[Federal Register Volume 78, Number 36 (Friday, February 22, 2013)]
[Rules and Regulations]
[Pages 12221-12231]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-04118]
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DEPARTMENT OF AGRICULTURE
Food and Nutrition Service
7 CFR Parts 245 and 272
RIN 0584-AE10
National School Lunch Program: Direct Certification Continuous
Improvement Plans Required by the Healthy, Hunger-Free Kids Act of 2010
AGENCY: Food and Nutrition Service, USDA.
ACTION: Final rule.
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SUMMARY: This rule amends the National School Lunch Program (NSLP)
regulations to incorporate provisions of the Healthy, Hunger-Free Kids
Act of 2010 designed to encourage States to improve direct
certification efforts with the Supplemental Nutrition Assistance
Program (SNAP). The provisions require State agencies to meet certain
direct certification performance benchmarks and to develop and
implement continuous improvement plans if they fail to do so. This rule
also amends NSLP and SNAP regulations to provide for the collection of
data elements needed to compute each State's direct certification
performance rate to compare with the new benchmarks. Improved direct
certification efforts would help increase program accuracy, reduce
paperwork for States and households, and increase eligible children's
access to school meals.
DATES: This rule is effective March 25, 2013.
FOR FURTHER INFORMATION CONTACT: Vivian Lees or Patricia B. von Reyn,
State Systems Support Branch, at (703) 305-2590.
SUPPLEMENTARY INFORMATION:
I. Background
A. Legislative History Leading up to This Rulemaking
Section 104 of the Child Nutrition and WIC Reauthorization Act of
2004 (Pub. L. 108-265) amended section 9(b) of the Richard B. Russell
National School Lunch Act (NSLA) (42 U.S.C. 1758(b)) to require all
local educational agencies (LEAs) that participate in the NSLP and/or
School Breakfast Program to establish, by school year (SY) 2008-2009, a
system to directly certify as eligible for free school meals children
who are members of households receiving benefits under SNAP.
Section 4301 of the Food, Conservation, and Energy Act of 2008
(Pub. L. 110-246) (42 U.S.C. 1758a) requires the Secretary of
Agriculture, beginning in 2008, to assess the effectiveness of State
and local efforts to directly certify such school-age children for free
school meals and to provide annual reports to Congress. (See the Direct
Certification in the National School Lunch Program: State
Implementation Progress (Report to Congress) for 2008, 2009, 2010, and
2011 at http://www.fns.usda.gov/ora/menu/Published/CNP/cnp.htm.)
Section 101(b) of Public Law 111-296, the Healthy, Hunger-Free Kids
Act of 2010 (HHFKA), amended section 9(b)(4) of the NSLA (42 U.S.C.
1758(b)(4)) to establish and define required percentage benchmarks for
directly certifying children who are members of households receiving
benefits under SNAP. Section 101(b) further amended the NSLA to require
that, beginning with SY 2011-2012, each State that does not meet the
benchmark for a particular school year must develop, submit, and
implement a continuous improvement plan (CIP) aimed at fully meeting
the benchmarks and improving direct certification for the following
school year. It also requires that the Secretary provide technical
assistance to State agencies in developing and implementing CIPs.
These provisions of section 101(b) of the HHFKA, which were
effective October 1, 2010, were implemented through USDA Food and
Nutrition Service (FNS) Memorandum SP 32-2011, Child Nutrition
Reauthorization 2010: Direct Certification Benchmarks and Continuous
Improvement Plans, dated April 28, 2011, available at http://www.fns.usda.gov/cnd/governance/Policy-Memos/2011/SP32-2011.pdf.
On January 31, 2012, FNS published a proposed rule, National School
Lunch Program: Direct Certification Continuous Improvement Plans
Required by the Healthy, Hunger-Free Kids Act of 2010, in the Federal
Register (77 FR 4688) to solicit comments on the incorporation of these
and other direct certification improvement provisions into regulations
governing the determination for eligibility for free and reduced price
meals at 7 CFR part 245. The proposed rule also solicited comments on
the paperwork burden for the new form FNS-834, State Agency (NSLP/SNAP)
Direct Certification Rate Data Element Report, which will collect two
of the data elements for the formula to compute direct certification
performance rates.
B. Summary of Mandated Provisions in the Proposed Rule
In summary, the January 2012 proposed rule sought to incorporate
the
[[Page 12222]]
following mandated provisions from the HHFKA into NSLP regulations:
Benchmarks. The State performance benchmarks for directly
certifying for free school meals those children who are members of
households receiving benefits under SNAP are 80% for SY 2011-2012, 90%
for SY 2012-2013, and 95% for SY 2013-2014 and for each school year
thereafter.
Identify and notify. Each school year, FNS will identify
and notify State agencies that fail to meet the direct certification
performance benchmark.
CIPs required. A State agency that fails to meet the
benchmark must develop and submit a CIP to FNS for approval.
CIP components. The CIP must include, at a minimum,
specific measures the State will use to identify more children who are
eligible for direct certification with SNAP, a timeline for the State
to implement these measures, and goals for the State to improve direct
certification results for the following school year.
CIP implementation. A State agency that is required to
develop and submit a CIP must maintain it and implement it according to
the timeline included in the approved plan.
C. Summary of Additional Provisions in the Proposed Rule
Additionally, in support of the mandated provisions, the proposed
rule sought to improve the accuracy of State direct certification rates
and to strengthen the direct certification process so that States could
monitor their own performance in a timely manner using the same
methodology that FNS will use. As such, the January 2012 rule proposed
to set forth the following improvements and requirements:
Methodology. A transparent methodology for computing
direct certification rates by defining the data elements and the
formula to compute these rates:
[GRAPHIC] [TIFF OMITTED] TR22FE13.004
Data Element #1. A requirement that Data Element
1 be the count of the number of children who are members of
households receiving benefits under SNAP and who were directly
certified for free school meals as of the last operating day in
October. Also, certifications via the ``Letter Method'' would not be
included in the count of SNAP direct certifications as this is no
longer permitted, pursuant to the statutory changes made by the HHFKA.
Form FNS-742 timeframes. A change in the date that the
FNS-742 (currently entitled the Verification Summary Report, but soon
to be revised and renamed for use in SY 2013-2014 as the School Food
Authority (SFA) Verification Collection Report)--a form that collects
verification summary data as well as Data Element 1--is due,
requiring that it come in one month earlier than currently in order to
provide Data Element 1 to States and to FNS in a more-timely
fashion. As such, under the proposed rule, the State agency would
collect annual verification data from each LEA no later than February
1st (instead of March 1st) and report this data to FNS no later than
March 15th (instead of April 15th) each year. To accommodate this
change in submission timeframes, the proposed rule would also remove
the requirement for State agencies to report ``the aggregate number of
students who were terminated as a result of verification but who were
reinstated for free or reduced price meal benefits as of February 15th
each year'' (Reapplied and Reinstated).
