Attachment B - Special Milk Program Regulations 7 CFR Part 215

Attachment B: Special Milk Program Regulations 7 CFR Part 215
7 CFR Part 215 (up to date as of 6/16/2022)
Special Milk Program for Children

7 CFR Part 215

This content is from the eCFR and is authoritative but unofficial.

Title 7 - Agriculture
Subtitle B - Regulations of the Department of Agriculture
Chapter II - Food and Nutrition Service, Department of Agriculture
Subchapter A - Child Nutrition Programs

Subtitle B Regulations of the Department of Agriculture
Chapter II Food and Nutrition Service, Department of Agriculture
Subchapter A Child Nutrition Programs
Part 215 Special Milk Program for Children
General purpose and scope.
§ 215.1
§ 215.2
Definitions.
§ 215.3
Administration.
§ 215.4
Payments of funds to States and FNSROs.
§ 215.5
Method of payment to States.
§ 215.6
Use of funds.
§ 215.7
Requirements for participation.
§ 215.7a Fluid milk and non-dairy milk substitute requirements.
§ 215.8
Reimbursement payments.
§ 215.9
Effective date for reimbursement.
§ 215.10 Reimbursement procedures.
§ 215.11 Special responsibilities of State agencies.
§ 215.12 Claims against schools or child-care institutions.
§ 215.13 Management evaluations and audits.
§ 215.13a Determining eligibility for free milk in child-care institutions.
§ 215.14 Nondiscrimination.
§ 215.14a Procurement standards.
§ 215.15 Withholding payments.
§ 215.16 Suspension, termination and grant closeout procedures.
§ 215.17 Program information.
§ 215.18 Information collection/recordkeeping - OMB assigned control numbers.

PART 215 - SPECIAL MILK PROGRAM FOR CHILDREN
Authority: 42 U.S.C. 1772 and 1779.

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7 CFR 215.1

§ 215.1 General purpose and scope.
This part announces the policies and prescribes the general regulations with respect to the Special Milk Program for
Children, under the Child Nutrition Act of 1966, as amended, and sets forth the general requirements for
participation in the program. The Act reads in pertinent part as follows:
Section 3(a)(1) There is hereby authorized to be appropriated for the fiscal year ending June 30, 1970, and for each
succeeding fiscal year such sums as may be necessary to enable the Secretary of Agriculture, under such rules
and regulations as he may deem in the public interest, to encourage consumption of fluid milk by children in the
United States in (A) nonprofit schools of high school grade and under, except as provided in paragraph (2), which
do not participate in a meal service program authorized under this Act or the National School Lunch Act, and (B)
nonprofit nursery schools, child care centers, settlement houses, summer camps, and similar nonprofit institutions
devoted to the care and training of children, which do not participate in a meal service program authorized under
this Act or the National School Lunch Act.
(2) The limitation imposed under paragraph (1)(A) for participation of nonprofit schools in the special milk
program shall not apply to split-session kindergarten programs conducted in schools in which children do not have
access to the meal service program operating in schools the children attend as authorized under this Act or the
National School Lunch Act (42 U.S.C. 1751 et seq.).
(3) For the purposes of this section “United States” means the fifty States, Guam, the Commonwealth of Puerto
Rico, the Virgin Islands, American Samoa, the Trust Territory of the Pacific Islands, and the District of Columbia.
(4) The Secretary shall administer the special milk program provided for by this section to the maximum extent
practicable in the same manner as he administered the special milk program provided for by Pub. L. 89-642, as
amended, during the fiscal year ending June 30, 1969.
(5) Any school or nonprofit child care institution which does not participate in a meal service program authorized
under this Act or the National School Lunch Act shall receive the special milk program upon their request.
(6) Children who qualify for free lunches under guidelines established by the Secretary shall, at the option of the
school involved (or of the local educational agency involved in the case of a public school) be eligible for free milk
upon their request.
(7) For the fiscal year ending June 30, 1975, and for subsequent school years, the minimum rate of reimbursement
for a half-pint of milk served in schools and other eligible institutions shall not be less than 5 cents per half-pint
served to eligible children, and such minimum rate of reimbursement shall be adjusted on an annual basis each
school year to reflect changes in the Producer Price Index for Fresh Processed Milk published by the Bureau of
Labor Statistics of the Department of Labor.
(8) Such adjustment shall be computed to the nearest one-fourth cent.
(9) Notwithstanding any other provision of this section, in no event shall the minimum rate of reimbursement
exceed the cost to the school or institution of milk served to children.
[52 FR 7562, Mar. 12, 1987]

7 CFR 215.1 (enhanced display)

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7 CFR 215.2

§ 215.2 Definitions.
For the purpose of this part, the term:
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: Pre-Federal Award Requirements and
Contents of Federal Awards (subpart C) does not apply to the National School Lunch Program).
Act

means the Child Nutrition Act of 1966.

Adults means those persons not included under the definition of children.
Applicable credits shall have the meaning established in 2 CFR part 200 and USDA implementing regulations 2
CFR part 400 and part 415.
Child and Adult Care Food Program means the program authorized by section 17 of the National School Lunch
Act, as amended.
Child care institution means any nonprofit nursery school, child care center, settlement house, summer camp,
service institution participating in the Summer Food Program for Children pursuant to part 225 of this
chapter, institution participating in the Child and Adult Care Food Program pursuant to part 226 of this
chapter, or similar nonprofit institution devoted to the care and training of children. The term “child care
institution” also includes a nonprofit agency to which such institution has delegated authority for the
operation of a milk program in the institution. It does not include any institution falling within the definition
of “School” of this section.
Child means
(1) A person under 19 chronological years of age in a Child care institution as defined in this section;
(2) A person under 21 chronological years of age attending a school as defined in paragraphs (3) and
(4) of the definition of School in this section;
(3) A student of high school grade or under attending school as defined in paragraphs (1) and (2) of the
definition of School in this section; or
(4) A student who is mentally or physically disabled as determined by the State and who is participating
in a school program established for the mentally or physically disabled, of high school grade or
under as determined by the State educational agency in paragraphs (1) and (2) of the definition of
School in this section.
CND means the Child Nutrition Division of the Food and Nutrition Service of the Department.
Contractor means a commercial enterprise, public or nonprofit private organization or individual that enters into
a contract with a school food authority.
Cost of milk means the net purchase price paid by the school or child care institution to the milk supplier for
milk delivered to the school or child care institution. This shall not include any amount paid to the milk
supplier for servicing, rental of or installment purchase of milk service equipment.
Cost reimbursable contract means a contract that provides for payment of incurred costs to the extent
prescribed in the contract, with or without a fixed fee.
Department means the U.S. Department of Agriculture.
7 CFR 215.2 “Department” (enhanced display)

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7 CFR 215.2 “Disclosure”

Disclosure means reveal or use individual children's program eligibility information obtained through the free
milk 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.
Family means 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.
Fiscal year means the period of 12 calendar months beginning October 1, 1977, and each October 1 of any
calendar year thereafter and ending September 30 of the following calendar year.
Fixed fee means an agreed upon amount that is fixed at the inception of the contract. In a cost reimbursable
contract, the fixed fee includes the contractor's direct and indirect administrative costs and profit
allocable to the contract.
FNS

means the Food and Nutrition Service of the U.S. Department of Agriculture.

