010
Q:\07\7V4.TXT
PC31
kpayne on VMOFRWIN702 with $$_JOB
§ 226.23
7 CFR Ch. II (1–1–19 Edition)
(v) An opportunity for the family to
present oral or documentary evidence
and arguments supporting its position;
(vi) An opportunity for the family to
question or refute any testimony or
other evidence and to confront and
cross-examine any adverse witnesses;
(vii) That the hearing shall be conducted and the determination made by
a hearing official who did not participate in making the initial decision;
(viii) The determination of the hearing official shall be based on the oral
and documentary evidence presented at
the hearing and made a part of that
hearing record;
(ix) That the family and any designated representatives shall be notified in writing of the decision of the
hearing official;
(x) That a written record shall be
prepared with respect to each hearing,
which shall include the decision under
appeal, any documentary evidence and
a summary of any oral testimony presented at the hearing, the decision of
the hearing official, including the reasons therefor, and a copy of the notification to the family of the decision of
the hearing official; and
(xi) That such written record of each
hearing shall be preserved for a period
of three years and shall be available for
examination by the family or its representatives at any reasonable time
and place during such period;
(5) An assurance that there will be no
overt identification of free and reduced-price meal recipients and no discrimination against any participant on
the basis of race, color, national origin,
sex, age, or handicap;
(6) An assurance that the charges for
a reduced-price lunch or supper will
not exceed 40 cents, that the charge for
a reduced-price breakfast will not exceed 30 cents, and that the charge for a
reduced-price snack will not exceed 15
cents.
(d) Each institution shall annually
provide the information media serving
the area from which the institution
draws its attendance with a public release, unless the State agency has
issued a Statewide media release on behalf of all institutions. All media releases issued by institutions other than
emergency shelters, at-risk afterschool
care centers, and sponsoring organiza-
tions of emergency shelters, at-risk
afterschool care centers, or day care
homes must include the Secretary’s Income Eligibility Guidelines for Free
and Reduced-Price Meals. The release
issued by all emergency shelters, atrisk afterschool care centers, and sponsoring organizations of emergency
shelters, at-risk afterschool care centers, or day care homes, and by other
institutions which elect not to charge
separately for meals, must announce
the availability of meals at no separate
charge. The release issued by child care
institutions which charge separately
for meals shall announce the availability of free and reduced-price meals
to children meeting the approved eligibility criteria. The release issued by
child care institutions shall also announce that a foster child, or a child
who is a member of a household receiving SNAP, FDPIR, or TANF assistance,
or a Head Start participant is automatically eligible to receive free meal
benefits. The release issued by adult
day care centers which charge separately for meals shall announce the
availability of free and reduced-price
meals to participants meeting the approved eligibility criteria. The release
issued by adult day care centers shall
also announce that adult participants
who are members of SNAP or FDPIR
households or who are SSI or Medicaid
participants are automatically eligible
to receive free meal benefits. All releases shall state that meals are available to all participants without regard
to race, color, national origin, sex, age
or disability.
(e)(1) Application for free and reducedprice meals. (i) For the purpose of determining eligibility for free and reduced
price meals, institutions (other than
emergency shelters and at-risk afterschool care centers) shall distribute applications for free and reduced price
meals to the families of participants
enrolled in the institution. Sponsoring
organizations of day care homes shall
distribute applications for free and reduced price meals to day care home
providers who wish to enroll their own
eligible children in the Program. At
the request of a provider in a tier II
day care home, sponsoring organizations of day care homes shall distribute
applications for free and reduced price
278
VerDate Sep<11>2014
10:57 May 01, 2019
Jkt 247015
PO 00000
Frm 00288
Fmt 8010
Sfmt 8010
Q:\07\7V4.TXT
PC31
kpayne on VMOFRWIN702 with $$_JOB
Food and Nutrition Service, USDA
§ 226.23
meals to the households of all children
enrolled in the home, except that applications need not be distributed to
the households of enrolled children
that the sponsoring organization determines eligible for free and reduced
price meals under the circumstances
described in paragraph (e)(1)(vi) of this
section. These applications, and any
other descriptive material distributed
to such persons, shall contain only the
family-size income levels for reduced
price meal eligibility with an explanation that households with incomes
less than or equal to these levels are eligible for free or reduced price meals.
Such forms and descriptive materials
may not contain the income standards
for free meals. However, such forms
and materials distributed by child care
institutions other than sponsoring organizations of day care homes shall
state that, if a child is a member of a
SNAP or FDPIR household or is a
TANF recipient, the child is automatically eligible to receive free Program
meal benefits, subject to the completion of the application as described in
paragraph (e)(1)(ii) of this section; such
forms and materials distributed by
sponsoring organizations of day care
homes shall state that, if a child or a
child’s parent is participating in or
subsidized under a Federally or State
supported child care or other benefit
program with an income eligibility
limit that does not exceed the eligibility standard for free or reduced price
meals, meals served to the child are
automatically eligible for tier I reimbursement, subject to the completion
of the application as described in paragraph (e)(1)(ii) of this section, and shall
list any programs identified by the
State agency as meeting this standard;
such forms and materials distributed
by adult day care centers shall state
that, if an adult participant is a member of a SNAP or FDPIR household or
is a SSI or Medicaid participant, the
adult participant is automatically eligible to receive free Program meal benefits, subject to the completion of the
application as described in paragraph
(e)(1)(iii) of this section. Sponsoring organizations of day care homes shall not
make free and reduced price eligibility
information
concerning
individual
households available to day care homes
and shall otherwise limit the use of
such information to persons directly
connected with the administration and
enforcement of the Program. However,
sponsoring organizations may inform
tier II day care homes of the number of
identified income-eligible enrolled children. If a State agency distributes, or
chooses to permit its sponsoring organizations to distribute, applications to
the households of children enrolled in
tier II day care homes which include
household confidentiality waiver statements, such applications shall include
a statement informing households that
their participation in the program is
not dependent upon signing the waivers. Furthermore, such forms and materials distributed by child care institutions shall state that a foster child is
automatically eligible to receive free
Program meal benefits, and a child who
is a Head Start participant is automatically eligible to receive free Program meal benefits, subject to submission by Head Start officials of a Head
Start statement of income eligibility
or income eligibility documentation.
(ii) Except as provided in paragraph
(e)(1)(iv) of this section, the application for children shall contain a request for the following information:
(A) The names of all children for
whom application is made;
(B) The names of all other household
members;
(C) The last four digits of the social
security number of the adult household
member who signs the application, or
an indication that the adult does not
possess a social security number.
(D) The income received by each
household member identified by source
of income (such as earnings, wages,
welfare, pensions, support payments,
unemployment compensation, social
security, and other cash income received or withdrawn from any other
source, including savings, investments,
trust accounts, and other resources);
(E) A statement which includes substantially the following information:
(1) ‘‘The Richard B. Russell National
School Lunch Act requires the information on this application. You do not
have to give the information, but if
you do not, we cannot approve the participant for free or reduced-price
meals. You must include the last four
279
VerDate Sep<11>2014
10:57 May 01, 2019
Jkt 247015
PO 00000
Frm 00289
Fmt 8010
Sfmt 8010
Q:\07\7V4.TXT
PC31
kpayne on VMOFRWIN702 with $$_JOB
§ 226.23
7 CFR Ch. II (1–1–19 Edition)
digits of the Social Security Number of
the adult household member who signs
the application. The last four digits of
the Social Security Number are not required when you apply on behalf of a
foster child or you list a Supplemental
Nutrition Assistance Program (SNAP),
Temporary Assistance for Needy Families (TANF) Program or Food Distribution Program on Indian Reservations
(FDPIR) case number for the participant or other (FDPIR) identifier or
when you indicate that the adult
household member signing the application does not have a Social Security
Number. We will use your information
to determine if the participant is eligible for free or reduced-price meals, and
for administration and enforcement of
the Program.’’