Data Element #2. A new way to estimate the universe of
school-aged children in households that receive benefits under SNAP
that would require that the SNAP State agency provide FNS and the State
agency administering the NSLP with the actual count of children ages 5-
17 who at any time during the months of July, August, or September were
members of such households.
Data Element #3. A more accurate way to estimate the
number of children from households receiving SNAP benefits that attend
schools operating in a non-base year under the special assistance
provisions of section 11(a)(1) of the NSLA (42 U.S.C. 1759a(a)(1)) and
7 CFR 245.9. As proposed, Data Element 3 would require that a
match be run between SNAP records and student enrollment records from
such schools and would allow the State agency to count all such matches
in addition to the counts of actual SNAP direct certifications from all
other schools when determining State direct certification rates.
Form FNS-834, new interagency form. A mechanism for
reporting Data Elements 2 and 3 (a new interagency
form, the FNS-834, State Agency (NSLP/SNAP) Direct Certification Rate
Data Element Report) to FNS and NSLP State agencies by December 1st
each year.
Special Circumstances. An opportunity for States to inform
us of special circumstances that would affect a State's direct
certification rate in a quantifiable way not captured by the formula or
the three data elements.
CIP additional component. An additional component to the
CIPs beyond the legislated mandate, which would require State agencies
to provide information about their progress toward implementing other
direct certification requirements. Also, the mandated CIP timeline
would be ``multiyear'' in acknowledgement that by the time a State
agency's CIP is submitted to FNS and approved, the new school year may
already be underway.
CIP timeframe. A requirement that the CIP be submitted to
FNS within 60 days of a State's having been formally notified that it
has failed to meet the benchmark.
Amend SNAP regulations. An amendment to SNAP regulations
at 7 CFR 272.8 to add the requirement for the SNAP State agency to
provide Data Element 2 to FNS and to the State agency
administering the NSLP.
States affected by this rule. A notification that, at this
time, the NSLP States affected by this rule are the 50 States, the
District of Columbia, and Guam.
II. Public Comments and USDA/FNS Response
FNS received 26 comments on the proposed rule. Of these, 4 were
from nutrition, health, or child advocacy organizations at the
national, state, or
[[Page 12223]]
local level; 12 were from individuals representing 8 State agencies
that administer the school meal programs; 6 were from law students; and
the remaining 4 were from other interested individuals.
FNS greatly appreciates these public comments as they have been
instrumental in developing this final rule. Although FNS considered all
comments, the description and analysis in this final rule preamble
focuses on the key issues. To view all public comments on the proposed
rule, go to www.regulations.gov and search for public submissions under
docket number FNS-2011-0020.
Overall, the comments were supportive of the proposed rule in that
it strengthens the direct certification process so that more eligible
children will be able to receive free meals at school. Commenters from
advocacy organizations were in strong support of the proposed rule,
indicating that the rule does a good job implementing statutory
requirements and provides a sensible approach to improving the accuracy
of computing State direct certification performance rates. Of the State
agency employees that responded, most commented on specific issues that
could affect their States.
The following discussion provides information on the comments as
well as a discussion of the clarifications and changes made to the
proposal based on the comments received:
Benchmarks
Proposed Rule on Benchmarks:
Sets the benchmarks at the mandated 80% for SY 2011-2012; 90% for
SY 2012-2013; and 95% for SY 2013-2014 and each school year thereafter.
Comments on Benchmarks:
Changing the Benchmarks--Several State agencies were concerned that
they would not be able to meet the direct certification performance
benchmarks in the given timeframes. Most of those who commented would
prefer that the benchmark for SY 2013-2014 and beyond be capped at 90%
and that the benchmarks be phased in more gradually. One commenter felt
that the 95% target fell short and recommended that the goal be set at
100%.
``Letter Method'' and the Benchmarks--One State agency wanted to be
able to count ``Letter Method'' certifications as direct certifications
and felt that they could not reach the benchmark without doing so.
``Letter Method'' refers to the process where a family member brings to
the school a letter issued by the SNAP agency confirming that the
household receives SNAP benefits, and the student is certified for free
meals through categorical eligibility based on this information.
Matching Criteria and the Benchmarks--Another State was concerned
that some States, under pressure to meet the benchmarks, may purposely
relax their matching criteria in order to increase the number of
matches they get, thus increasing their direct certification rates even
though some of the matches might not be valid.
USDA/FNS Response on Benchmarks:
On Changing the Benchmarks--The benchmarks and their effective
dates are statutorily required under section 9(b)(4)(F) of the NSLA (42
U.S.C. 1758(b)(4)(F)), and may not be altered.
On ``Letter Method'' and the Benchmarks--Section 9(b)(4)(G) of the
NSLA (42 U.S.C. 1758(b)(4)(G)) establishes that certifications based on
the ``Letter Method'' with SNAP, as of SY 2012-2013, can no longer be
regarded as direct certifications because some action is required by
the household. Although States can continue to utilize this method as a
form of certification for free meals, they must not count these
students as directly certified with SNAP. The intended result is for
improved State automated direct certification systems that can match
and certify these students independent of household action.
On Matching Criteria and the Benchmarks--Regarding the concern
about some States making their match criteria less stringent in order
to inflate their numbers, the goal should remain that States set
criteria to yield high levels of confidence so that eligible children
are found in the match and ineligible children are not. States have
different data elements available to them for making a match--what
works well in one State might not work in another--and as such, this
final rule does not establish a single national standard for match
criteria. We will continue to develop and provide guidance to assist
States in setting reasonable match criteria, including the sharing of
best practices from other States that may have comparable
characteristics.
Disposition on Benchmarks in Final Rule:
The provisions setting the mandated benchmarks in the new Sec.
245.12(b) Direct certification performance benchmarks remain unchanged
from the proposed rule.
Methodology and Data Collection
Proposed Rule on Methodology and Data Collection:
Provides for the collection and reporting of single data elements
to replace, wherever possible, the complex estimates used in the past
for the component statistics needed to estimate SNAP State direct
certification performance rates. Provides for a new methodology using
these new data elements that is straightforward, transparent, timelier,
and more accurate. Outlines the reporting mechanisms for these new data
elements--Data Element 1 is to be reported on the form FNS-
742, and Data Elements 2 and 3 are to be reported on
the new form FNS-834. Provides for an earlier submission of the FNS-742
and a December 1st deadline for the submission of the new FNS-834. To
provide for the earlier submission of the FNS-742, the proposed rule
would remove the requirement for reporting the number of students who
reapplied and who were reinstated by February 15th.
Comments on Methodology and Data Collection:
Most commenters were supportive of the new methodology, lauding our
proposal to use reported data (rather than generated estimates) and
appreciative of the reporting mechanisms which would allow State
agencies to track their own performance in a timely manner. Most also
did not find the proposed reporting of these data elements to be
burdensome for States and LEAs.
The Process as a Whole--One commenter believed the new methodology
would impose a complex data collection process and assign potentially
misleading rankings.
Data Element #1 and the Change in Form FNS-742 Timeframes,
``Reapplied and Reinstated''--One commenter was concerned that the
requirement to report the number of students who reapplied and were
reinstated by February 15th was not actually proposed to be removed.