FNSRO means Food and Nutrition Services Regional Offices, of the Food and Nutrition Service of the U.S.
Department of Agriculture.
Free milk means milk for which neither the child nor any member of his family pays or is required to work in the
school or child-care institution or in its food service.
Local educational agency means a public board of education or other public or private nonprofit authority legally
constituted within a State for either administrative control or direction of, or to perform a service function
for, public or private nonprofit elementary schools or secondary schools in a city, county, township, school
district, or other political subdivision of a State, or for a combination of school districts or counties that is
recognized in a State as an administrative agency for its public or private nonprofit elementary schools or
secondary schools. The term also includes any other public or private nonprofit institution or agency
having administrative control and direction of a public or private nonprofit elementary school or
secondary school, including residential child care institutions, Bureau of Indian Affairs schools, and
educational service agencies and consortia of those agencies, as well as the State educational agency in
a State or territory in which the State educational agency is the sole educational agency for all public or
private nonprofit schools.
Medicaid means the State medical assistance program under title XIX of the Social Security Act (42 U.S.C. 1396
et seq.).
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. In Alaska, Hawaii, American Samoa,
Guam, Puerto Rico, the Trust Territory of the Pacific 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 consistent
with State and local standards for such milk.
National School Lunch Program means the program under which general cash-for-food assistance and special
cash assistance are made available to schools pursuant to part 210 of this chapter.
Needy children means:
(1) Children who attend schools participating in the Program and who meet the School Food Authority's
eligibility standards for free milk approved by the State agency, or FNSRO where applicable, under
part 245 of this chapter; and
7 CFR 215.2 “Needy children” (1) (enhanced display)

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7 CFR 215.2 “Needy children” (2)

(2) Children who attend child-care institutions participating in the Program and who meet the eligibility
standards for free milk approved by the State agency, or FNSRO where applicable, under § 215.13a
of this part.
Nonpricing program means a program which does not sell milk to children. This shall include any such program
in which children are normally provided milk, along with food and other services, in a school or child-care
institution financed by a tuition, boarding, camping or other fee, or by private donations or endowments.
Nonprofit means, when applied to schools or institutions eligible for the Program, exempt from income tax
under section 501(c)(3) of the Internal Revenue Code of 1986.
Nonprofit milk service means milk service maintained by or on behalf of the school or child-care institution for
the benefit of the children, all of the income from which is used solely for the operation or improvement of
such milk service.
Nonprofit school food service account means the restricted account in which all of the revenue from the
nonprofit milk service maintained for the benefit of children is retained and used only for the operation or
improvement of the nonprofit milk service.
OA

means the Office of Audit of the United States Department of Agriculture.

OIG

means the Office of the Inspector General of the Department.

Pricing program means a program which sells milk to children. This shall include any such program in which
maximum use is made of Program reimbursement payments in lowering, or reducing to “zero,” wherever
possible, the price per half pint which children would normally pay for milk.
Program means the Special Milk Program for Children.
Reimbursement means financial assistance paid or payable to participating schools and child care institutions
for milk served to eligible children.
School means:
(1) An educational unit of high school grade or under, recognized as part of the educational system in
the State and operating under public or nonprofit private ownership in a single building or complex of
buildings;
(2) any public or nonprofit private classes of preprimary grade when they are conducted in the
aforementioned schools; or
(3) any public or nonprofit private residential child care institution, or distinct part of such institution,
which operates principally for the care of children, and, if private, is licensed to provide residential
child care services under the appropriate licensing code by the State or a subordinate level of
government, except for residential summer camps which participate in the Summer Food Service
Program for Children, Job Corps centers funded by the Department of Labor, and private foster
homes. The term residential child care institutions includes, but is not limited to: Homes for the
mentally, emotionally or physically impaired, and unmarried mothers and their infants; group homes;
halfway houses; orphanages; temporary shelters for abused children and for runaway children; longterm care facilities for chronically ill children; and juvenile detention centers. A long-term care facility
is a hospital, skilled nursing facility, intermediate care facility, or distinct part thereof, which is
intended for the care of children confined for 30 days or more.
School Breakfast Program means the program authorized by section 4 of the Child Nutrition Act of 1966, as
amended.
7 CFR 215.2 “School Breakfast Program” (enhanced display)

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7 CFR 215.2 “School Food Authority”

School Food Authority means the governing body which is responsible for the administration of one or more
schools and which has the legal authority to operate a milk program therein. The term “School Food
Authority” also includes a nonprofit agency to which such governing body has delegated authority for the
operation of a milk program in a school.
School year means the period of 12 calendar months beginning July 1, 1977, and each July 1 of any calendar
year thereafter and ending June 30 of the following calendar year.
Split-session means an educational program operating for approximately one-half of the normal school day.
State means any of the 50 States, District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands,
Guam, and, as applicable, American Samoa and the Commonwealth of the Northern Marianas.
State agency means the State educational agency or any other State agency that has been designated by the
Governor or other appropriate executive or legislative authority of the State and approved by the
Department to administer the Program.
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.).
Summer Food Service Program for Children means the program authorized by section 13 of the National School
Lunch Act, as amended.
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.
(Sec. 11, Pub. L. 95-166, 91 Stat. 1337 (42 U.S.C. 1772, 1753, 1766; sec. 10(a), Pub. L. 95-627, 92 Stat. 3623 (42
U.S.C. 1760; sec. 10(d)), Pub. L. 95-627, 92 Stat. 3624 (42 U.S.C. 1757); sec. 14, Pub. L. 95-627, 92 Stat. 3625-3626;
sec. 205, Pub. L. 96-499, The Omnibus Reconciliation Act of 1980, 94 Stat. 2599; secs. 807 and 808, Pub. L. 97-35,
95 Stat. 521-535 (42 U.S.C. 1772, 1784, 1760))
[32 FR 12587, Aug. 31, 1967]

Editorial Note: For FEDERAL REGISTER citations affecting § 215.2, see the List of CFR Sections Affected, which
appears in the Finding Aids section of the printed volume and at www.govinfo.gov.

