This rulemaking adopts rules for the administration of the Summer Food Service Program.

 

DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES

Division of Food, Nutrition and Wellness

RULE NOS.:RULE TITLES:

5P-3.001Program Participation

5P-3.002Program Responsibilities

5P-3.003Procurement Standards

5P-3.004Reimbursement Process and Financial Management

5P-3.005Administrative Reviews

5P-3.006Fiscal Action

PURPOSE AND EFFECT: This rulemaking adopts rules for the administration of the Summer Food Service Program.

SUMMARY: The proposed rules establish eligibility criteria, identify program responsibilities, set procurement standards, present requirements for reimbursement and financial management, and demonstrate how Administrative Reviews will be conducted to determine any necessary fiscal action of the Summer Food Service Program. The proposed rules are specific to Florida’s practices not addressed in the applicable Codes of Federal Regulations.

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 and program participation 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), FS.

LAW IMPLEMENTED: 595.404; 595.501, 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: S. Quinn Skinner, 600 S. Calhoun Street, Suite 120, Tallahassee, FL 32399, [phone].

 

THE FULL TEXT OF THE PROPOSED RULE IS:

 

5P-3.001 Program Participation

Each organization participating or desiring to participate in the Summer Food Service Program, as defined in Rule 5P-1.001(38), F.A.C., must meet the standards established by the United States Department of Agriculture as provided in 2 CFR 200, 7 CFR 15, 15a, 15b, 7 CFR 225, and 7 CFR 250 all revised as of January 1, 2018, and which are hereby adopted and incorporated by reference and available online at https://www.flrules.org/gateway/reference.asp?no=ref-XXXXX, Chapter 595, Florida Statutes, and this rule chapter.

(1) Summer Food Service Program Application. Any organization desiring to participate in the Summer Food Service Program must be eligible as required by 7 CFR 225.14 and must:

(a) Submit to the department a complete application online at https://fans.freshfromflorida.com, or by mail to 600 S. Calhoun Street (H2), Tallahassee, FL 32399, using the form entitled “Summer Food Service Program Application”, FDACS-01722 06/18, which is hereby incorporated by reference and available online at https://www.flrules.org/gateway/reference.asp?no=ref-XXXXX. For the purposes of this program, a complete application includes:

1. All Sponsor Information as requested on the application;

2. All Site Information as requested on the application for at least one site; and

3. A management plan must be submitted to the department online at https://fans.freshfromflorida.com, or by mail to 600 S. Calhoun Street (H2), Tallahassee, FL 32399. The management plan must demonstrate financial capability, administrative capability, and program accountability for program operations and allow the department to determine in which of the three (3) operational tiers, as described in Rule 5P-3.002(2), F.A.C., the organization will be approved based on the information submitted. All information submitted as part of the management plan must be in the name of the organization listed on the application.

a. The organization has the financial capability to operate a Summer Food Service Program if it has the financial resources available to pay for fifty (50) percent of expenses as indicated in the Sponsor’s proposed budgets independent of any reimbursement from the department. The department will assess whether the organization has demonstrated financial capability by review of the following information which must be included with the organization’s management plan:

(I) Administrative and operational budgets that include projected expenses;

(II) Twelve (12) consecutive months of bank statements for the prior year for all cash accounts in the name of the organization;

(III) All agreements for loans, lines of credit, revolving credit card accounts, non-cancelable leases, and purchase commitments;

(IV) The most recent federal tax filing (e.g., Form 990), unless the organization is exempt from filing as a governmental entity; and

(V) One of the following:

(A) In consideration for Tier 3, as defined in Rule 5P-3.002(2), F.A.C., complete financial statements, audited by a Certified Public Accountant, for the most recent fiscal year, at a minimum, all of the following: balance sheet, statement of activities, statement of changes in net assets, statement of cash flows, notes to financial statements. From these documents, the following factors will be considered:

I. Assets exceeding liabilities (i.e., positive net assets or fund balance);

II. All accounts and transactions of the organization are included;

III. Debt does not exceed eighty (80) percent of total assets;

IV. Current asset/liability ratio of at least 1:1; and

V. Transactions for Summer Food Service Program activities are separately identifiable either in the statement of activities or notes to financial statements;

(B) In consideration for Tier 2, at a minimum, internally-prepared statements including at least the balance sheet and statement of activities for the most recent fiscal year from which the following factors will be considered:

I. Assets exceeding liabilities (i.e., positive net assets or fund balance);

II. All accounts and transactions of the organization are included;

III. Debt does not exceed eighty (80) percent of total assets; and

IV. Current asset/liability ratio of at least 1:1; or

(C) In consideration for Tier 1, at a minimum, a trial balance report including at least the balance sheet and statement of activities for the most recent fiscal year from which the following factors will be considered:

I. The trial balance balancing zero ($0);

II. Assets exceeding liabilities (i.e., positive net assets or fund balance);

III. All accounts and transactions of the organization are included;

IV. Debt does not exceed eighty (80) percent of total assets; and

V. Current asset/liability ratio of at least 1:1.

b. The organization has the administrative capability to participate in the Summer Food Service Program if it:

