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Food and Nutrition Service, USDA § 215.2
Technical Services Division, 3101 Park Cen- voted to the care and training of children,
ter Drive, Alexandria, Virginia 22302. which do not participate in a meal service
program authorized under this Act or the
[51 FR 34874, Sept. 30, 1986, as amended at 53
National School Lunch Act.
FR 29164, Aug. 2, 1988; 60 FR 31216, June 13,
1995; 65 FR 26912, May 9, 2000] (2) The limitation imposed under para-
graph (1)(A) for participation of nonprofit
schools in the special milk program shall not
PART 215—SPECIAL MILK apply to split-session kindergarten programs
PROGRAM FOR CHILDREN conducted in schools in which children do
not have access to the meal service program
Sec. operating in schools the children attend as
215.1 General purpose and scope. authorized under this Act or the National
215.2 Definitions. School Lunch Act (42 U.S.C. 1751 et seq.).
215.3 Administration. (3) For the purposes of this section ‘‘United
215.4 Payments of funds to States and States’’ means the fifty States, Guam, the
FNSROs. Commonwealth of Puerto Rico, the Virgin
215.5 Method of payment to States. Islands, American Samoa, the Trust Terri-
215.6 Use of funds. tory of the Pacific Islands, and the District
215.7 Requirements for participation. of Columbia.
215.8 Reimbursement payments. (4) The Secretary shall administer the spe-
215.9 Effective date for reimbursement. cial milk program provided for by this sec-
215.10 Reimbursement procedures. tion to the maximum extent practicable in
215.11 Special responsibilities of State agen- the same manner as he administered the spe-
cies. cial milk program provided for by Pub. L. 89–
215.12 Claims against schools or child-care 642, as amended, during the fiscal year end-
institutions. ing June 30, 1969.
215.13 Management evaluations and audits. (5) Any school or nonprofit child care insti-
215.13a Determining eligibility for free milk tution which does not participate in a meal
in child-care institutions. service program authorized under this Act or
215.14 Nondiscrimination. the National School Lunch Act shall receive
215.14a Procurement standards. the special milk program upon their request.
215.15 Withholding payments. (6) Children who qualify for free lunches
215.16 Suspension, termination and grant under guidelines established by the Sec-
closeout procedures. retary shall, at the option of the school in-
215.17 Program information. volved (or of the local educational agency in-
215.18 Information collection/record-
volved in the case of a public school) be eligi-
keeping—OMB assigned control numbers.
ble for free milk upon their request.
AUTHORITY: 42 U.S.C. 1772 and 1779. (7) For the fiscal year ending June 30, 1975,
and for subsequent school years, the min-
§ 215.1 General purpose and scope. imum rate of reimbursement for a half-pint
This part announces the policies and of milk served in schools and other eligible
institutions shall not be less than 5 cents per
prescribes the general regulations with half-pint served to eligible children, and
respect to the Special Milk Program such minimum rate of reimbursement shall
for Children, under the Child Nutrition be adjusted on an annual basis each school
Act of 1966, as amended, and sets forth year to reflect changes in the Producer Price
the general requirements for participa- Index for Fresh Processed Milk published by
tion in the program. The Act reads in the Bureau of Labor Statistics of the Depart-
pertinent part as follows: ment of Labor.
(8) Such adjustment shall be computed to
Section 3(a)(1) There is hereby authorized the nearest one-fourth cent.
to be appropriated for the fiscal year ending (9) Notwithstanding any other provision of
June 30, 1970, and for each succeeding fiscal this section, in no event shall the minimum
year such sums as may be necessary to en- rate of reimbursement exceed the cost to the
able the Secretary of Agriculture, under school or institution of milk served to chil-
such rules and regulations as he may deem dren.
in the public interest, to encourage con-
sumption of fluid milk by children in the [52 FR 7562, Mar. 12, 1987]
United States in (A) nonprofit schools of
high school grade and under, except as pro- § 215.2 Definitions.
vided in paragraph (2), which do not partici- For the purpose of this part, the
pate in a meal service program authorized
under this Act or the National School Lunch
term:
Act, and (B) nonprofit nursery schools, child 7 CFR part 3015 means the Uniform
care centers, settlement houses, summer Federal Assistance Regulations pub-
ebenthall on PROD1PC71 with CFR
camps, and similar nonprofit institutions de- lished by the Department to implement
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§ 215.2 7 CFR Ch. II (1–1–08 Edition)
certain policies applicable to all De- Child care institution means any non-
partment programs. The applicable profit nursery school, child care center,
provisions deal with competition for settlement house, summer camp, serv-
discretionary grants and cooperative ice institution participating in the
agreements, costs requiring prior ap- Summer Food Program for Children
proval, acknowledgement of Depart- pursuant to part 225 of this chapter, in-
ment support in publications and stitution participating in the Child and
audiovisuals produced under Depart- Adult Care Food Program pursuant to
ment programs, intergovernmental re- part 226 of this chapter, or similar non-
view of Department programs under profit institution devoted to the care
Executive Order 12372, and certain mis- and training of children. The term
cellaneous Department requirements. ‘‘child care institution’’ also includes a
7 CFR part 3016 means the Depart- nonprofit agency to which such institu-
ment’s Uniform Administrative Re- tion has delegated authority for the op-
quirements for Grants and Cooperative eration of a milk program in the insti-
Agreements to State and Local Gov- tution. It does not include any institu-
ernments. 7 CFR part 3016 covers re- tion falling within the definition of
quirements for awards and subawards ‘‘School’’ of this section.
to State and local governmental orga- Child means
nizations under Department programs. (1) A person under 19 chronological
7 CFR part 3018 means the Depart- years of age in a Child care institution
ment’s Common Rule regarding Gov- as defined in this section;
ernmentwide New Restrictions on Lob-
(2) A person under 21 chronological
bying. Part 3018 implements the re-
years of age attending a school as de-
quirements established by section 319
fined in paragraphs (3) and (4) of the
of the 1990 Appropriations Act for the
definition of School in this section;
Department of Interior and Related
(3) A student of high school grade or
Agencies (Pub. L. 101–121).
under attending school as defined in
7 CFR part 3019 means the Depart-
paragraphs (1) and (2) of the definition
ment’s Uniform Administrative Re-
of School in this section; or
quirements for Grants and Agreements
with Institutions of Higher Education, (4) A student who is mentally or
Hospitals, and Other Non-Profit Orga- physically disabled as determined by
nizations. 7 CFR part 3019 covers re- the State and who is participating in a
quirements for awards and subawards school program established for the
to nongovernmental, nonprofit organi- mentally or physically disabled, of
zations under Department programs. high school grade or under as deter-
7 CFR part 3052 means the Depart- mined by the State educational agency
ment’s regulations implementing OMB in paragraphs (1) and (2) of the defini-
Circular A–133, ‘‘Audits of State, Local tion of School in this section.
Governments, and Non-Profit Organi- CND means the Child Nutrition Divi-
zations.’’ (For availability of OMB Cir- sion of the Food and Nutrition Service
culars referenced in this definition, see of the Department.
5 CFR 1310.3.) Contractor means a commercial en-
Act means the Child Nutrition Act of terprise, public or nonprofit private or-
1966. ganization or individual that enters
Adults means those persons not in- into a contract with a school food au-
cluded under the definition of children. thority.
Applicable credits shall have the Cost of milk means the net purchase
meaning established in Office of Man- price paid by the school or child care
agement and Budget Circulars A–87, institution to the milk supplier for
C(4) and A–122, Attachment A, A(5), re- milk delivered to the school or child
spectively. For availability of OMB cir- care institution. This shall not include
culars referenced in this definition, see any amount paid to the milk supplier
5 CFR 1310.3. for servicing, rental of or installment
Child and Adult Care Food Program purchase of milk service equipment.
means the program authorized by sec- Cost reimbursable contract means a
tion 17 of the National School Lunch contract that provides for payment of
ebenthall on PROD1PC71 with CFR
Act, as amended. incurred costs to the extent prescribed
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Food and Nutrition Service, USDA § 215.2
in the contract, with or without a fixed tary schools or secondary schools. The
fee. term also includes any other public or
Department means the U.S. Depart- private nonprofit institution or agency
ment of Agriculture. having administrative control and di-
Disclosure means reveal or use indi- rection of a public or private nonprofit
vidual children’s program eligibility elementary school or secondary school,
information obtained through the free including residential child care institu-
milk eligibility process for a purpose tions, Bureau of Indian Affairs schools,
other than for the purpose for which and educational service agencies and
the information was obtained. The consortia of those agencies, as well as
term refers to access, release, or trans- the State educational agency in a
fer of personal data about children by State or territory in which the State
means of print, tape, microfilm, micro- educational agency is the sole edu-
fiche, electronic communication or any cational agency for all public or pri-
other means.
vate nonprofit schools.
Family means a group of related or
Medicaid means the State medical as-
nonrelated individuals, who are not
residents of an institution or boarding sistance program under title XIX of the
house, but who are living as one eco- Social Security Act (42 U.S.C. 1396 et
nomic unit. seq.).