§ 215.3 Administration.
(a) Within the Department, FNS shall act on behalf of the Department in the administration of the Program.
Within FNS, CND shall be responsible for Program administration.
(b) Within the States, to the extent practicable and permissible under State law, responsibility for the
administration of the Program in schools and child care institutions shall be in the educational agency of
the State: Provided, however, That another State agency, upon request by the Governor or other
appropriate State executive or legislative authority, may be approved to administer the Program in schools
as described in paragraph (3) of the definition of School in § 215.2 or in child care institutions.
(c) FNSRO shall administer the Program in any School or any Child care institution as defined in § 215.2
wherein the State agency is not permitted by law to disburse Federal funds paid to it under the Program;
Provided, however, That FNSRO shall also administer the Program in all other schools and child-care
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7 CFR 215.3(d)

institutions which have been under continuous FNS administration since October 1, 1980 unless the
administration of such schools and institutions is assumed by a State agency. References in this part to
“FNSRO where applicable” are to FNSRO as the agency administering the Program to schools or childcare institutions within certain States.
(d) 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, 7 CFR parts 235, 245, 15, 15a, 15b and, as applicable, 2 CFR part 200, subpart D and USDA
implementing regulations 2 CFR part 400, subparts B and D and USDA implementing regulations 2 CFR
part 400 and part 415, and FNS Instructions. Such agreement shall cover the operation of the Program
during the period specified therein and may be extended at the option of the Department.
(Secs. 804, 816 and 817, Pub. L. 97-35; 95 Stat. 521-535 (42 U.S.C. 1753, 1756, 1759, 1771 and 1785))
[Amdt. 14, 41 FR 31174, July 27, 1976, as amended by Amdt. 24, 47 FR 14133 Apr. 2, 1982; Amdt. 36, 54 FR 2989, Jan. 23, 1989;
71 FR 39516, July 13, 2006; 72 FR 63791, Nov. 13, 2007; 81 FR 66490, Sept. 28, 2016]

§ 215.4 Payments of funds to States and FNSROs.
(a) For each fiscal year, the Secretary shall make payments to each State agency at such times as he may
determine from the funds appropriated for Program reimbursement. Subject to § 215.11(c)(2), the total of
these payments for each State for any fiscal year shall be limited to the amount of reimbursement
payable to School Food Authorities and child care institutions under § 215.8 of this part for the total
number of half-pints of milk served under the Program to eligible children from October 1 to September
30.
(b) Each State agency shall be responsible for controlling Program reimbursement payments so as to keep
within the funds made available to it, and for the timely reporting to FNS of the number of half pints of
milk actually served. The Secretary shall increase or decrease the available level of funding by adjusting
the State agency's Letter of Credit when appropriate.
(Pub. L. 97-370, 96 Stat. 1806)
[Amdt. 14, 41 FR 31174, July 27, 1976, as amended by Amdt. 30, 49 FR 18986, May 4, 1984]

§ 215.5 Method of payment to States.
(a) Funds to be paid to any State shall be made available by means of Letters of Credit issued by FNS in favor
of the State agency. The State agency shall:
(1) Obtain funds needed to reimburse School Food Authorities and child-care institutions through
presentation by designated State officials of a Payment Voucher on Letter of Credit (Treasury Form
GFO 7578) in accordance with procedures prescribed by FNS and approved by the U.S. Treasury
Department;
(2) Submit requests for funds only at such times and in such amounts as will permit prompt payment of
claims;
(3) Use the funds received from such requests without delay for the purpose for which drawn.
Notwithstanding the foregoing provisions, if funds are made available by Congress for the operation
of the Program under a continuing resolution, Letters of Credit shall reflect only the amount available
for the effective period of the resolution.
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7 CFR 215.5(b)

(b) [Reserved]
(c) The State agency shall release to FNS any Federal funds made available to it under the Program which are
unobligated at the end of each fiscal year. Release of funds by the State agency shall be made as soon as
practicable but in no event later than 30 days following demand by FNSRO, and shall be reflected by a
related adjustment in the State agency's Letter of Credit.
[Amdt. 13, 39 FR 28416, Aug. 7, 1974, as amended by Amdt. 14, 41 FR 31174, July 27, 1976]

§ 215.6 Use of funds.
(a) Federal funds made available under the Program shall be used to encourage the consumption of milk
through reimbursement payments to schools and child-care institutions in connection with the purchase
and service of milk to children in accordance with the provisions of this part: Provided, however, That, with
the approval of FNS, any State agency, or FNSRO where applicable, may reserve for use in carrying out
special developmental projects an amount equal to not more than 1 per centum of the Federal funds so
made available for any fiscal year.
(b) Whoever embezzles, willfully misapplies, steals, or obtains by fraud any funds, assets, or property
provided under this part, whether received directly or indirectly from the Department, shall:
(1) If such funds, assets, or property are of a value of $100 or more, be fined not more than $25,000 or
imprisoned not more than 5 years or both; or
(2) if such funds, assets, or property are of a value of less than $100, be fined not more than $1,000 or
imprisoned not more than one year or both.
(c) Whoever receives, conceals, or retains to his use or gain funds, assets, or property provided under this
part, whether received directly or indirectly from the Department, knowing such funds, assets, or property
have been embezzled, willfully misapplied, stolen, or obtained by fraud, shall be subject to the same
penalties provided in paragraph (b) of this section.
(Sec. 10(a), Pub. L. 95-627, 92 Stat. 3623 (42 U.S.C. 1760; sec. 10(d)(3), Pub. L. 95-627, 92 Stat. 3624 (42 U.S.C.
1757); sec. 14, Pub. L. 95-627, 92 Stat. 3625-3626; 44 U.S.C. 3506))
[Amdt. 14, 41 FR 31174, July 27, 1976, as amended by Amdt. 18, 44 FR 37898, June 29, 1979; 47 FR 746, Jan. 7, 1982; 64 FR
50741, Sept. 20, 1999]

§ 215.7 Requirements for participation.
(a) Any school or nonprofit child care institution shall receive the Special Milk Program upon request provided
it does not participate in a meal service program authorized under the Child Nutrition Act of 1966 or the
National School Lunch Act; except that schools with such meal service may receive the Special Milk
Program upon request only for the children attending split-session kindergarten programs who do not
have access to the meal service. Each School Food Authority or child-care institution shall make written
application to the State agency, or FNSRO where applicable, for any school or child-care institution in
which it desires to operate the Program, if such school or child-care institution did not participate in the
Program in the prior fiscal year.
(b) Any School Food Authority or child care institution participating in the Program may elect to serve free
milk to children eligible for free meals. Upon application for the Program, each School Food Authority or
child care institution:
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7 CFR 215.7(b)(1)

(1) Shall be required by the State agency, or FNSRO where applicable, to state whether or not it wishes
to provide free milk in the schools or institutions participating under its jurisdiction and
(2) If it so wishes to provide free milk, shall also submit for approval a free milk policy statement which,
if for a school, shall be in accordance with part 245 of this chapter or, if for a child care institution,
shall be in accordance with § 215.13a of this part.
(c) The application shall include information in sufficient detail to enable the State agency, or FNSRO where
applicable, to determine whether the School Food Authority or child-care institution is eligible to
participate in the Program and extent of the need for Program payments.
(d) Each school food authority or child care institution approved to participate in the program shall enter into
a written agreement with the State agency or FNSRO, as applicable, that may be amended as necessary.
Nothing in the preceding sentence shall be construed to limit the ability of the State agency to suspend or
terminate the agreement in accordance with § 215.15. If a single State agency administers any
combination of the Child Nutrition Programs, that State agency shall provide each SFA with a single
agreement with respect to the operation of those programs. Such agreement shall provide that the School
Food Authority or child-care institution shall, with respect to participating schools and child-care
institutions under its jurisdiction:
(1) Operate a nonprofit milk service. However, school food authorities may use facilities, equipment, and
personnel supported with funds provided to a school food authority under this part to support a
nonprofit nutrition program for the elderly, including a program funded under the Older Americans
Act of 1965 (42 U.S.C. 3001 et seq.).
(2) If electing to provide free milk
(i)

serve milk free to all eligible children, at times that milk is made available to nonneedy children
under the Program; and