(2) When either the State agency or
the child care institution plans to use
or disclose children’s eligibility information for non-program purposes, additional information, as specified in
paragraph (k) of this section, must be
added to this statement; and
(F) The signature of an adult member
of the household which appears immediately below a statement that the person signing the application certifies
that all information furnished is true
and correct; that the application is
being made in connection with the receipt of Federal funds; that Program
officials may verify the information on
the application; and that the deliberate
misrepresentation of any of the information on the application may subject
the applicant to prosecution under applicable State and Federal criminal
statutes.
(iii) Except as provided in paragraph
(e)(1)(v) of this section, the application
for adults shall contain a request for
the following information:
(A) The names of all adults for whom
application is made;
(B) The names of all other household
members;
(C) The last four digits of the social
security number of the adult household
member who signs the application, or
an indication that the adult does not
possess a social security number.
(D) The income received by source of
income (such as earnings, wages, welfare, pensions, support payments, unemployment compensation, social se-
curity, and other cash income received
or withdrawn from any other source,
including savings, investments, trust
accounts and other resources);
(E) A statement which includes substantially the following information:
‘‘The Richard B. Russell National
School Lunch Act requires the information on this meal benefit form. You
do not have to give the information,
but if you do not, we cannot approve
the participant for free or reducedprice meals. You must include the last
four digits of the social security number of all adult household members, including the adult day care participant.
The last four digits of the social security number are not required when you
list a Supplemental Nutrition Assistance Program (SNAP), Food Distribution Program on Indian Reservations
(FDPIR) or other FDPIR identifier, SSI
or Medicaid case number for the participant receiving meal benefits or when
you indicate that the adult household
member signing the application does
not have a social security number. We
will use your information to determine
if the participant is eligible for free or
reduced-price meals, and for administration and enforcement of the
CACFP;’’ and
(F) The signature of an adult member
of the household which appears immediately below a statement that the person signing the application certifies
that all information furnished is true
and correct; that the application is
being made in connection with the receipt of Federal funds; that Program
officials may verify the information on
the application; and that the deliberate
misrepresentation of any of the information on the application may subject
the applicant to prosecution under applicable State and Federal criminal
statutes.
(iv) If they so desire, households applying on behalf of children who are
members of SNAP or FDPIR households who are TANF recipients may
apply under this paragraph rather than
under the procedures described in paragraph (e)(1)(ii) of this section. In addition, households of children enrolled in
tier II day care homes who are participating in a Federally or State supported child care or other benefit program with an income eligibility limit
280
VerDate Sep<11>2014
10:57 May 01, 2019
Jkt 247015
PO 00000
Frm 00290
Fmt 8010
Sfmt 8010
Q:\07\7V4.TXT
PC31
kpayne on VMOFRWIN702 with $$_JOB
Food and Nutrition Service, USDA
§ 226.23
that does not exceed the eligibility
standard for free and reduced price
meals may apply under this paragraph
rather than under the procedures described in paragraph (e)(1)(ii) of this
section. Households applying on behalf
of children who are members of SNAP
or FDPIR households; children who are
TANF recipients; or for children enrolled in tier II day care homes, other
qualifying Federal or State program,
shall be required to provide:
(A) For the child(ren) for whom automatic free meal eligibility is claimed,
their names and SNAP, FDPIR, or
TANF case number; or for the households of children enrolled in tier II day
care homes, their names and other program case numbers (if the program utilizes case numbers); and
(B) The signature of an adult member
of the household as provided for in
paragraph (e)(1)(ii)(G) of this section.
In
accordance
with
paragraph
(e)(1)(ii)(F) of this section, if a case
number is provided, it may be used to
verify the current certification for the
child(ren) for whom free meal benefits
are claimed. Whenever households
apply for children not receiving SNAP,
FDPIR, or TANF benefits; or for tier II
homes, other qualifying Federal or
State program benefits, they must
apply in accordance with the requirements set forth in paragraph (e)(1)(ii)
of this section.
(v) If they so desire, households applying on behalf of adults who are
members of SNAP or FDPIR households or SSI or Medicaid participants
may apply for free meal benefits under
this paragraph rather than under the
procedures described in paragraph
(e)(1)(iii) of this section. Households
applying on behalf of adults who are
members of SNAP or FDPIR households or SSI or Medicaid participants
shall be required to provide:
(A) The names and SNAP or FDPIR
case numbers or SSI or Medicaid assistance identification numbers of the
adults for whom automatic free meal
eligibility is claimed; and
(B) The signature of an adult member
of the household as provided in paragraph (e)(1)(iii)(F) of this section. In
accordance with paragraph (e)(1)(iii)(G)
of this section, if a SNAP or FDPIR
case number or SSI or Medicaid assist-
ance identification number is provided,
it may be used to verify the current
SNAP, FDPIR, SSI, or Medicaid certification for the adult(s) for whom free
meal benefits are being claimed. Whenever households apply for benefits for
adults not receiving SNAP, FDPIR,
SSI, or Medicaid benefits, they must
apply in accordance with the requirements set forth in paragraph (e)(1)(iii)
of this section.
(vi) A sponsoring organization of day
care homes may identify enrolled children eligible for free and reduced price
meals (i.e., tier I rates), without distributing free and reduced price applications, by documenting the child’s or
household’s participation in or receipt
of benefits under a Federally or State
supported child care or other benefit
program with an income eligibility
limit that does not exceed the eligibility standard for free and reduced
price meals. Documentation shall consist of official evidence, available to
the tier II day care home or sponsoring
organization, and in the possession of
the sponsoring organization, of the
household’s participation in the qualifying program.
(2) Letter to households. Institutions
shall distribute a letter to households
or guardians of enrolled participants in
order to inform them of the procedures
regarding eligibility for free and reduced-price meals. The letter shall accompany the application required
under paragraph (e)(1) of this section
and shall contain:
(i) The income standards for reducedprice meals, with an explanation that
households with incomes less than or
equal to the reduced-price standards
would be eligible for free or reducedprice meals (the income standards for
free meals shall not be included in letters or notices to such applicants);
(ii) How a participant’s household
may make application for free or reduced-price meals;
(iii) An explanation that an application for free or reduced price benefits
cannot be approved unless it contains
complete ‘‘documentation’’ as defined
in § 226.2.