Fiscal year means the period of 12 cal- Milk means pasteurized fluid types of
endar months beginning October 1, unflavored or flavored whole milk,
1977, and each October 1 of any cal- lowfat milk, skim milk, or cultured
endar year thereafter and ending Sep- buttermilk which meet State and local
tember 30 of the following calendar standards for such milk. In Alaska, Ha-
year. waii, American Samoa, Guam, Puerto
Fixed fee means an agreed upon Rico, the Trust Territory of the Pacific
amount that is fixed at the inception of Islands, and the Virgin Islands, if a suf-
the contract. In a cost reimbursable ficient supply of such types of fluid
contract, the fixed fee includes the milk cannot be obtained, milk shall in-
contractor’s direct and indirect admin- clude reconstituted or recombined
istrative costs and profit allocable to milk. All milk should contain vitamins
the contract. A and D at levels specified by the Food
FNS means the Food and Nutrition and Drug Administration and con-
Service of the U.S. Department of Agri- sistent with State and local standards
culture. for such milk.
FNSRO means Food and Nutrition National School Lunch Program means
Services Regional Offices, of the Food the program under which general cash-
and Nutrition Service of the U.S. De- for-food assistance and special cash as-
partment of Agriculture. sistance are made available to schools
Free milk means milk for which nei-
pursuant to part 210 of this chapter.
ther the child nor any member of his
family pays or is required to work in Needy children means: (1) Children
the school or child-care institution or who attend schools participating in the
in its food service. Program and who meet the School
Local educational agency means a pub- Food Authority’s eligibility standards
lic board of education or other public for free milk approved by the State
or private nonprofit authority legally agency, or FNSRO where applicable,
constituted within a State for either under part 245 of this chapter; and (2)
administrative control or direction of, children who attend child-care institu-
or to perform a service function for, tions participating in the Program and
public or private nonprofit elementary who meet the eligibility standards for
schools or secondary schools in a city, free milk approved by the State agen-
county, township, school district, or cy, or FNSRO where applicable, under
other political subdivision of a State, § 215.13a of this part.
or for a combination of school districts Nonpricing program means a program
or counties that is recognized in a which does not sell milk to children.
State as an administrative agency for This shall include any such program in
ebenthall on PROD1PC71 with CFR
its public or private nonprofit elemen- which children are normally provided
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§ 215.2 7 CFR Ch. II (1–1–08 Edition)
milk, along with food and other serv- the State or a subordinate level of gov-
ices, in a school or child-care institu- ernment, except for residential summer
tion financed by a tuition, boarding, camps which participate in the Sum-
camping or other fee, or by private do- mer Food Service Program for Chil-
nations or endowments. dren, Job Corps centers funded by the
Nonprofit means, when applied to Department of Labor, and private fos-
schools or institutions eligible for the ter homes. The term residential child
Program, exempt from income tax care institutions includes, but is not
under section 501(c)(3) of the Internal limited to: Homes for the mentally,
Revenue Code of 1986. emotionally or physically impaired,
Nonprofit milk service means milk and unmarried mothers and their in-
service maintained by or on behalf of fants; group homes; halfway houses; or-
the school or child-care institution for phanages; temporary shelters for
the benefit of the children, all of the abused children and for runaway chil-
income from which is used solely for dren; long-term care facilities for
the operation or improvement of such chronically ill children; and juvenile
milk service. detention centers. A long-term care fa-
Nonprofit school food service account cility is a hospital, skilled nursing fa-
means the restricted account in which cility, intermediate care facility, or
all of the revenue from the nonprofit distinct part thereof, which is intended
milk service maintained for the benefit for the care of children confined for 30
of children is retained and used only days or more.
for the operation or improvement of School Breakfast Program means the
the nonprofit milk service. program authorized by section 4 of the
OA means the Office of Audit of the Child Nutrition Act of 1966, as amend-
United States Department of Agri- ed.
culture. School Food Authority means the gov-
OIG means the Office of the Inspector erning body which is responsible for
General of the Department. the administration of one or more
Pricing program means a program schools and which has the legal author-
which sells milk to children. This shall ity to operate a milk program therein.
include any such program in which The term ‘‘School Food Authority’’
maximum use is made of Program re- also includes a nonprofit agency to
imbursement payments in lowering, or which such governing body has dele-
reducing to ‘‘zero,’’ wherever possible, gated authority for the operation of a
the price per half pint which children milk program in a school.
would normally pay for milk. School year means the period of 12
Program means the Special Milk Pro- calendar months beginning July 1, 1977,
gram for Children. and each July 1 of any calendar year
Reimbursement means financial assist- thereafter and ending June 30 of the
ance paid or payable to participating following calendar year.
schools and child care institutions for Split-session means an educational
milk served to eligible children. program operating for approximately
School means: (1) An educational unit one-half of the normal school day.
of high school grade or under, recog- State means any of the 50 States, Dis-
nized as part of the educational system trict of Columbia, the Commonwealth
in the State and operating under public of Puerto Rico, the Virgin Islands,
or nonprofit private ownership in a sin- Guam, and, as applicable, American
gle building or complex of buildings; (2) Samoa and the Commonwealth of the
any public or nonprofit private classes Northern Marianas.
of preprimary grade when they are con- State agency means the State edu-
ducted in the aforementioned schools; cational agency or any other State
or (3) any public or nonprofit private agency that has been designated by the
residential child care institution, or Governor or other appropriate execu-
distinct part of such institution, which tive or legislative authority of the
operates principally for the care of State and approved by the Department
children, and, if private, is licensed to to administer the Program.
provide residential child care services State Children’s Health Insurance Pro-
ebenthall on PROD1PC71 with CFR
under the appropriate licensing code by gram (SCHIP) means the State medical
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Food and Nutrition Service, USDA § 215.5
assistance program under title XXI of schools or child-care institutions with-
the Social Security Act (42 U.S.C. in certain States.
1397aa et seq.). (d) Each State agency desiring to
Summer Food Service Program for Chil- take part in the Program shall enter
dren means the program authorized by into a written agreement with the De-
section 13 of the National School partment for the administration of the
Lunch Act, as amended. Program in the State in accordance
with the provisions of this part, 7 CFR
(Sec. 11, Pub. L. 95–166, 91 Stat. 1337 (42
U.S.C. 1772, 1753, 1766; sec. 10(a), Pub. L. 95– parts 235, 245, 15, 15a, 15b and, as appli-
627, 92 Stat. 3623 (42 U.S.C. 1760; sec. 10(d)), cable, 7 CFR part 3015, 7 CFR part 3016
Pub. L. 95–627, 92 Stat. 3624 (42 U.S.C. 1757); and 7 CFR part 3019, and with FNS In-
sec. 14, Pub. L. 95–627, 92 Stat. 3625–3626; sec. structions. Such agreement shall cover
205, Pub. L. 96–499, The Omnibus Reconcili- the operation of the Program during
ation Act of 1980, 94 Stat. 2599; secs. 807 and the period specified therein and may be
808, Pub. L. 97–35, 95 Stat. 521–535 (42 U.S.C. extended at the option of the Depart-
1772, 1784, 1760))
ment.
[32 FR 12587, Aug. 31, 1967]
(Secs. 804, 816 and 817, Pub. L. 97–35; 95 Stat.
EDITORIAL NOTE: For FEDERAL REGISTER ci- 521–535 (42 U.S.C. 1753, 1756, 1759, 1771 and
tations affecting § 215.2, see the List of CFR 1785))
Sections Affected, which appears in the
Finding Aids section of the printed volume [Amdt. 14, 41 FR 31174, July 27, 1976, as
and on GPO Access. amended by Amdt. 24, 47 FR 14133 Apr. 2,
1982; Amdt. 36, 54 FR 2989, Jan. 23, 1989; 71 FR
§ 215.3 Administration. 39516, July 13, 2006; 72 FR 63791, Nov. 13, 2007]
(a) Within the Department, FNS § 215.4 Payments of funds to States
shall act on behalf of the Department and FNSROs.
in the administration of the Program. (a) For each fiscal year, the Sec-
Within FNS, CND shall be responsible retary shall make payments to each
for Program administration. State agency at such times as he may
(b) Within the States, to the extent determine from the funds appropriated
practicable and permissible under for Program reimbursement. Subject to
State law, responsibility for the admin- § 215.11(c)(2), the total of these pay-
istration of the Program in schools and ments for each State for any fiscal
child care institutions shall be in the year shall be limited to the amount of
educational agency of the State: Pro- reimbursement payable to School Food
vided, however, That another State Authorities and child care institutions
agency, upon request by the Governor under § 215.8 of this part for the total
or other appropriate State executive or number of half-pints of milk served
legislative authority, may be approved under the Program to eligible children
to administer the Program in schools from October 1 to September 30.
as described in paragraph (3) of the def- (b) Each State agency shall be re-
inition of School in § 215.2 or in child sponsible for controlling Program re-
care institutions. imbursement payments so as to keep
(c) FNSRO shall administer the Pro- within the funds made available to it,
gram in any School or any Child care in- and for the timely reporting to FNS of
stitution as defined in § 215.2 wherein the number of half pints of milk actu-
the State agency is not permitted by ally served. The Secretary shall in-
law to disburse Federal funds paid to it crease or decrease the available level of
under the Program; Provided, however, funding by adjusting the State agen-
That FNSRO shall also administer the cy’s Letter of Credit when appropriate.