(ii) make no discrimination against any needy child because of his inability to pay for the milk.
(3) Comply with the requirements of the Department's regulations respecting nondiscrimination (7 CFR
part 15);
(4) Claim reimbursement only for milk as defined in this part and in accordance with the provisions of §
215.8 and § 215.10;
(5) Submit Claims for Reimbursement in accordance with § 215.10 of this part and procedures
established by the State agency or FNSRO where applicable;
(6) Maintain a financial management system as prescribed by the State agency, or FNSRO where
applicable;
(7) Upon request, make all records pertaining to its milk program available to the State agency and to
FNS or OA for audit and administrative review, at any reasonable time and place. Such records shall
be retained for a period of three years after the end of the fiscal year to which they pertain, except
that, if audit findings have not been resolved, the records shall be retained beyond the three-year
period as long as required for the resolution of the issues raised by the audit;
(8) Retain the individual applications for free milk submitted by families for a period of three years after
the end of the fiscal year to which they pertain, except that, if audit findings have not been resolved,
the records shall be retained beyond the three-year period as long as required for the resolution of
the issues raised by the audit.
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7 CFR 215.7(e)

(e) 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 provision of this part.
(f)

Program evaluations. Local educational agencies, school food authorities, schools, child care institutions
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.

(Sec. 11, Pub. L. 95-166, 91 Stat. 1337 (42 U.S.C. 1772, 1753, 1766); sec. 5, Pub. L. 95-627, 92 Stat. 3619 (42 U.S.C.
1772); secs. 801, 803, 812; Pub. L. 97-35, 95 Stat. 521-535 (42 U.S.C. 1753, 1759(a), 1773, 1758); 44 U.S.C. 3506)
[Amdt. 13, 39 FR 28416, Aug. 7, 1974]

Editorial Note: For FEDERAL REGISTER citations affecting § 215.7, see the List of CFR Sections Affected, which
appears in the Finding Aids section of the printed volume and at www.govinfo.gov.

§ 215.7a Fluid milk and non-dairy milk substitute requirements.
Link to an amendment published at 87 FR 7006, Feb. 7, 2022.
Fluid milk and non-dairy fluid milk substitutes served must meet the requirements as outlined in this section.
(a) Types of fluid milk. All fluid milk served in the Program must be pasteurized fluid milk which meets State
and local standards for such milk, have vitamins A and D at levels specified by the Food and Drug
Administration, and must be consistent with State and local standards for such milk. Fluid milk must also
meet the following requirements:
(1) Children 1 year old. Children one year of age must be served unflavored whole milk.
(2) Children 2 through 5 years old. Children two through five years old must be served either unflavored
low-fat (1 percent) or unflavored fat-free (skim) milk.
(3) Children 6 years old and older. Children 6 years old and older must be served unflavored low-fat (1
percent fat or less), unflavored fat-free (skim), or flavored fat-free (skim) milk.
(b) Fluid milk substitutes. 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 who cannot consume fluid milk due to medical
or special dietary needs when requested in writing by the child's parent or guardian. A school or day care
center need only offer the non-dairy beverage that it has identified as an allowable fluid milk substitute
according to the following table.
Nutrient

Per cup (8 fl oz)

Calcium

276 mg.

Protein

8 g.

Vitamin A

500 IU.

Vitamin D

100 IU.

Magnesium

24 mg.

Phosphorus

222 mg.

7 CFR 215.7a(b) (enhanced display)

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7 CFR 215.8

Nutrient

Per cup (8 fl oz)

Potassium

349 mg.

Riboflavin

0.44 mg.

Vitamin B-12

1.1 mcg.

[81 FR 24375, Apr. 25, 2016, as amended at 82 FR 56714, Nov. 30, 2017; 83 FR 63790, Dec. 12, 2018; 85 FR 74849, Nov. 24, 2020]

§ 215.8 Reimbursement payments.
(a) [Reserved]
(b)
(1) The rate of reimbursement per half-pint of milk purchased and
(i)

served in nonpricing programs to all children;

(ii) served to all children in pricing programs by institutions and School Food Authorities not
electing to provide free milk; and
(iii) served to children other than needy children in pricing programs by institutions and School
Food Authorities electing to provide free milk shall be the rate announced by the Secretary for
the applicable school year. However, in no event shall the reimbursement for each half-pint (236
ml.) of milk served to children exceed the cost of the milk to the school or child care institution.
(2) The rate of reimbursement for milk purchased and served free to needy children in pricing programs
by institutions and School Food Authorities electing to provide free milk shall be the average cost of
milk, i.e., the total cost of all milk purchased during the claim period, divided by the total number of
purchased half-pints.
(c) Schools and child-care institutions having pricing programs shall use the reimbursement payments
received to reduce the price of milk to children.
(Sec. 11, Pub. L. 95-166, 91 Stat. 1337 (42 U.S.C. 1772, 1753, 1766); sec. 5, Pub. L. 95-627, 92 Stat. 3619 (42 U.S.C.
1772); Omnibus Reconciliation Act of 1980, sec. 209, Pub. L. 96-499, 94 Stat. 2599; secs. 807 and 808, Pub. L.
97-35, 95 Stat. 521-535, 42 U.S.C. 1772, 1784, 1760; secs. 805 and 819, Pub. L. 97-35, 95 Stat. 521-535 (42 U.S.C.
1773))
[Amdt. 13, 39 FR 28416, Aug. 7, 1974, as amended by Amdt. 16, 43 FR 1060, Jan. 6, 1978; 44 FR 10700, Feb. 23, 1979; Amdt. 17,
44 FR 33047, June 8, 1979; 46 FR 51365, Oct. 20, 1981; Amdt. 23, 47 FR 14134, Apr. 2, 1982; 82 FR 56714, Nov. 30, 2017]

§ 215.9 Effective date for reimbursement.
(a) A State Agency, or FNSRO where applicable, may grant written approval to begin operations under the
Program prior to the receipt of the application from the School Food Authority or child-care institution.
Such written approval shall be attached to the subsequently filed application, and the agreement executed
by the School Food Authority or child-care institution shall be effective from the date upon which the
School Food Authority or child-care institution was authorized to begin operations: Provided, however,
That such effective date shall not be earlier than the calendar month preceding the calendar month in
which the agreement is executed by the State Agency or by the Department.

