The purpose of this rulemaking is to bring current existing rules and introduce new rules on appeals procedures and penalties for violations of Chapter 595, F.S., the rules adopted under Chapter 595, F.S., and any federal regulations incorporated by ...

 

DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES

Division of Food, Nutrition and Wellness

RULE NO.: RULE TITLE:

5P-1.001Purposes of School Food Service Rules

5P-1.002Objectives of the School Food Service Program

5P-1.003 Responsibilities for the School Food Service Program

5P-1.004 Family Size and Income Level

5P-1.005Supervision and Administration

PURPOSE AND EFFECT: The purpose of this rulemaking is to bring current existing rules and introduce new rules on appeals procedures and penalties for violations of Chapter 595, F.S., the rules adopted under Chapter 595, F.S., and any federal regulations incorporated by reference. The proposed rules coincide with how the Department currently administers and operates School Nutrition Programs.

SUMMARY: The proposed rulemaking repeals obsolete rules, adds definitions applicable to the rule chapter, establishes procedures for appeal of proposed agency action, updates existing terminology and federal regulations incorporated by reference, establishes penalties for violations of Chapter 595, F.S., the rules adopted under Chapter 595, F.S., and federal regulations incorporated by reference.

SUMMARY OF STATEMENT OF ESTIMATED REGULATORY COSTS AND LEGISLATIVE RATIFICATION:

The Agency has determined that this will not have an adverse impact on small business or likely increase directly or indirectly regulatory costs in excess of $200,000 in the aggregate within one year after the implementation of the rule. A SERC has not been prepared by the Agency.

The Agency has determined that the proposed rule is not expected to require legislative ratification based on the statement of estimated regulatory costs or if no SERC is required, the information expressly relied upon and described herein: There are no costs associated with the establishment of this rule as participation in the program is voluntary.

Any person who wishes to provide information regarding a statement of estimated regulatory costs, or provide a proposal for a lower cost regulatory alternative must do so in writing within 21 days of this notice.

RULEMAKING AUTHORITY: 570.07(23), 595.404(4), 595.404(10), 595.404(11), FS.

LAW IMPLEMENTED: 595.404, 595.501, 570.971, 1001.42(16), 1006.06, FS.

IF REQUESTED WITHIN 21 DAYS OF THE DATE OF THIS NOTICE, A HEARING WILL BE SCHEDULED AND ANNOUNCED IN THE FAR.

THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE IS: Quinn Skinner, 600 S. Calhoun Street, Tallahassee, FL 32399, [phone].

 

THE FULL TEXT OF THE PROPOSED RULE IS:

5P-1.001 Definitions Purposes of School Food Service Rules.

For the purposes of this chapter, the definitions in Section 595.402, F.S., and Sections 7 CFR 210.2, 7 CFR 215.2, 7 CFR 220.2, 7 CFR 225.2, 7 CFR 245.2, 7 CFR 247.1, 7 CFR 248.2, 7 CFR 250.1, 7 CFR 251.3, 7 CFR 252.2, all revised as of January 1, 2017, and hereby adopted and incorporated by reference and available online at https://www.flrules.org/gateway/reference.asp?no=ref-XXXXX, and the following shall apply:

(1) “School Nutrition Programs” mean the National School Lunch Program, School Breakfast Program, and Afterschool Snack Program.

(2) “Summer Nutrition Programs” mean the Summer Food Service Program and the Seamless Summer Option.

(3) “Child Nutrition Programs” mean all programs included in School Nutrition Programs and Summer Nutrition Programs.

(4) “Food Distribution Programs” means the Commodity Supplement Food Program, Child Nutrition USDA Foods Program, USDA Foods Processing Program, The Emergency Food Assistance Program, and the Department of Defense Fresh Fruit and Vegetable Program.

(5) “Administrative Review” means the off-site and on-site evaluation of each Sponsor participating in Child Nutrition Programs.

(6) “Alternative Point of Service” means meal counts taken anywhere other than the Point of Service, such as the beginning of the service line.

(7) “April Data” means information submitted annually by the Sponsor to the department including the total number of children enrolled and the percentage of Directly Certified children as of the first day of April.

(8) “Child Nutrition USDA Foods Program” means a program that coordinates the distribution of USDA Foods to Sponsors participating in the School Nutrition Programs and Summer Nutrition Programs.

(9) “Claim for Reimbursement” means the claim submitted to the department monthly by a Sponsor for reimbursement for meals served under Child Nutrition Programs.

(10) “Commodity Supplemental Food Program” means a program that coordinates the distribution of USDA Foods to income-eligible elderly persons at least 60 years of age.

(11) “Contractor” means a for-profit commercial entity, public or nonprofit private organization or individual that enters into a contract with a Sponsor to provide goods or services for Child Nutrition Programs.

(12) “Corrective Action Plan” means a written plan developed by a Sponsor or Recipient Agency, with the assistance and concurrence of the department, to define actions to be taken to correct program deficiencies identified as part of a Sponsor’s Administrative Review, Site Review, Site Visit, or Technical Assistance Visit.

(13) “Department” means the Department of Agriculture and Consumer Services.

(14) “Department of Defense Fresh Fruit and Vegetable Program” means a program that allows Sponsors to redirect financial allowances from USDA Foods to fresh produce procured by the Department of Defense.

(15) “Direct Certification” or “Directly Certified” means the process by which a child establishes eligibility for free school meals based on information obtained directly from other state agencies, local agencies, or authorized representatives that certifies the child is a member of a household receiving assistance under the SNAP; is a member of a household receiving assistance under the TANF program; or a Foster child, a Homeless child, a Migrant child, a Head Start child or a Runaway child.

(16) “Farmers’ Market” means a fixed location where two or more farmers sell their own agricultural products directly to the general public, which includes fruits and vegetables, meat, fish, poultry, dairy products, and grains.