(I) Has not been declared Seriously Deficient by the department or terminated from the Summer Food Service Program or any other federal Child Nutrition Program in the previous seven (7) years. However, such an organization may be considered if the department determines that the organization has taken appropriate corrective actions to prevent recurrence of all deficiencies as prescribed in Rule 5P-1.004(1)(a), F.A.C., and has repaid any outstanding debts owed to federal Child Nutrition Programs; and

(II) Has a documented system of internal controls that include, at a minimum, all of the following: policy and procedure manuals, job function narratives, independent oversight for operations and finance, and checks and balances in place for executing procurement contracts and preparing the Claim for Reimbursement, as prescribed in Rule 5P-3.004(4), F.A.C., or will adopt basic benchmark internal control policies as provided by the department at https://fans.freshfromflorida,com; and

(III) A written, detailed monitoring plan for conducting and maintaining records for site visits and reviews as required in 7 CFR 225.15(d)(2)-(3), previously incorporated in this rule, including a standard internal monitoring documentation form.

c. To demonstrate program accountability, the organization’s management plan must provide evidence of how it meets the following criteria:

(I) Has oversight of the program by an independent governing board of directors;

(II) Provides an ongoing service to the community as evidenced by payroll records or timesheets;

(III) Has procedures in place for record keeping of all advances, program expenditures, Claims for Reimbursement; and

(IV) Has a written, detailed plan for providing, and maintaining records for, program training, as prescribed in Rule 5P-3.002(1), F.A.C., to all program staff prior to the first operating day of the year or the first operating day of the site to which they are assigned.

4. Organizations that are audited on a predetermined, continual cycle with the Florida Auditor General and participate in the National School Lunch Program are exempt from the requirements in subparagraph 3. of this rule, unless the Sponsor is declared Seriously Deficient, as described in Rule 5P-1.004(1)(a), F.A.C., in the year prior to the current year.

(b) Complete the Summer Food Service Program training with eighty (80) percent accuracy or higher prior to being approved for participation.

1. This training requirement is applicable for operation of Summer Food Service Program at any time of the year in an area with a continuous school calendar.

2. The department waives this training requirement for operation of the Summer Food Service Program during unanticipated school closures during the period from October through April.

(2) Non-Profit Food Service Account. Sponsors must establish and maintain a financial system for accurately identifying program funds, to include:

(a) A separate bank account for Summer Food Service Program funds where all income and expenses must be for the benefit of the Summer Food Service Program; or

(b) The use of accounting codes to indicate what income and expenses are for the benefit of the Summer Food Service Program if the account is used for any purpose outside of the program.

(3) Advance Payments. Advance payments on Claims for Reimbursement will be available for June, July, and August of each year, pursuant to 7 CFR 225.9(c), previously incorporated in this rule.

(4) Application Deadlines. Application deadlines for participation in the Summer Food Service Program are as follows:

(a) Applications are due February 15 and must be approved by March 14 for all organizations requesting an advance for the month of June.

(b) Applications are due March 15 and must be approved by April 14 for all organizations requesting an advance for July.

(c) Applications are due April 15 and must be approved by May 14 for all remaining organizations.

(d) Applications submitted after April 15 will be denied and organizations may apply again the following year.

(5) Pre-approval Site Visits. In accordance with 7 CFR 225.7(d)(1), previously incorporated in this rule, the department will conduct a pre-approval site visit for all organizations and their sites, which did not operate the program in the year prior to the current year, to assess Summer Food Service Program compliance and to verify information provided in the application using the form entitled “Summer Food Service Program State Pre-Approval Site Visit’, FDACS-01735 Rev. 06/18, which is hereby incorporated by reference and available online at https://www.flrules.org/gateway/reference.asp?no=ref-XXXXX.

(a) If program compliance is confirmed during a pre-approval site visit, the organization will be approved to operate the Summer Food Service Program at that site.

(b) If program compliance is not confirmed during a pre-approval site visit, the department will allow the organization to make necessary changes, for that site, identified on form ‘Summer Food Service Program State Pre-Approval Site Visit’, FDACS-01735 Rev. 06/18, and request a technical assistance visit to follow-up on the changes made to bring the organization into compliance. If applicable deadlines have already lapsed for the current year, the organization cannot operate the Summer Food Service Program at the site.

1. If program compliance is confirmed during the technical assistance visit, the organization will be approved to operate the Summer Food Service Program at the site.

2. If program compliance is not confirmed during the technical assistance visit, the organization cannot operate the Summer Food Service Program at the site.

(6) Seriously Deficient Sponsors. Seriously Deficient Sponsors are Sponsors that were declared Seriously Deficient pursuant to paragraph 5P-1.004(1)(a), F.A.C. In accordance with 7 CFR 225.6(c)(2), previously incorporated in this rule, Sponsors reapplying for participation in the Summer Food Service Program that were declared Seriously Deficient in the year prior to the current year, must be eligible as required by 7 CFR 225.14(b), previously incorporated in this rule, and this rule chapter.

(7) Ineligible Sponsors. Sponsors that owe money to the department from previous fiscal action taken are not eligible to participate in the program.

(8) Transfer of Sites Between Sponsors. Sites may request to transfer to a different Sponsor if:

(a) A written request to transfer and justification is provided to the department online at https://fans.freshfromflorida.com, or by mail to 600 S. Calhoun Street (H2), Tallahassee, FL 32399 and to the Sponsor under which the Site is currently operating at least seven (7) calendar days before the anticipated date of transfer.