7 CFR 215.9(a) (enhanced display)

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7 CFR 215.9(b)

(b) Reimbursement payments pursuant to § 215.8 shall be made for milk purchased and served to children at
any time during the effective period of an agreement between a School Food Authority or child care
institution and the State agency or the Department.
(Sec. 11, Pub. L. 95-166, 91 Stat. 1337 (42 U.S.C. 1772, 1753, 1766))
[32 FR 12587, Aug. 31, 1967, as amended by Amdt. 5, 37 FR 14686, July 22, 1972; Amdt. 13, 39 FR 28417, Aug. 7, 1974; Amdt. 16,
43 FR 1060, Jan. 6, 1978; 44 FR 10700, Feb. 23, 1979]

§ 215.10 Reimbursement procedures.
(a) To be entitled to reimbursement under this part, each School Food Authority shall submit to the State
agency, or FNSRO where applicable, a monthly Claim for Reimbursement.
(b) Claims for Reimbursement shall include data in sufficient detail to justify the reimbursement claimed and
to enable the State agency to provide the Reports of School Program Operations required under §
215.11(c)(2). Unless otherwise approved by FNS, the Claim for Reimbursement for any month shall
include only milk served in that month except if the first or last month of Program operations for any 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. If a single State agency administers any combination of the Child Nutrition Programs,
the SFA shall be able to use a common claim form with respect to claims for reimbursement for meals
served under those programs. A final Claim for Reimbursement shall be postmarked and/or submitted to
the State agency, or FNSRO where applicable, 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, or FNSRO where applicable, 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 School Program Operations (FNS-10) for the claim month which is required under §
215.11(c)(2). Upward adjustments in Program funds claimed which are not reflected in the final FNS-10
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.
(c) [Reserved]
(d) In submitting a Claim for Reimbursement, each School Food Authority or child-care institution shall certify
that the claim is true and correct; that records are available to support the claim; that the claim is in
accordance with the existing agreement; and that payment therefor has not been received.
(e) Milk served to adults is not eligible for reimbursement.
(f)

Any School Food Authority or child care institution which operates both a nonpricing and pricing milk
program in the same school or child care institution, may elect to claim reimbursement for:
(1) All milk purchased and served to children under the Program at the nonpricing rate prescribed in §
215.8(b) (1), or

7 CFR 215.10(f)(1) (enhanced display)

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7 CFR 215.10(f)(2)

(2) only milk purchased and served to children in the pricing program at the rates prescribed in §
215.8(b) (1) and (2) for pricing programs.
(Sec. 11, Pub. L. 95-166, 91 Stat. 1337 (42 U.S.C. 1772, 1753, 1766); Pub. L. 97-370, 96 Stat. 1806)
[Amdt. 13, 39 FR 28417, Aug. 7, 1974, as amended by Amdt. 14, 41 FR 31175, July 27, 1976; Amdt. 16, 43 FR 1060, Jan. 6, 1978;
44 FR 10700, Feb. 23, 1979; 45 FR 82622, Dec. 16, 1980; 48 FR 20896, May 10, 1983; Amdt. 30, 49 FR 18986, May 4, 1984; 64 FR
50742, Sept. 20, 1999]

§ 215.11 Special responsibilities of State agencies.
(a) [Reserved]
(b) Program assistance. Each State agency, or FNSRO where applicable, shall provide Program assistance, as
follows:
(1) Consultive, technical, and managerial personnel to administer the Program and monitor performance
of schools and child-care institutions and to measure progress toward achieving Program goals.
(2) Visits to participating schools and child-care institutions to ensure compliance with Program
regulations and with the Department's nondiscrimination regulations (part 15 of this title), issued
under title VI of the Civil Rights Act of 1964. State agencies shall conduct reviews of schools
participating in the Program for compliance with the provisions of this part when such schools are
being reviewed under the provisions identified under § 210.18 of this title. Compliance reviews of
participating schools shall focus on the reviewed school's compliance with the required certification,
counting, claiming, and milk service procedures. School food authorities may appeal a denial of all or
a part of the Claim for Reimbursement or withholding of payment arising from review activity
conducted by the State agency under § 210.18 of this title or by FNS under § 210.30(d)(2) of this
title. Any such appeal shall be subject to the procedures set forth under § 210.18(q) of this title or §
210.30(d)(3) of this title, as appropriate.
(3) Documentation of such Program assistance shall be maintained on file by the State agency, or
FNSRO where applicable.
(c) Records and reports.
(1) Each State agency shall maintain Program records as necessary to support the reimbursement
payments made to child care institutions or School Food Authorities under §§ 215.8 and 215.10 and
the reports submitted to FNS under § 215.11(c)(2). The records may be kept in their original form or
on microfilm, and shall be retained for a period of three years after the date of submission of the
final Financial Status Report for the fiscal year, except that if audit findings have not been resolved,
the records shall be retained beyond the three-year period as long as required for the resolution of
the issues raised by the audit.
(2) Each State agency shall submit to FNS a final Report of School Program Operations (FNS-10) for
each month which shall be limited to claims submitted in accordance with § 215.10(b) 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
7 CFR 215.11(c)(2) (enhanced display)

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7 CFR 215.11(d)

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.
(d) Compliance. State agencies, or FNSROs where applicable, shall require School Food Authorities and childcare institutions to comply with applicable provisions of this part.
(e) Investigations. 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. The Office
of Investigation of the Department (OI) shall make investigations at the request of the State Agency or if
CND or FNSRO determines investigations by OI are appropriate.
(f)

Program evaluations. States, State agencies, 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.

(Sec. 11, Pub. L. 95-166, 91 Stat. 1337 (42 U.S.C. 1772, 1753, 1766); 44 U.S.C. 3506; sec. 812, Pub. L. 97-35, 95 Stat.
521-535 (42 U.S.C. 1759a))
[32 FR 12587, Aug. 31, 1967, as amended by Amdt. 13, 39 FR 28417, Aug. 7, 1974; Amdt. 14, 41 FR 31175, July 27, 1976; 47 FR
745, Jan. 7, 1982; Amdt. 25, 47 FR 18564, Apr. 30, 1982; Amdt. 30, 49 FR 18987, May 4, 1984; 56 FR 32949, July 17, 1991; 57 FR
38586, Aug. 26, 1992; 76 FR 37982, June 29, 2011; 81 FR 50193, July 29, 2016; 81 FR 66490, Sept. 28, 2016; 83 FR 14173, Apr. 3,
2018]

§ 215.12 Claims against schools or child-care institutions.
(a) State agencies, or FNSROs where applicable, shall disallow any portion of a claim and recover any
payment made to a School Food Authority or child-care institution that was not properly payable under
this part. State agencies will use their own procedures to disallow claims and recover overpayments
already made.
(b) [Reserved]
(c) The State Agency may refer any matter in connection with this section to FNSRO and CND for
determination of the action to be taken.
(d) Each State agency shall maintain all records pertaining to action taken under this section. Such records
shall be retained for a period of three years after the date of the submission of the final Financial Status
Report, except that, if audit findings have not been resolved, the records shall be retained beyond the
three-year period as long as required for the resolution of the issues raised by the audit.
(e) If CND does not concur with the State Agency action in paying a claim or a reclaim, or in failing to collect
an overpayment FNSRO shall assert a claim against the State Agency for the amount of such claim,
reclaim or overpayment. In all such cases, the State Agency shall have full opportunity to submit to CND
evidence or information concerning the action taken. If in the determination of CND, the State Agency's
action was unwarranted, the State Agency shall promptly pay to FNS the amount of the claim, reclaim, or
overpayment.
7 CFR 215.12(e) (enhanced display)

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(f)

7 CFR 215.12(f)

The amounts recovered by the State Agency from schools and child-care institutions may be utilized, first,
to make reimbursement payments for milk served during the fiscal year for which the funds were initially
available, and second, to repay any State funds expended in the reimbursement of claims under the
program and not otherwise repaid. Any amounts recovered which are not so utilized shall be returned to
FNS in accordance with the requirements of § 215.5(c).