(17) “Farmers’ Market Nutrition Program” means a program in association with the Special Supplemental Nutrition Program for Women, Infants and Children (WIC), that provides fresh fruits and vegetables to WIC participants and works to expand the awareness, use of, and sales at farmers’ markets.

(18) “Food and Nutrition Service (FNS)” means the federal agency within the United States Department of Agriculture (USDA) responsible for administering Child Nutrition Programs at the national level.

(19) “Foster Child” means a child who is formally placed by a court or the Florida Department of Children and Families into foster care as defined in Section 39.01(29), F.S. It does not include a child in an informal arrangement or permanent guardianship placements that may exist outside of state or court based systems.

(20) “Head Start Child” means a child enrolled as a participant in the Federal Head Start program or any state-funded pre-kindergarten program that uses eligibility criteria that are identical or more stringent than Federal Head Start.

(21) “Homeless Child” means a child who is identified by the local educational agency’s homeless liaison or by an official of a homeless shelter as lacking a fixed, regular and adequate nighttime residence.

(22) “Materially Failed” means either the Sponsor disregarded Child Nutrition Program requirements on more than one occasion or failed to correct violations of Child Nutrition Program requirements.

(23) “Migrant Child” means a child enrolled in the Migrant Education Program as determined by the state or local Migrant Education Program coordinator.

(24) “Net Cash Resources” means all monies which are available to or have accrued to the Nonprofit School Food Service Account at any given time, less cash payable. Such monies may include cash on hand, cash receivable, earnings on investments, cash on deposit and the value of stocks, bonds or other negotiable securities.

(25) “Nonprofit School Food Service Account” means the account in which all revenue from all food service operations conducted by the Sponsor is held and all revenue is used solely for the operation or improvement of such food services.

(26) “October Data” means data submitted annually by the Sponsor to the department including the total number of children enrolled and the number of children eligible for free and reduced price meals at each Sponsor as of the last day of operation in October.

(27) “Point of Service” means that point in the food service operation where a determination can accurately be made that a reimbursable free, reduced price or paid meal has been served to an eligible child.

(28) “Prospective Sponsor” means an organization applying to be a Sponsor of one or more Child Nutrition Programs.

(29) “Recipient Agency” means an agency or organization that receives USDA Foods for distribution to eligible persons or for use in meals provided to eligible persons, in accordance with agreements with a distributing or subdistributing agency, as defined in 7 CFR 250.2, or with another Recipient Agency.

(30) “Runaway Child” means a child identified by the local educational agency’s homeless liaison as a runaway receiving assistance under a program under the Runaway and Homeless Youth Act.

(31) “Seamless Summer Option” means the non-profit food service program that provides school-aged children access to free meals when school is not in session and is operated by a Sponsor that also implements the National School Lunch Program.

(32) “Service Period” means the time designated by the Sponsor for the service of breakfast, lunch or snacks.

(33) “Site Review” means a review of the food service site, conducted by the department, to ensure compliance with relative Federal Regulations, Florida Statutes, and Florida Administrative Code related to the operation of Child Nutrition Programs.

(34) “Site Visit” means a review of the food service site, conducted by the Sponsor, to ensure compliance with relative Federal Regulations, Florida Statutes, and Florida Administrative Code related to the operation of Child Nutrition Programs.

(35) “SNAP” means the Supplemental Nutrition Assistance Program established under the Food and Nutrition Act of 2008 (7 U.S.C. 2011 et seq.).

(36) “Sponsor” means any entity that is conducting a program under a current agreement with the department.

(37) “Successive Purchasing Agreements,” commonly referred to as “piggybacking agreements,” means agreements awarded to Contractors by one Sponsor permitting a different Sponsor to make purchases at or below the specified prices from, and with the same terms and conditions of, contracts awarded to other Sponsors, and when such purchases are at a lower cost to the Sponsor.

(38) “Summer Food Service Program” means the non-profit food service program operated by an eligible Sponsor to provide school-aged children access to free meals when school is not in session.

(39) “TANF” means the Temporary Assistance for Needy Families program under part A of title IV of the Social Security Act (42 U.S.C. 621 et seq.).

(40) “The Emergency Food Assistance Program” means a program that supplements the diets of income-eligible persons by providing USDA Foods via Recipient Agencies.

(41) “USDA” means the United States Department of Agriculture.

(42) “USDA Foods” means foods donated or available for donation by the USDA under the Food Distribution Programs.

(43) “USDA Foods Processing Program” means a program that allows for the conversion of raw bulk USDA Foods into a ready-to-use end product.

(44) “Verification” means confirmation of eligibility for free or reduced price benefits under the School Nutrition Programs.

School food service rules have the following purposes:

(1) To comply with the National School Lunch Act (P.L. 79-396 and amendments), Child Nutrition Act (P.L. 89-642 and amendments), Omnibus Reconciliation Act (P.L. 97-35 and amendments) and Section 570.98-570.983, F.S.

(2) To provide standards and procedures for operating the school food service programs, the child care food program and the summer food program.

Rulemaking Authority 570.07(23), 595.404(4), 595.404(10), 595.404(11) 228.195(2), 229.053(1), FS. Law Implemented 595.404 228.195, 229.053(2)(i), (n), FS. History–New 4-19-73, Repromulgated 12-5-74, Formerly 6A-7.40, Amended 5-3-88, Formerly 6A-7.040, Amended           .

 

5P-1.002 Appeals Objectives of the School Food Service Program.

(1) Section 595.404, F.S. exempts the department from Sections 120.569 and 120.57-120.595, F.S. Therefore, parties seeking administrative review of proposed agency action by the department shall follow the rules outlined herein.