(b) The written request to transfer must include:

1. The current Sponsor’s name;

2. The requested new Sponsor’s name, and

3. The justification for the request to transfer. The justification must demonstrate good cause beyond the Site’s control for why the Site is requesting to be transferred. Good cause includes:

a. The population served will expand;

b. The quality of meal service will improve; or

c. The effectiveness of site operation will improve.

(c) If a Site experiences, at a minimum, two consecutive days where meals are not delivered by the Sponsor, or can document inconsistent deliveries, the Site is exempt from the time requirement in paragraph (a) of this subsection.

(9) Site Eligibility. Pursuant to 7 CFR 225.2, previously incorporated in this rule, to be eligible to participate in the Summer Food Service Program, an organization must be non-profit, which is defined as being tax exempt under section 501(a) of the Internal Revenue Code of 1986.

(a) The department will approve sites which are identified as for-profit locations if the sites meet all the following criteria:

1. The sites must be operated under an eligible public or private non-profit Sponsor;

2. The sites must operate as Open sites or Restricted Open sites;

3. The sites must be located in an area in which at least 50 percent of the children are from households that are eligible for free or reduced priced school meals;

4. The sites must make meals available to all children in the area and must serve meals to children on a first come, first served basis; and

5. The sites must serve all meals at no charge.

(b) The Sponsor must submit to the department online at https://fans.freshfromflorida.com, or by mail to 600 S. Calhoun Street (H2), Tallahassee, FL 32399, a signed “Summer Nutrition Programs For-Profit Certificate” FDACS-01839 Rev. 06/18, which is hereby incorporated by reference and available online at https://www.flrules.org/gateway/reference.asp?no=ref-XXXXX, prior to the first operating day of each site identified as for-profit.

(10) Agreement. Each Sponsor approved to participate in the Summer Food Service Program must enter into a written agreement with the department, using the form entitled “Child Nutrition Programs Agreement”, FDACS-01716 Rev. 06/18, incorporated in Rule 5P-2.002, F.A.C.

(11) Emergency Meal Service. In the event of an unanticipated school closure during the school year, the department will provide an expedited approval for Sponsors that are also School Districts, as defined in Section 595.402(5), F.S., with current agreements to operate the Summer Food Service Program, if the Sponsor has previously indicated its intent to provide such emergency meals.

(a) This intent to serve emergency meals must be provided in writing as an attachment to the Sponsor’s application to participate in the Summer Food Service Program and contain a list of the sites that would be activated to serve emergency meals.

(b) In the event a School District is unable to provide an Emergency Meal Service, the department will solicit the remaining Sponsors of the Summer Food Service Program for the county in which the non-participating School District resides, and responses with be considered on a first come, first served basis, in the following order:

1. Sponsors operating the Tier 3 who have not been declared Seriously Deficient in the current year and the year prior to the current year;

2. Sponsors operating the Tier 2 who have not been declared Seriously Deficient in the current year and the year prior to the current year; then

3. Sponsors operating the Tier 1 who have not been declared Seriously Deficient in the current year and the year prior to the current year.

(12) Terminated Sponsors. Sponsors that have been terminated from the Summer Food Service Program and are applying again to participate must be eligible as required by 7 CFR 225.14(b), previously incorporated in this rule, and this rule chapter, and must submit an application pursuant to paragraph 5P-3.001(1)(a), F.A.C., including a management plan using the criteria in sub-subparagraphs 5P-3.001(1)(a)3.a. through c., F.A.C.

Rulemaking Authority 570.07(23), 595.404(4), 595.404(10) FS. Law Implemented 595.404 FS. History-New_____.

 

5P-3.002 Program Responsibilities

(1) Training. Each year, upon approval to operate the Summer Food Service Program, the Sponsor must hold training sessions for its administrative staff prior to the first day of program operations. Additionally, each year the Sponsor must hold training sessions for site personnel prior to the first day of each site’s program operation. Training of site personnel must, at a minimum, include: the purpose of the Summer Nutrition Program, civil rights as indicated in section XI of FNS Instruction 113-1 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, site eligibility, recordkeeping, site operations, meal pattern requirements, and the duties of a monitor as prescribed in 7 CFR 225.15(d), incorporated in Rule 5P-3.001, F.A.C.

(2) Operational Tiers. Sponsors are approved to operate the Summer Food Service Program within one of three tiers of operation determined during the application process each year, unless exempt per Rule 5P-3.001(1)(a)4., F.A.C.

(a) Tier 3 allows over 150,000 meals to be served;

(b) Tier 2 allows up to 150,000 meals to be served; and

(c) Tier 1 allows up to 60,000 meals to be served;

(d) The Sponsor may not include in the Claim for Reimbursement, and will not be reimbursed for, any meals served over the allowable amount for the tier in which the Sponsor is approved to operate.

(3) Site Information. Sponsors must submit any additional site information or changes to current site information requested on the application not less than two business days prior to the implementation of the additional or updated site information submitted.