(g) With respect to schools or child-care institutions in which FNSRO administers the Program, when FNSRO
disallows a claim or a portion of a claim, or makes a demand for refund of an alleged overpayment, it
shall notify the School Food Authority or child-care institutions of the reasons for such disallowance or
demand and the School Food Authority or child-care institutions shall have full opportunity to submit
evidence or to file reclaim for any amount disallowed or demanded in the same manner afforded in this
section to schools or child-care institutions administered by State Agencies.
(h) The Secretary shall have the authority to determine the amount of, to settle, and to adjust any claims
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.
(47 FR 745, Jan. 7, 1982 (44 U.S.C. 3506; secs. 804, 816 and 817, Pub. L. 97-35; 95 Stat. 521-535 (42 U.S.C. 1753,
1756, 1759, 1771 and 1785))
[32 FR 12587, Aug. 31, 1967, as amended by Amdt. 5, 37 FR 14686, July 22, 1972; Amdt. 13, 39 FR 28418, Aug. 7, 1974; Amdt. 14,
41 FR 31175, July 27, 1976; 47 FR 745, Jan. 7, 1982; Amdt. 24, 47 FR 14133, Apr. 2, 1982]

§ 215.13 Management evaluations and audits.
(a) Unless otherwise exempt, audits at the State and school food authority/child care institution levels shall
be conducted in accordance with 2 CFR part 200, subpart F, and Appendix XI, Compliance Supplement
and USDA's implementing regulations 2 CFR part 400 and part 415.
(b) Each State agency shall provide FNS with full opportunity to conduct management evaluations (including
visits to schools and child-care institutions) of any operations of the State agency under the Program and
shall provide OIG with full opportunity to conduct audits (including visits to schools and child-care
institutions) of all operations of the State agency under the Program. Each State agency shall make
available its records, including records of the receipt and expenditure of funds under the Program, upon a
reasonable request by FNS or OIG. OIG shall also have the right to make audits of the records and
operations of any school or child-care institution.
(c) In conducting management evaluations, reviews or audits for any fiscal year, the State agency, FNS, or
OIG may disregard any overpayment if the total overpayment does not exceed $600 or, in the case of
State agency claims in State administered Programs, it does not exceed the amount established under
State law, regulations or procedure as a minimum amount for which claim will be made for State losses
but not to exceed $600. However, no overpayment is to be disregarded where there is substantial
evidence of violations of criminal law or civil fraud statutes.
(Secs. 805 and 819, Pub. L. 97-35, 95 Stat. 521-535 (42 U.S.C. 1773); sec. 812, Pub. L. 97-35, 95 Stat. 521-535 (42
U.S.C. 1759a))
[Amdt. 14, 41 FR 31175, July 27, 1976, as amended at 43 FR 58925, Dec. 22, 1978; Amdt. 23, 47 FR 14135, Apr. 2, 1982; Amdt. 25,
47 FR 18564, Apr. 30, 1982; Amdt. 36, 54 FR 2990, Jan. 23, 1989; 57 FR 38586, Aug. 26, 1992; 59 FR 1894, Jan. 13, 1994; 64 FR
50742, Sept. 20, 1999; 71 FR 39516, July 13, 2006; 81 FR 66490, Sept. 28, 2016]
7 CFR 215.13(c) (enhanced display)

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7 CFR 215.13a

§ 215.13a Determining eligibility for free milk in child-care institutions.
(a) General. Child care institutions which operate pricing programs may elect to make free milk available, as
set forth in § 215.7(d)(2), to children who meet the approved eligibility criteria. Such child care institutions
shall determine the children who are eligible for free milk and assure that there is no physical segregation
of, or other discrimination against, or overt identification of, children unable to pay the full price for milk.
(b) Action by State agencies and FNSROs. Each State agency, or FNSRO where applicable, upon application
for the program by a child care institution operating a pricing program, and annually thereafter, shall
require the institution to state whether or not it wishes to serve free milk to eligible children at times that
milk is provided under the Program. It shall annually require each child care institution electing to provide
free milk to submit a free milk policy statement and shall provide such institutions with a prototype free
milk policy statement and a copy of the State's family-size income standards for determining eligibility for
free meals and milk under the National School Lunch and School Breakfast Programs to assist the
institutions in meeting its responsibilities.
(c) Action by institutions. Each child care institution which operates a pricing program shall inform the State
agency, or FNSRO where applicable, at the time it applies for Program participation and at least annually
thereafter, whether or not it wishes to provide free milk. Institutions electing to provide free milk shall
annually submit a written free milk policy statement for determining free milk eligibility of children under
their jurisdiction, which shall contain the items specified in paragraph (d) of this section. Such institutions
shall not be approved for Program participation of their agreements renewed unless the free milk policy
has been reviewed and approved. Pending approval or a revision of a policy statement, the existing policy
shall remain in effect.
(d) Policy statement. A free milk policy statement as required in paragraph (c) of this section shall contain
the following:
(1) The specific criteria to be used in determining eligibility for free milk. These criteria shall give
consideration to economic need as reflected by family size and income. The criteria used by the
child-care institution may not result in the eligibility of children from families whose incomes exceed
the State's family-size income standards for determining eligibility for free meals under the National
School Lunch and School Breakfast Programs.
(2) The method by which the child-care institution will collect information from families in order to
determine a child's eligibility for free milk.
(3) The method by which the child-care institution will collect milk payments so as to prevent the overt
identification of children receiving free milk.
(4) A hearing procedure substantially like that outlined in part 245 of this chapter.
(5) An assurance that there will be no discrimination against free milk recipients and no discrimination
against any child on the basis of race, color, or national origin.
(e) Public announcement of eligibility criteria. Each child care institution which elects to make free milk
available under the Program shall annually make a public announcement of the availability of free milk to
children who meet the approved eligibility criteria to the information media serving the area from which its
attendance is drawn. The public announcement must also state that milk is available to all children in
attendance without regard to race, color, or national origin.

7 CFR 215.13a(e) (enhanced display)

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(f)

7 CFR 215.13a(f)

Statement requirements. The free milk application provided to households must include a statement
informing households of how information provided on the application will be used. Each application must
include substantially the following statement: “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 your child for free milk. You must include the last four 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 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 your child 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 your child is eligible for free milk, and for administration and enforcement of the Program.” When the
State agency or child care institution, as appropriate, plans to use or disclose children's eligibility
information for non-program purposes, additional information, as specified in paragraph (i) of this section
must be added to this statement. State agencies and child care institutions are responsible for drafting
the appropriate statement.