(2) The department shall issue a Notice of Action to Sponsors, Recipient Agencies, or Food Service Management Companies (“Appellant”) for proposed agency action to be taken against the Appellant in connection to eligibility and the operation of Child Nutrition Programs, Food Distribution Programs, and Farmers’ Market Nutrition Programs. The Notice of Action shall state the grounds upon which the department’s proposed agency action is based and state that the Appellant has the right to appeal the proposed agency action. The Notice of Action shall be sent to the Appellant by certified mail, return receipt requested.

(3) The following agency actions to be taken against the Appellant are appealable:

(a) A denial of an application for participation;

(b) A denial of a Sponsor's request for an advance payment;

(c) A denial of a Sponsor's claim for reimbursement (except for late submission under §225.9(d)(6));

(d) State agency's refusal to forward to FNS an exception request by the Sponsor for payment of a late claim or a request for an upward adjustment to a claim;

(e) A claim against a Sponsor for remittance of a payment;

(f) The termination of the Sponsor or a Site;

(g) A denial of a Sponsor's application for a Site;

(4) The Appellant shall have ten (10) calendar days to appeal the agency action from the date the Appellant receives the Notice of Action.

(5) A request for appeal shall:

(a) Be in writing;

(b) Include the date the Appellant received the Notice of Action;

(c) Include the name, address, any e-mail address, any facsimile number, and telephone number of the Appellant;

(d) Clearly identify the action being appealed;

(e) Include a concise statement of the facts alleged, including the specific facts the Appellant contends warrant reversal or modification of the department’s proposed action;

(f) A statement of the specific rules or statutes, if any, the Appellant contends require reversal or modification of the agency’s proposed action, including an explanation of how the alleged facts relate to the specific rules or statutes;

(g) Include a statement of the relief sought by the Appellant;

(h) Include a copy of the Notice of Action issued; and

(i) State whether a hearing or a review of written documentation is desired. If a hearing is not specifically requested, the appeal shall be by review of written documentation.

(6) The Appellant can request to review any information upon which the action was based.

(7) The Appellant may submit additional written documentation for review by the hearing official either with the request for appeal or within seven (7) calendar days of the date the Appellant submitted the request for appeal. The department has seven (7) calendar days from the date the department received the request for appeal to submit written documentation to the designated hearing official. Any written documentation received after the seven-day deadline will not be considered for review.

(8) The request for appeal and all written documentation should be submitted to the department at the address indicated in the Notice of Action.

(9) If a hearing is requested, it shall be held within fourteen (14) calendar days of the date the department received the request for appeal, unless otherwise agreed to by both parties. At no time shall the hearing be held prior to the date the hearing officer receives written documentation from both parties. The Appellant shall be provided with at least five (5) calendar days’ written notice, sent via certified mail, return receipt requested, of the time and place of the hearing.

(a) The Appellant may represent itself, retain legal counsel, or may be represented by another person at the hearing. Failure of the Appellant’s representative to appear at a scheduled hearing shall constitute the waiver of the right to a personal appearance before the hearing official, unless the hearing official agrees to reschedule the hearing.

(b) A department representative shall attend the hearing to respond to the Appellant’s testimony and written documentation and to answer questions from the hearing official.

(10) The hearing official shall be a department employee who is independent of the original decision-making process that led to the proposed agency action.

(11) The department shall record the hearing through a sound or video recording device.

(12) Within five (5) business days after the hearing, or within five (5) business days after receipt of written documentation from both parties if no hearing is held, the hearing official shall issue a Final Determination based on a full review of the information provided by both parties, and on applicable program regulations. The Final Determination shall be sent to the Appellant via certified mail, return receipt requested.

(13) When computing time under this rule, if the last day is a Saturday, Sunday, or legal holiday, the period continues to run until the end of the next day that is not a Saturday, Sunday, or legal holiday.

(14) The actions of the department remain in effect during the appeal process. The Appellant may continue to operate the program during an appeal of termination, and if the appeal results in overturning the action of the department, reimbursement shall be paid for meals served during the appeal process. Such continued program operation shall not be allowed if the action of the department is based on imminent dangers to the health or welfare of children. If the Appellant has been terminated for this reason, the department shall so specify in its Notice of Action.

(15)The determination made by the department’s hearing official is the final administrative determination to be afforded to the Appellant.

(16) Any party adversely affected by the determination is entitled to seek judicial review pursuant to Rule 9.110(a)(2) of the Florida Rules of Appellate Procedure, which must be initiated by filing a Notice of Appeal with the department’s Agency Clerk, 407 S. Calhoun Street, Tallahassee, FL 32399, within thirty (30) days of the date of the determination. A copy of the Notice of Appeal, accompanied by the prescribed filing fee, must be filed with the Clerk of the District Court of Appeal in the district where the sponsor is located or the First District Court of Appeal at 2000 Drayton Drive, Tallahassee, Florida, 32399.

The school food service program has the following objectives:

(1) To provide school food services consistent with the nutritional needs of students. Such services shall include a reimbursable lunch or breakfast, priced as a unit, and supplemental nourishment as needed.

(2) To provide school food services that contribute to the student’s educational experiences.

Rulemaking Authority 570.07(23), 595.404(4), 595.404(10), 595.404(11) 228.195(2), 229.053(1), FS. Law Implemented 595.404, 228.195, FS. History–New 3-22-66, 4-11-70, 4-19-73, Repromulgated 12-5-74, Amended 6-28-83, Formerly 6A-7.41, 6A-7.040, Amended           .

Cf. 7 CFR Parts 210 and 220.

 

5P-1.003 Responsibilities for the School Food Service Program.

(1) The Department of Agriculture and Consumer Services shall have the following responsibilities:

(a) To provide leadership and guidance in the overall administration and development of school food service programs.