(4) Pre-operational Visits. Prior to Summer Food Service Program operations, Sponsors must conduct a pre-operational visit of all sites that did not operate the Summer Food Service Program or any sites that had deficiencies noted, by the department or the Sponsor, in the year prior to the current year. These visits are to determine that the sites have the facilities to provide meal service for the anticipated number of children in attendance and the capability to conduct the proposed meal service. The Sponsor must indicate what, if any, improvements or corrective actions are needed and must address the needed improvements or corrective actions before the site can be approved for operation. Sponsors must provide the department written documentation of a completed pre-operational visit when requested. These pre-operational visits are not the same as the site visit conducted during the first week of program operations as required in 7 CFR 225.15(d)(2), incorporated in Rule 5P-3.001, F.A.C.

(5) Site Monitoring. The Sponsor must identify a site supervisor for each proposed site and must allow no site to operate until the site supervisor has attended one Summer Food Service Program training session hosted by the Sponsor. Each site must have the site supervisor present at each meal service.

(6) Meal Service. Pursuant to 7 CFR 225.15(d)(3), Sponsors must review food service operations at each site at least once during the first four weeks of Summer Nutrition Program operations. Sponsors must complete the site review using the form entitled “Summer Food Service Program Sponsor Site Review”, FDACS-01926 Rev. 06/18, which is hereby incorporated by reference and available online at https://www.flrules.org/gateway/refernece.asp?no=ref-XXXXX.

(a) Sponsors must serve meals that meet the meal patterns prescribed in 7 CFR 225.16(d), incorporated in Rule 5P-3.001, F.A.C. Exceptions to the meal pattern requirements are permitted as follows:

1. Sponsors may serve food in smaller quantities than are indicated in 7 CFR 225.16(d) to children under six (6) years of age. The Sponsor must ensure that variations in portion size are in accordance with the age levels of the children served.

2. Sponsors wanting to serve children under one (1) year of age must first request approval to do so from the department online at https://fans.freshfromflorida.com, or by mail to 600 S. Calhoun Street (H2), Tallahassee, FL 32399, using the form entitled “Request to Serve Infant Meals”, FDACS-01849 Rev. 06/18, which is hereby incorporated by reference and available online at https://www.flrules.org/gateway/reference.asp?no=ref-XXXXX.

(b) When serving food in smaller quantities than are indicated in 7 CFR 225.16(d), the Sponsor must follow the age-appropriate meal pattern requirements contained in 7 CFR 226.20(b), which is hereby adopted and incorporated by reference and made available online at https://www.flrules.org/gateway/reference.asp?no=ref-XXXXX.

(c) Meals must be counted at the point of service (i.e., meals are counted as they are served) using either tally marks or a counting device to ensure that an accurate count of meals served is obtained and reported.

(d) Meals may not be served between the hours of 8:00pm and 6:00am.

(e) If the Sponsor plans to provide meal service to children away from the approved site, the Sponsor must submit to the department, online at https://fans.freshfromflorida.com, or by mail to 600 S. Calhoun Street (H2), Tallahassee, FL 32399, notification of any field trip that would affect the time and location of meal service using the form entitled “Summer Nutrition Programs Field Trip Schedule”, FDACS-01877 Rev. 06/18, which is hereby incorporated by reference and available online at https://www.flrules.org/gateway/refernece.asp?no=ref-XXXXX. Notification must be made forty-eight (48) hours prior to date of the field trip.

(7) Audit Requirements. Sponsors that expend $750,000 or more during the fiscal year in federal awards must have a single audit conducted for that year in accordance with Subpart F – Audit Requirements of 2 CFR 200, incorporated in Rule 5P-3.001, F.A.C.

(a) In determining whether $750,000 in federal awards have been expended, the Sponsor must combine the value of USDA Foods received as determined by the United States Department of Agriculture (USDA), all reimbursements received for meals served to eligible children as a part of the School Nutrition Programs, if applicable, Summer Food Service Program, and all other federal awards as defined in 2 CFR 200.38, incorporated in Rule 5P-3.001, F.A.C. Sponsors may obtain the value of USDA Foods received by accessing the Web-Based Supply Chain Management website at https://www.eauth.usda.gov/Login/login.aspx or by calling the department toll-free at [phone].

(b) A copy of the audit report must be submitted to the department online at https://fans.freshfromflorida.com, or by mail to 600 S. Calhoun Street (H2), Tallahassee, FL 32399, within nine (9) months after the end of the audit period.

(c) If any issues related to the Summer Food Service Program are noted in the audit report, and require correction, the department will provide a plan to the Sponsor to correct all said issues. The Sponsor will have thirty (30) calendar days from the date of receipt of this plan to address each issue noted.

(8) Complaints. If a complaint is received regarding a violation of civil rights, fraud, or food safety, the department will conduct a site review, using the form entitled “Summer Food Service Program State Site Review”, FDACS-01947 Rev. 06/18, which is hereby incorporated by reference and available online at https://www.flrules.org/gateway/refernece.asp?no=ref-XXXXX, to assess each Sponsor’s ability to administer the Summer Food Service Program and address the nature of the complaint. If during this site review, the department determines corrective actions are necessary, a written demand for corrective action will be issued and the Sponsor will be provided seven (7) calendar days to respond in writing.