Program in all other schools and child-
care institutions which have been (Pub. L. 97–370, 96 Stat. 1806)
under continuous FNS administration [Amdt. 14, 41 FR 31174, July 27, 1976, as
since October 1, 1980 unless the admin- amended by Amdt. 30, 49 FR 18986, May 4,
istration of such schools and institu- 1984]
tions is assumed by a State agency.
References in this part to ‘‘FNSRO § 215.5 Method of payment to States.
where applicable’’ are to FNSRO as the (a) Funds to be paid to any State
ebenthall on PROD1PC71 with CFR
agency administering the Program to shall be made available by means of
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§ 215.6 7 CFR Ch. II (1–1–08 Edition)
Letters of Credit issued by FNS in ment, shall: (1) If such funds, assets, or
favor of the State agency. The State property are of a value of $100 or more,
agency shall: be fined not more than $25,000 or im-
(1) Obtain funds needed to reimburse prisoned not more than 5 years or both;
School Food Authorities and child-care or (2) if such funds, assets, or property
institutions through presentation by are of a value of less than $100, be fined
designated State officials of a Payment not more than $1,000 or imprisoned not
Voucher on Letter of Credit (Treasury more than one year or both.
Form GFO 7578) in accordance with (c) Whoever receives, conceals, or re-
procedures prescribed by FNS and ap- tains to his use or gain funds, assets, or
proved by the U.S. Treasury Depart- property provided under this part,
ment; (2) submit requests for funds whether received directly or indirectly
only at such times and in such from the Department, knowing such
amounts as will permit prompt pay- funds, assets, or property have been
ment of claims; (3) use the funds re- embezzled, willfully misapplied, stolen,
ceived from such requests without or obtained by fraud, shall be subject
delay for the purpose for which drawn. to the same penalties provided in para-
Notwithstanding the foregoing provi- graph (b) of this section.
sions, if funds are made available by
Congress for the operation of the Pro- (Sec. 10(a), Pub. L. 95–627, 92 Stat. 3623 (42
gram under a continuing resolution, U.S.C. 1760; sec. 10(d)(3), Pub. L. 95–627, 92
Letters of Credit shall reflect only the Stat. 3624 (42 U.S.C. 1757); sec. 14, Pub. L. 95–
amount available for the effective pe- 627, 92 Stat. 3625–3626; 44 U.S.C. 3506))
riod of the resolution. [Amdt. 14, 41 FR 31174, July 27, 1976, as
(b) [Reserved] amended by Amdt. 18, 44 FR 37898, June 29,
(c) The State agency shall release to 1979; 47 FR 746, Jan. 7, 1982; 64 FR 50741, Sept.
FNS any Federal funds made available 20, 1999]
to it under the Program which are un-
obligated at the end of each fiscal year. § 215.7 Requirements for participation.
Release of funds by the State agency (a) Any school or nonprofit child care
shall be made as soon as practicable institution shall receive the Special
but in no event later than 30 days fol- Milk Program upon request provided it
lowing demand by FNSRO, and shall be does not participate in a meal service
reflected by a related adjustment in program authorized under the Child
the State agency’s Letter of Credit. Nutrition Act of 1966 or the National
[Amdt. 13, 39 FR 28416, Aug. 7, 1974, as amend- School Lunch Act; except that schools
ed by Amdt. 14, 41 FR 31174, July 27, 1976] with such meal service may receive the
Special Milk Program upon request
§ 215.6 Use of funds. only for the children attending split-
(a) Federal funds made available session kindergarten programs who do
under the Program shall be used to en- not have access to the meal service.
courage the consumption of milk Each School Food Authority or child-
through reimbursement payments to care institution shall make written ap-
schools and child-care institutions in plication to the State agency, or
connection with the purchase and serv- FNSRO where applicable, for any
ice of milk to children in accordance school or child-care institution in
with the provisions of this part: Pro- which it desires to operate the Pro-
vided, however, That, with the approval gram, if such school or child-care insti-
of FNS, any State agency, or FNSRO tution did not participate in the Pro-
where applicable, may reserve for use gram in the prior fiscal year.
in carrying out special developmental (b) Any School Food Authority or
projects an amount equal to not more child care institution participating in
than 1 per centum of the Federal funds the Program may elect to serve free
so made available for any fiscal year. milk to children eligible for free meals.
(b) Whoever embezzles, willfully Upon application for the Program, each
misapplies, steals, or obtains by fraud School Food Authority or child care in-
any funds, assets, or property provided stitution:
under this part, whether received di- (1) Shall be required by the State
ebenthall on PROD1PC71 with CFR
rectly or indirectly from the Depart- agency, or FNSRO where applicable, to
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Food and Nutrition Service, USDA § 215.8
state whether or not it wishes to pro- (4) Claim reimbursement only for
vide free milk in the schools or institu- milk as defined in this part and in ac-
tions participating under its jurisdic- cordance with the provisions of § 215.8
tion and and § 215.10;
(2) If it so wishes to provide free (5) Submit Claims for Reimburse-
milk, shall also submit for approval a ment in accordance with § 215.10 of this
free milk policy statement which, if for part and procedures established by the
a school, shall be in accordance with State agency or FNSRO where applica-
part 245 of this chapter or, if for a child ble;
care institution, shall be in accordance (6) Maintain a financial management
with § 215.13a of this part. system as prescribed by the State
(c) The application shall include in- agency, or FNSRO where applicable;
formation in sufficient detail to enable (7) Upon request, make all records
the State agency, or FNSRO where ap- pertaining to its milk program avail-
plicable, to determine whether the able to the State agency and to FNS or
School Food Authority or child-care OA for audit and administrative re-
institution is eligible to participate in view, at any reasonable time and place.
the Program and extent of the need for Such records shall be retained for a pe-
Program payments. riod of three years after the end of the
(d) Each school food authority or fiscal year to which they pertain, ex-
child care institution approved to par- cept that, if audit findings have not
ticipate in the program shall enter into been resolved, the records shall be re-
a written agreement with the State tained beyond the three-year period as
agency or FNSRO, as applicable, that long as required for the resolution of
may be amended as necessary. Nothing the issues raised by the audit;
in the preceding sentence shall be con- (8) Retain the individual applications
strued to limit the ability of the State for free milk submitted by families for
agency to suspend or terminate the a period of three years after the end of
agreement in accordance with § 215.15. the fiscal year to which they pertain,
If a single State agency administers except that, if audit findings have not
any combination of the Child Nutrition been resolved, the records shall be re-
Programs, that State agency shall pro- tained beyond the three-year period as
vide each SFA with a single agreement long as required for the resolution of
with respect to the operation of those the issues raised by the audit.
programs. Such agreement shall pro- (e) State requirements. Nothing con-
tained in this part shall prevent a
vide that the School Food Authority or
State agency from imposing additional
child-care institution shall, with re-
requirements for participation in the
spect to participating schools and
Program which are not inconsistent
child-care institutions under its juris-
with the provision of this part.
diction:
(1) Operate a nonprofit milk service. (Sec. 11, Pub. L. 95–166, 91 Stat. 1337 (42
However, school food authorities may U.S.C. 1772, 1753, 1766); sec. 5, Pub. L. 95–627,
use facilities, equipment, and per- 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,
sonnel supported with funds provided
1759(a), 1773, 1758); 44 U.S.C. 3506)
to a school food authority under this
part to support a nonprofit nutrition [Amdt. 13, 39 FR 28416, Aug. 7, 1974, as amend-
program for the elderly, including a ed by Amdt. 14, 41 FR 31174, July 27, 1976;
Amdt. 16, 43 FR 1059, Jan. 6, 1978; 44 FR 10700,
program funded under the Older Ameri- Feb. 23, 1979; Amdt. 17, 44 FR 33047, June 8,
cans Act of 1965 (42 U.S.C. 3001 et seq.). 1979; 46 FR 51635, Oct. 20, 1981; 47 FR 745, Jan.
(2) If electing to provide free milk (i) 7, 1982; Amdt. 30, 49 FR 18986, 18987, May 4,
serve milk free to all eligible children, 1984; 52 FR 7562, Mar. 12, 1987; 52 FR 15298,
at times that milk is made available to Apr. 28, 1987; 64 FR 50741, Sept. 20, 1999]
nonneedy children under the Program;
and (ii) make no discrimination § 215.8 Reimbursement payments.
against any needy child because of his (a) [Reserved]
inability to pay for the milk. (b)(1) The rate of reimbursement per
(3) Comply with the requirements of half-pint of milk purchased and (i)
the Department’s regulations respect- served in nonpricing programs to all
ebenthall on PROD1PC71 with CFR
ing nondiscrimination (7 CFR part 15); children; (ii) served to all children in
77
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§ 215.9 7 CFR Ch. II (1–1–08 Edition)
pricing programs by institutions and the agreement is executed by the State
School Food Authorities not electing Agency or by the Department.
to provide free milk; and (iii) served to (b) Reimbursement payments pursu-
children other than needy children in ant to § 215.8 shall be made for milk
pricing programs by institutions and purchased and served to children at
School Food Authorities electing to any time during the effective period of
provide free milk shall be the rate an- an agreement between a School Food
nounced by the Secretary for the appli- Authority or child care institution and
cable school year. However, in no event the State agency or the Department.
shall the reimbursement for each half- (Sec. 11, Pub. L. 95–166, 91 Stat. 1337 (42
pint (236 ml.) of milk served to children U.S.C. 1772, 1753, 1766))
exceed the cost of the milk to the
[32 FR 12587, Aug. 31, 1967, as amended by
school or child care institution. Amdt. 5, 37 FR 14686, July 22, 1972; Amdt. 13,
(2) The rate of reimbursement for 39 FR 28417, Aug. 7, 1974; Amdt. 16, 43 FR 1060,
milk purchased and served free to Jan. 6, 1978; 44 FR 10700, Feb. 23, 1979]
needy children in pricing programs by
institutions and School Food Authori- § 215.10 Reimbursement procedures.
ties electing to provide free milk shall (a) To be entitled to reimbursement
be the average cost of milk, i.e., the under this part, each School Food Au-
total cost of all milk purchased during thority shall submit to the State agen-
the claim period, divided by the total cy, or FNSRO where applicable, a
number of purchased half-pints. monthly Claim for Reimbursement.