(iv) The statement: ‘‘In the operation
of child feeding programs, no person
will be discriminated against because
281
VerDate Sep<11>2014
10:57 May 01, 2019
Jkt 247015
PO 00000
Frm 00291
Fmt 8010
Sfmt 8010
Q:\07\7V4.TXT
PC31
kpayne on VMOFRWIN702 with $$_JOB
§ 226.23
7 CFR Ch. II (1–1–19 Edition)
of race, color, national origin, sex, age,
or disability’’;
(v) A statement to the effect that
participants having family members
who become unemployed are eligible
for free or reduced-price meals during
the period of unemployment, provided
that the loss of income causes the family income during the period of unemployment to be within the eligibility
standards for those meals;
(vi) An explanation that households
receiving free and reduced-price meals
must notify appropriate institution officials during the year of any decreases
in household size or increases in income of over $50 per month or $600 per
year or—
(A) In the case of households of enrolled children that provide a SNAP,
FDPIR or TANF case number to establish a child’s eligibility for free meals,
any termination in the child’s certification to participate in the SNAP,
FDPIR or TANF Programs, or
(B) In the case of households of adult
participants that provide a food stamp
or FDPIR case number or an SSI or
Medicaid
assistance
identification
number to establish an adult’s eligibility for free meals, any termination
in the adult’s certification to participate in the SNAP, FDPIR, SSI or Medicaid Programs.
(3) In addition to the information
listed in paragraph (e)(2) of this section
pricing institutions must include in
their letter to household an explanation that indicates that: (i) The information in the application may be
verified at any time during the year;
and (ii) how a family may appeal a decision of the institution to deny, reduce, or terminate benefits as described under the hearing procedure set
forth in paragraph (c)(4) of this section.
(4) Determination of eligibility. The institution shall take the income information provided by the household on
the application and calculate the
household’s total current income.
When a completed application furnished by a family indicates that the
family meets the eligibility criteria for
free or reduced-price meals, the participants from that family shall be determined eligible for free or reducedprice meals. Institutions that are pricing programs shall promptly provide
written notice to each family informing them of the results of the eligibility determinations. When the information furnished by the family is not
complete or does not meet the eligibility criteria for free or reduced-price
meals, institution officials must consider the participants from that family
as not eligible for free or reduced-price
meals, and must consider the participants as eligible for ‘‘paid’’ meals.
When information furnished by the
family of participants enrolled in a
pricing program does not meet the eligibility criteria for free or reducedprice meals, pricing program officials
shall provide written notice to each
family denied free or reduced-price
benefits. At a minimum, this notice
shall include:
(i) The reason for the denial of benefits, e.g., income in excess of allowable
limits or incomplete application;
(ii) Notification of the right to appeal;
(iii) Instructions on how to appeal;
and
(iv) A statement reminding the
household that they may reapply for
free or reduced-price benefits at any
time during the year,
The reasons for ineligibility shall be
properly documented and retained on
file at the institution.
(5) Appeals of denied benefits. A family
that wishes to appeal the denial of an
application in a pricing program shall
do so under the hearing procedures established under paragraph (c)(4) of this
section. However, prior to initiating
the hearing procedures, the household
may request a conference to provide all
affected parties the opportunity to discuss the situation, present information
and obtain an explanation of the data
submitted on the application or the decision rendered. The request for a conference shall not in any way prejudice
or diminish the right to a fair hearing.
The institution shall promptly schedule a fair hearing, if requested.
(f) Free, reduced-price and paid meal
eligibility figures must be reported by
institutions to State agencies at least
once each year and shall be based on
current family-size and income information of enrolled participants. Such
information shall be no more than 12
months old.
282
VerDate Sep<11>2014
10:57 May 01, 2019
Jkt 247015
PO 00000
Frm 00292
Fmt 8010
Sfmt 8010
Q:\07\7V4.TXT
PC31
kpayne on VMOFRWIN702 with $$_JOB
Food and Nutrition Service, USDA
§ 226.23
(g) Sponsoring organizations for family day care homes shall ensure that no
separate charge for food service is imposed on families of children enrolled
in participating family day care
homes.
(h) Verification of eligibility. State
agencies shall conduct verification of
eligibility for free and reduced-price
meals on an annual basis, in accordance with the verification procedures
outlined in paragraphs (h) (1) and (2) of
this section. Verification may be conducted in accordance with Program assistance requirements of § 226.6(m);
however,
the
performance
of
verification for individual institutions
shall occur no less frequently than
once every three years. Any State may,
with the written approval of FNSRO,
use alternative approaches in the conduct of verification, provided that the
results achieved meet the requirements
of this part. If the verification process
discloses deficiencies with the determination of eligibility and/or application procedures which exceed maximum levels established by FNS, State
agencies shall conduct follow-up reviews for the purpose of determining
that corrective action has been taken
by the institution. These reviews shall
be conducted within one year of the
date the verification process was completed. The verification effort shall be
applied without regard to race, color,
national origin, sex, age, or disability.
State agencies shall maintain on file
for review a description of the annual
verification to be accomplished in
order to demonstrate compliance with
paragraphs (h) (1) and (2) of this section.
(1) Verification procedures for nonpricing programs. Except for sponsoring
organizations of family day care
homes, State agency verification procedures for nonpricing programs shall
consist of a review of all approved free
and reduced price applications on file.
For sponsoring organizations of family
day
care
homes,
State
agency
verification procedures shall consist of
a review only of the approved free and
reduced price applications (or other
documentation, if vouchers or other
documentation are used in lieu of free
and reduced price applications) on file
for those day care homes that are re-
quired to be reviewed when the sponsoring organization is reviewed, in accordance with the review requirements
set forth in § 226.6(m). However, the
State agency shall ensure that the day
care homes selected for review are representative of the proportion of tier I,
tier II, and tier II day care homes with
a mix of income-eligible and non-income-eligible children in the sponsorship, and shall ensure that at least 10
percent of all free and reduced price applications (or other documentation, if
applicable) on file for the sponsorship
are verified. The review of applications
shall ensure that:
(i) The application has been correctly
and completely executed by the household;
(ii) The institution has correctly determined and classified the eligibility
of enrolled participants for free or reduced price meals or, for family day
care homes, for tier I or tier II reimbursement, based on the information
included on the application submitted
by the household;
(iii) The institution has accurately
reported to the State agency the number of enrolled participants meeting
the criteria for free or reduced price
meal eligibility or, for day care homes,
the number of participants meeting the
criteria for tier I reimbursement, and
the number of enrolled participants
that do not meet the eligibility criteria for those meals; and
(iv) In addition, the State agency
may conduct further verification of the
information provided by the household
on the approved application for program meal eligibility. If this effort is
undertaken, the State agency shall
conduct this further verification for
nonpricing programs in accordance
with the procedures described in paragraph (h)(2) of this section.
(2) Verification procedures for pricing
programs. (i) For pricing programs, in
addition to the verification procedures
described in paragraph (h)(1) of this
section, State agencies shall also conduct verification of the income information provided on the approved application for free and reduced price meals
and, at State agency discretion,
verification may also include confirmation of other information required on
the application. However,
283
VerDate Sep<11>2014
10:57 May 01, 2019
Jkt 247015
PO 00000
Frm 00293
Fmt 8010
Sfmt 8010
Q:\07\7V4.TXT
PC31
kpayne on VMOFRWIN702 with $$_JOB
§ 226.23
7 CFR Ch. II (1–1–19 Edition)
(A) If a SNAP, FDPIR or TANF case
number is provided for a child,
verification for such child shall include
only confirmation that the child is included in a currently certified SNAP or
FDPIR household or is a TANF recipient; or
(B) If a SNAP or FDPIR case number
or SSI or Medicaid assistance identification number is provided for an
adult, verification for such adult shall
include only confirmation that the
adult is included in a currently certified SNAP or FDPIR household or is
currently certified to receive SSI or
Medicaid benefits.
(ii) State agencies shall perform
verification on a random sample of no
less than 3 percent of the approved free
and reduced price applications in an institution which is a pricing program.