Data Element #2, Universe--Several commenters, who otherwise agreed
with the new approach, pointed out that the new Data Element
2--requiring SNAP State agencies to provide a count for the
universe of school-aged children in SNAP households--still includes
children who may not be students in NSLP schools. Some State agencies
reported having what they believe to be significant but unquantifiable
numbers of dropouts, homeschoolers, or children in non-public or
charter schools which may not participate in the NSLP. These States
point out that the count against which they would be measured will be
too high and their direct certification rates would appear to be lower
because of it.
Data Element #2, 5-17 Age Range--Three commenters commented on our
[[Page 12224]]
proposal to continue using the 5-17 age range that FNS has used for
years as ``school-age'' for estimating the number of school-aged
children living in households receiving SNAP benefits when computing
direct certification performance rates. Two suggested using an age
range that is aligned with compulsory school attendance ages, either by
using a narrower age range or by making the age range State-specific.
The third commenter was concerned that using the 5-17 age range for
Data Element 2 meant that the State must run their matches
only on this same 5-17 age range.
Data Element #3, State Agency Concerns--Although most commenters
were supportive of collecting Data Element 3--which requires
States with special provision schools operating in a non-base year to
have a match run between SNAP records and student enrollment records
from these schools--some State agencies expressed special concern with
this data element. Two of these States foresee problems because
although some of their provision schools do have their students listed
in the statewide student enrollment database, a few of their other
provision schools do not. One State, however, had major concerns with
this provision, and this State has a significant number of special
provision schools. This State also pointed out that this issue will
affect more and more States as they elect the new Community Eligibility
Option (CEO) when it becomes available to all States in SY 2014-2015.
Another State pointed out that it does not conduct matches at the State
level; it uses district-level matching and is under the impression that
the match for special provision schools must be done at the State
level.
Data Element #3, Advocacy Organization Concerns--The advocacy
organizations were in favor of this provision, commenting that it will
improve the accuracy of the direct certification performance rate
calculation and will provide schools with data to make good management
decisions, especially with regard to continuing in their current
special provision or switching to CEO or another option. One of these
advocacy groups went on to urge FNS to allow CEO schools to use the
results of the CEO match with SNAP (that must be completed by April 1
if the CEO wants to have their claiming percentages adjusted) in lieu
of running a match again for this data element requirement in or near
October.
USDA/FNS Response to Methodology and Data Collection:
On the Process as a Whole--FNS developed the new methodology to
provide a more simplified and straightforward approach than has been
used in years past. It has been designed to yield more accurate counts
with which to measure States against the benchmarks and to give States
the power to track their own performance. We expect this process to be
an improvement over generating estimates to assess performance,
particularly since State performance rates are no longer intended to
track general trends but rather to compare States against actual
benchmarks.
On Data Element #1 and the Change in Form FNS-742 Timeframes,
``Reapplied and Reinstated''--In actuality, the requirement to report
on the form FNS-742 the number of students who reapplied and were
reinstated by February 15th was proposed to be removed and is removed
by this final rulemaking. Removing this requirement allows the form
FNS-742 to be submitted a month earlier, which will allow earlier
computation of direct certification rates.
On Data Element #2, Universe--We acknowledge that the best scenario
to determine the universe of those children who could potentially be
directly certified with SNAP would be to get the count of children who
not only live in households receiving benefits under SNAP but also are
actually in attendance at schools that participate in the NSLP. This
data, however, is not available. This final rule would require the SNAP
State agency to provide an actual, unduplicated count of school-aged
children ages 5-17 who are living in households receiving benefits
under SNAP at any time during the period July 1 through September 30.
This is a major improvement, but, as stated in the proposed rule, we
acknowledge that the new methodology still does not account for
children in this age range who are not attending school or who are
attending schools not participating in the NSLP. Our commenters noted
this as well.
In States with a high incidence of homeschoolers, dropouts, or
children attending non-NSLP schools, the direct certification rate may
indeed appear lower than it actually is. To measure the actual impact
of a large homeschooling population, for instance, FNS would first need
to determine, by State, the number of homeschooled children in the
target 5-17 age range. Additionally, FNS would need to determine the
number of these children who are also members of households receiving
benefits under SNAP at any time during the July through September
timeframe. Only then could FNS determine the size of the SNAP-and-
homeschooled population that would need to be removed from the universe
of children who could potentially be matched. A similar calculation
would be needed in each State in order to determine the number of
dropouts and the number of children attending non-NSLP schools. No
reliable State-specific data is available which would enable FNS to
determine these numbers.
In order to address this issue and in recognition of the potential
for improving data sources, we are adding a check box to the new form
FNS-834. This check box would provide States a mechanism for indicating
that they have special circumstances that may affect their direct
certification rate calculation in a quantifiable way. For FNS to
consider making an adjustment due to a special circumstance, however, a
State would need to forward a description of the circumstance, the
count of the number of children affected by the circumstance, the
methodology for estimating the count, and the source(s) of published
State or Federal data used to support that methodology. This ancillary
system for determining the effect of special circumstances should help
to keep our own methodology dynamic and better able to adapt to
improved data sources.
It is important to point out that there is already some built-in
variability which could make a State's direct certification rate appear
to be higher than it actually is. For instance, States that have
mandatory pre-K programs that serve children younger than age 5, as
well as States with children in attendance who are older than 17 during
the target months, are able to count these children if they are
directly certified, even though they would not be represented in the
universe of those who could potentially be matched. This variability
could potentially help offset any negative impact caused by the fact
that not all children counted in the universe actually attend NSLP
schools. Also, it is important to remember that the benchmarks are not
set at 100%; and even for SY 2013-2014 and beyond, where the benchmark
is at its highest at 95%, there is still a 5% built-in allowance.
On Data Element #2, 5-17 Age Range--Section 4301 of the Food,
Conservation, and Energy Act of 2008 requires that when we assess State
direct certification performance for the Report to Congress we include,
for the universe of children who could potentially be matched against
student enrollment records, an estimate of the number of school-aged
children
[[Page 12225]]
receiving SNAP benefits during the months of July, August, or
September. We have used the 5-17 age range as a proxy for ``school-
age'' since the first Report to Congress in 2008. Of the two commenters
who suggested using compulsory education requirements instead, one
recommended using 6-15 as an age range that would more closely
represent the average compulsory requirements across States, while the
other suggested using State-specific compulsory age ranges as defined
by individual State statute. Compulsory education requirements,
however, set an age range for when children must be enrolled in and
attending school; they do not preclude children younger or older from
attending school, so they would not be good indicators for actual
school enrollment.
According to the detailed table, ``Enrollment Status of the
Population of 3 Years Old and Older, by Sex, Age, Race, Hispanic
Origin, Foreign Born, and Foreign-Born Parentage: October 2010,'' found
in the Current Population Survey published by the U.S. Census Bureau
and the U.S. Bureau of Labor Statistics, 94.5% of 5- and 6-year-olds
and 96.1% of 16- and 17-year-olds were enrolled in school. School
enrollment drops significantly on either side of this 5-17 age range.