(c) Schools and child-care institu- (b) Claims for Reimbursement shall
tions having pricing programs shall use include data in sufficient detail to jus-
the reimbursement payments received tify the reimbursement claimed and to
to reduce the price of milk to children. enable the State agency to provide the
Reports of School Program Operations
(Sec. 11, Pub. L. 95–166, 91 Stat. 1337 (42
required under § 215.11(c)(2). Unless oth-
U.S.C. 1772, 1753, 1766); sec. 5, Pub. L. 95–627,
92 Stat. 3619 (42 U.S.C. 1772); Omnibus Rec- erwise approved by FNS, the Claim for
onciliation Act of 1980, sec. 209, Pub. L. 96– Reimbursement for any month shall in-
499, 94 Stat. 2599; secs. 807 and 808, Pub. L. 97– clude only milk served in that month
35, 95 Stat. 521–535, 42 U.S.C. 1772, 1784, 1760; except if the first or last month of Pro-
secs. 805 and 819, Pub. L. 97–35, 95 Stat. 521– gram operations for any year contains
535 (42 U.S.C. 1773)) 10 operating days or less, such month
[Amdt. 13, 39 FR 28416, Aug. 7, 1974, as amend- may be added to the Claim for Reim-
ed by Amdt. 16, 43 FR 1060, Jan. 6, 1978; 44 FR bursement for the appropriate adjacent
10700, Feb. 23, 1979; Amdt. 17, 44 FR 33047, month; however, Claims for Reimburse-
June 8, 1979; 46 FR 51365, Oct. 20, 1981; Amdt. ment may not combine operations oc-
23, 47 FR 14134, Apr. 2, 1982] curring in two fiscal years. If a single
State agency administers any combina-
§ 215.9 Effective date for reimburse- tion of the Child Nutrition Programs,
ment. the SFA shall be able to use a common
(a) A State Agency, or FNSRO where claim form with respect to claims for
applicable, may grant written approval reimbursement for meals served under
to begin operations under the Program those programs. A final Claim for Re-
prior to the receipt of the application imbursement shall be postmarked and/
from the School Food Authority or or submitted to the State agency, or
child-care institution. Such written ap- FNSRO where applicable, not later
proval shall be attached to the subse- than 60 days following the last day of
quently filed application, and the the full month covered by the claim.
agreement executed by the School State agencies may establish shorter
Food Authority or child-care institu- deadlines at their discretion. Claims
tion shall be effective from the date not postmarked and/or submitted with-
upon which the School Food Authority in 60 days shall not be paid with Pro-
or child-care institution was author- gram funds unless FNS determines
ized to begin operations: Provided, how- that an exception should be granted.
ever, That such effective date shall not The State agency, or FNSRO where ap-
be earlier than the calendar month pre- plicable, shall promptly take correc-
ebenthall on PROD1PC71 with CFR
ceding the calendar month in which tive action with respect to any Claim
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Food and Nutrition Service, USDA § 215.11
for Reimbursement as determined nec- § 215.11 Special responsibilities of
essary through its claim review process State agencies.
or otherwise. In taking such corrective (a) [Reserved]
action, State agencies may make up- (b) Program assistance. Each State
ward adjustments in Program funds agency, or FNSRO where applicable,
claimed on claims filed within the 60 shall provide Program assistance, as
day deadline if such adjustments are follows:
completed within 90 days of the last (1) Consultive, technical, and mana-
day of the claim month and are re- gerial personnel to administer the Pro-
flected in the final Report of School gram and monitor performance of
Program Operations (FNS–10) for the schools and child-care institutions and
claim month which is required under to measure progress toward achieving
§ 215.11(c)(2). Upward adjustments in Program goals.
Program funds claimed which are not (2) Visits to participating schools and
child-care institutions to ensure com-
reflected in the final FNS–10 for the
pliance with Program regulations and
claim month shall not be made unless with the Department’s nondiscrimina-
authorized by FNS. Downward adjust- tion regulations (part 15 of this title),
ments in Program funds claimed shall issued under title VI of the Civil Rights
always be made, without FNS author- Act of 1964. State agencies shall con-
ization, regardless of when it is deter- duct reviews of schools participating in
mined that such adjustments are nec- the Program for compliance with the
essary. provisions of this part when such
(c) [Reserved] schools are being reviewed under the
(d) In submitting a Claim for Reim- provisions identified under § 210.18(i) of
bursement, each School Food Author- this title. Compliance reviews of par-
ity or child-care institution shall cer- ticipating schools shall focus on the re-
tify that the claim is true and correct; viewed school’s compliance with the
that records are available to support required certification, counting and
the claim; that the claim is in accord- milk service procedures. School food
ance with the existing agreement; and authorities may appeal a denial of all
that payment therefor has not been re- or a part of the Claim for Reimburse-
ceived. ment or withholding of payment aris-
ing from review activity conducted by
(e) Milk served to adults is not eligi-
the State agency under § 210.18 of this
ble for reimbursement.
title or by FNS under § 210.30(d)(2) of
(f) Any School Food Authority or this title. Any such appeal shall be sub-
child care institution which operates ject to the procedures set forth under
both a nonpricing and pricing milk pro- § 210.18(q) of this title or § 210.30(d)(3) of
gram in the same school or child care this title, as appropriate.
institution, may elect to claim reim- (3) Documentation of such Program
bursement for: assistance shall be maintained on file
(1) All milk purchased and served to by the State agency, or FNSRO where
children under the Program at the non- applicable.
pricing rate prescribed in § 215.8(b) (1), (c) Records and reports. (1) Each State
or (2) only milk purchased and served agency shall maintain Program records
to children in the pricing program at as necessary to support the reimburse-
the rates prescribed in § 215.8(b) (1) and ment payments made to child care in-
(2) for pricing programs. stitutions or School Food Authorities
under § 215.8 and § 215.10 and the reports
(Sec. 11, Pub. L. 95–166, 91 Stat. 1337 (42 submitted to FNS under § 215.11(c)(2).
U.S.C. 1772, 1753, 1766); Pub. L. 97–370, 96 Stat. The records may be kept in their origi-
1806) nal form or on microfilm, and shall be
[Amdt. 13, 39 FR 28417, Aug. 7, 1974, as retained for a period of three years
amended by Amdt. 14, 41 FR 31175, July 27, after the date of submission of the final
1976; Amdt. 16, 43 FR 1060, Jan. 6, 1978; 44 FR Financial Status Report for the fiscal
10700, Feb. 23, 1979; 45 FR 82622, Dec. 16, 1980; year, except that if audit findings have
48 FR 20896, May 10, 1983; Amdt. 30, 49 FR not been resolved, the records shall be
ebenthall on PROD1PC71 with CFR
18986, May 4, 1984; 64 FR 50742, Sept. 20, 1999] retained beyond the three-year period
79
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§ 215.12 7 CFR Ch. II (1–1–08 Edition)
as long as required for the resolution of cy or if CND or FNSRO determines in-
the issues raised by the audit. vestigations by OI are appropriate.
(2) Each State agency shall submit to (Sec. 11, Pub. L. 95–166, 91 Stat. 1337 (42
FNS a final Report of School Program U.S.C. 1772, 1753, 1766); 44 U.S.C. 3506; sec. 812,
Operations (FNS–10) for each month Pub. L. 97–35, 95 Stat. 521–535 (42 U.S.C.
which shall be limited to claims sub- 1759a))
mitted in accordance with § 215.10(b) [32 FR 12587, Aug. 31, 1967, as amended by
and which shall be postmarked and/or Amdt. 13, 39 FR 28417, Aug. 7, 1974; Amdt. 14,
submitted no later than 90 days fol- 41 FR 31175, July 27, 1976; 47 FR 745, Jan. 7,
lowing the last day of the month cov- 1982; Amdt. 25, 47 FR 18564, Apr. 30, 1982;
ered by the report. States shall not re- Amdt. 30, 49 FR 18987, May 4, 1984; 56 FR
ceive Program funds for any month for 32949, July 17, 1991; 57 FR 38586, Aug. 26, 1992]
which the final report is not submitted § 215.12 Claims against schools or
within this time limit unless FNS child-care institutions.
grants an exception. Upward adjust-
ments to a State agency’s report shall (a) State agencies, or FNSROs where
applicable, shall disallow any portion
not be made after 90 days from the
of a claim and recover any payment
month covered by the report unless au-
made to a School Food Authority or
thorized by FNS. Downward adjust-
child-care institution that was not
ments shall always be made, without
properly payable under this part. State
FNS authorization, regardless of when
agencies will use their own procedures
it is determined that such adjustments
to disallow claims and recover over-
are necessary. Adjustments shall be re-
payments already made.
ported to FNS in accordance with pro-
(b) [Reserved]
cedures established by FNS. Each
(c) The State Agency may refer any
State agency shall also submit to FNS
matter in connection with this section
a quarterly Financial Status Report
to FNSRO and CND for determination
(SF–269) on the use of Program funds.
of the action to be taken.