(b) To administer federal and state school food service funds, as provided by law or regulation.

(a)(c) To require that all Child Nutrition Pprograms for which federal reimbursement is granted shall meet at least the minimum standards established by the United States Department of Agriculture as provided in 2 CFR 200 and 7 CFR Parts 210, 215, 220, 225, 226, 227, 235, 240, 245, 250, 251 and 252, which are hereby adopted and incorporated by reference and available online at https://www.flrules.org/gateway/reference.asp?no=ref-XXXXX.

(b)(d) To require that all Child Nutrition Pprograms meet at least the minimum standards established by Chapter 595, Florida Statutes, law and Title 5P, Florida Administrative Code rules of the Department. Provided, however, that under extenuating circumstances and upon written recommendation of the Office of Food, Nutrition & Wellness, shall have authority to waive any state school food service rule regulation for a period of time not to exceed six (6) months; provided further, that an extended waiver may be granted based upon evidence that it will contribute to the maintenance of district or school goals. Such an extended waiver shall be for no more than an additional twelve (12) months during which time the district must make periodic reports to the Department as to the impact of the waiver upon the districts food service programs. Based upon positive results the Department may grant further waivers as deemed appropriate.

1. The department will accept requests for exemptions from the whole grain-rich requirements authorized in 7 CFR 210.10(c)(2)(iv) and 7 CFR 220.8(c)(2)(iv), which are hereby adopted and incorporated by reference and available online at https://www.flrules.org/gateway/reference.asp?no=ref-XXXXX, if the sponsor can demonstrate hardship(s) in procuring, preparing, or serving compliant whole grain-rich products that are accepted by students. The exemption will not extend beyond each school year. Sponsors may apply for an exemption by submitting a written request along with documents demonstrating said hardship(s) online at https://fans.freshfromflorida.com or by mail to Florida Department of Agriculture and Consumer Services, Division of Food, Nutrition, and Wellness, 600 S. Calhoun Street, Suite 120, Tallahassee, FL 32399.

2. The department will accept requests for exemptions from the low-fat (1-percent milk fat), flavored milk requirements authorized in 7 CFR 210.10(d)(1)(i) and 7 CFR 220.8(d), which are hereby adopted and incorporated by reference and available online at https://www.flrules.org/gateway/reference.asp?no=ref-XXXXX, if the sponsor can demonstrate hardship by documenting a reduction in student milk consumption or an increase in school milk waste. The exemption will not extend beyond each school year. Sponsors may apply for an exemption by submitting a written request along with documents demonstrating said hardship online at https://fans.freshfromflorida.com or by mail to Florida Department of Agriculture and Consumer Services, Division of Food, Nutrition, and Wellness, 600 S. Calhoun Street, Suite 120, Tallahassee, FL 32399.

(c)(e) To distribute the required state matching in such a manner as to comply with the provisions for state matching under the National School Lunch Act, as amended. The annual state matching allocation shall be distributed by computing the district’s percentage share of total federal revenue received times the state general revenue matching allocation. The federal revenue includes Sections 4 and 11 of the National School Lunch Act and Sections 4 and 5 of the Child Nutrition Act of 1966, as amended, for two (2) fiscal years prior to the current fiscal year. The state matching allocation shall be distributed to Sponsors school districts in equal amounts quarterly.

(f) To prescribe an incentive plan for qualified supervision for Child Nutrition Programs.

(2) Each School Nutrition Programs Sponsor school board shall have the following responsibilities:

(a) To provide the necessary food service programs to meet nutritional needs of students during the school day. These food service programs shall be appropriately scheduled and shall include as a minimum a reimbursable lunch and if desired, a reimbursable breakfast, both priced as a unit. Supplemental foods which make a nutritional contribution to these meals may also be provided.

(b) To adopt policies covering all phases of the School Nutrition Program district school food service program.

(c) To control the sale of food and beverage items in competition with the School Nutrition Program district approved food service program in accordance with 7 CFR 210.11 (6/28/13), which is hereby adopted and incorporated by reference and available online at http://www.flrules.org/Gateway/reference.asp?No=Ref-04500. Competitive food and beverage items sold to students during the school day must meet the nutrition standards for competitive food as defined and required in 7 CFR 210.11. Unless being sold by the School Nutrition Program district school food service program, it is impermissible for any competitive food item sold to students during the school day to consist of ready-to-eat combination foods of meat or meat alternate, as defined in 7 CFR 210.10, and grain products as defined in 7 CFR 210.11. Section 7 CFR 210.10 (6/28/13), is hereby adopted and incorporated by reference and available online at http://www.flrules.org/Gateway/reference.asp?No=Ref-04499. Each Sponsor district school board is permitted to grant a special exemption from the standards for competitive foods as specified above for the purpose of conducting infrequent school-sponsored fundraisers, not to exceed the following maximum number of school days per school campus each school year:

School Type	Maximum Number of School Days To Conduct Exempted Fundraisers
Elementary Schools	5 days
Middle School/Junior High Schools	10 days
Senior High Schools	15 days
Combination Schools	10 days
Elementary Schools: Schools providing regular or other instruction at one or more grade levels from PK through grade 5. This category includes schools serving grade 6 if also serving one or more grades PK through 5 (e.g., a K-6 school).   Middle/Junior High Schools: Schools providing regular or other instruction in middle school configurations (grades 6-8) and junior high school configurations (grades 7-9). This category also includes schools serving a single grade in the 6-8 range (e.g., a 6th grade center).   Senior High Schools: Schools providing regular or other instruction at one or more grade levels from 9 to 12. This classification includes 9th grade centers.   Combination Schools: Schools providing regular or other instruction in grade groupings that include more than one of the categories described above (e.g., PK-8, 6-12, K-12, etc.).