The 5-17 age range is therefore an appropriate approximation for the
``school-age'' snapshot required by Congress, and we intend to continue
using it in estimating the number of school-aged children who could
potentially be matched.
For the commenter who was concerned that the State would need to
set its match criteria to include only the 5-17 year age range, we wish
to clarify that States are to count all children directly certified
with SNAP, not just those in the 5-17 age range. We use the 5-17 age
range to estimate the universe of potential matches for the Report to
Congress and to determine State performance, not to dictate the age
range the State agency is to utilize for the match. States/LEAs are
therefore responsible for matching SNAP data with their school
enrollment data over a wider age range than the 5-17 in order to pick
up all possible matches of children who are in school in the State,
including those under 5 or over 17 years of age. Using the narrower
range for the universe actually gives States an advantage for meeting
the benchmarks if they were to find matches outside of that age range.
On Data Element #3, State Agency Concerns--States must ensure that
matches are run between SNAP data and enrollment data of students
attending special provision schools operating in a non-base year, so
that the State can get credit for each of the SNAP children in these
schools. This final rule does not prescribe a particular methodology
for collecting this data element, enabling each State the flexibility
to set up its own business practice. For instance, if a State uses
district- or local-level matching, it might choose to use this same
method for its non-base year special provision schools, or it may
choose a different method, perhaps having such schools upload student
enrollment files to the State, with the State running the match on
their behalf. If a State uses State-level matching, it may have some
schools not represented in its statewide student enrollment database,
and the State may need to come up with a way to upload from such
schools. For other State-level matching States, it may be that they are
already running the matches for all the schools in the State, but just
not sending the matches down to the local level for LEAs to enter into
their point-of-service systems. In this latter scenario, just counting
the number of such matches would be very easy for the State. Many
States have no, or very few, special provision schools, so not all
States are affected at this time.
For those States with special provision schools that are not geared
up to run the match in SY 2012-2013, we are providing an alternative
phase-in procedure. For SY 2012-2013, the State agency may elect to use
base-year SNAP direct certification rates for these schools when
completing the form FNS-834. For SY 2013-2014 and beyond, however,
States are expected to have a system in place to do this match with
their special provision schools operating in a non-base year.
On Data Element #3, Advocacy Organization Concerns--With regard to
CEO schools--which have the opportunity to run a match by April 1 each
year to determine if they would be eligible for an increase in claiming
percentages--we agree that certain accommodations for them can be made.
Pursuant to this final rule, States that have special provision schools
exercising the CEO may establish the count for this data element for
these CEO schools each year through data matching efforts in or near
October (but not later than the last operating day in October) between
SNAP data and student enrollment data from these schools--as for the
other special provision schools--or by opting for one of the following
two alternatives:
Using the count of identified students matched with SNAP
used in determining the CEO claiming percentage for that school year;
or
Using the count from the SNAP match conducted by April 1
of the same calendar year the FNS-834 is due, whether or not it was
used in the claiming percentages.
In any case, it is important the count used represents students in CEO
schools matched against SNAP records, without the inclusion of any
letter method or non-SNAP matches. In other words, the State must
selectively count the SNAP matches from the matching efforts performed
for the April CEO opportunity if either of the two alternatives for CEO
schools is elected. States also must ensure that students are not
double counted.
Disposition of Methodology and Data Collection in Final Rule:
The provisions in the new Sec. 245.12(c)(1) Data Element
1 remain unchanged from the proposed rule.
The provisions in the new Sec. 245.12(c)(2) Data Element
2 remain unchanged from the proposed rule.
Likewise, the related provisions that amend SNAP regulations in the
new Sec. 272.8(a)(5)--to point the SNAP State agency to the
requirements of Sec. 245.12(c)(2) and to require the SNAP State agency
to execute a data exchange and privacy agreement with the NSLP State
agency--remain unchanged from the proposed rule.
Paragraph 245.12(c)(3) Data Element 3 is changed in the
final rule to allow States annually the option of using specific
alternatives for the estimation of Data Element 3 for its
special provision schools that are exercising the CEO.
The alternative phase-in procedure for SY 2012-2013 for those
States with special provision schools that cannot properly compute Data
Element 3 for this first school year will be handled in FNS
guidance and is not codified in the final rule.
To keep the methodology for computing Data Element 2 or
Data Element 3 dynamic as State or Federal data sources
improve over the years, FNS is adding a check box to the new form FNS-
834 to allow NSLP or SNAP State agencies to indicate they have special
circumstances to bring to FNS's attention.
The final rule, as in the proposed rule, would remove the provision
regarding ``Reapplied and Reinstated,'' and this final rule removes the
provision by the rewording of Sec. 245.11(i). In addition, the revised
timeframes for submitting the FNS-742 that are made possible by
removing this ``Reapplied and Reinstated'' requirement remain unchanged
from the proposed rule in Sec. Sec. 245.6a and 245.11(i). Note that
even
[[Page 12226]]
though the revised form FNS-742 will not be implemented for SY 2012-
2013, the provision requiring the earlier submission of the FNS-742 and
the dropping of the ``Reapplied and Reinstated'' requirement applies as
well to the current form FNS-742 that will be utilized for SY 2012-
2013.
CIPs
Proposed Rule on CIPs:
Sets the requirement that a State that does not meet the direct
certification performance benchmarks would need to develop a CIP that
includes, at a minimum, the following components: the specific measures
the State will use to identify more children who are eligible for
direct certification with SNAP, a multiyear timeline for the State to
implement these measures, goals for the State to improve direct
certification results for the following school year, and a report on
the State's progress in implementing other direct certification
requirements. The proposed rule would also require that the State
agency submit its CIP to FNS for approval within 60 days of formal
notification.
Comments on CIPs:
Commenters were generally supportive of the requirements of the
CIPs, including making the CIPs ``multiyear'' plans and adding a fourth
component to track State progress in implementing other direct
certification requirements.
What is to be included in the CIP--One commenter was concerned that
States would spell out for themselves in their CIPs longer timelines
than necessary for accomplishing tasks because of the ``multiyear''
timeline.
A State agency requested clarification and guidance on the content
of the CIPs. Additionally, an advocacy organization had very specific
ideas about what should be included in the CIP and how progress should
be monitored, such as requiring State agencies to include: goals that
are quantifiable and objective, the rationale for adopting the measures
it proposes, and an analysis of why a previous plan may have failed.
State progress implementing other direct certification requirements
in the CIP--A few commenters incorrectly believed that the first three
components of the CIP were already incorporated in regulation and that
this rulemaking would be adding just the fourth component.
One State agency was concerned that it would need to report
progress toward phasing out the ``Letter Method'' even though it finds
it an effective and successful secondary method of reaching eligible
families in that State.