Such reports shall be postmarked and/
(d) Each State agency shall maintain
or submitted no later than 30 days all records pertaining to action taken
after the end of each fiscal year quar- under this section. Such records shall
ter. Obligations shall be reported only be retained for a period of three years
for the fiscal year in which they occur. after the date of the submission of the
A final Financial Status Report for final Financial Status Report, except
each fiscal year shall be postmarked that, if audit findings have not been re-
and/or submitted to FNS within 120 solved, the records shall be retained be-
days after the end of the fiscal year. yond the three-year period as long as
FNS shall not be responsible for reim- required for the resolution of the issues
bursing unpaid program obligations re- raised by the audit.
ported later than 120 days after the (e) If CND does not concur with the
close of the fiscal year in which they State Agency action in paying a claim
were incurred. or a reclaim, or in failing to collect an
(d) Compliance. State agencies, or overpayment FNSRO shall assert a
FNSROs where applicable, shall require claim against the State Agency for the
School Food Authorities and child-care amount of such claim, reclaim or over-
institutions to comply with applicable payment. In all such cases, the State
provisions of this part. Agency shall have full opportunity to
(e) Investigations. Each State Agency submit to CND evidence or information
shall promptly investigate complaints concerning the action taken. If in the
received or irregularities noted in con- determination of CND, the State Agen-
nection with the operation of the Pro- cy’s action was unwarranted, the State
gram and shall take appropriate action Agency shall promptly pay to FNS the
to correct any irregularities. State amount of the claim, reclaim, or over-
Agencies shall maintain on file evi- payment.
dence of such investigations and ac- (f) The amounts recovered by the
tions. The Office of Investigation of the State Agency from schools and child-
Department (OI) shall make investiga- care institutions may be utilized, first,
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tions at the request of the State Agen- to make reimbursement payments for
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Food and Nutrition Service, USDA § 215.13a
milk served during the fiscal year for tioned in this paragraph, please refer
which the funds were initially avail- to 5 CFR 1310.3.
able, and second, to repay any State (b) Each State agency shall provide
funds expended in the reimbursement FNS with full opportunity to conduct
of claims under the program and not management evaluations (including
otherwise repaid. Any amounts recov- visits to schools and child-care institu-
ered which are not so utilized shall be tions) of any operations of the State
returned to FNS in accordance with agency under the Program and shall
the requirements of § 215.5(c). provide OIG with full opportunity to
(g) With respect to schools or child- conduct audits (including visits to
care institutions in which FNSRO ad- schools and child-care institutions) of
ministers the Program, when FNSRO all operations of the State agency
disallows a claim or a portion of a under the Program. Each State agency
claim, or makes a demand for refund of shall make available its records, in-
an alleged overpayment, it shall notify cluding records of the receipt and ex-
the School Food Authority or child- penditure of funds under the Program,
care institutions of the reasons for upon a reasonable request by FNS or
such disallowance or demand and the OIG. OIG shall also have the right to
School Food Authority or child-care make audits of the records and oper-
institutions shall have full opportunity ations of any school or child-care insti-
to submit evidence or to file reclaim tution.
for any amount disallowed or de- (c) In conducting management eval-
manded in the same manner afforded in uations, reviews or audits for any fiscal
this section to schools or child-care in- year, the State agency, FNS, or OIG
stitutions administered by State Agen- may disregard any overpayment if the
cies. total overpayment does not exceed $600
(h) The Secretary shall have the au- or, in the case of State agency claims
thority to determine the amount of, to in State administered Programs, it
settle, and to adjust any claims arising does not exceed the amount established
under the Program, and to compromise under State law, regulations or proce-
or deny such claim or any part thereof. dure as a minimum amount for which
The Secretary shall also have the au- claim will be made for State losses but
thority to waive such claims if the Sec- not to exceed $600. However, no over-
retary determines that to do so would payment is to be disregarded where
serve the purposes of the Program. there is substantial evidence of viola-
This provision shall not diminish the tions of criminal law or civil fraud
authority of the Attorney General of statutes.
the United States under section 516 of
(Secs. 805 and 819, Pub. L. 97–35, 95 Stat. 521–
Title 28, U.S. Code, to conduct litiga-
535 (42 U.S.C. 1773); sec. 812, Pub. L. 97–35, 95
tion on behalf of the United States. Stat. 521–535 (42 U.S.C. 1759a))
(47 FR 745, Jan. 7, 1982 (44 U.S.C. 3506; secs. [Amdt. 14, 41 FR 31175, July 27, 1976, as
804, 816 and 817, Pub. L. 97–35; 95 Stat. 521–535 amended at 43 FR 58925, Dec. 22, 1978; Amdt.
(42 U.S.C. 1753, 1756, 1759, 1771 and 1785)) 23, 47 FR 14135, Apr. 2, 1982; Amdt. 25, 47 FR
[32 FR 12587, Aug. 31, 1967, as amended by 18564, Apr. 30, 1982; Amdt. 36, 54 FR 2990, Jan.
Amdt. 5, 37 FR 14686, July 22, 1972; Amdt. 13, 23, 1989; 57 FR 38586, Aug. 26, 1992; 59 FR 1894,
39 FR 28418, Aug. 7, 1974; Amdt. 14, 41 FR Jan. 13, 1994; 64 FR 50742, Sept. 20, 1999; 71 FR
31175, July 27, 1976; 47 FR 745, Jan. 7, 1982; 39516, July 13, 2006]
Amdt. 24, 47 FR 14133, Apr. 2, 1982]
§ 215.13a Determining eligibility for
§ 215.13 Management evaluations and free milk in child-care institutions.
audits. (a) General. Child care institutions
(a) Unless otherwise exempt, audits which operate pricing programs may
at the State and school food authority/ elect to make free milk available, as
child care institution levels shall be set forth in § 215.7(d)(2), to children who
conducted in accordance with Office of meet the approved eligibility criteria.
Management and Budget Circular A–133 Such child care institutions shall de-
and the Department’s implementing termine the children who are eligible
regulations at 7 CFR part 3052. For for free milk and assure that there is
ebenthall on PROD1PC71 with CFR
availability of the OMB Circular men- no physical segregation of, or other
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§ 215.13a 7 CFR Ch. II (1–1–08 Edition)
discrimination against, or overt identi- meals under the National School
fication of, children unable to pay the Lunch and School Breakfast Programs.
full price for milk. (2) The method by which the child-
(b) Action by State agencies and care institution will collect informa-
FNSROs. Each State agency, or FNSRO tion from families in order to deter-
where applicable, upon application for mine a child’s eligibility for free milk.
the program by a child care institution (3) The method by which the child-
operating a pricing program, and annu- care institution will collect milk pay-
ally thereafter, shall require the insti- ments so as to prevent the overt identi-
tution to state whether or not it wishes fication of children receiving free milk.
to serve free milk to eligible children (4) A hearing procedure substantially
at times that milk is provided under like that outlined in part 245 of this
the Program. It shall annually require chapter.
each child care institution electing to
(5) An assurance that there will be no
provide free milk to submit a free milk
discrimination against free milk re-
policy statement and shall provide
cipients and no discrimination against
such institutions with a prototype free
any child on the basis of race, color, or
milk policy statement and a copy of
national origin.
the State’s family-size income stand-
ards for determining eligibility for free (e) Public announcement of eligibility
meals and milk under the National criteria. Each child care institution
School Lunch and School Breakfast which elects to make free milk avail-
Programs to assist the institutions in able under the Program shall annually
meeting its responsibilities. make a public announcement of the
(c) Action by institutions. Each child availability of free milk to children
care institution which operates a pric- who meet the approved eligibility cri-
ing program shall inform the State teria to the information media serving
agency, or FNSRO where applicable, at the area from which its attendance is
the time it applies for Program partici- drawn. The public announcement must
pation and at least annually there- also state that milk is available to all
after, whether or not it wishes to pro- children in attendance without regard
vide free milk. Institutions electing to to race, color, or national origin.