Each Sponsor district school board shall maintain records documenting the occurrence of any exempted school-sponsored fundraisers to demonstrate compliance with this rule. No school-sponsored fundraisers, which include the sale of food items, shall be permitted to occur until thirty (30) minutes after the conclusion of the last designated meal service period. For the purposes of this section, “school-sponsored fundraiser” shall be defined as any event or activity occurring on the school campus during which currency, tokens, tickets, or the like are exchanged for the sale or purchase of items or services to benefit the school, a school organization or group, or a charitable organization, and which is authorized according to the Sponsor’s district school board policy and has been approved by the school principal or designee.

(d) To establish a Healthy School Team by June 30, 2015, for all schools under its jurisdiction in accordance with 42 U.S.C. 1758b (10/1/10), which is hereby adopted and incorporated by reference and available online at http://www.flrules.org/Gateway/reference.asp?No=Ref-04501. Any Healthy School Team should include, but not be limited to, the following stakeholders: parents, students, school food service program representatives, school administrators, school health professionals, physical education teachers and the public as provided in 42 U.S.C. 1758b(b)(3). In addition to the requirements specified in 42 U.S.C. 1758b, a Healthy School Team shall:

1. Be responsible for ensuring compliance with paragraph (c) of this rule and 7 CFR 210.11 as it relates to competitive food and beverage items sold on a school campus;

2. Maintain a school calendar identifying the dates when exempted competitive food fundraisers will occur in accordance with the frequency specified in paragraph (c) of this rule; and,

3. Report its school’s compliance with this rule to the designated Local Educational Agency official or school official responsible for overall compliance with the Local Educational Agency’s wellness policy as required in 42 U.S.C. 1758b(b)(5)(B).

(e) To provide an alternative food service program for students attending double session schools. The school board, after considering the nutritional needs of all the students attending the school, shall determine the alternative program needed.

(f) To provide facilities and equipment necessary for the efficient and effective operation of the school food service programs, in compliance with Chapter 6A-2, F.A.C.

(g) To provide for the control, administration, supervision, and operation of all School Nutrition Programs of the food service programs of the district. The Sponsor school board may contract with a food management company to provide food service in one (1) or more schools; provided that the Sponsor school board shall retain responsibility for its operation, administration, supervision and control, in compliance with the program agreement and federal regulations.

(h) To adopt a policy for providing economically needy students with free and reduced price lunches and breakfasts, when breakfasts are served, that will comply with 2 CFR 200 and 7 CFR 210 and 220, which are hereby adopted and incorporated by reference and available online at https://www.flrules.org/gateway/reference.asp?no=ref-XXXXX federal regulations. This policy shall include a plan for verifying economic need of students and shall be approved by the Department.

(i) To adopt policies prescribing procedures for purchases of food and nonfood items in compliance with the requirements of Rule 6A-1.012, F.A.C., of these rules, provided that such policies:

1. Shall establish procedures to assure that all foods purchased conform to the Federal Food, Drug and Cosmetic Act, the Federal Meat Inspection Act, and the Meat Inspection Law of Florida, as amended, and any other federal or state safeguards relating to wholesomeness of specific items being purchased.

2. May exempt food products except milk from the bid requirements of Rule 6A-1.012, F.A.C. Milk may be exempt under the following conditions:

a. The Sponsor district school board has made a finding that no valid or acceptable firm bid has been received within the prescribed time; or

b. The Sponsor district school board has made a finding that an emergency situation exists and may enter into negotiations with suppliers of milk and shall have the authority to execute contracts under whatever terms and conditions as the Sponsor board determines to be in the best interest of the school system.

(j) To provide optional meal service at cost to Department approved nonprofit child nutrition sponsors of federal or state nutrition programs operating within a district.

(j)(k) To limit the amount of funds recovered annually for food service indirect costs to the district’s approved restricted federal indirect cost rate approved annually by the Florida Department of Education, multiplied by the total Nonprofit School Food Service Account Food Service Fund expenditures less expenditures for capital outlay, replacement of equipment, and USDA Foods United States Department of Agriculture donated foods; and cash-in-lieu of donated foods.

(l) To conduct a survey at the beginning of each school year, in each school not having a breakfast program asking parents whether their children would participate if a reimbursed breakfast program were available. Within thirty (30) days after completion of the survey, upon due public notice, the superintendent shall present the results of these surveys on a school by school basis to the school board. The survey results shall include the number of students represented by parents requesting school breakfast and recommendations from individual principals desiring a school breakfast program, based on the needs of the children within their school. Upon presentation of the survey to the school board, the school board shall determine whether or not to accept the recommendations of the individual principals and whether or not to accept the breakfast program in individual schools. If surveys have been conducted for three (3) consecutive years and the school board has not established a breakfast program, the survey may be conducted thereafter once every three (3) years.

(3) The school principal and local school staff shall have the following responsibilities:

(a) To comply with federal and state laws, regulations and district school board policies.

(b) To effect, through classroom instruction and learning experiences outside the classroom, ways to increase the pupil’s knowledge concerning nutrition.

(c) To schedule meal serving periods in such a manner as to permit and encourage maximum student participation in the School Nutrition Program food service program.

(4) The following forms are hereby incorporated by reference and may be obtained from the Division of Food, Nutrition and Wellness, Florida Department of Agriculture and Consumer Services, 600 South Calhoun Street, Suite 120, Tallahassee, FL 32399 or online as indicated:

(a) FDACS 01717, 01/12, National School Lunch Program Claim Form, https://www.flrules.org/gateway/reference.asp?no=ref-XXXXX.

(b) FDACS 01718, 01/12, Special Milk Program Claim Form, https://www.flrules.org/gateway/reference.asp?no=ref-XXXXX.