(g) Disclosure of children's free milk 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 milk 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 child care institution may disclose information that identifies children
eligible for free milk to the programs and the individuals specified in this paragraph (g) without parent/
guardian consent. The State agency or child care institution that makes the free milk 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 (g)(2) or (g)(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 (g)(2) or (g)(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 on their behalf.
(2) Disclosure of children's names and free milk 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 milk) 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 means-tested 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
7 CFR 215.13a(g)(2)(iii) (enhanced display)

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7 CFR 215.13a(g)(2)(iv)

(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 consent, all eligibility
information obtained through the free milk eligibility process (including all information on the
application or obtained through direct certification) to:
(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 Special Milk Program may be disclosed to
persons directly connected with administering or enforcing regulations under the National
School Lunch Program, School Breakfast Program, Child and Adult Care Food Program,
Summer Food Service Program and the Special Supplemental Nutrition Program for Women,
Infants and Children (WIC) (Parts 210, 220, 226, 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 (g)(2) and (g)(3) of this section.
(4) Use of free milk 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 Special Milk Program. Additionally, any other
Federal, State, or local agency charged with administering or enforcing the Special Milk Program may
use the information for that purpose. Individuals and programs to which children's free milk 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.
(h) Disclosure of children's free milk eligibility information to Medicaid and/or SCHIP, unless parents decline.
Children's free milk 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 (h)(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 milk), and any other eligibility information obtained through the free milk
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.

7 CFR 215.13a(h)(1)(ii) (enhanced display)

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7 CFR 215.13a(h)(2)

(2) Use of children's free milk eligibility information by Medicaid/SCHIP. Medicaid and SCHIP agencies
and health insurance program operators receiving children's free milk eligibility information must use
the information to identify eligible children and enroll them 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.
(i)

Notifying households of potential uses and disclosures of children's free milk eligibility information.
Households must be informed that the information they provide on the free milk application will be used
to determine eligibility for free milk 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 milk
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 (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 milk through direct certification, the notice of potential disclosure may be included in
the document informing parents/guardians of their children's eligibility for free milk through direct
certification process.
(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 milk 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 milk 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 milk. The notification may be included in the letter/notice to
parents/guardians that accompanies the free milk 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 (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 milk 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 milk through direct certification.

(j)

Other disclosures. State agencies and child care institutions that plan to use or disclose identifying
information about children eligible for free milk to programs or individuals not specified in this section
must obtain written consent from children's parents or guardians prior to the use or disclosure.

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(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 milk 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 household for purposes of the free milk application.
(k) Agreements with programs/individuals receiving children's free milk 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 milk
eligibility information. The agreement or MOU should include information similar to that required for
disclosures to Medicaid and SCHIP specified in paragraph (k)(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 milk 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.
(l)

Penalties for unauthorized disclosure or misuse of children's free milk 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.

(Sec. 11, Pub. L. 95-166, 91 Stat. 1337 (42 U.S.C. 1772, 1753, 1766); sec. 5, Pub. L. 95-627, 92 Stat. 3619 (42 U.S.C.
1772))
[Amdt. 14, 41 FR 31176, July 27, 1976, as amended by Amdt. 16, 43 FR 1060, Jan. 6, 1978; 44 FR 10700, Feb. 23, 1979; Amdt. 17,
44 FR 33047, June 8, 1979; 66 FR 2201, Jan. 11, 2001; 72 FR 10892, Mar. 12, 2007; 76 FR 22798, Apr. 25, 2011; 78 FR 13449, Feb.
28, 2013]
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§ 215.14 Nondiscrimination.
The Department's regulations on nondiscrimination in federally assisted programs are set forth in part 15 of this
title. The Department's agreements with State agencies, the State agencies' agreements with School Food
Authorities and child-care institutions and the FNSRO agreements with School Food Authorities administering
nonprofit private schools and with child-care institutions shall contain the assurances required by such regulations.
When different types of milk are served to children, (a) a uniform price for each type of milk served shall be charged
to all non-needy children in the school or child-care institution who purchase milk, and (b) needy children shall be
given the opportunity to select any type of milk offered.
(44 U.S.C. 3506)
[Amdt. 13, 39 FR 28418, Aug. 7, 1974, as amended at 47 FR 745, Jan. 7, 1982]

§ 215.14a Procurement standards.
(a) General. State agencies and school food authorities shall comply with the requirements of this part and 2
CFR part 200 and USDA implementing regulations 2 CFR part 400 and part 415, as applicable concerning
the procurement of all goods and services with nonprofit school food service account funds.
(b) Contractual responsibilities. The standards contained in this part and 2 CFR part 200, subpart D and USDA
implementing regulations 2 CFR part 200 subparts B and D and USDA implementing regulations 2 CFR
part 400 and part 415, as applicable, do not relieve the State agency or School Food Authority of any
contractual responsibilities under its contract. The State agency or School Food Authority is the
responsible authority, without recourse to FNS, regarding the settlement and satisfaction of all contractual
and administrative issues arising out of procurements entered into in connection with the Program. This
includes but is not limited to: Source evaluation, protests, disputes, claims, or other matters of a
contractual nature. Matters concerning violation of law are to be referred to the local, State or Federal
authority that has proper jurisdiction.
(c) Procedures. The State agency may elect to follow either the State laws, policies and procedures as
authorized by 2 CFR 200.317, or the procurement standards for other governmental grantees and all
governmental subgrantees in accordance with 2 CFR 200.318 through 2 CFR 200.326. Regardless of the
option selected, States must ensure that all contracts include any clauses required by Federal statutes
and executive orders and that the requirements of 2 CFR 200.236 and Appendix II, Contract Provisions for
Non-Federal Entity Contracts Under Federal Award are followed. The school food authority or child care
institution may use its own procurement procedures which reflect applicable State or local laws and
regulations, provided that procurements made with nonprofit school food service account funds adhere to
the standards set forth in this part and in 2 CFR part 200, subpart D and USDA implementing regulations 2
CFR part 400 and part 415 as applicable. School food authority procedures must include a written code of
standards of conduct meeting the minimum standards of 2 CFR 200.318, as applicable.
(1) Pre-issuance review requirement. The State agency may impose a pre-issuance review requirement
on a school food authority's proposed procurement. The school food authority must make available,
upon request of the State agency, its procurement documents, including but not limited to
solicitation documents, specifications, evaluation criteria, procurement procedures, proposed
contracts and contract terms. School food authorities shall comply with State agency requests for
changes to procurement procedures and solicitation and contract documents to ensure that, to the
State agency's satisfaction, such procedures and documents reflect applicable procurement and
contract requirements and the requirements of this part.
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(2) Prototype solicitation documents and contracts. The school food authority must obtain the State
agency's prior written approval for any change made to prototype solicitation or contract documents
before issuing the revised solicitation documents or execution of the revised contract.
(3) Prohibited expenditures. No expenditure may be made from the nonprofit school food service
account for any cost resulting from a procurement failing to meet the requirements of this part.
(d) Cost reimbursable contracts (1) Required provisions. The school food authority must include the following provisions in all cost
reimbursable contracts, including contracts with cost reimbursable provisions, and in solicitation
documents prepared to obtain offers for such contracts:
(i)