provide free milk shall annually sub- (f) Privacy Act notice requirements. The
mit a written free milk policy state- free milk application provided to
ment for determining free milk eligi- households must include a Privacy Act
bility of children under their jurisdic- notice/statement informing households
tion, which shall contain the items of how the social security number and
specified in paragraph (d) of this sec- other information provided on the ap-
tion. Such institutions shall not be ap- plication will be used. Each free milk
proved for Program participation of application must include substantially
their agreements renewed unless the the following statement, ‘‘The Richard
free milk policy has been reviewed and B. Russell National School Lunch Act
approved. Pending approval or a revi- requires the information on this appli-
sion of a policy statement, the existing cation. You do not have to give the in-
policy shall remain in effect. formation, but if you do not, we cannot
(d) Policy statement. A free milk pol- approve your child for free milk. You
icy statement as required in paragraph must include the social security num-
(c) of this section shall contain the fol- ber of the adult household member who
lowing: signs the application. The social secu-
(1) The specific criteria to be used in rity number is not required when you
determining eligibility for free milk. apply on behalf of a foster child or you
These criteria shall give consideration list a Food Stamp, Temporary Assist-
to economic need as reflected by fam- ance for Needy Families (TANF) Pro-
ily size and income. The criteria used gram or Food Distribution Program on
by the child-care institution may not Indian Reservations (FDPIR) case
result in the eligibility of children number for your child or other FDPIR
from families whose incomes exceed identifier or when you indicate that
the State’s family-size income stand- the adult household member signing
ebenthall on PROD1PC71 with CFR
ards for determining eligibility for free the application does not have a social
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Food and Nutrition Service, USDA § 215.13a
security number. We will use your in- reviewing, auditing, or investigating
formation to determine if your child is the program. Program operators may
eligible for free milk, and for adminis- include contractors, to the extent
tration and enforcement of the Pro- those persons have a need to know the
gram.’’ When the State agency or child information for program administra-
care institution, as appropriate, plans tion or enforcement. Contractors may
to use or disclose children’s eligibility include evaluators, auditors, and oth-
information for non-program purposes, ers with whom Federal or State agen-
additional information, as specified in cies and program operators contract
paragraph (i) of this section must be with to assist in the administration or
added to the Privacy Act notice/state- enforcement of their program on their
ment. State agencies and child care in- behalf.
stitutions are responsible for drafting (2) Disclosure of children’s names and
the appropriate notice and ensuring free milk eligibility status. The State
that the notice complies with section agency or child care institution, as ap-
7(b) of the Privacy Act of 1974 (5 U.S.C. propriate, may disclose, without paren-
552a note (Disclosure of Social Security tal consent, only children’s names and
Number)). eligibility status (whether they are eli-
(g) Disclosure of children’s free milk eli- gible for free milk) to persons directly
gibility information to certain programs connected with the administration or
and individuals without parental consent. enforcement of:
The State agency or child care institu- (i) A Federal education program;
tion, as appropriate, may disclose ag- (ii) A State health program or State
gregate information about children eli- education program administered by the
gible for free milk to any party with- State or local education agency;
out parental notification and consent (iii) A Federal, State, or local means-
when children cannot be identified tested nutrition program with eligi-
through release of the aggregate data bility standards comparable to the Na-
or by means of deduction. Additionally, tional School Lunch Program (i.e., food
the State agency or child care institu- assistance programs for households
tion may disclose information that with incomes at or below 185 percent of
identifies children eligible for free the Federal poverty level); or
milk to the programs and the individ- (iv) A third party contractor assist-
uals specified in this paragraph (g) ing in verification of eligibility efforts
without parent/guardian consent. The by contacting households who fail to
State agency or child care institution respond to requests for verification of
that makes the free milk eligibility de- their eligibility.
termination is responsible for deciding (3) Disclosure of all eligibility informa-
whether to disclose program eligibility tion. In addition to children’s names
information. and eligibility status, the State agency
(1) Persons authorized to receive eligi- or child care institution, as appro-
bility information. Only persons directly priate, may disclose, without parental
connected with the administration or consent, all eligibility information ob-
enforcement of a program or activity tained through the free milk eligibility
listed in paragraphs (g)(2) or (g)(3) of process (including all information on
this section may have access to chil- the application or obtained through di-
dren’s free milk eligibility informa- rect certification) to:
tion, without parental consent. Per- (i) Persons directly connected with
sons considered directly connected the administration or enforcement of
with administration or enforcement of programs authorized under the Richard
a program or activity listed in para- B. Russell National School Lunch Act
graphs (g)(2) or (g)(3) of this section are or the Child Nutrition Act of 1966. This
Federal, State, or local program opera- means that all eligibility information
tors responsible for the ongoing oper- obtained for the Special Milk Program
ation of the program or activity or per- may be disclosed to persons directly
sons responsible for program compli- connected with administering or en-
ance. Program operators may include forcing regulations under the National
persons responsible for carrying out School Lunch Program, School Break-
ebenthall on PROD1PC71 with CFR
program requirements and monitoring, fast Program, Child and Adult Care
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§ 215.13a 7 CFR Ch. II (1–1–08 Edition)
Food Program, Summer Food Service Medicaid or SCHIP applications or to
Program and the Special Supplemental make eligibility determinations for
Nutrition Program for Women, Infants Medicaid or SCHIP.
and Children (WIC) (Parts 210, 220, 226, (1) The State agency must ensure
225, and 246, respectively, of this chap- that:
ter); (i) The child care institution and
(ii) The Comptroller General of the health insurance program officials
United States for purposes of audit and have a written agreement that requires
examination; and the health insurance program agency
(iii) Federal, State, and local law en- to use the eligibility information to
forcement officials for the purpose of seek to enroll children in Medicaid and
investigating any alleged violation of SCHIP; and
the programs listed in paragraphs (g)(2) (ii) Parents/guardians are notified
and (g)(3) of this section. that their eligibility information may
(4) Use of free milk eligibility informa- be disclosed to Medicaid or SCHIP and
tion by programs other than Medicaid or given an opportunity to decline to have
the State Children’s Health Insurance their children’s eligibility information
Program (SCHIP). State agencies and disclosed, prior to any disclosure.
child care institutions may use chil- (2) Use of children’s free milk eligibility
dren’s free milk eligibility information information by Medicaid/SCHIP. Med-
for administering or enforcing the Spe- icaid and SCHIP agencies and health
cial Milk Program. Additionally, any insurance program operators receiving
other Federal, State, or local agency children’s free milk eligibility informa-
charged with administering or enforc- tion must use the information to iden-
ing the Special Milk Program may use tify eligible children and enroll them
the information for that purpose. Indi- in Medicaid or SCHIP. The Medicaid
viduals and programs to which chil- and SCHIP enrollment process may in-
dren’s free milk eligibility information clude targeting and identifying chil-
has been disclosed under this section dren from low-income households who
may use the information only in the are potentially eligible for Medicaid or
administration or enforcement of the SCHIP for the purpose of seeking to en-
receiving program. No further disclo- roll them in Medicaid or SCHIP. No
sure of the information may be made. further disclosure of the information
(h) Disclosure of children’s free milk eli- may be made. Medicaid and SCHIP
gibility information to Medicaid and/or agencies and health insurance program
SCHIP, unless parents decline. Children’s operators also may verify children’s
free milk eligibility information only eligibility in a program under the
may be disclosed to Medicaid or SCHIP Child Nutrition Act of 1966 or the Rich-
when both the State agency and the ard B. Russell National School Lunch
child care institution so elect, the par- Act.
ent/guardian does not decline to have (i) Notifying households of potential
their eligibility information disclosed uses and disclosures of children’s free milk
and the other provisions described in eligibility information. Households must
paragraph (h)(1) of this section are be informed that the information they
met. The State agency or child care in- provide on the free milk application
stitution, as appropriate, may disclose will be used to determine eligibility for
children’s names, eligibility status free milk and that their eligibility in-
(whether they are eligible for free formation may be disclosed to other
milk), and any other eligibility infor- programs.
mation obtained through the free milk (1) For disclosures to programs, other
application or obtained through direct than Medicaid or SCHIP, that are per-
certification to persons directly con- mitted access to children’s eligibility
nected with the administration of Med- information without parent/guardian
icaid or SCHIP. Persons directly con- consent, the State agency or child care
nected to the administration of Med- institution, as appropriate, must notify
icaid and SCHIP are State employees parents/guardians at the time of appli-
and persons authorized under Federal cation that their children’s free milk
and State Medicaid and SCHIP require- eligibility information may be dis-
ebenthall on PROD1PC71 with CFR
ments to carry out initial processing of closed. The State agency or child care
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Food and Nutrition Service, USDA § 215.13a
institution, as appropriate, must add Health Insurance Program, unless you
substantially the following statement tell us not to. The information, if dis-
to the Privacy Act notice/statement re- closed, will be used to identify eligible
quired under paragraph (f) of this sec- children and seek to enroll them in
tion, ‘‘We may share your eligibility Medicaid or SCHIP.’’ For children de-
information with education, health, termined eligible for free milk through
and nutrition programs to help them direct certification, the notice of po-
evaluate, fund, or determine benefits tential disclosure and opportunity to
for their programs; auditors for pro- decline the disclosure may be included
gram reviews; and law enforcement of- in the document informing parents/
ficials to help them look into viola- guardians of their children’s eligibility
tions of program rules.’’ For children for free milk through direct certifi-
determined eligible for free milk cation.
through direct certification, the notice (j) Other disclosures. State agencies
of potential disclosure may be included and child care institutions that plan to
in the document informing parents/ use or disclose identifying information
guardians of their children’s eligibility about children eligible for free milk to
for free milk through direct certifi- programs or individuals not specified
cation process. in this section must obtain written
(2) For disclosure to Medicaid or consent from children’s parents or
SCHIP, the State agency or child care guardians prior to the use or disclo-
institution, as appropriate, must notify sure.
parents/guardians that their children’s (1) The consent must identify the in-
free milk eligibility information will formation that will be shared and how
be disclosed to Medicaid and/or SCHIP the information will be used.