(a) The written response to the demand for corrective action should include:

1. All deficiencies identified in the written demand for corrective action;

2. The corrective action(s) required;

3. The timeframe(s) by which the corrective action(s) will be completed; and

4. If applicable, documentation to demonstrate corrective action was completed as prescribed in the written notification; and

(b) As part of the response to the written demand for corrective action, the Sponsor is required to conduct a follow-up Site Review using the form entitled “Summer Food Service Program Sponsor Site Review”, FDACS-01926 Rev. 06/18, previously incorporated in Rule 5P-3.002(4), F.A.C. and submit this form to the department online at https://fans.freshfromflorida.com, or by mail to 600 S. Calhoun Street (H2), Tallahassee, FL 32399.

(c) If after seven (7) calendar days of the date of demand, the Sponsor fails to respond to the department regarding the required corrective actions, the Sponsor will be deemed Seriously Deficient and the department will issue a Notice of Action for suspension pursuant to paragraph 5P-1.004(1)(a), F.A.C. The sponsor may exercise appellate rights under Rule 5P-1.002, F.A.C.

Rulemaking Authority 570.07(23), 595.404(4), 595.404(10), FS. Law Implemented 595.404, 595.501 FS. History-New_____.

 

5P-3.003 Procurement Standards

(1) Contracts. All contracts must be issued using the standards outlined in 7 CFR 225.17 and 2 CFR 200, incorporated in Rule 5P-3.001, F.A.C.

(a) All formal solicitations, to include specifications, evaluation criteria, procurement procedures, and proposed contract documents, must be submitted to the department online at https://fans.freshfromflorida.com, or by mail to 600 S. Calhoun Street (H2), Tallahassee, FL 32399, prior to issuance or execution.

(b) The department will examine each Sponsor’s proposed contracts prior to the issuance, if:

1, The Sponsor has a contract with a food service management company; or

2. The Sponsor has any proposed contracts that exceeds $50,000 for public and charter school Sponsors or the simplified acquisition threshold identified in 2 CFR 200.88, incorporated in Rule 5P-3.001, F.A.C., for all other Sponsors.

(c) Sponsors can enter into a Successive Purchasing Agreement, as defined in Rule 5P-1.001(37), F.A.C., when the awarded Contractor agrees, in writing, to permit the Successive Purchasing Agreement at the same terms, conditions, and prices, or below such prices.

1. Sponsors must submit Successive Purchasing Agreement and written authorization from the Contractor to the department online at https://fans.freshfromflorida.com, or by mail to 600 S. Calhoun Street (H2), Tallahassee, FL 32399, within seven (7) calendar days of execution.

2. Sponsors must conduct a separate procurement to obtain goods and services if the proposed Successive Purchasing Agreement results in a material change to the underlying contract. The department considers a change to be material if it would cause the contractor to bid differently if the prospective change had existed during the solicitation process or if the total cost of the change exceeds the thresholds referenced in subparagraph 5P-3.003(1)(b)2, F.A.C.

(2) Donations. Sponsors may obtain and use donated food items to meet the meal service requirements outlined in 7 CFR 225.16, incorporated in Rule 5P-3.001, F.A.C., for meal service. Documentation required for the use of donated food items must include:

(a) The Sponsor’s name and sponsor number;

(b) The name of the person or organization donating food items;

(c) The donor’s physical address;

(d) The donor’s phone number;

(e) The donor’s email address;

(f) The food item(s) being donated, including the quantity and size;

(g) The estimated value of donation; and

(h) A statement certifying that:

1. All information provided in the documentation is true;

2. All donated items listed have been received meet proper sanitation and health standards which conform with all applicable state and local public health requirements and without compensation to the donor;

3. The Sponsor understands the department may verify the information and request additional documentation such as invoices and receipts of the actual purchases from the donor and that the donor has been informed of such conditions; and

4. The Sponsor understands that if false information regarding donations is purposely provided, the Sponsor will be deemed Seriously Deficient and subject to suspension, pursuant to paragraph 5P-1.004(1)(a), F.A.C.

(3) Invoices and Receipts. All items listed in program invoices and receipts must be allowable program expenses as required FNS Instruction 796-4 Form FNS-389 (9-88), which is hereby adopted and incorporated by reference and available online at https://www.flrules.org/gateway/refernece.asp?no=ref-XXXXX.

(4) Training. Food service management companies wanting to contract to provide food services to any Sponsor must complete, with an eighty (80) percent passing score or higher, the online vendor training found at http://freshforfloridakidstraining.com, or attend an in-person vendor training, conducted by the department, prior to bidding on any Sponsor solicitations.

(5) Performance Bonds. In accordance with 7 CFR 225.15(m)(6)-(7), incorporated in Rule 5P-3.001, F.A.C., each food service management company that enters into a food service contract for over $100,000 with a Sponsor must obtain a performance bond equal to ten (10) percent of the value of the contract.

Rulemaking Authority 570.07(23), 595.404(4), 595.404(10) FS. Law Implemented 595.404 FS. History-New_____.

 

5P-3.004 Reimbursement Process and Financial Management

(1) Start-up Funds. In accordance with 7 CFR 225.9(a), incorporated in Rule 5P-3.001, F.A.C., the department will not provide startup payments to Sponsors for the Summer Food Service Program.