Another commenter wanted the fourth component of the CIP to include
the tracking of extended eligibility, whereby other children in the
directly-certified child's household can also be considered directly
certified, by extension. (See USDA FNS Policy Memorandum SP 38-2009--
Extending Categorical Eligibility to Additional Children in a
Household, dated August 29, 2009, available at http://www.fns.usda.gov/cnd/governance/Policy-Memos/2009/SP_38-2009_os.pdf, and USDA Policy
Memorandum SP 25-2010--Questions and Answers on Extending Categorical
Eligibility to Additional Children in a Household, dated May 3, 2010,
available at http://www.fns.usda.gov/cnd/governance/Policy-Memos/2010/SP_25_CACFP_11_SFSP_10-2010_os.pdf).
Other CIP issues--One commenter expressed concern that 60 days may
not be enough time for a State agency to formulate and submit a CIP.
Two other commenters were in favor of applying fiscal sanctions or
other negative incentives for repeated failure to meet the benchmarks
so that States would not just be submitting CIPs each year with no
other repercussions.
Two of the advocacy organizations suggested that States be required
to post their CIPs for public access.
USDA/FNS Response to CIPs:
On what is to be included in the CIP--The proposal that the
timeline in the CIP be ``multiyear'' was added in the proposed rule so
that a State agency could define what measures it proposes to implement
in each of several years. Some goals will take longer than a year to
implement, some will take less, and others will logically follow after
some other goal is reached. In addition, some States may take longer
than others to implement effective changes, due in part to such
circumstances as the number of LEAs in the State, the population of the
State, the geographical size of the State, the current data structures
in the State, the relationship with partner agencies, and the
restrictions imposed by State law. The intent was to require States to
accomplish tasks in appropriate timeframes. Regarding the specifics of
what should go into the plans and how they should be structured, we
will provide guidance to those State agencies that are required to
develop CIPs. Each CIP will be reviewed individually and approved based
on whether the goals and timeframes are reasonable for that particular
State. Subsequent CIPs can track progress and reflect realigning goals.
On State progress implementing other direct certification
requirements in the CIP--This final rulemaking codifies all four
components of a CIP, not just the fourth.
For reporting ``Letter Method'' information, there is a phase-out
plan for the ``Letter Method'' for SNAP as it applies to benchmarks and
CIPs included in USDA FNS Memorandum SP 32-2011--Child Nutrition
Reauthorization 2010: Direct Certification Benchmarks and Continuous
Improvement Plans, dated April 28, 2011, available at http://www.fns.usda.gov/cnd/governance/Policy-Memos/2011/SP32-2011.pdf. By SY
2012-2013, the ``Letter Method'' must be fully phased-out as a means of
direct certification of children in households receiving SNAP benefits,
and the mandatory direct certification with SNAP must be conducted
using data-matching techniques only. Letters to SNAP households may
continue to be used as an additional means to notify households of
children's categorical eligibility based on receipt of SNAP benefits,
and schools may continue to use the letter to certify children in lieu
of an application; however, such certifications cannot be counted as
direct certifications. These certifications based on SNAP letters would
be exempt from verification but would not be included in data reported
for direct certifications with SNAP. As time goes on, States must have
systems that effectively handle more-frequent direct certification with
SNAP without the use of the ``Letter Method.'' States will need to
report in each CIP their progress in making this transition.
As for including in the fourth component of the CIPs information
about the State's progress toward implementing extended eligibility
policies, we currently monitor the State's progress during a management
evaluation and the State monitors the SFA's progress during an
administrative review. With the advent of the new benchmarks, there is
additional incentive for States to fully implement the policy on
extended eligibility since doing so would increase the State's direct
certification performance rate.
On other CIP issues--With regard to the proposed 60-day timeframes
for submitting a CIP, the timed CIP-development period would not start
until after we formally notify the State that a CIP is needed. The new
transparent methodology should facilitate a State's ability to
continually monitor its own performance, analyze its systems, and plan
for improvement. A State that monitors its own performance will likely
begin to
[[Page 12227]]
estimate its SNAP direct certification performance rate as early as
February 1st when the counts are due in from the LEAs, and a State that
finds itself below a benchmark could begin to formulate and test its
plans long before the State is even notified of the need to do a CIP.
To ensure the development of a thoughtful, workable CIP, however, and
to give the State time to get input from its State agency partners and
to get the CIP through its own State approval process, this final rule
sets the due date for submitting the CIP to FNS at 90 days after
notification, instead of the 60 days that was proposed.
Regarding the suggestions for applying fiscal sanctions or other
negative disincentives for repeated failures to meet the benchmarks, we
want to reiterate that the CIP process is designed for steady progress
to be made in improving direct certification rates. We anticipate that
States will continue to make a good faith effort to improve their
direct certification rates and that the CIPs will be a useful tool in
guiding their efforts. FNS will address on a case-by-case basis any
instance of willful noncompliance in implementing the improvements
required under a CIP. In addition, FNS is in the process of developing
a proposed rule to implement section 303 of the HHFKA, Fines for
Violating Program Requirements, which will provide an additional method
to address any instances of severe mismanagement and willful
noncompliance with program requirements.
Finally, with regard to general access to the CIPs, we agree that
States may wish to share their CIPs with one another to encourage the
formulation of successful plans, and we will continue to work to
accommodate the sharing of best practices through channels such as
PartnerWeb or State-to-State publications. However, mandatory public
release of CIPs is unnecessary for this type of technical document and
would be an additional burden on States. As such, USDA intends to leave
the decision to the individual State as to whether or not it chooses to
make its plan available to the public at large.
Disposition of CIPs in Final Rule:
The provisions regarding CIPs in the new Sec. 245.12, paragraphs
(a) Direct certification requirements, (d) State notification, (f)
Continuous improvement plan required components, and (g) Continuous
improvement plan implementation, remain unchanged from the proposed
rule. The provision that sets the timeframes for submitting the CIPs is
changed in the new paragraph Sec. 245.12(e) Continuous improvement
plan required, from 60 days in the proposed rule to 90 days in this
final rule.
III. Further Clarification
Data Element #1--On June 8, 2012, FNS published a notice
in the Federal Register (77 FR 34005) to solicit comments on the
proposed changes to the form FNS-742, Verification Summary Report (OMB
0584-0026), including the name change to School Food Authority
(SFA) Verification Collection Report. Data Element 1 would be
collected on line 3-2B of the revised form. This revised form will not
be required until SY 2013-2014 in order to allow time for changes to be
made to State automated systems. Since the revised form will not be
implemented for SY 2012-2013, State agencies will not be required to
report SNAP-only data for SY 2012-2013. Instead, for SY 2012-2013, the
SNAP direct certifications will continue to be included as part of line
4-1A of the current version of the FNS-742. In the interim, States are
expected to prepare and modify systems to meet the requirement to
report SNAP-only data on the revised FNS-742 beginning with SY 2013-
2014.