Allowable costs will be paid from the nonprofit school food service account to the contractor
net of all discounts, rebates and other applicable credits accruing to or received by the
contractor or any assignee under the contract, to the extent those credits are allocable to the
allowable portion of the costs billed to the school food authority;

(ii)
(A) The contractor must separately identify for each cost submitted for payment to the school
food authority the amount of that cost that is allowable (can be paid from the nonprofit
school food service account) and the amount that is unallowable (cannot be paid from the
nonprofit school food service account), or
(B) The contractor must exclude all unallowable costs from its billing documents and certify
that only allowable costs are submitted for payment and records have been established
that maintain the visibility of unallowable costs, including directly associated costs in a
manner suitable for contract cost determination and verification;
(iii) The contractor's determination of its allowable costs must be made in compliance with the
applicable Departmental and Program regulations and Office of Management and Budget cost
circulars;
(iv) The contractor must identify the amount of each discount, rebate and other applicable credit on
bills and invoices presented to the school food authority for payment and identify the amount
as a discount, rebate, or in the case of other applicable credits, the nature of the credit. If
approved by the State agency, the school food authority may permit the contractor to report this
information on a less frequent basis than monthly, but no less frequently than annually;
(v) The contractor must identify the method by which it will report discounts, rebates and other
applicable credits allocable to the contract that are not reported prior to conclusion of the
contract; and
(vi) The contractor must maintain documentation of costs and discounts, rebates and other
applicable credits, and must furnish such documentation upon request to the school food
authority, the State agency, or the Department.
(2) Prohibited expenditures. No expenditure may be made from the nonprofit school food service
account for any cost resulting from a cost reimbursable contract that fails to include the
requirements of this section, nor may any expenditure be made from the nonprofit school food
service account that permits or results in the contractor receiving payments in excess of the
contractor's actual, net allowable costs.
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(e) Geographic preference. A school food authority participating in the Program may apply a geographic
preference when procuring milk. When utilizing the geographic preference to procure milk, the school food
authority making the purchase has the discretion to determine the local area to which the geographic
preference option will be applied.
(Pub. L. 79-396, 60 Stat. 231 (42 U.S.C. 1751); Pub. L. 89-642, 80 Stat. 885-890 (42 U.S.C. 1773); Pub. L. 91-248, 84
Stat. 207 (42 U.S.C. 1759))
[Amdt. 27, 48 FR 19355, Apr. 29, 1983, as amended at 71 FR 39516, July 13, 2006; 72 FR 61492, Oct. 31, 2007; 76 FR 22607, Apr.
22, 2011; 81 FR 66490, Sept. 28, 2016]

§ 215.15 Withholding payments.
In accordance with Departmental regulations 2 CFR 200.338 through 200.342, the State agency shall withhold
Program payments in whole or in part, to any school food authority which has failed to comply with the provisions
of this part. Program payments shall be withheld until the school food authority takes corrective action satisfactory
to the State agency, or gives evidence that such corrective actions will be taken, or until the State agency terminates
the grant in accordance with § 215.16. Subsequent to the State agency's acceptance of the corrective actions,
payments will be released for any milk served in accordance with the provisions of this part during the period the
payments were withheld.
[72 FR 61493, Oct. 31, 2007, as amended at 81 FR 66490, Sept. 28, 2016]

§ 215.16 Suspension, termination and grant closeout procedures.
Whenever it is determined that a State agency has materially failed to comply with the provisions of this part, or with
FNS guidelines and instructions, FNS may suspend or terminate the Program in whole, or in part, or take any other
action as may be available and appropriate. A State agency may also terminate the Program by mutual agreement
with FNS. FNS and the State agency shall comply with the provisions of 2 CFR part 200, subpart D and USDA
implementing regulations 2 CFR subparts B and D and USDA implementing regulations 2 CFR part 400 and part 415,
concerning grant suspension, termination and closeout procedures. Furthermore, the State agency, or FNSRO where
applicable, shall apply these provisions to suspension or termination of the Program in School Food Authorities.
[Amdt. 30, 49 FR 18987, May 4, 1984, as amended at 71 FR 39517, July 13, 2006. Redesignated at 72 FR 61493, Oct. 31, 2007, as
amended at 81 FR 66490, Sept. 28, 2016]

§ 215.17 Program information.
School Food Authorities and child-care institutions desiring information concerning the Program should write to
their State educational agency, or the appropriate Food and Nutrition Service 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, Massachusetts 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, New Jersey 08691-1598.

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(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, Georgia 30303.
(d) In the States of Illinois, Indiana, Michigan, Minnesota, Ohio, and Wisconsin: Midwest Regional Office, FNS,
U.S. Department of Agriculture, 77 West Jackson Boulevard, 20th Floor, Chicago, Illinois 60604-3507.
(e) In the States of Arkansas, Louisiana, New Mexico, Oklahoma, Texas: Southwest Regional Office, Food and
Nutrition Service, U.S. Department of Agriculture, 1100 Commerce Street, Room 5-C-30, Dallas, Texas
75242.
(f)

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.

(g) 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, Colorado 80204.
(Sec. 11, Pub. L. 95-166, 91 Stat. 1337 (42 U.S.C. 1772, 1753, 1766); sec. 10(a), Pub. L. 95-627, 92 Stat. 3623 (42
U.S.C. 1760); sec. 10(d)(3), Pub. L. 95-627, 92 Stat. 3624 (42 U.S.C. 1757); sec. 14, Pub. L. 95-627, 92 Stat.
3625-3626); secs. 804, 816, 817 and 819, Pub. L. 97-35, 95 Stat. 521-535 (42 U.S.C. 1753, 1756, 1759, 1771, 1773
and 1785)
[Amdt. 14, 41 FR 31178, July 27, 1976, as amended by Amdt. 18, 44 FR 37898, June 29, 1979; Amdt. 27, 48 FR 195, Jan. 4, 1983;
Amdt. 36, 54 FR 2990, Jan. 23, 1989; 65 FR 12435, Mar. 9, 2000. Redesignated at 72 FR 61493, Oct. 31, 2007, as amended at 76
FR 34569, June 13, 2011]

§ 215.18 Information collection/recordkeeping - OMB assigned control numbers.
7 CFR section where
requirements are described

Current OMB control No.

215.3(d)

0584-0067

215.5(a)

0584-0005

215.7

0584-0005

215.10(a), (b), (d)

0584-0005

215.11(c)(1)

0584-0005

215.11(c)(2)

0584-0594

215.12(d)

0584-0005

215.13a

0584-0026

215.14a

0584-0005

[81 FR 50193, July 29, 2016]

Editorial Note: Nomenclature changes to subchapter C appear by Amdt. 381, 65 FR 64586, Oct. 30, 2000.
Authority: 7 U.S.C. 71-87K, 1621-1627.

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Editorial Note: Nomenclature changes to subchapter A appear at 84 FR 45645, Aug. 30, 2019.
Editorial Note: For FEDERAL REGISTER citations to regulations affecting previous program years not included in
this volume, see the List of CFR Sections Affected, which appears in the Finding Aids section of the printed volume
and at www.govinfo.gov.

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