(iii) Households shall be informed in
writing that they have been selected
for verification and they are required
to submit the requested verification information to confirm their eligibility
for free or reduced-price benefits by
such date as determined by the State
agency. Those households shall be informed of the type or types of information and/or documents acceptable to
the State agency and the name and
phone number of an official who can
answer questions and assist the household in the verification effort.
(iv) Households of enrolled children
selected for verification shall also be
informed that if they are currently certified to participate in SNAP, FDPIR
or TANF they may submit proof of
that certification in lieu of income information. In those cases, such proof
shall consist of a current ‘‘Notice of
Eligibility’’ for SNAP, FDPIR or TANF
benefits or equivalent official documentation issued by a SNAP, Indian
Tribal Organization, or welfare office
which shows that the children are
members of households or assistance
units currently certified to participate
in SNAP, FDPIR or TANF. An identification card for any of these programs
is not acceptable as verification unless
it contains an expiration date. Households of enrolled adults selected for
verification shall also be informed that
if they are currently certified to participate in SNAP or FDPIR or SSI or
Medicaid Programs, they may submit
proof of that certification in lieu of income information. In those cases, such
proof shall consist of:
(A) A current ‘‘Notice of Eligibility’’
for SNAP or FDPIR benefits or equivalent official documentation issued by a
SNAP, Indian Tribal Organization, or
welfare office which shows that the
adult participant is a member of a
household currently certified to participate in the SNAP Program or
FDPIR. An identification card is not
acceptable as verification unless it
contains an expiration date; or
(B) Official documentation issued by
an appropriate SSI or Medicaid office
which shows that the adult participant
currently receives SSI or Medicaid assistance. An identification card is not
acceptable as verification unless it
contains an expiration date. All households selected for verification shall be
advised that failure to cooperate with
verification efforts will result in a termination of benefits.
(v) Sources of information for
verification may include written evidence, collateral contacts, and/or systems of records.
(A) Written evidence shall be used as
the primary source of information for
verification. Written evidence includes
written confirmation of a household’s
circumstances, such as wage stubs,
award letters, letters from employers,
and, for enrolled children, current certification to participate in the SNAP,
FDPIR or TANF Programs, or, for
adult participants, current certification to participate in the SNAP,
FDPIR, SSI or Medicaid Programs.
Whenever written evidence is insufficient to confirm eligibility, the State
agency may use collateral contacts.
(B) Collateral contact is a verbal confirmation
of
a
household’s
circumstances by a person outside of the
household. The collateral contact may
be made in person or by phone and
shall be authorized by the household.
The verifying official may select a collateral contact if the household fails to
designate one or designates one which
is unacceptable to the verifying official. If the verifying official designates
a collateral contact, the contact shall
not be made without providing written
or oral notice to the household. At the
time of this notice, the household shall
284
VerDate Sep<11>2014
10:57 May 01, 2019
Jkt 247015
PO 00000
Frm 00294
Fmt 8010
Sfmt 8010
Q:\07\7V4.TXT
PC31
kpayne on VMOFRWIN702 with $$_JOB
Food and Nutrition Service, USDA
§ 226.23
be informed that it may consent to the
contact
or
provide
acceptable
verification in another form. The
household shall be informed that its
eligibility for free or reduced price
meals shall be terminated if it refuses
to choose one of these options. Termination shall be made in accordance
with paragraph (h)(2)(vii) of this section. Collateral contacts could include
employers, social service agencies, and
migrant agencies.
(C) Systems of records to which the
State agency may have routine access
are not considered collateral contacts.
Information concerning income, family
size, or SNAP/FDPIR/TANF certification for enrolled children, or SNAP/
FDPIR/SSI/Medicaid certification for
enrolled adults, which is maintained by
other government agencies and to
which a State agency can legally gain
access may be used to confirm a household’s eligibility for Program meal
benefits. One possible source could be
wage and benefit information maintained by the State unemployment
agency, if that information is available. The use of any information derived from other agencies must be used
with applicable safeguards concerning
disclosure.
(vi) Verification by State agencies of
receipt of SNAP, FDPIR, TANF, SSI or
Medicaid benefits shall be limited to a
review to determine that the period of
eligibility is current. If the benefit period is found to have expired, or if the
household’s certification has been terminated, the household shall be required to document their income eligibility.
(vii) The State agency may work
with the institution to verify the documentation submitted by the household
on the application; however, the responsibility
to
complete
the
verification process may not be delegated to the institution.
(viii) If a household refuses to cooperate with efforts to verify, or the
verification of income indicates that
the household is ineligible to receive
benefits or is eligible to receive reduced benefits, the State agency shall
require the pricing program institution
to terminate or adjust eligibility in accordance with the following procedures. Institution officials shall imme-
diately notify families of the denial of
benefits in accordance with paragraphs
(e)(4) and (e)(5) of this section. Advance
notification shall be provided to families which receive a reduction or termination of benefits 10 calendar days
prior to the actual reduction or termination. The 10-day period shall begin
the day the notice is transmitted to
the family. The notice shall advise the
household of: (A) The change; (B) the
reasons for the change; (C) notification
of the right to appeal the action and
the date by which the appeal must be
requested in order to avoid a reduction
or termination of benefits; (D) instructions on how to appeal; and (E) the
right to reapply at any time during the
year. The reasons for ineligibility shall
be properly documented and retained
on file at the institution.
(ix) When a household disagrees with
an adverse action which affects its benefits and requests a fair hearing, benefits shall be continued as follows while
the household awaits the hearing:
(A) Households which have been approved for benefits and which are subject to a reduction or termination of
benefits later in the same year shall receive continued benefits if they appeal
the adverse action within the 10-day
advance notice period; and
(B) Households which are denied benefits upon application shall not received benefits.
(3) State agencies shall inform institution officials of the results of the
verification effort and the action which
will be taken in response to the
verification findings. This notification
shall be made in accordance with the
procedures outlined in § 226.14(a).
(4) If the verification results disclose
that an institution has inaccurately
classified or reported the number of
participants eligible for free, reducedprice or paid meals, the State agency
shall adjust institution rates of reimbursement retroactive to the month in
which the incorrect eligibility figures
were reported by the institution to the
State agency.
(5) If the verification results disclose
that a household has not reported accurate documentation on the application which would support continued
eligibility for free or reduced-price
285
VerDate Sep<11>2014
10:57 May 01, 2019
Jkt 247015
PO 00000
Frm 00295
Fmt 8010
Sfmt 8010
Q:\07\7V4.TXT
PC31
kpayne on VMOFRWIN702 with $$_JOB
§ 226.23
7 CFR Ch. II (1–1–19 Edition)
meals, the State agency shall immediately adjust institution rates of reimbursement. However, this rate adjustment shall not become effective
until the affected households have been
notified in accordance with the procedures of paragraph (h)(2)(vi) of this section and any ensuing appeals have been
heard as specified in paragraph
(h)(2)(viii) of this section.
(6) Verification procedures for sponsoring organizations of day care homes.
Prior to approving an application for a
day care home that qualifies as tier I
day care home on the basis of the provider’s household income, sponsoring
organizations of day care homes shall
conduct verification of such income in
accordance with the procedures contained in paragraph (h)(2)(i) of this section. Sponsoring organizations of day
care homes may verify the information
on applications submitted by households of children enrolled in day care
homes in accordance with the procedures contained in paragraph (h)(2)(i)
of this section.