States Affected by This Rule--To further clarify the
criteria by which FNS determines whether or not a State is affected by
this final rule, we offer the following: All NSLP States that also
operate a food assistance program under SNAP would be affected by this
final rule. The only exceptions are the Virgin Islands and Puerto Rico,
each of which provides free meals to all children in those States
regardless of the economic need of the child's family. Three NSLP
States--the Commonwealth of the Northern Marianas, American Samoa, and
the Commonwealth of Puerto Rico--are not affected by this rule because
they do not operate SNAP, although each does operate a food assistance
program under a Nutrition Assistance Block Grant. At this time,
therefore, the NSLP States affected by this rule are the 50 States, the
District of Columbia, and Guam.
Procedural Matters
Executive Order 12866 and Executive Order 13563
Executive Orders 12866 and 13563 direct agencies to assess all
costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distributive impacts, and equity). Executive
Order 13563 emphasizes the importance of quantifying both costs and
benefits, of reducing costs, of harmonizing rules, and of promoting
flexibility.
This rule has been designated non-significant under section 3(f) of
Executive Order 12866.
Regulatory Flexibility Act
This rule has been reviewed with regard to the requirements of the
Regulatory Flexibility Act of 1980, (5 U.S.C. 601-612). Pursuant to
that review, it has been certified that this rule would not have a
significant impact on a substantial number of small entities.
Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local and tribal
governments and the private sector. Under section 202 of the UMRA, the
Department generally must prepare a written statement, including a cost
benefit analysis, for proposed and final rules with ``Federal
mandates'' that may result in expenditures by State, local or tribal
governments, in the aggregate, or the private sector, of $100 million
or more in any one year. When such a statement is needed for a rule,
section 205 of the UMRA generally requires the Department to identify
and consider a reasonable number of regulatory alternatives and adopt
the most cost effective or least burdensome alternative that achieves
the objectives of the rule.
This final rule does not contain Federal mandates (under the
regulatory provisions of Title II of the UMRA) for State, local and
tribal governments or the private sector of $100 million or more in any
one year. Thus, the rule is not subject to the requirements of sections
202 and 205 of the UMRA.
Executive Order 12372
This final rule affects the NSLP and SNAP.
The NSLP is listed in the Catalog of Federal Domestic Assistance
Programs under No. 10.555. For the reasons set forth in the final rule
in 7 CFR part 3015, subpart V, and related Notice (48 FR 29115, June
24, 1983), this program is included in the scope of Executive Order
12372 which requires intergovernmental consultation with State and
local officials. Since the NSLP is a State-administered, Federally-
funded program, FNS headquarters staff and FNS Regional Office staff
have formal and informal discussions with State and local officials on
an ongoing
[[Page 12228]]
basis regarding program requirements and operation. This structure
allows FNS to receive regular input which contributes to the
development of meaningful and feasible Program requirements.
SNAP is listed in the Catalog of Federal Domestic Assistance under
10.551. For the reasons set forth in the final rule at 7 CFR part 3015,
subpart V and related Notice (48 FR 29115, June 24, 1983), SNAP is
excluded from the scope of Executive Order 12372 which requires
intergovernmental consultation with State and local officials.
Federalism Summary Impact Statement
Executive Order 13132 requires Federal agencies to consider the
impact of their regulatory actions on State and local governments.
Where such actions have federalism implications, agencies are directed
to provide a statement for inclusion in the preamble to the regulations
describing the agency's considerations in terms of the three categories
called for under section (6)(b)(2)(B) of Executive Order 13121. FNS has
considered the impact of this rule on State and local governments and
has determined that this rule does not have federalism implications.
Therefore, under section 6(b) of the Executive Order, a federalism
summary is not required.
Executive Order 12988
This final rule has been reviewed under Executive Order 12988,
Civil Justice Reform. This final rule is intended to have preemptive
effect with respect to any State or local laws, regulations or policies
which conflict with its provisions or which would otherwise impede its
full and timely implementation. This rule is not intended to have
retroactive effect unless so specified in the Effective Dates section
of the final rule. Prior to any judicial challenge to the provisions of
the final rule, all applicable administrative procedures must be
exhausted.
Civil Rights Impact Analysis
FNS has reviewed this final rule in accordance with the Department
Regulation 4300-4, Civil Rights Impact Analysis, to identify any major
civil rights impacts the rule might have on children on the basis of
race, color, national origin, sex, age or disability.
This rule requires State agencies to develop and implement CIPs if
they do not meet certain percentage performance benchmarks for directly
certifying for free school meals children in households receiving SNAP
benefits. LEAs have for years been required to directly certify for
free school meals those children in households receiving assistance
under SNAP, and FNS has been required to assess State and local efforts
to directly certify these children. This rule codifies the benchmarks
and CIP requirements set by the HHFKA. After a careful review of the
rule's intent and provisions, FNS has determined that this rule is
technical in nature and affects State agencies only. This rule will not
affect children in the NSLP, except to continue to encourage States to
increase efforts to have more eligible children directly certified for
free meals.
Executive Order 13175--Consultation and Coordination With Indian Tribal
Governments
Executive Order 13175 requires Federal agencies to consult and
coordinate with Tribes on a government-to-government basis on policies
that have Tribal implications, including regulations, legislative
comments or proposed legislation, and other policy statements or
actions that have substantial direct effects on one or more Indian
Tribes, on the relationship between the Federal Government and Indian
Tribes, or on the distribution of power and responsibilities between
the Federal Government and Indian Tribes. USDA is unaware of any
current Tribal laws that could be in conflict with the requirements of
this rule. However, we have made special efforts to reach out to Tribal
communities. Beginning in the spring of 2011, FNS has offered
opportunities for consultation with Tribal officials or their designees
to discuss the impact of the Healthy, Hunger-Free Kids Act of 2010 on
tribes or Indian Tribal governments. The consultation sessions were
coordinated by FNS and held on the following dates and locations:
1. HHFKA Webinar & Conference Call--April 12, 2011
2. Mountain Plains--HHFKA Consultation, Rapid City, SD--March 23,
2011
3. HHFKA Webinar & Conference Call--June, 22, 2011
4. Tribal Self-Governance Annual Conference in Palm Springs, CA--
May 2, 2011
5. National Congress of American Indians Mid-Year Conference,
Milwaukee, WI--June 14, 2011
6. Quarterly Consultation Meeting Conference Call--May 2, 2012
There were no comments about this regulation during any of the
aforementioned Tribal Consultation sessions.
Reports from these consultations are part of the USDA annual
reporting on Tribal consultation and collaboration. FNS will respond in
a timely and meaningful manner to Tribal government requests for
consultation concerning this rule. Currently, FNS provides regularly
scheduled quarterly consultation sessions through the end of FY2012 as
a venue for collaborative conversations with Tribal officials or their
designees.
Paperwork Reduction Act
The Paperwork Reduction Act of 1995 (44 U.S.C. Chap. 35; see 5 CFR
1320), requires that the Office of Management and Budget (OMB) approve
all collections of information by a Federal agency from the public
before they can be implemented. Respondents are not required to respond
to any collection of information unless it displays a current, valid
OMB control number. This rule does contain information collection
requirements subject to approval by OMB under the Paperwork Reduction
Act of 1995.