(c) FDACS 01713, 01/12, Private School/Institution/Charter School Financial Reporting July 1, ____, through June 30, ____, https://www.flrules.org/gateway/reference.asp?no=ref-XXXXX.

(d) FDACS 01716, Rev. 12/16, Child Nutrition Programs Agreement, https://www.flrules.org/gateway/reference.asp?no=ref-XXXXX.

Forms DACS 01712, Rev. 1/12, Summer Food Service Program for Children Pre-Award Nondiscrimination Compliance Review Form; DACS 01719, Rev. 1/12, Summer Food Service Program for Children Claim for Reimbursement Form; DACS 01720, Rev. 1/12, Summer Food Service Program for Children Sponsor Application; DACS 01714, Rev. 1/12, Summer Food Service Program for Children Site Information Sheet; DACS 01715, Rev. 1/12, Summer Food Service Program for Children Agreement; DACS 01717, Rev. 1/12, National School Lunch  Program Claim Form; DACS 01718, Rev. 1/12, Special Milk Program Claim Form; DACS 01713, Rev. 1/12, Private School/Institution/Charter School Financial Reporting July 1, ____, through June 30, ____; and DACS 01716, Rev. 1/12, National School Lunch and Breakfast Program Sponsor, Agreement; are hereby incorporated by reference and made a part of this rule. These forms may be obtained from Food, Nutrition and Wellness, Florida Department of Agriculture and Consumer Services, 600 South Calhoun Street, Suite 120, Tallahassee, FL 32399.

Rulemaking Authority 570.07(23), 595.404(4), 595.404(10), 595.404(11), 1006.06(2), FS. Law Implemented 595.404, 1006.06, 1006.0605, 1006.0606, FS. History–New 3-26-66, Amended 4-17-72, 4-19-73, 10-20-73, 6-17-74, Repromulgated 12-5-74, Amended 5-4-76, 10-18-77, 12-11-79, 1-7-81, 7-28-81, 9-23-81, 6-28-83, 10-15-84, 7-10-85, Formerly 6A-7.42, Amended 5-3-88, 5-16-90, 6-30-92, Formerly 6A-7.042, Amended 10-11-99, 1-25-00, Formerly 6-7.042, 6A-7.0411, Amended 9-24-14,           .

Cf. National School Lunch Act as amended (42 USC) Sections 4 and 11, and Child Nutrition Act of 1966 as amended (42 USC) Sections 4 and 5, 7 CFR, Part 210, Section 210.6, CFR 210, Appendix B, CFR Parts 215, 220, 225, 226, 227, 235, 240, 245, 250, and 252.

 

5P-1.004 Penalties and Sanctions Family Size and Income Level.

(1) Child Nutrition Programs and Food Distribution Programs

(a) Seriously Deficient.

1. A Sponsor or Recipient Agency may be declared by the department as Seriously Deficient if:

a. The Sponsor or Recipient Agency fails to comply with provisions outlined in a contractual service agreement with the department;

b. The Sponsor or Recipient Agency has failed to complete a Corrective Action included in a previously issued Administrative Review, Sponsor Review, Site Visit, or Technical Assistance Visit;

c. The Sponsor or Recipient Agency is noncompliant with applicable bid procedures and contract requirements of 2 CFR 200;

d. The Sponsor or Recipient Agency submitted false information to the department;

e. If the Sponsor failed to return to the department any start-up, advance, or improper payments which exceeded the amount earned for serving meals in accordance with Section 7 CFR 225.16, or failure to submit all Claims for Reimbursement in any prior year, provided these claims for reimbursement are not under dispute; or

f. Program violations are identified for ten percent (10%) or ten (10), whichever is greater, of the Sponsor's or Recipient Agency’s sites. Such violations include the following:

i. Noncompliance with the meal service time restrictions set forth in Sections 7 CFR 210.10(l)(1)-(2) and 7 CFR 225.16(c);

ii. Failure to maintain adequate records in accordance with Section 2 CFR 200.333 and the General Records Schedule GS7 for Public Schools PRE-K-12 and Adult and Career Education, incorporated in Rule 1B-24.003(f), FAC;

iii. Failure to adjust meal orders to conform to variations in the number of participants;

iv. The simultaneous service of more than one meal to any participant;

v. The claiming of Program payments for meals not served to participants;

vi. Service of fifty percent (50%) of meals or greater which did not include required quantities of all meal components;

vii. Off-site meal consumption occurs for fifty percent (50%) or greater of participants.

g. The Sponsor or Recipient Agency has notice of a Stop-Sale Order issued by the department, the Florida Department of Health, or the Department of Business and Professional Regulations to a Food Service Management Company that has yet to be lifted and the Sponsor or Recipient Agency continues to obtain foods from the Food Service Management Company.

h. The Recipient Agency distributes USDA Foods or related funds to a Sub-Distributing Agency without an executed agreement.

i. The Sponsor or Recipient Agency has misused USDA Foods including improper distribution or foods lost, spoiled, stolen, or damaged as a result of improper storage, care, or handling.

j. The Recipient Agency failed to publicly notice dates of distribution as required in FNS Instruction 113-1 Form FNS-620 (1-99), which is hereby adopted and incorporated by reference and available online at https://www.flrules.org/gateway/reference.asp?no=ref-XXXXX.

k. The Sponsor’s tax exempt status is revoked by the Internal Revenue Service pursuant to Section 501(c)(3) of the Internal Revenue Code of 1986 also resulting in immediate termination per 5P-1.004(1)(c)4.

(b) Suspension.