(i) Disclosure of children’s free and reduced price meal eligibility information to
certain programs and individuals without
parental consent. The State agency or
child care institution, as appropriate,
may disclose aggregate information
about children eligible for free and reduced price meals to any party without
parental notification and consent when
children cannot be identified through
release of the aggregate data or by
means of deduction. Additionally, the
State agency or institution may disclose information that identifies children eligible for free and reduced price
meals to the programs and the individuals specified in this paragraph (i)
without parental/guardian consent.
The State agency or child care institution that makes the free and reduced
price meal eligibility determination is
responsible for deciding whether to disclose program eligibility information.
(1) Persons authorized to receive eligibility information. Only persons directly
connected with the administration or
enforcement of a program or activity
listed in paragraphs (i)(2) or (i)(3) of
this section may have access to children’s free milk eligibility information, without parental consent. Persons considered directly connected
with administration or enforcement of
a program or activity listed in paragraphs (i)(2) or (i)(3) of this section are
Federal, State, or local program operators responsible for the ongoing operation of the program or activity or persons responsible for program compliance. Program operators may include
persons responsible for carrying out
program requirements and monitoring,
reviewing, auditing, or investigating
the program. Program operators may
include contractors, to the extent
those persons have a need to know the
information for program administration or enforcement. Contractors may
include evaluators, auditors, and others with whom Federal or State agencies and program operators contract
with to assist in the administration or
enforcement of their program in their
behalf.
(2) Disclosure of children’s names and
free or reduced price meal eligibility status. The State agency or child care institution, as appropriate, may disclose,
without parental consent, only children’s names and eligibility status
(whether they are eligible for free
meals or reduced price meals) to persons directly connected with the administration or enforcement of:
(i) A Federal education program;
(ii) A State health program or State
education program administered by the
State or local education agency;
(iii) A Federal, State, or local meanstested nutrition program with eligibility standards comparable to the National School Lunch Program (i.e., food
assistance programs for households
with incomes at or below 185 percent of
the Federal poverty level); or
(iv) A third party contractor assisting in verification of eligibility efforts
by contacting households who fail to
respond to requests for verification of
their eligibility.
(3) Disclosure of all eligibility information. In addition to children’s names
and eligibility status, the State agency
or child care institution, as appropriate, may disclose, without parental/
guardian consent, all eligibility information obtained through the free and
reduced price meal eligibility process
(including all information on the application or obtained through direct certification) to:
286
VerDate Sep<11>2014
10:57 May 01, 2019
Jkt 247015
PO 00000
Frm 00296
Fmt 8010
Sfmt 8010
Q:\07\7V4.TXT
PC31
kpayne on VMOFRWIN702 with $$_JOB
Food and Nutrition Service, USDA
§ 226.23
(i) Persons directly connected with
the administration or enforcement of
programs authorized under the Richard
B. Russell National School Lunch Act
or the Child Nutrition Act of 1966. This
means that all eligibility information
obtained for the Child and Adult Care
Food Program may be disclosed to persons directly connected with administering or enforcing regulations under
the National School Lunch Program,
Special Milk Program, School Breakfast Program, Summer Food Service
Program, and the Special Supplemental Nutrition Program for Women,
Infants and Children (WIC) (Parts 210,
215, 220, 225 and 246, respectively, of
this chapter);
(ii) The Comptroller General of the
United States for purposes of audit and
examination; and
(iii) Federal, State, and local law enforcement officials for the purpose of
investigating any alleged violation of
the programs listed in paragraphs (i)(2)
and (i)(3) of this section.
(4) Use of free and reduced price meals
eligibility information by programs other
than Medicaid or the State Children’s
Health Insurance Program (SCHIP).
State agencies and child care institutions may use children’s free milk eligibility information for administering
or enforcing the Child and Adult Care
Food Program. Additionally, any other
Federal, State, or local agency charged
with administering or enforcing the
Child and Adult Care Food Program
may use the information for that purpose. Individuals and programs to
which children’s free or reduced price
meal eligibility information has been
disclosed under this section may use
the information only in the administration or enforcement of the receiving
program. No further disclosure of the
information may be made.
(j) Disclosure of children’s free or reduced price meal eligibility information to
Medicaid and/or SCHIP, unless parents
decline. Children’s free or reduced price
meal eligibility information only may
be disclosed to Medicaid or SCHIP
when both the State agency and the
child care institution so elect, the parent/guardian does not decline to have
their eligibility information disclosed
and the other provisions described in
paragraph (j)(1) of this section are met.
The State agency or child care institution, as appropriate, may disclose children’s names, eligibility status (whether they are eligible for free or reduced
price meals), and any other eligibility
information obtained through the free
and reduced price meal application or
obtained through direct certification
to persons directly connected with the
administration of Medicaid or SCHIP.
Persons directly connected to the administration of Medicaid and SCHIP
are State employees and persons authorized under Federal and State Medicaid and SCHIP requirements to carry
out initial processing of Medicaid or
SCHIP applications or to make eligibility determinations for Medicaid or
SCHIP.
(1) The State agency must ensure
that:
(i) The child care institution and
health insurance program officials
have a written agreement that requires
the health insurance program agency
to use the eligibility information to
seek to enroll children in Medicaid and
SCHIP; and
(ii) Parents/guardians are notified
that their eligibility information may
be disclosed to Medicaid or SCHIP and
given an opportunity to decline to have
their children’s eligibility information
disclosed, prior to any disclosure.
(2) Use of children’s free and reduced
price meal eligibility information by Medicaid/SCHIP. Medicaid and SCHIP agencies and health insurance program operators receiving children’s free and reduced price meal eligibility information must use the information to seek
to enroll children in Medicaid or
SCHIP. The Medicaid and SCHIP enrollment process may include targeting
and identifying children from low-income households who are potentially
eligible for Medicaid or SCHIP for the
purpose of seeking to enroll them in
Medicaid or SCHIP. No further disclosure of the information may be made.
Medicaid and SCHIP agencies and
health insurance program operators
also may verify children’s eligibility in
a program under the Child Nutrition
Act of 1966 or the Richard B. Russell
National School Lunch Act.
(k) Notifying households of potential
uses and disclosures of children’s free and
reduced price meal eligibility information.
287
VerDate Sep<11>2014
10:57 May 01, 2019
Jkt 247015
PO 00000
Frm 00297
Fmt 8010
Sfmt 8010
Q:\07\7V4.TXT
PC31
kpayne on VMOFRWIN702 with $$_JOB
§ 226.23
7 CFR Ch. II (1–1–19 Edition)
Households must be informed that the
information they provide on the free
and reduced price meal application will
be used to determine eligibility for free
or reduced price meals and that their
eligibility information may be disclosed to other programs.
(1) For disclosures to programs, other
than Medicaid or SCHIP, that are permitted access to children’s eligibility
information, without parent/guardian
consent, the State agency or child care
institution, as appropriate, must notify
parents/guardians at the time of application that their children’s free or reduced price meal eligibility information may be disclosed. The State agency or child care institution, as appropriate, must add substantially the following statement to the statement required under paragraph (e)(1)(ii)(F) of
this section, ‘‘We may share your eligibility information with education,
health, and nutrition programs to help
them evaluate, fund, or determine benefits for their programs; auditors for
program reviews; and law enforcement
officials to help them look into violations of program rules.’’ For children
determined eligible for free meals
through direct certification, the notice
of potential disclosure may be included
in the document informing parents/
guardians of their children’s eligibility
for free meals through direct certification.