One of the new provisions in this rule--the requirement for the
development and submission of continuous improvement plans by any State
that fails to meet certain mandated direct certification performance
benchmarks--annually increases State agency reporting burden by 54
hours and the recordkeeping burden by 9 hours, for a total of 63
additional burden hours. FNS intends to merge these 63 hours into the
Determining Eligibility for Free and Reduced Price Meals, OMB Control
0584-0026, expiration date March 31, 2013. The current
collection burden inventory for the Determining Eligibility for Free
and Reduced Price Meals (7 CFR part 245) is 1,073,432.
Another provision, requiring the collection of data elements on a
new, interagency form (FNS-834, State Agency (NSLP/SNAP) Direct
Certification Rate Data Element Report), involves changes in both NSLP
and SNAP regulations and would increase burden hours on State agencies
by an additional 53 hours annually. These 53 burden hours would remain
with the newly established OMB Control Number until such time as the
FNS-834 is incorporated into the Food Programs Reporting System (FPRS)
and the system is approved by OMB.
A 60-day notice was imbedded into the proposed rule, National
School Lunch Program: Direct Certification Continuous Improvement Plans
Required by the Healthy, Hunger-Free Kids Act of 2010, published in the
Federal Register at 77 FR 4688 on January 31, 2012, which provided the
public an opportunity to submit comments on the information collection
burden resulting from this rule. This
[[Page 12229]]
information collection burden has not yet been approved by OMB. FNS
will publish a document in the Federal Register once these requirements
have been approved.
The average burden per response and the annual burden hours are
explained below and summarized in the charts which follow.
Estimated Annual Reporting and Recordkeeping Burden for 0584-NEW,
Direct Certification Requirements, 7 CFR Part 245
Respondents for This Final Rule: State Agencies.
Estimated Number of Respondents for This Final Rule: 18.
Estimated Number of Responses per Respondent for This Final Rule:
2.
Estimated Total Annual Responses: 36.
Average Hours per Response: 1.75.
Estimated Total Annual Burden on Respondents for This Final Rule:
63.
Estimated Annual Reporting Burden for 0584--New, Direct Certification Requirements, 7 CFR Part 245
--------------------------------------------------------------------------------------------------------------------------------------------------------
Estimated Average
Section number of Frequency of annual Average burden Annual burden
respondents response responses per response hours
--------------------------------------------------------------------------------------------------------------------------------------------------------
Reporting (State Agencies)
--------------------------------------------------------------------------------------------------------------------------------------------------------
State agencies that fail to meet the 7 CFR 245.12 (e) and (g).... 18 1 18 3 54
direct certification benchmark must
develop and submit a Continuous
Improvement Plan within 60 days of
notification.
-------------------------------------------------------------------------------------------------------------
Total Reporting for Final Rule........ ............................ 18 1 18 3 54
Total Existing Reporting Burden for ............................ .............. .............. .............. .............. 1,067,387
Part 245.
-------------------------------------------------------------------------------------------------------------
Total Reporting Burden for Part 245 ............................ .............. .............. .............. .............. 1,067,441
with Final Rule.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Estimated Annual Recordkeeping Burden for 0584--New, Direct Certification Requirements, 7 CFR Part 245
--------------------------------------------------------------------------------------------------------------------------------------------------------
Estimated Average
Section number of Frequency of annual Average burden Annual burden
respondents response responses per response hours
--------------------------------------------------------------------------------------------------------------------------------------------------------
Recordkeeping (State Agencies)
--------------------------------------------------------------------------------------------------------------------------------------------------------
State agencies that fail to meet the 7 CFR 245.12 (e) and (g).... 18 1 18 0.5 9
direct certification benchmark must
maintain a Continuous Improvement Plan.
�������������������������������������������
Total Recordkeeping for Final Rule.... ............................ 18 1 18 0.5 9
Total Existing Recordkeeping Burden ............................ .............. .............. .............. .............. 6,045
for Part 245.
-------------------------------------------------------------------------------------------------------------
Total Recordkeeping Burden for Part ............................ .............. .............. .............. .............. 6,054
245 with Final Rule.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Summary of Reporting and Recordkeeping Burden (OMB 0584--New) 7
CFR Part 245
------------------------------------------------------------------------
------------------------------------------------------------------------
TOTAL NO. RESPONDENTS................................... 18
AVERAGE NO. RESPONSES PER RESPONDENT.................... 2
TOTAL ANNUAL RESPONSES.................................. 36
AVERAGE HOURS PER RESPONSE.............................. 1.75
TOTAL BURDEN HOURS FOR PART 245 WITH FINAL RULE......... 1,073,495
CURRENT OMB INVENTORY FOR PART 245...................... 1,073,432
DIFFERENCE (NEW BURDEN REQUESTED WITH FINAL RULE)....... 63
------------------------------------------------------------------------
* These 63 hours will be merged with OMB 0584-0026
Estimated Annual Burden for 0584-NEW, Direct Certification
Requirements, 7 CFR Parts 245 and 272
Respondents for This Final Rule: State Agencies.
Estimated Number of Respondents for This Final Rule: 106.
Estimated Number of Responses per Respondent for This Final Rule:
1.
Estimated Total Annual Responses: 106.
Average Hours per Response: .5.
Estimated Total Annual Burden on Respondents for This Final Rule:
53.
[[Page 12230]]
Estimated Annual Burden for 0584--New, Direct Certification Requirements 7 CFR Parts 245 and 272
--------------------------------------------------------------------------------------------------------------------------------------------------------
Estimated Average Average
Section number of Frequency of annual burden per Annual burden
respondents response responses response hours
--------------------------------------------------------------------------------------------------------------------------------------------------------
Reporting (State Agencies)
--------------------------------------------------------------------------------------------------------------------------------------------------------
NSLP State agency must annually report to 7 CFR 245.12(c)............. 54 1 54 0.5 27
FNS data for calculating direct
certification rates.
SNAP State agency must annually report to 7 CFR 272.8(a)(5)........... 52 1 52 0.5 26
FNS and to the NSLP State agency data for
calculating direct certification rates.
-------------------------------------------------------------------------------------------------------------
Total Reporting for Final Rule........ ............................ 106 1 106 0.5 53
Total Existing Reporting Burden....... ............................ .............. .............. .............. .............. 0
�������������������������������������������
Total Reporting Burden for Parts 245 ............................ .............. .............. .............. .............. 53
and 272 with Final Rule.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Summary of Burden (OMB 0584--NEW) 7 CFR Parts 245 and 272
------------------------------------------------------------------------
------------------------------------------------------------------------
TOTAL NO. RESPONDENTS................................... 106
AVERAGE NO. RESPONSES PER RESPONDENT.................... 1
TOTAL ANNUAL RESPONSES.................................. 106
AVERAGE HOURS PER RESPONSE.............................. .5
TOTAL BURDEN HOURS FOR PARTS 245 and 272 WITH FINAL 53
RULE*..................................................