unless the parent/guardian elects not (2) There must be a statement in-
to have their information disclosed and forming parents and guardians that
notifies the State agency or child care failing to sign the consent will not af-
institution, as appropriate, by a date fect the child’s eligibility for free milk
specified by the State agency or child and that the individuals or programs
care institution, as appropriate. Only receiving the information will not
the parent or guardian who is a mem- share the information with any other
ber of the household or family for pur- entity or program.
poses of the free milk application may (3) Parents/guardians must be per-
decline the disclosure of eligibility in- mitted to limit the consent only to
formation to Medicaid or SCHIP. The those programs with which they wish
notification must inform parents/ to share information.
guardians that they are not required to (4) The consent statement must be
consent to the disclosure, that the in- signed and dated by the child’s parent
formation, if disclosed, will be used to or guardian who is a member of the
identify eligible children and seek to household for purposes of the free milk
enroll them in Medicaid or SCHIP, and application.
that their decision will not affect their (k) Agreements with programs/individ-
children’s eligibility for free milk. The uals receiving children’s free milk eligi-
notification may be included in the let- bility information. Agreements or
ter/notice to parents/guardians that ac- Memoranda of Understanding (MOU)
companies the free milk application, are recommended or required as fol-
on the application itself or in a sepa- lows:
rate notice provided to parents/guard- (1) The State agency or child care in-
ians. The notice must give parents/ stitution, as appropriate, should have a
guardians adequate time to respond if written agreement or MOU with pro-
they do not want their information dis- grams or individuals receiving eligi-
closed. The State agency or child care bility information, prior to disclosing
institution, as appropriate, must add children’s free milk eligibility informa-
substantially the following statement tion. The agreement or MOU should in-
to the Privacy Act notice/statement re- clude information similar to that re-
quired under paragraph (f) of this sec- quired for disclosures to Medicaid and
tion, ‘‘We may share your information SCHIP specified in paragraph (k)(2) of
ebenthall on PROD1PC71 with CFR
with Medicaid or the State Children’s this section.
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§ 215.14 7 CFR Ch. II (1–1–08 Edition)
(2) For disclosures to Medicaid or cies’ agreements with School Food Au-
SCHIP, the State agency or child care thorities and child-care institutions
institution, as appropriate, must have and the FNSRO agreements with
a written agreement with the State or School Food Authorities administering
local agency or agencies administering nonprofit private schools and with
Medicaid or SCHIP prior to disclosing child-care institutions shall contain
children’s free milk eligibility informa- the assurances required by such regula-
tion to those agencies. At a minimum, tions. When different types of milk are
the agreement must: served to children, (a) a uniform price
(i) Identify the health insurance pro- for each type of milk served shall be
gram or health agency receiving chil- charged to all non-needy children in
dren’s eligibility information; the school or child-care institution
(ii) Describe the information that who purchase milk, and (b) needy chil-
will be disclosed; dren shall be given the opportunity to
(iii) Require that the Medicaid or select any type of milk offered.
SCHIP agency use the information ob-
(44 U.S.C. 3506)
tained and specify that the information
must be used to seek to enroll children [Amdt. 13, 39 FR 28418, Aug. 7, 1974, as
in Medicaid or SCHIP; amended at 47 FR 745, Jan. 7, 1982]
(iv) Require that the Medicaid or
SCHIP agency describe how they will § 215.14a Procurement standards.
use the information obtained; (a) General. State agencies and school
(v) Describe how the information will food authorities shall comply with the
be protected from unauthorized uses requirements of this part and parts
and disclosures; 3015, 3016 and 3019 of this title, as appli-
(vi) Describe the penalties for unau- cable, which implement the applicable
thorized disclosure; and Office of Management and Budget Cir-
(vii) Be signed by both the Medicaid culars, concerning the procurement of
or SCHIP program or agency and the all goods and services with nonprofit
State agency or child care institution, school food service account funds.
as appropriate. (b) Contractual responsibilities. The
(l) Penalties for unauthorized disclosure standards contained in this part and 7
or misuse of children’s free milk eligibility CFR part 3015, 7 CFR part 3016 and 7
information. In accordance with section CFR part 3019, as applicable, do not re-
9(b)(6)(C) of the Richard B. Russell Na- lieve the State agency or School Food
tional School Lunch Act (42 U.S.C. Authority of any contractual respon-
1758(b)(6)(C)), any individual who pub- sibilities under its contract. The State
lishes, divulges, discloses or makes agency or School Food Authority is the
known in any manner, or to any extent responsible authority, without re-
not authorized by statute or this sec- course to FNS, regarding the settle-
tion, any information obtained under ment and satisfaction of all contrac-
this section will be fined not more than tual and administrative issues arising
$1,000 or imprisoned for up to 1 year, or out of procurements entered into in
both. connection with the Program. This in-
(Sec. 11, Pub. L. 95–166, 91 Stat. 1337 (42 cludes but is not limited to: Source
U.S.C. 1772, 1753, 1766); sec. 5, Pub. L. 95–627, evaluation, protests, disputes, claims,
92 Stat. 3619 (42 U.S.C. 1772)) or other matters of a contractual na-
[Amdt. 14, 41 FR 31176, July 27, 1976, as
ture. Matters concerning violation of
amended by Amdt. 16, 43 FR 1060, Jan. 6, 1978; law are to be referred to the local,
44 FR 10700, Feb. 23, 1979; Amdt. 17, 44 FR State or Federal authority that has
33047, June 8, 1979; 66 FR 2201, Jan. 11, 2001; 72 proper jurisdiction.
FR 10892, Mar. 12, 2007] (c) Procedures. The State agency may
elect to follow either the State laws,
§ 215.14 Nondiscrimination. policies and procedures as authorized
The Department’s regulations on by §§ 3016.36(a) and 3016.37(a) of this
nondiscrimination in federally assisted title, or the procurement standards for
programs are set forth in part 15 of this other governmental grantees and all
title. The Department’s agreements governmental subgrantees in accord-
ebenthall on PROD1PC71 with CFR
with State agencies, the State agen- ance with § 3016.36(b) through (i) of this
86
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Food and Nutrition Service, USDA § 215.14a
title. Regardless of the option selected, thority must include the following pro-
States must ensure that all contracts visions in all cost reimbursable con-
include any clauses required by Federal tracts, including contracts with cost
statutes and executive orders and that reimbursable provisions, and in solici-
the requirements of § 3016.60(b) and (c) tation documents prepared to obtain
of this title are followed. The school offers for such contracts:
food authority or child care institution (i) Allowable costs will be paid from
may use its own procurement proce- the nonprofit school food service ac-
dures which reflect applicable State or count to the contractor net of all dis-
local laws and regulations, provided counts, rebates and other applicable
that procurements made with non- credits accruing to or received by the
profit school food service account funds contractor or any assignee under the
adhere to the standards set forth in contract, to the extent those credits
this part and §§ 3016.36(b) through are allocable to the allowable portion
3016.36(i), 3016.60 and §§ 3019.40 through of the costs billed to the school food
3019.48 of this title, as applicable, and authority;
in the applicable Office of Management (ii)(A) The contractor must sepa-
and Budget Circulars. School food au- rately identify for each cost submitted
thority procedures must include a writ- for payment to the school food author-
ten code of standards of conduct meet- ity the amount of that cost that is al-
ing the minimum standards of lowable (can be paid from the nonprofit
§ 3016.36(b)(3) or § 3019.42 of this title, as school food service account) and the
applicable. amount that is unallowable (cannot be
(1) Pre-issuance review requirement. paid from the nonprofit school food
The State agency may impose a pre- service account), or
issuance review requirement on a (B) The contractor must exclude all
school food authority’s proposed pro- unallowable costs from its billing docu-
curement. The school food authority ments and certify that only allowable
must make available, upon request of costs are submitted for payment and
the State agency, its procurement doc- records have been established that
uments, including but not limited to maintain the visibility of unallowable
solicitation documents, specifications, costs, including directly associated
evaluation criteria, procurement pro- costs in a manner suitable for contract
cedures, proposed contracts and con- cost determination and verification;
tract terms. School food authorities (iii) The contractor’s determination
shall comply with State agency re- of its allowable costs must be made in
quests for changes to procurement pro- compliance with the applicable Depart-
cedures and solicitation and contract mental and Program regulations and
documents to ensure that, to the State Office of Management and Budget cost
agency’s satisfaction, such procedures circulars;
and documents reflect applicable pro- (iv) The contractor must identify the
curement and contract requirements amount of each discount, rebate and
and the requirements of this part. other applicable credit on bills and in-
(2) Prototype solicitation documents and voices presented to the school food au-
contracts. The school food authority thority for payment and identify the
must obtain the State agency’s prior amount as a discount, rebate, or in the
written approval for any change made case of other applicable credits, the na-
to prototype solicitation or contract ture of the credit. If approved by the
documents before issuing the revised State agency, the school food author-
solicitation documents or execution of ity may permit the contractor to re-
the revised contract. port this information on a less frequent
(3) Prohibited expenditures. No expend- basis than monthly, but no less fre-
iture may be made from the nonprofit quently than annually;
school food service account for any (v) The contractor must identify the
cost resulting from a procurement fail- method by which it will report dis-
ing to meet the requirements of this counts, rebates and other applicable
part. credits allocable to the contract that
(d) Cost reimbursable contracts—(1) Re- are not reported prior to conclusion of
ebenthall on PROD1PC71 with CFR
quired provisions. The school food au- the contract; and
87
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§ 215.15 7 CFR Ch. II (1–1–08 Edition)
(vi) The contractor must maintain available and appropriate. A State
documentation of costs and discounts, agency may also terminate the Pro-
rebates and other applicable credits, gram by mutual agreement with FNS.