(2) Advances. The department will make advance payments to Sponsors as requested in the application to assist in meeting operating costs and administrative expenses in accordance with the criteria established in 7 CFR 225.9(c), incorporated in Rule 5P-3.001, F.A.C., and the application deadlines set forth in Rule 5P-3.002, F.A.C.

(a) When processing requests for advance payments, the department will take into consideration unused reimbursement the Sponsor has carried over from the previous year of operations, if applicable. The department will deduct the total amount of unused reimbursement from the year prior to the current year from the total advance requested.

(b) Advance payments to Sponsors for any one month will not exceed $40,000.

(3) Claims. Claims for Reimbursement must only be made by Sponsors operating under written agreement, incorporated in subsection 5P-3.001(11), F.A.C., with the department.

(4) Due Dates. All Sponsors must submit to the department a monthly Claim for Reimbursement online at https://fans.freshfromflorida.com, or by mail to 600 S. Calhoun Street (H2), Tallahassee, FL 32399, using the form entitled “Summer Nutrition Programs Claim for Reimbursement”, FDACS-02007 Rev. 06/18, which is hereby incorporated by reference and available online at https://www.flrules.org/gateway/refernece.asp?no=ref-XXXXX.

(a) Claim for Reimbursement forms must be postmarked or submitted online to the department not later than thirty (30) calendar days following the last day of the month covered by the claim (claim month).

(b) Adjustments on Claims for Reimbursement must be completed and postmarked or submitted online to the department within sixty (60) calendar days of the last day of the claim month. Upward adjustments on Claims for Reimbursement are limited to two adjustments per claim month per Sponsor unless the adjustment results from an Administrative Review or from federally-required or state-imposed audits.

(5) Combined Claims. Sponsors must combine the Claim for Reimbursement as follows:

(a) If the Sponsor operated the program for ten (10) operating days or less in their initial month of operations, the Claim for Reimbursement for the initial month must be combined with the Claim for Reimbursement for the subsequent month;

(b) If the Sponsor operated the program for ten (10) operating days or less in their final month of operations, the Claim for Reimbursement for the final month must be combined with the with the Claim for Reimbursement for the preceding month.

(6) One-Time Exception. Claims for Reimbursement and any adjustments made to Claims for Reimbursement not filed within the prescribed timeframes will not be paid by the department unless otherwise authorized by USDA’s Food and Nutrition Service (FNS) or as provided in paragraph (a) of this subsection.

(a) A Sponsor may only request a one-time exception for late submission of Claims for Reimbursement every thirty-six (36) months. To be granted an exception, Sponsors must submit a corrective action plan online at https://fans.freshfromflorida.com or by mail to 600 S. Calhoun Street (H2), Tallahassee, FL 32399.

(b) The corrective action plan must include:

1. The reason(s) contributing to the late submission of the claim or upward adjustment of the claim;

2. An outline of the action(s) to be taken to avoid future late submissions;

3. A statement of understanding regarding the frequency of one-time exceptions in paragraph (a) of this subsection; and

4. The signature of an authorized representative.

(7) Inaccurate Claim for Reimbursement. The department’s response to a Sponsor failing to submit an accurate Claim for Reimbursement will be governed by 7 CFR 225.12, incorporated in Rule 5P-3.001, F.A.C., except that the department will recover current fiscal year overpayments from a Sponsor by offsetting future Claims for Reimbursement.

(8) Excess Funds. Pursuant to 7 CFR 225.9(c)(5), previously incorporated in Rule 5P-3.001, F.A.C., Sponsors must repay any advance payments in excess of the total amount filed in the Claims for Reimbursement for the current program year. The department will recover Excess Funds from a Sponsor through direct assessment using the following collection procedures:

(a) The department will make a written demand to the Sponsor for the return of Excess Funds via certified mail, return receipt requested, and will consider this demand received by the Sponsor five (5) calendar days following the date the notice was sent.

(b) If after thirty (30) calendar days from receipt, the Sponsor fails to remit full payment or agree to a satisfactory repayment schedule, a second written demand for the return of Excess Funds shall be sent to the Sponsor by the department via certified mail, return receipt requested.

(c) If after sixty (60) calendar days following the original written demand, the Sponsor fails to remit full payment or agree to a repayment schedule, a third written demand for the return of improper payments shall be sent to the Sponsor by the department via certified mail, return receipt requested. This third demand will contain a due date of ninety (90) calendar days from the date of original debt.

(d) If after ninety (90) calendar days following the original written demand, the Sponsor fails to remit full payment or agree to a repayment schedule, all information pertaining to the debt will be forwarded by the department to the Department of Financial Services for collection.

(9) Unused Reimbursement. If a Sponsor receives more reimbursement than is expended on allowable costs, the Sponsor must use this unused reimbursement as prescribed in 7 CFR 225.9(g), previously incorporated in Rule 5P-3.001, F.A.C. Sponsors with unused reimbursement remaining at the end of the program year must submit a statement to the department online at https://fans.freshfromflorida.com, or by mail to 600 S. Calhoun Street (H2), Tallahassee, FL 32399, not later than December 31 of each year, using the form entitled “Summer Food Service Program Unused Reimbursement Certificate”, FDACS-01974 Rev. 10/18, which is hereby incorporated by reference and available online at https://www.flrules.org/gateway/refernece.asp?no=ref-XXXXX, certifying that all unused reimbursement will be used either as startup funds or for improving the Summer Food Service Program services the subsequent year.