(2) For disclosure to Medicaid or
SCHIP, the State agency or child care
institution, as appropriate, must notify
parents/guardians that their children’s
free or reduced price meal eligibility
information will be disclosed to Medicaid and/or SCHIP unless the parent/
guardian elects not to have their information disclosed and notifies the State
agency or child care institution, as appropriate, by a date specified by the
State agency or child care institution,
as appropriate. Only the parent or
guardian who is a member of the
household or family for purposes of the
free and reduced price meal application
may decline the disclosure of eligibility information to Medicaid or
SCHIP. The notification must inform
parents/guardians that they are not required to consent to the disclosure,
that the information, if disclosed, will
be used to identify eligible children
and seek to enroll them in Medicaid or
SCHIP, and that their decision will not
affect their children’s eligibility for
free or reduced price meals. The notification may be included in the letter/
notice to parents/guardians that accompanies the free and reduced price
meal application, on the application
itself or in a separate notice provided
to parents/guardians. The notice must
give parents/guardians adequate time
to respond if they do not want their information disclosed. The State agency
or child care institution, as appropriate, must add substantially the following statement to the statement required under paragraph (e)(1)(ii)(F) of
this section, ‘‘We may share your information with Medicaid or the State
Children’s Health Insurance Program,
unless you tell us not to. The information, if disclosed, will be used to identify eligible children and seek to enroll
them in Medicaid or SCHIP.’’ For children determined eligible for free meals
through direct certification, the notice
of potential disclosure and opportunity
to decline the disclosure may be included in the document informing parents/guardians of their children’s eligibility for free meals through direct certification process.
(l) Other disclosures. State agencies
and child care institutions that plan to
use or disclose information about children eligible for free and reduced price
meals in ways not specified in this section must obtain written consent from
children’s parents or guardians prior to
the use or disclosure.
(1) The consent must identify the information that will be shared and how
the information will be used.
(2) There must be a statement informing parents and guardians that
failing to sign the consent will not affect the child’s eligibility for free or reduced price meals and that the individuals or programs receiving the information will not share the information
with any other entity or program.
(3) Parents/guardians must be permitted to limit the consent only to
those programs with which they wish
to share information.
(4) The consent statement must be
signed and dated by the child’s parent
or guardian who is a member of the
288
VerDate Sep<11>2014
10:57 May 01, 2019
Jkt 247015
PO 00000
Frm 00298
Fmt 8010
Sfmt 8010
Q:\07\7V4.TXT
PC31
kpayne on VMOFRWIN702 with $$_JOB
Food and Nutrition Service, USDA
§ 226.25
household for purposes of the free and
reduced price meal application.
(m) Agreements with programs/individuals receiving children’s free or reduced
price meal eligibility information. Agreements or Memoranda of Understanding
(MOU) are recommended or required as
follows:
(1) The State agency or child care institution, as appropriate, should have a
written agreement or MOU with programs or individuals receiving eligibility information, prior to disclosing
children’s free and reduced price meal
eligibility information. The agreement
or MOU should include information
similar to that required for disclosures
to Medicaid and SCHIP specified in
paragraph (m)(2) of this section.
(2) For disclosures to Medicaid or
SCHIP, the State agency or child care
institution, as appropriate, must have
a written agreement with the State or
local agency or agencies administering
Medicaid or SCHIP prior to disclosing
children’s free or reduced price meal
eligibility information to those agencies. At a minimum, the agreement
must:
(i) Identify the health insurance program or health agency receiving children’s eligibility information;
(ii) Describe the information that
will be disclosed;
(iii) Require that the Medicaid or
SCHIP agency use the information obtained and specify that the information
must be used to seek to enroll children
in Medicaid or SCHIP;
(iv) Require that the Medicaid or
SCHIP agency describe how they will
use the information obtained;
(v) Describe how the information will
be protected from unauthorized uses
and disclosures;
(vi) Describe the penalties for unauthorized disclosure; and
(vii) Be signed by both the Medicaid
or SCHIP program or agency and the
State agency or child care institution,
as appropriate.
(n) Penalties for unauthorized disclosure or misuse of children’s free and reduced price meal eligibility information.
In accordance with section 9(b)(6)(C) of
the Richard B. Russell National School
Lunch Act (42 U.S.C. 1758(b)(6)(C)), any
individual who publishes, divulges, discloses or makes known in any manner,
or to any extent not authorized by
statute or this section, any information obtained under this section will be
fined not more than $1,000 or imprisoned for up to 1 year, or both.
[47 FR 36527, Aug. 20, 1982]
EDITORIAL NOTE: For FEDERAL REGISTER citations affecting § 226.3, see the List of CFR
Sections Affected, which appears in the
Finding Aids section of the printed volume
and at www.govinfo.gov.
Subpart F—Food Service
Equipment Provisions
§ 226.24 Property
management
requirements.
Institutions and administering agencies shall follow the policies and procedures governing title, use, and disposition of equipment obtained by purchase, whose cost was acquired in
whole or part with food service equipment assistance funds in accordance
with 2 CFR part 200, subpart D and
USDA implementing regulations 2 CFR
part 400 and part 415, as applicable.
[48 FR 41142, Sept. 14, 1983, as amended at 71
FR 39519, July 13, 2006; 81 FR 66492, Sept. 28,
2016]
Subpart G—Other Provisions
§ 226.25 Other provisions.
(a) Grant closeout procedures. Grant
closeout procedures for the Program
shall be in accordance with 2 CFR part
200, subpart D and USDA implementing
regulations 2 CFR part 400 and part 415,
as applicable.
(b) State requirements. Nothing contained in this part shall prevent a
State agency from imposing additional
requirements for participation in the
Program which are not inconsistent
with the provisions of this part; however, any additional requirements shall
be approved by FNSRO and may not
deny the Program to an eligible institution.
(c) Value of assistance. The value of
assistance to participants under the
Program shall not be considered to be
income or resources for any purposes
under any Federal or State laws, including, but not limited to laws relating to taxation, welfare, and public assistance programs.
289
VerDate Sep<11>2014
10:57 May 01, 2019
Jkt 247015
PO 00000
Frm 00299
Fmt 8010
Sfmt 8010
Q:\07\7V4.TXT
PC31
kpayne on VMOFRWIN702 with $$_JOB
§ 226.26
7 CFR Ch. II (1–1–19 Edition)
(d) Maintenance of effort. Expenditure
of funds from State and local sources
for the maintenance of food programs
for children shall not be diminished as
a result of funds received under the
Act.
(e) Fraud penalty. Whoever embezzles,
willfully misapplies, steals, or obtains
by fraud any funds, assets, or property
that are the subject of a grant or other
form of assistance under this part,
whether received directly or indirectly
from the Department or whoever receives, conceals, or retains such funds,
assets, or property to his use or gain,
knowing such funds, assets, or property
have been embezzled, willfully misapplied, stolen, or obtained by fraud
shall, if such funds, assets, or property
are of the value of $100 or more, be
fined not more than $10,000 or imprisoned not more than five years, or both,
or, if such funds, assets, or property are
of value of less than $100, shall be fined
not more than $1,000 or imprisoned for
not more than one year, or both.
(f) Claims adjustment authority. The
Secretary shall have the authority to
determine the amount of, to settle, and
to adjust any claim arising under the
Program, and to compromise or deny
such claim or any part thereof. The
Secretary shall also have the authority
to waive such claims if the Secretary
determines that to do so would serve
the purposes of the program. This provision shall not diminish the authority
of the Attorney General of the United
States under section 516 of title 28, U.S.