and must furnish such documentation FNS and the State agency shall comply
upon request to the school food author- with the provisions of 7 CFR part 3016,
ity, the State agency, or the Depart- concerning grant suspension, termi-
ment. nation and closeout procedures. Fur-
(2) Prohibited expenditures. No expend- thermore, the State agency, or FNSRO
iture may be made from the nonprofit where applicable, shall apply these pro-
school food service account for any visions, or the parallel provisions of 7
cost resulting from a cost reimbursable CFR part 3019, as applicable, to suspen-
contract that fails to include the re- sion or termination of the Program in
quirements of this section, nor may School Food Authorities.
any expenditure be made from the non- [Amdt. 30, 49 FR 18987, May 4, 1984, as amend-
profit school food service account that ed at 71 FR 39517, July 13, 2006. Redesignated
permits or results in the contractor re- at 72 FR 61493, Oct. 31, 2007]
ceiving payments in excess of the con-
tractor’s actual, net allowable costs. § 215.17 Program information.
(Pub. L. 79–396, 60 Stat. 231 (42 U.S.C. 1751);
School Food Authorities and child-
Pub. L. 89–642, 80 Stat. 885–890 (42 U.S.C. care institutions desiring information
1773); Pub. L. 91–248, 84 Stat. 207 (42 U.S.C. concerning the Program should write
1759)) to their State educational agency, or
[Amdt. 27, 48 FR 19355, Apr. 29, 1983, as
the appropriate Food and Nutrition
amended at 71 FR 39516, July 13, 2006; 72 FR Service Regional Office of FNS as indi-
61492, Oct. 31, 2007] cated below:
(a) In the States of Connecticut,
§ 215.15 Withholding payments. Maine, Massachusetts, New Hampshire,
In accordance with Departmental New York, Rhode Island, and Vermont:
regulations at § 3016.43 and § 3019.62 of Northeast Regional Office, FNS, U.S.
this title, the State agency shall with- Department of Agriculture, 10 Cause-
hold Program payments in whole or in way Street, Room 501, Boston, Massa-
part, to any school food authority chusetts 02222–1065.
which has failed to comply with the (b) In the States of Delaware, Dis-
provisions of this part. Program pay- trict of Columbia, Maryland, New Jer-
ments shall be withheld until the sey, Pennsylvania, Puerto Rico, Vir-
school food authority takes corrective ginia, Virgin Islands, and West Vir-
action satisfactory to the State agen- ginia: Mid-Atlantic Regional Office,
cy, or gives evidence that such correc- FNS, U.S. Department of Agriculture,
tive actions will be taken, or until the 300 Corporate Boulevard, Robbinsville,
State agency terminates the grant in New Jersey 08691–1598.
(c) In the States of Alabama, Florida,
accordance with § 215.16. Subsequent to
Georgia, Kentucky, Mississippi, North
the State agency’s acceptance of the
Carolina, South Carolina, and Ten-
corrective actions, payments will be
nessee: Southeast Regional Office,
released for any milk served in accord-
FNS, U.S. Department of Agriculture,
ance with the provisions of this part
61 Forsyth Street SW., Room 8T36, At-
during the period the payments were
lanta, Georgia 30303.
withheld.
(d) In the States of Illinois, Indiana,
[72 FR 61493, Oct. 31, 2007] Michigan, Minnesota, Ohio, and Wis-
consin: Midwest Regional Office, FNS,
§ 215.16 Suspension, termination and U.S. Department of Agriculture, 77
grant closeout procedures. West Jackson Boulevard, 20th Floor,
Whenever it is determined that a Chicago, Illinois 60604–3507.
State agency has materially failed to (e) In the States of Arkansas, Lou-
comply with the provisions of this isiana, New Mexico, Oklahoma, Texas:
part, or with FNS guidelines and in- Southwest Regional Office, Food and
structions, FNS may suspend or termi- Nutrition Service, U.S. Department of
nate the Program in whole, or in part, Agriculture, 1100 Commerce Street,
ebenthall on PROD1PC71 with CFR
or take any other action as may be Room 5–C–30, Dallas, Texas 75242.
88
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Food and Nutrition Service, USDA § 220.2
(f) In the States of Alaska, American 220.2 Definitions.
Samoa, Arizona, California, Guam, Ha- 220.3 Administration.
waii, Idaho, Nevada, Oregon, The Com- 220.4 Payment of funds to States and
monwealth of the Northern Mariana Is- FNSROs.
lands, and Washington: Western Re- 220.5 Method of payment to States.
gional Office, FNS, U.S. Department of 220.6 Use of funds.
220.7 Requirements for participation.
Agriculture, 550 Kearny Street, Room
220.8 What are the nutrition standards and
400, San Francisco, California 94108. menu planning approaches for break-
(g) In the States of Colorado, Iowa, fasts?
Kansas, Missouri, Montana, Nebraska, 220.9 Reimbursement payments.
North Dakota, South Dakota, Utah, 220.10 Effective date for reimbursement.
and Wyoming: Mountain Plains Re- 220.11 Reimbursement procedures.
gional Office, FNS, U.S. Department of 220.12 Competitive food services.
Agriculture, 1244 Speer Boulevard, 220.13 Special responsibilities of State agen-
Suite 903, Denver, Colorado 80204. cies.
220.14 Claims against school food authori-
(Sec. 11, Pub. L. 95–166, 91 Stat. 1337 (42
ties.
U.S.C. 1772, 1753, 1766); sec. 10(a), Pub. L. 95–
220.15 Management evaluations and audits.
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); 220.16 Procurement standards.
sec. 14, Pub. L. 95–627, 92 Stat. 3625–3626); 220.17 Prohibitions.
secs. 804, 816, 817 and 819, Pub. L. 97–35, 95 220.18 Withholding payments.
Stat. 521–535 (42 U.S.C. 1753, 1756, 1759, 1771, 220.19 Suspension, termination and grant
1773 and 1785) closeout procedures.
220.20 Free and reduced price breakfasts.
[Amdt. 14, 41 FR 31178, July 27, 1976, as
220.21 Program information.
amended by Amdt. 18, 44 FR 37898, June 29,
220.22 Information collection/record-
1979; Amdt. 27, 48 FR 195, Jan. 4, 1983; Amdt.
keeping—OMB assigned control numbers.
36, 54 FR 2990, Jan. 23, 1989; 65 FR 12435, Mar.
9, 2000. Redesignated at 72 FR 61493, Oct. 31, APPENDIX A TO PART 220—ALTERNATE FOODS
2007] FOR MEALS
APPENDIX B TO PART 220—CATEGORIES OF
§ 215.18 Information collection/record- FOODS OF MINIMAL NUTRITIONAL VALUE
keeping—OMB assigned control APPENDIX C TO PART 220—CHILD NUTRITION
numbers. (CN) LABELING PROGRAM
Current AUTHORITY: 42 U.S.C. 1773, 1779, unless oth-
7 CFR section where requirements are de-
scribed OMB control erwise noted.
number
215.3(d) .............................................................. 0584–0327 § 220.1 General purpose and scope.
215.5(a) .............................................................. 0584–0005
0584–0002
This part announces the policies and
215.5(c) .............................................................. 0584–0341 prescribes the regulations necessary to
215.7 (a), (c) ...................................................... 0584–0005 carry out the provisions of section 4 of
215.7 (b)(2) ........................................................ 0584–0026
215.7(d) .............................................................. 0584–0329
the Child Nutrition Act of 1966, as
0584–0005 amended, which authorizes payments
215.10 (a), (b), (d) ............................................. 0584–0005 to the States to assist them to initiate,
0584–0284
215.11 (b), (c)(1), (e) ......................................... 0584–0005
maintain, or expand nonprofit break-
215.11(c)(2) ....................................................... 0584–0002 fast programs in schools.
0584–0341
215.12 (a), (d), (e), (g) ....................................... 0584–0005 [Amdt. 25, 41 FR 34758, Aug. 17, 1976]
215.13(a) ............................................................ 0584–0005
215.13a(a)–(e) ................................................... 0584–0026 § 220.2 Definitions.
215.14 ................................................................ 0584–0005
215.14a(a)–(c) ................................................... 0584–0005 For the purpose of this part the term:
215.15 ................................................................ 0584–0005 7 CFR part 3015 means the Uniform
Federal Assistance Regulations pub-
[50 FR 53258, Dec. 31, 1985. Redesignated at 72 lished by the Department to implement
FR 61493, Oct. 31, 2007] certain policies applicable to all De-
partment programs. The applicable
PART 220—SCHOOL BREAKFAST provisions deal with competition for
PROGRAM discretionary grants and cooperative
agreements, costs requiring prior ap-
Sec. proval, acknowledgement of Depart-
ebenthall on PROD1PC71 with CFR
220.1 General purpose and scope. ment support in publications and
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