1. The department will notify the Sponsor or Recipient Agency in a Notice of Action, via email and certified mail, return receipt requested, that the Sponsor or Recipient Agency has been declared Seriously Deficient, the causes for Seriously Deficient status, and the required Corrective Actions. The Sponsor or Recipient Agency will have thirty (30) days from the date it receives, via email, the Notice of Action to complete the Corrective Actions. If after thirty (30) calendar days from the date of receipt for the Notice of Action, the Sponsor or Recipient Agency fails to complete the required Corrective Actions, a second written notification will be sent via certified mail, return receipt requested.

a. If after sixty (60) calendar days from the date of receipt for the Notice of Action, the Sponsor or Recipient Agency fails to complete the required Corrective Actions, a third written notification will be sent via certified mail, return receipt requested. This third demand will contain a due date of ninety (90) calendar days from the date of the Notice of Action.

b. If after ninety (90) calendar days from the date of receipt for the Notice of Action, the Sponsor or Recipient Agency fails to complete the required Corrective Actions, the Sponsor or Recipient Agency will be suspended from program operations for one (1) calendar year from the original date of email notification.

2. While suspended, Sponsors or Recipient Agencies shall not participate in any Child Nutrition Program or Food Distribution Program to include receiving USDA Foods or obtaining related funds; operations may continue outside of these programs. The department shall consider non-program operations during the application process identified in subparagraph 3.

3. If the Sponsor or Recipient Agency completes all required Corrective Action during the one (1) year suspension, or has complied with all requirements in a written settlement agreement, the Sponsor or Recipient Agency may reapply at the end of the suspension period, or once all requirements in a written settlement agreement are met, subject to the deadlines for submitting applications. If applicable deadlines have already occurred at the time suspension is removed, the Sponsor or Recipient Agency must reapply for program participation the following year.

(c) Termination.

1. If after a one (1) year suspension, the Sponsor or Recipient Agency has failed to complete Corrective Actions, the Sponsor or Recipient Agency will be terminated from the program for seven (7) years. 

2. If any Sponsor or Recipient Agency commits a Child Nutrition Programs and Food Distribution Programs violation involving fraud, the Sponsor or Recipient Agency will be immediately terminated for seven (7) years. For purposes of this rule, fraud includes:

a. Intentionally making false or misleading statements, orally or in writing;

b. Intentionally withholding information pertaining to eligibility or ineligibility; or

c. Selling commodities obtained in Food Distribution Programs, or exchanging them for non-food items.

3. If after seven (7) years the Sponsor or Recipient Agency completes the Corrective Action, they may reapply for any Child Nutrition Program or Food Distribution Program.

4. A Sponsor whose tax exempt status is revoked by the Internal Revenue Service (IRS) pursuant to Section 501(c)(3) of the Internal Revenue Code of 1986 shall be terminated from a Child Nutrition Program without first being suspended until such time the Sponsor’s tax exempt status is reinstated by the IRS.

(2). Farmers’ Market Nutrition Programs.

(a) This rule sets forth the guidelines the department will follow in imposing the penalties authorized under 7 CFR 248, which is adopted and incorporated by reference and available online at https://www.flrules.org/gateway/reference.asp?no=ref-XXXXX. The purpose of the guidelines is to give notice of the range of penalties which normally will be imposed for a single violation. These guidelines list aggravating and mitigating factors that, if present, will reduce or increase the penalties to be imposed against the Farmer or Farmers’ Market by the department. No aggravating factors will be applied to increase a fine imposed for a single violation above the statutory maximum of $1,000.00 for each violation as provided in Section 570.971, F.S., 595.501, F.S., and 7 CFR 248.20. The guidelines in this rule chapter are based upon a single count violation of each provision listed. Multiple counts of the violated provision or a combination of the listed violations will be added together to determine a total penalty and will be grounds for enhancement of penalties.

(b) The department will enforce compliance with this rule chapter by issuing a sanction for violations of 7 CFR 248.

(c) Nothing in this chapter shall limit the ability of the department to informally dispose of sanctions by settlement agreement, consent order, or other lawful means.

(d) Rule Not All-Inclusive. This rule contains illustrative violations. It does not, and is not intended to encompass all possible violations of statute or department rule that might be committed by any person. The absence of any violation from this rule chapter shall in no way be construed to indicate that the violation does not cause harm to the public or is not subject to a penalty. In any instance where the violation is not listed in this rule chapter, the penalty will be determined by consideration of:

1. The closest analogous violation, if any, that is listed in this rule; and

2. The mitigating or aggravating factors listed in this rule.

(e) Aggravating and Mitigating Factors. The department will consider aggravating and mitigating factors in determining penalties for violations of 7 CFR 248 and this rule chapter. The factors shall be applied against each single count of the listed violation.

1. Aggravating Factors:

a. The violation caused, or has the potential to cause, serious injury to a person.

b. The violation endangered the public safety or welfare.

c. Previous violations within the preceding three years for the same or a similar offense that resulted in imposition of sanctions, issuance of a Notice of Action, or suspension.

d. The violation occurred for more than twenty-four (24) hours.

e. The Farmer or Farmers’ Market impeded, or otherwise failed to cooperate with, the department’s inspection or investigation.

f. Whether the violation resulted from negligence or an intentional act.

g. The cost of the enforcement action.

h. The number of other violations proven in the same proceeding.

i. The benefit to the farmer or farmers’ market.

2. Mitigating Factors:

a. Any documented efforts at Corrective Action by the Farmer or Farmers’ Market.

b. Whether intentional actions of another party prevented the Farmer or Farmers’ Market from complying with the applicable laws or rules.

c. Financial hardship.

d. Acts of God or nature that impairs the ability of the Farmer or Farmers’ Market to comply with 7 CFR 248.

e. The violation has a low risk of, or did not result in, harm to the public health, safety, or welfare.

f. The farmer/farmers’ market took corrective action within twenty-four (24) hours of receiving written notification of the violation.

g. The disciplinary history of the Farmer or Farmers’ Market committing the violation.

h. If a repeat violation, whether three (3) years has passed since the prior violation.

i. A statement, in writing, provided to the department during an investigation declaring acceptance of responsibility for a violation.