Code, to conduct litigation on behalf of
the United States.
(g) Data collection related to organizations. (1) Each State agency must collect data related to institutions that
have an agreement with the State
agency to participate in the program
for each of Federal fiscal years 2006
through 2009, including those institutions that participated only for part of
the fiscal year. Such data shall include:
(i) The name of each institution;
(ii) The city in which each participating institution was headquartered
and the name of the state;
(iii) The amount of funds provided to
the participating organization, i.e., the
sum of the amount of federal funds reimbursed for operating and, where applicable, administrative costs; and
(iv) The type of participating organization, e.g., government agency, educational institution, for-profit organization, non-profit organization/secular,
non-profit
organization/faith-based,
and ‘‘other.’’
(2) On or before August 31, 2007, and
each subsequent year through 2010,
State agencies must report to FNS
data as specified in paragraph (g)(1) of
this section for the prior Federal fiscal
year. State agencies must submit this
data in a format designated by FNS.
(h) Program evaluations. States, State
agencies, institutions, facilities and
contractors must cooperate in studies
and evaluations conducted by or on behalf of the Department, related to programs authorized under the Richard B.
Russell National School Lunch Act and
the Child Nutrition Act of 1966.
(i) Drinking water. A child care institution or facility must offer and make
potable drinking water available to
children throughout the day.
[47 FR 36527, Aug. 20, 1982, as amended at 53
FR 52597, Dec. 28, 1988; 54 FR 13049, Mar. 30,
1989; 69 FR 53547, Sept. 1, 2004; 71 FR 39519,
July 13, 2006; 72 FR 24183, May 2, 2007; 76 FR
37982, June 29, 2011; 81 FR 24383, Apr. 25, 2016;
81 FR 66492, Sept. 28, 2016]
§ 226.26 Program information.
Persons desiring information concerning the Program may write to the
appropriate State agency or Regional
Office of FNS as indicated below:
(a) In the States of Connecticut,
Maine, Massachusetts, New Hampshire,
New York, Rhode Island, and Vermont:
Northeast Regional Office, FNS, U.S.
Department of Agriculture, 10 Causeway Street, Room 501, Boston, MA
02222–1065.
(b) In the States of Delaware, District of Columbia, Maryland, New Jersey, Pennsylvania, Puerto Rico, Virginia, Virgin Islands, and West Virginia: Mid-Atlantic Regional Office,
FNS, U.S. Department of Agriculture,
300 Corporate Boulevard, Robbinsville,
NJ 08691–1598.
(c) In the States of Alabama, Florida,
Georgia, Kentucky, Mississippi, North
Carolina, South Carolina, and Tennessee: Southeast Regional Office,
FNS, U.S. Department of Agriculture,
61 Forsyth Street, SW., Room 8T36, Atlanta, GA 30303.
290
VerDate Sep<11>2014
10:57 May 01, 2019
Jkt 247015
PO 00000
Frm 00300
Fmt 8010
Sfmt 8010
Q:\07\7V4.TXT
PC31
Food and Nutrition Service, USDA
Pt. 226, App. A
(d) In the States of Illinois, Indiana,
Michigan, Minnesota, Ohio and Wisconsin: Midwest Regional Office, FNS,
U.S. Department of Agriculture, 77
Jackson Boulevard, 20th Floor, Chicago, IL 60604–3507.
(e) In the States of Colorado, Iowa,
Kansas, Missouri, Montana, Nebraska,
North Dakota, South Dakota, Utah and
Wyoming: Mountain Plains Regional
Office, FNS, U.S. Department of Agriculture, 1244 Speer Boulevard, Suite
903, Denver, CO 80204.
(f) In the States of Arkansas, Louisiana, New Mexico, Oklahoma and
Texas: Southwest Regional Office,
FNS, U.S. Department of Agriculture,
1100 Commerce Street, Room 5–C–30,
Dallas, TX 75242.
(g) In the States of Alaska, American
Samoa, Arizona, California, Guam, Hawaii, Idaho, Nevada, Oregon, the Commonwealth of the Northern Mariana Islands, and Washington: Western Regional Office, FNS, U.S. Department of
Agriculture, 90 Seventh Street, Suite
10–100, San Francisco, California 94103–
6701.
[47 FR 36527, Aug. 20, 1982; 47 FR 46072, Oct.
15, 1982, as amended at 48 FR 40197, Sept. 6,
1983; 53 FR 52598, Dec. 28, 1988; 65 FR 12442,
Mar. 9, 2000; 76 FR 34572, June 13, 2011]
§ 226.27 Information collection/recordkeeping—OMB assigned control
numbers.
7 CFR section where requirements are described
226.3–226.4 .......................................................
226.6–226.10 .....................................................
226.14–226.16 ...................................................
226.23–226.24 ...................................................
Current
OMB control
number
0584–0055
0584–0055
0584–0055
0584–0055
[50 FR 53258, Dec. 31, 1985]
APPENDIX A TO PART 226—ALTERNATE
FOODS FOR MEALS
ALTERNATE PROTEIN PRODUCTS
kpayne on VMOFRWIN702 with $$_JOB
A. What are the criteria for alternate protein
products used in the Child and Adult Care
Food Program?
1. An alternate protein product used in
meals planned under the provisions in § 226.20
must meet all of the criteria in this section.
2. An alternate protein product whether
used alone or in combination with meat or
meat alternate must meet the following criteria:
a. The alternate protein product must be
processed so that some portion of the nonprotein constituents of the food is removed.
These alternate protein products must be
safe and suitable edible products produced
from plant or animal sources.
b. The biological quality of the protein in
the alternate protein product must be at
least 80 percent that of casein, determined
by performing a Protein Digestibility Corrected Amino Acid Score (PDCAAS).
c. The alternate protein product must contain at least 18 percent protein by weight
when fully hydrated or formulated. (‘‘When
hydrated or formulated’’ refers to a dry alternate protein product and the amount of
water, fat, oil, colors, flavors or any other
substances which have been added).
d. Manufacturers supplying an alternate
protein product to participating schools or
institutions must provide documentation
that the product meets the criteria in paragraphs A.2. through c of this appendix.
e. Manufacturers should provide information on the percent protein contained in the
dry alternate protein product and on an as
prepared basis.
f. For an alternate protein product mix,
manufacturers should provide information
on:
(1) The amount by weight of dry alternate
protein product in the package;
(2) Hydration instructions; and
(3) Instructions on how to combine the mix
with meat or other meat alternates.
B. How are alternate protein products used in
the Child and Adult Care Food Program?
1. Schools, institutions, and service institutions may use alternate protein products
to fulfill all or part of the meat/meat alternate component discussed in § 226.20.
2. The following terms and conditions
apply:
a. The alternate protein product may be
used alone or in combination with other food
ingredients. Examples of combination items
are beef patties, beef crumbles, pizza topping, meat loaf, meat sauce, taco filling,
burritos, and tuna salad.
b. Alternate protein products may be used
in the dry form (nonhydrated), partially hydrated or fully hydrated form. The moisture
content of the fully hydrated alternate protein product (if prepared from a dry concentrated form) must be such that the mixture will have a minimum of 18 percent protein by weight or equivalent amount for the
dry or partially hydrated form (based on the
level that would be provided if the product
were fully hydrated).