CURRENT OMB INVENTORY FOR PARTS 245 and 272............. 0
DIFFERENCE (NEW BURDEN REQUESTED WITH FINAL RULE)....... 53
------------------------------------------------------------------------
* Represents increase of 53 hours from existing reporting burden; no
additional recordkeeping burden. These 53 hours will remain with the
newly established OMB Control Number.
E-Government Act Compliance
The Food and Nutrition Service is committed to complying with the
E-Government Act to promote the use of the Internet and other
information technologies to provide increased opportunities for citizen
access to Government information and services, and for other purposes.
List of Subjects
7 CFR Part 245
Civil rights, Food assistance programs, Grant programs-education,
Grant programs-health, Infants and children, Milk, Reporting and
recordkeeping requirements, School breakfast and lunch programs.
7 CFR Part 272
Alaska, Civil rights, Claims, Food stamps, Grant programs-social
programs, Reporting and recordkeeping requirements, Unemployment
compensation, wages.
Accordingly, 7 CFR Parts 245 and 272 are amended as follows:
PART 245--DETERMIMING ELIGIBILITY FOR FREE AND REDUCED PRICE MEALS
AND FREE MILK IN SCHOOLS
0
1. The authority citation for 7 CFR Part 245 continues to read as
follows:
Authority: 42 U.S.C. 1752, 1758, 1759a, 1772, 1773, and 1779.
Sec. 245.6a [Amended]
0
2. Section 245.6a is amended in paragraph (h) by removing the word
``March'' and adding in its place the word ``February''.
0
3. Paragraph 245.11(i) is revised to read as follows:
Sec. 245.11 Action by State agencies and FNSROs.
* * * * *
(i) No later than February 1, 2013, and by February 1st each year
thereafter, each State agency must collect annual verification data
from each local educational agency as described in Sec. 245.6a(h) and
in accordance with guidelines provided by FNS. Each State agency must
analyze these data, determine if there are potential problems, and
formulate corrective actions and technical assistance activities that
will support the objective of certifying only those children eligible
for free or reduced price meals. No later than March 15, 2013, and by
March 15th each year thereafter, each State agency must report to FNS,
in a consolidated electronic file by local educational agency, the
verification information that has been reported to it as required under
Sec. 245.6a(h), as well as any ameliorative actions the State agency
has taken or intends to take in local educational agencies with high
levels of applications changed due to verification. State agencies are
encouraged to collect and report any or all verification data elements
before the required dates.
* * * * *
Sec. Sec. 245.12 and 245.13 [Redesignated as Sec. Sec. 245.13 and
245.14]
0
4. Redesignate Sec. Sec. 245.12 and 245.13 as Sec. Sec. 245.13 and
245.14, respectively.
0
5. New Sec. 245.12 is added to read as follows:
Sec. 245.12 State agencies and direct certification requirements.
(a) Direct certification requirements. State agencies are required
to meet the direct certification performance benchmarks set forth in
paragraph (b) of this section for directly certifying children who are
members of households receiving assistance under SNAP. A State agency
that fails to meet the benchmark must develop and submit to FNS a
continuous
[[Page 12231]]
improvement plan (CIP) to fully meet the requirements of this paragraph
and to improve direct certification for the following school year in
accordance with the provisions in paragraphs (e), (f), and (g) of this
section.
(b) Direct certification performance benchmarks. State agencies
must meet performance benchmarks for directly certifying for free
school meals children who are members of households receiving
assistance under SNAP. The performance benchmarks are as follows:
(1) 80% for the school year beginning July 1, 2011;
(2) 90% for the school year beginning July 1, 2012; and
(3) 95% for the school year beginning July 1, 2013, and for each
school year thereafter.
(c) Data elements required for direct certification rate
calculation. Each State agency must provide FNS with specific data
elements each year, as follows:
(1) Data Element #1--The number of children who are members of
households receiving assistance under SNAP that are directly certified
for free school meals as of the last operating day in October,
collected and reported in the same manner and timeframes as specified
in Sec. 245.11(i).
(2) Data Element #2--The unduplicated count of children ages 5 to
17 years old who are members of households receiving assistance under
SNAP at any time during the period July 1 through September 30. This
data element must be provided by the SNAP State agency, as required
under 7 CFR 272.8(a)(5), and reported to FNS and to the State agency
administering the NSLP in the State by December 1st each year, in
accordance with guidelines provided by FNS.
(3) Data Element #3-- The count of the number of children who are
members of households receiving assistance under SNAP who attend a
school operating under the provisions of 7 CFR 245.9 in a year other
than the base year or that is exercising the community eligibility
option (CEO). The proxy for this data element must be established each
school year through the State's data matching efforts between SNAP
records and student enrollment records for these special provision
schools that are operating in a non-base year or that are exercising
the CEO. Such matching efforts must occur in or close to October each
year, but no later than the last operating day in October. However,
States that have special provision schools exercising the CEO may
alternatively choose to include, for these schools, the count of the
number of identified students directly matched with SNAP used in
determining the CEO claiming percentage for that school year, or they
may choose to use the count from the SNAP match conducted by April 1 of
the same calendar year, whether or not it was used in the CEO claiming
percentages. State agencies must report this aggregated data element to
FNS by December 1st each year, in accordance with guidelines provided
by FNS.
(d) State notification. For each school year, FNS will notify State
agencies that fail to meet the direct certification performance
benchmark.
(e) Continuous improvement plan required. A State agency having a
direct certification rate with SNAP that is less than the direct
certification performance benchmarks set forth in paragraph (b) of this
section must submit to FNS for approval, within 90 days of
notification, a CIP in accordance with paragraph (f) of this section.
(f) Continuous improvement plan required components. CIPs must
include, at a minimum:
(1) The specific measures that the State will use to identify more
children who are eligible for direct certification, including
improvements or modifications to technology, information systems, or
databases;
(2) A multiyear timeline for the State to implement these measures;
(3) Goals for the State to improve direct certification results for
the following school year; and
(4) Information about the State's progress toward implementing
other direct certification requirements, as provided in FNS guidance.
(g) Continuous improvement plan implementation. A State must
maintain its CIP and implement it according to the timeframes in the
approved plan.
PART 272--REQUIREMENTS FOR PARTICIPATING STATE AGENCIES
0
5. The authority citation for 7 CFR part 272 continues to read as
follows:
Authority: 7 U.S.C. 2011-2036.
0
6. Section 272.8 is amended by adding a new paragraph (a)(5) to read as
follows:
Sec. 272.8 State income and eligibility verification system.
(a) * * *
(5) State agencies must provide information to FNS and to the State
agencies administering the National School Lunch Program for the
purpose of direct certification of children for school meals as
described in Sec. 245.12(c)(2) of this chapter. In addition, State
agencies must execute a data exchange and privacy agreement in
accordance with paragraph (a)(4) of this section and Sec. 272.1(c).
* * * * *
Dated: February 4, 2013.
Audrey Rowe,
Administrator, Food and Nutrition Service.
[FR Doc. 2013-04118 Filed 2-21-13; 8:45 am]
BILLING CODE 3410-30-P