(f) The provisions of this rule chapter shall not be construed so as to prohibit or limit any other civil action or criminal prosecution that may be brought.

(g) In addition to the penalties established in this rule, the department reserves the right to seek to recover any other costs, penalties, attorney’s fees, service fees, and damages allowed by law. Additionally, the department reserves the right to seek to recover any costs, penalties, attorney’s fees, service fees, and costs resulting from a payment that is returned for insufficient funds to the department.

(h) Penalties.

1. Notice of Non-Compliance. Any department investigation or inspection which reveals minor violations of this rule chapter in which the department determines that the Farmer or Farmers’ Market was unaware of the rule or unclear as to how to comply with it will result in the issuance of a Notice of Non-Compliance as the department’s first response to the violation.

2. Minor Violations. A violation of this rule chapter is a minor violation if it does not result in economic or physical harm to a person or adversely affect the public health, safety, or welfare or create a significant threat of such harm. Minor violations shall result in imposition of a fine not to exceed $1,000.00. The following violations shall be considered minor violations:

a. Issue cash exchange for purchases that are in an amount less than the value of the Farmers’ Market Nutrition Program coupon(s);

b. Failure to provide equitable treatment to Farmers’ Market Nutrition Program recipients, including availability of produce to Farmers’ Market Nutrition Program recipients that is of the same quality and cost as that sold to other customers;

c. Failure to notify the department of ceased operations prior to the end of the authorization period; or

d. Redemption of Farmers’ Market Nutrition Program coupon(s) for ineligible foods.

3. Major Violations. A violation of this rule chapter is a major violation if it results in economic or physical harm to a person or adversely affects the public health, safety, or welfare, or creates a significant threat of such harm. Major violations shall result in the imposition of an administrative fine not to exceed $10,000.00, sanction, or disqualification as prescribed in 7 CFR 248.10(k), or any of the foregoing, as prescribed in 7 CFR 248. The following violations shall be considered major violations:

a. Noncompliance with the nondiscrimination provisions of the USDA regulations as provided in 7 CFR 248.7;

b. Improper Farmers’ Market Nutrition Program coupon redemption procedures; or

c. Deliberate fraud as specified in 7 CFR 248.20(c).

(i) Nothing in this rule chapter shall prohibit the department and person charged with a violation from resolving violations prior to the hearing or review of written documentation pursuant to Rule 5P-1.002, F.A.C., or from negotiating a settlement. The department is authorized to utilize all available remedies to ensure compliance including administrative action, civil actions, and referrals for criminal prosecution. The cost of any enforcement proceeding may be added to any penalty imposed. The department shall enforce a failure to comply with an agreement to resolve violations or a settlement agreement with the penalties and remedies provided in the agreement.

(j) Should a Farmer or Farmers’ Market fail to timely appeal the agency action listed in a Notice of Action, the agency action shall stand and the entity shall be responsible for the violation and shall be subject to the penalties imposed.

(1) In determining eligibility of children for free and reduced price meals in the national school lunch program, school breakfast program, child care food program, and commodity schools, and for free milk in the special milk program during each state fiscal year, participating schools and institutions shall use the income level provided by the Department of Agriculture and Consumer Services in the manner prescribed herein.

(2) Federal law requires that the state establish an income level for family size by applying a specified percentage to “Income Eligibility Guidelines” promulgated each year by the Secretary of the U. S. Department of Agriculture. This ministerial act shall be performed by the Department, who is directed to make the calculations in accordance with 42 U. S. C. s. 1758(b) and 7 C. F. R. s. 245.1. The calculations are to be made and transmitted to participating schools and institutions within ten (10) work days from the date the “Income Eligibility Guidelines” are published in the Federal Register. The income levels established by law are to be calculated as follows:

(a) For free meals and free milk: One hundred thirty percent (130%) multiplied by the poverty level of income corresponding to a family size as specified in the applicable “Income Eligibility Guidelines.”

(b) For reduced price meals: One hundred eighty-five percent (185%) multiplied by the poverty level of income corresponding to a family size as specified in the applicable “Income Eligibility Guidelines.”

(3) The income level specified above is the maximum income a family may receive and the children be eligible for free and reduced price lunch or breakfast or free milk.

(4) Reduced price for lunch shall be forty (40) cents or less and for breakfast thirty (30) cents or less.

(5) “Income” as used in this rule shall be determined in accordance with the federal statutes, regulations and directives that are applicable to the particular federal program.

Rulemaking Authority 570.07(23), 595.404(4), 595.404(10), 595.404(11), 1006.06(2), FS. Law Implemented 595.404, 595.501, 570.971, 1001.42(16), 1006.06, FS. History–New 9-5-77, Amended 9-6-78, 10-17-78, 10-23-79, 1-7-81, 8-12-81, 4-27-82, 6-28-83, Formerly 6A-7.421, 6A-7.0421, Amended          .

 

5P-1.005 Supervision and Administration.

Rulemaking Authority 1006.06(2) FS. Law Implemented 1006.06, 1006.0605, 1006.0606 FS. History–New 3-26-66, Amended 4-11-70, 4-19-73, Repromulgated 12-5-74, Amended 7-28-81, 6-28-83, Formerly 6A-7.45, 6A-7.045, Repealed, ____________.

 

NAME OF PERSON ORIGINATING PROPOSED RULE: Lakeisha Hood, Director, Division of Food, Nutrition and Wellness

NAME OF AGENCY HEAD WHO APPROVED THE PROPOSED RULE: Commissioner of Agriculture Adam H. Putnam

DATE PROPOSED RULE APPROVED BY AGENCY HEAD: 12/28/18

DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAR: 1/4/18