C. How are commercially prepared products
used in the Child and Adult Care Food Program?
Schools, institutions, and service institutions may use a commercially prepared meat
291
VerDate Sep<11>2014
10:57 May 01, 2019
Jkt 247015
PO 00000
Frm 00301
Fmt 8010
Sfmt 8002
Q:\07\7V4.TXT
PC31
7 CFR Ch. II (1–1–19 Edition)
or meat alternate product combined with alternate protein products or use a commercially prepared product that contains only
alternate protein products.
(c) The CN label statement includes the following:
(1) The product identification number (assigned by FNS),
(2) The statement of the product’s contribution toward meal pattern requirements
of 7 CFR 210.10, 220.8, 225.21, and 226.20. The
statement shall identify the contribution of
a specific portion of a meat/meat alternate
product toward the meat/meat alternate,
bread/bread alternate, and/or vegetable/fruit
component of the meal pattern requirements. For juice drinks and juice drink products the statement shall identify their contribution toward the vegetable/fruit component of the meal pattern requirements,
(3) Statement specifying that the use of
the CN logo and CN statement was authorized by FNS, and
(4) The approval date.
For example:
[65 FR 12442, Mar. 9, 2000]
APPENDIX B TO PART 226 [RESERVED]
kpayne on VMOFRWIN702 with $$_JOB
APPENDIX C TO PART 226—CHILD
NUTRITION (CN) LABELING PROGRAM
EC17SE91.010
1. The Child Nutrition (CN) Labeling Program is a voluntary technical assistance program administered by the Food and Nutrition Service (FNS) in conjunction with the
Food Safety and Inspection Service (FSIS),
and Agricultural Marketing Service (AMS)
of the U.S. Department of Agriculture
(USDA), and National Marine Fisheries Service of the U.S. Department of Commerce
(USDC) for the Child Nutrition Programs.
This program essentially involves the review
of a manufacturer’s recipe or product formulation to determine the contribution a serving of a commercially prepared product
makes toward meal pattern requirements
and a review of the CN label statement to ensure its accuracy. CN labeled products must
be produced in accordance with all requirements set forth in this rule.
2. Products eligible for CN labels are as follows:
(a) Commercially prepared food products
that contribute significantly to the meat/
meat alternate component of meal pattern
requirements of 7 CFR 210.10, 225.21, and
226.20 and are served in the main dish.
(b) Juice drinks and juice drink products
that contain a minimum of 50 percent fullstrength juice by volume.
3. For the purpose of this appendix the following definitions apply:
(a) CN label is a food product label that
contains a CN label statement and CN logo
as defined in paragraph 3 (b) and (c) below.
(b) The CN logo (as shown below) is a distinct border which is used around the edges
of a ‘‘CN label statement’’ as defined in paragraph 3(c).
292
VerDate Sep<11>2014
10:57 May 01, 2019
Jkt 247015
PO 00000
Frm 00302
Fmt 8010
Sfmt 8006
Q:\07\7V4.TXT
PC31
EC17SE91.009
Pt. 226, App. C
Food and Nutrition Service, USDA
Pt. 227
(d) Federal inspection means inspection of
food products by FSIS, AMS or USDC.
4. Food processors or manufacturers may
use the CN label statement and CN logo as
defined in paragraph 3 (b) and (c) under the
following terms and conditions:
(a) The CN label must be reviewed and approved at the national level by the Food and
Nutrition Service and appropriate USDA or
USDC Federal agency responsible for the inspection of the product.
(b) The CN labeled product must be produced under Federal inspection by USDA or
USDC. The Federal inspection must be performed in accordance with an approved partial or total quality control program or
standards established by the appropriate
Federal inspection service.
(c) The CN label statement must be printed
as an integral part of the product label along
with the product name, ingredient listing,
the inspection shield or mark for the appropriate inspection program, the establishment number where appropriate, and the
manufacturer’s or distributor’s name and address.
(1) The inspection marking for CN labeled
non-meat, non-poultry, and non-seafood
products with the exception of juice drinks
and juice drink products is established as follows:
rine Fisheries Services of the USDC, Food
and Drug Administration, or the Department
of Justice for action against the company.
Any or all of the following courses of action may be taken:
(a) The company’s CN label may be revoked for a specific period of time;
(b) The appropriate agency may pursue a
misbranding or mislabeling action against
the company producing the product;
(c) The company’s name will be circulated
to regional FNS offices;
(d) FNS will require the food service program involved to notify the State agency of
the labeling violation.
7. FNS is authorized to issue operational
policies, procedures, and instructions for the
CN Labeling Program.
To apply for a CN label and to obtain additional information on CN label application
procedures write to: CN Labels, U.S. Department of Agriculture, Food and Nutrition
Service, Nutrition and Technical Services
Division, 3101 Park Center Drive, Alexandria,
Virginia 22302.
[49 FR 18457, May 1, 1984; 49 FR 45109, Nov. 15,
1984]
PART 227—NUTRITION EDUCATION
AND TRAINING PROGRAM
(d) Yields for determining the product’s
contribution toward meal pattern requirements must be calculated using the Food
Buying Guide for Child Nutrition Programs
(Program Aid Number 1331).
5. In the event a company uses the CN logo
and CN label statement inappropriately, the
company will be directed to discontinue the
use of the logo and statement and the matter
will be referred to the appropriate agency for
action to be taken against the company.
6. Products that bear a CN label statement
as set forth in paragraph 3(c) carry a warranty. This means that if a food service authority participating in the child nutrition
programs purchases a CN labeled product
and uses it in accordance with the manufacturer’s directions, the school or institution
will not have an audit claim filed against it
for the CN labeled product for noncompliance with the meal pattern requirements of
7 CFR 210.10, 220.8, 225.21, and 226.20. If a
State or Federal auditor finds that a product
that is CN labeled does not actually meet the
meal pattern requirements claimed on the
label, the auditor will report this finding to
FNS. FNS will prepare a report of the findings and send it to the appropriate divisions
of FSIS and AMS of the USDA, National Ma-
General purpose and scope.
Definitions.
Administration.
Application and agreement.
Program funding.
Subpart B—State Agency Provisions
227.30 Responsibilities of State agencies.
227.31 Audits, management reviews, and
evaluations.
Subpart C—State Coordinator Provisions
227.35 Responsibilities of State coordinator.
227.36 Requirements of needs assessment.
227.37 State plan for nutrition education
and training.
Subpart D—Miscellaneous
227.40 Program information.
227.41 Recovery of funds.
227.42 Grant closeout procedures.
227.43 Participation of adults.
227.44 Management evaluations and reviews.
APPENDIX TO PART 227—APPORTIONMENT OF
FUNDS FOR NUTRITION EDUCATION AND
TRAINING
AUTHORITY: Sec. 15, Pub. L. 95–166, 91 Stat.
1340 (42 U.S.C. 1788), unless otherwise noted.
293
VerDate Sep<11>2014
10:57 May 01, 2019
Jkt 247015
PO 00000
Frm 00303
Fmt 8010
Sfmt 8010
Q:\07\7V4.TXT
PC31
EC17SE91.011
kpayne on VMOFRWIN702 with $$_JOB
Subpart A—General
Sec.
227.1
227.2
227.3
227.4
227.5
| File Type | application/pdf |
| Author | Sarah Powers - ICF |
| File Modified | 2021-07-06 |
| File Created | 2021-07-06 |