(a) If the Sponsor does not submit the Summer Food Service Program Unused Reimbursement Certificate, FDACS-01974 Rev. 10/18, the Sponsor’s application for the subsequent year’s Summer Food Service Program will not be approved until it is received.

(b) Sponsors may not transfer unused reimbursement to operations that are not related to the Child Nutrition Programs or increase salary or fringe benefit costs when the sole purpose of the increase is to reduce the Summer Food Service Program balance.

(c) If the Sponsor will not be participating in Summer Food Service Program in the next year, unused reimbursement must be used towards the Sponsor’s provision of other Child Nutrition Programs.

Rulemaking Authority 570.07(23), 595.404(4), 595.404(10) FS. Law Implemented 595.404 FS. History-New_____.

 

5P-3.005 Administrative Reviews

(1) Administrative Review. The department will conduct Administrative Reviews of Sponsors participating in the Summer Food Service Program in accordance with 7 CFR 225.7(d)(2)(ii), incorporated in Rule 5P-3.001, F.A.C., and the 2017 USDA Summer Food Service Program State Agency Monitor Guide, which is hereby adopted and incorporated by reference and available online at: https://www.flrules.org/gateway/reference.asp?no=ref-XXXXX.

(2) Audits. The department will include currently applicable deficiencies from federally-required audit activity or from any state-imposed audit requirements in the Administrative Review to prevent duplication of effort when or if findings pertain to the reviewed Sponsors or the overall operation of the Summer Food Service Program and are relevant to the review period.

(3) Overpayment. In conducting Administrative Reviews for any fiscal year, the department will disregard overpayment which does not exceed $100, in accordance with 7 CFR 225.10(c), incorporated in Rule 5P-3.001, F.A.C.

(4) State Site Reviews. The department will review food service operations at each site included in the Administrative Review using the form entitled “Summer Food Service Program State Site Review”, FDACS-01947 Rev. 06/18, previously incorporated in subsection 5P-3.003(11), F.A.C. Should any meals be disallowed at a site for reasons outlined in the 2017 USDA Summer Food Service Program State Agency Monitor Guide, previously incorporated in this rule, the Sponsor must provide documentation showing the disallowed meals were deducted from the Claim for Reimbursement to the department online at https://fans.freshfromflorida.com, or by mail to 600 S. Calhoun Street (H2), Tallahassee, FL 32399, within seven (7) calendar days of the Site Review and prior to receiving payment on the Claim for Reimbursement.

(5) Program Records. The Sponsor has a duty to maintain program records as required in the Child Nutrition Programs Agreement, FDACS-01716 Rev. 04/16, incorporated in subsection 5P-2.001(7), F.A.C. The Sponsor must make available to the department all required program records no later than the last day of the scheduled Administrative Review period and upon request by the department. The department may grant a one-time extension, per Administrative Review, to the timeframe to provide all required program records by seven (7) calendar days upon written request by the Sponsor when extraordinary circumstances arise, such as temporary site closures, natural disasters, extreme weather conditions, or other circumstances beyond the Sponsor’s control. Documentation will not be accepted for review beyond the date established between the Sponsor and the department. “Program records” means all invoices, receipts, accounting records, bank statements, check ledgers, credit card statements, meal count records, meal delivery receipts, budgets, and any other records generated by a Sponsor or vendor during the operation of the Summer Food Service Program.

(6) Meal Validation. During the Administrative Review, meal counts submitted with the Claim for Reimbursement will be validated using a two-part review process that includes reviewing meal counts taken at the point of service and analyzing program invoices and receipts for an accurate number of meals eligible for reimbursement unless the Sponsor can provide the following:

(a) Beginning and ending inventory for each claim period (month); and

(b) Production records for each meal service provided during the claim period.

(7) Exit Conference. The department will hold an exit conference at the close of the Administrative Review to discuss overall program operations, any program deficiencies observed, the extent of the program deficiencies and the actions needed to correct the program deficiencies. The department will set an appropriate deadline(s) for completion of corrective action based on the type of corrective action to be completed.

(8) Report. The department will provide the Sponsor with an Administrative Review Report.

(a) The Administrative Review Report will include the program deficiencies observed, the needed corrective actions, the deadlines for completion of the corrective action, and the potential fiscal action and accompanying appeal rights.

(b) If the program deficiencies observed include those described in sub-subparagraphs 5P-1.004(1)(a)1.a.-k., F.A.C., the Sponsor will be declared Seriously Deficient.

(c) A preliminary and tentative report will be sent via email, not later than the next business day following the Exit Conference. Upon completion, the Administrative Review Report will be sent via email and certified mail, return receipt requested and will be considered received by the Sponsor five (5) calendar days following the date the notice was sent.

(9) Corrective Action. For any program deficiencies identified by the department through an Administrative Review, Sponsors must submit a corrective action plan with supporting documentation to the department online at https://fans.freshfromflorida.com, or by mail to 600 S. Calhoun Street (H2), Tallahassee, FL 32399, within thirty (30) calendar days of the date of receipt of the Administrative Review Report. The corrective action plan must include:

(a) Each identified program deficiency;

(b) The corrective action required;

(c) The timeframe by which the corrective action will be, or was completed; and

(d) Documentation to demonstrate corrective action was completed as applicable and as prescribed in the Administrative Review Report.

(10) Extension Requests. The department may extend the timeframe(s) specified to complete the required corrective action(s) upon the written request of Sponsor when extraordinary circumstances arise, such as temporary closures, natural disasters, extreme weather conditions, or other circumstances beyond the Sponsor’s control.

(a) A request to extend the timeframe(s) to complete the required corrective action(s) must be submitted to the department online at https://fans.freshfromflorida.com, or by mail to 600 S. Calhoun Street (H2), Tallahassee, FL 32399, within seven (7) calendar days of the date of receipt of the Administrative Review Report.

(b) This request must include the following:

1. A justification that demonstrates good cause beyond the Sponsor’s control for why the corrective action plan cannot be submitted by the original completion date. Good cause includes unexpected, temporary closures, natural disasters, extreme weather conditions, or other circumstances beyond the Sponsor’s control, and

2. Specify the new desired completion date.

(11) Seriously Deficient. If after thirty (30) calendar days of the date of notification, the Sponsor fails to respond to the department regarding the required corrective actions or fails to request an extension of the timeframe in which the corrective actions can be completed, the Sponsor will be deemed Seriously Deficient and subject to suspension, pursuant to paragraph 5P-1.004(1)(a), F.A.C.

(12) Follow-up Reviews. Follow-up reviews of Sponsors and sites will be conducted if:

(a) The Sponsor is declared Seriously Deficient;

(b) A food safety deficiency is noted during the Administrative or Site Review; or

(c) When the number of meals served as observed by the department is significantly lower than the number of meals claimed by a site on a prior day of the current year; and

(d) To ensure that corrective action has been taken as prescribed by the department in the Administrative Review Report.

(13) Food Preparation Facility Inspections. In accordance with 7 CFR 225.7(e), incorporated in Rule 5P-3.001, F.A.C., the department, through an agreement with state or local health departments or other governmental agencies charged with health inspection functions, will conduct meal quality tests, inspections of self-preparation and vended Sponsors' food preparation facilities, and inspections of food service sites. If these agencies cannot perform such inspections or tests, the department will contract with an independent agency to perform these services.

Rulemaking Authority 570.07(23), 595.404(4), 595.404(10), FS. Law Implemented 595.404, 595.501 FS. History-New_____.

 

5P-3.006 Fiscal Action

(1) Fiscal Action. Fiscal Action is defined as the recovery of overpayment through direct assessment or offset of future Claims for Reimbursement, disallowance of any portion of a Claim for Reimbursement, disallowance of overclaims as reflected in unpaid Claims for Reimbursement, submission of a revised Claim for Reimbursement, and correction of program records to ensure that unfiled Claims for Reimbursement are corrected when filed. Fiscal action also includes disallowance of funds for failure to take corrective action to meet the meal requirements in 7 CFR 225.16(d), incorporated in Rule 5P-3.001, F.A.C., and restoration of the nonprofit food service account from a nonfederal source for unallowable costs pursuant to 2 CFR 200, incorporated in Rule 5P-3.001, F.A.C.

(2) Assessment of Fiscal Action. Fiscal Action must be assessed when program deficiencies include:

(a) Inaccurate meal counting and claiming identified during the Administrative Review occurring at the site or sponsor-level;

(b) Meals that were counted as reimbursable meals, but were ineligible for reimbursement, such as second meals exceeding the two percent (2%) limit and adult meals;

(c) Meals served that were counted as reimbursable meals but were observed to be missing meal components;

(d) Meals that were not supported by program records (e.g., no records or insufficient records were provided);

(e) Meals served at unapproved sites;

(f) Meals served that cannot be validated, or

(g) Identified unallowable costs to the program, embezzlement, willful misapplication of funds, theft, or fraudulent activity.

(3) Recovery of Payment. The department will recover any fiscal action assessed pursuant to subparagraph (2) of this rule, per the collection procedures outlined in 7 CFR 225.12(b), incorporated in Rule 5P-3.001, F.A.C., and the following procedures:

(a) The department will make a written demand to the Sponsor stating the Fiscal Action assessed via certified mail, return receipt requested.

(b) If after thirty (30) calendar days, the Sponsor has failed to remit full payment or agree to a repayment schedule, the Sponsor will be declared Seriously Deficient pursuant to subsection 5P-1.004(1)(a), F.A.C.

(4) Penalties. Failure to comply with the requirements of this rule chapter will result in the penalties prescribed in Rule 5P-1.004, F.A.C. and 7 CFR 225.11(c) and 7 CFR 225.11(f), incorporated in Rule 5P-3.001, F.A.C.

Rulemaking Authority 570.07(23), 595.404(4), 595.404(10), FS. Law Implemented 595.404, 595.501 FS. History-New_____.

 

NAME OF PERSON ORIGINATING PROPOSED RULE: Lakeisha T. Hood, Division Director

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

DATE PROPOSED RULE APPROVED BY AGENCY HEAD: December 12, 2018

DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAR: August 20, 2018