This rulemaking adopts rules for the administration of School Nutrition Programs.  

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    DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES

    Division of Food, Nutrition and Wellness

    RULE NOS.:RULE TITLES:

    5P-2.001Program Participation

    5P-2.002Program Responsibilities

    5P-2.003Procurement Standards

    5P-2.004Reimbursement Process

    5P-2.005Administrative Reviews

    5P-2.006Fiscal Action

    5P-2.009Emergency Meals

    PURPOSE AND EFFECT: This rulemaking adopts rules for the administration of School Nutrition Programs.

    SUMMARY: The proposed rules establish eligibility criteria, identify program responsibilities, set procurement standards, present requirements for reimbursement, and demonstrate how Administrative Reviews will be conducted to determine any necessary fiscal action of School Nutrition Programs. The proposed rules are specific to Florida’s practices as allowed by 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, Tallahassee, FL 32399, (850)617-7400

     

    THE FULL TEXT OF THE PROPOSED RULE IS:

     

    5P-2.001 Program Participation.

    Each School Food Authority desiring to participate in a School Nutrition Program, as defined in subsection 5P-1.001(1), F.A.C., and each participating Sponsor, 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 210, 7 CFR 220, 7 CFR 245 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) School Nutrition Program Application. School Food Authorities desiring to participate in a School Nutrition Program must be eligible as required by FNS Instruction 776-7, Rev. 1 FNS-620 (10/81), which is hereby adopted and incorporated by reference and available online at https://www.flrules.org/gateway/reference.asp?no=ref-XXXXX, 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 “School Nutrition Programs Application”, FDACS-01951 Rev. 12/18, 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; and

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

    (b) If the School Food Authorities did not participate in the program in the year prior to the current year, the School Food Authorities must complete the School Nutrition Program training with eighty (80) percent accuracy or higher prior to being considered for approval for participation.

    (2) Application Deadlines. Applications to participate in the School Nutrition Programs cover the period of July 1–June 30 annually. Applications must be received by the last day of February for participation in the current school year. Applications received between March 1 and June 30 will be considered for the following school year.

    (3) Afterschool Snack Program. School Food Authorities are eligible to participate in the Afterschool Snack Program if they are a current Sponsor in a School Nutrition Program.

    (4) Seriously Deficient Sponsors. Seriously Deficient Sponsors are Sponsors that were declared Seriously Deficient pursuant to paragraph 5P-1.004(1)(a), F.A.C. Sponsors reapplying for participation in School Nutrition Programs that were declared Seriously Deficient in the year prior to the current year, must be eligible as required in this rule, and must submit an application pursuant to paragraph 5P-2.001(1)(a), F.A.C.

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

    (6) Agreement. Each Sponsor approved to participate in the School Nutrition Program must enter into a written agreement with the department, using the form entitled “Child Nutrition Programs Agreement”, FDACS-01716 Rev. 06/18, which is hereby incorporated by reference and available online at http://www.flrules.org/Gateway/reference.asp?No=Ref-XXXX.

    (7) Terminated Sponsors. Sponsors that have been terminated from the School Nutrition Program and are applying again to participate must meet all eligibility requirements in this rule chapter and submit an application pursuant to subsection 5P-2.001(1), F.A.C.

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

     

    5P-2.002 Program Responsibilities.

    (1) Meal Service Times. School Nutrition Program lunches must be served in accordance with the timing requirements specified in 7 CFR 210.10(l)(1), previously incorporated in Rule 5P-2.001, F.A.C. The school principal and staff must schedule meal serving periods in such a manner as to permit and encourage maximum student participation in the School Nutrition Program. The Department of Agriculture and Consumer Services shall have the following responsibilities:

    (a) To require that all Child Nutrition Programs 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 15, 15a, 15b, 210, 215, 220, 225, 226, 240, 245, 250 and 252, all revised as of January 1, 2018, which are hereby adopted and incorporated by reference and available online at https://www.flrules.org/Gateway/reference.asp?no=Ref-09513.

    (b) To require that all Child Nutrition Programs meet at least the minimum standards established by chapter 595, Florida Statutes, under title 5P, Florida Administrative Code.

    (c) 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 in equal amounts quarterly.

    (2) Break Out Meal Service. Sponsors desiring to serve lunch to children ages 1 through 4 over two service periods must submit a request in writing to the department for approval. Requests must be submitted online at https://fans.freshfromflorida.com, or by mail to 600 S. Calhoun Street (H2), Tallahassee, FL 32399, using the form entitled “Request to Break Out Meal Service”, FDACS-01950 12/18, which is hereby incorporated by reference and available online at https://www.flrules.org/gateway/reference.asp?no=ref-XXXXX. Requests must be received by the department at least fourteen (14) days prior to the requested date the two service periods are to take effect. Each School Nutrition Programs Sponsor 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.

    (c) To control the sale of food and beverage items in competition with the School Nutrition Program in accordance with 7 CFR 210.11, previously incorporated in paragraph (1)(a) of this rule. 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, 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, previously incorporated in paragraph (1)(a) of this rule, and grain products as defined in 7 CFR 210.11. Each Sponsor 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 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 policy and has been approved by the school principal or designee.

    (d) To maintain a Healthy School Team 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 (2)(c) of this rule and 7 CFR 210.11, previously incorporated in paragraph (1)(a) of this rule, 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 (2)(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 for the control, administration, supervision, and operation of all School Nutrition Programs. The Sponsor may contract with a food management company to provide food service in one (1) or more schools; provided that the Sponsor shall retain responsibility for its operation, administration, supervision and control, in compliance with the program agreement and federal regulations.

    (g) 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, previously incorporated in paragraph (1)(a) of this rule. This policy shall include a plan for verifying economic need of students and shall be approved by the Department.

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

    (3) Point of Service. Meal counts must be taken daily at the point of service in accordance with 7 CFR 210.7(c)(1) through (2), previously incorporated in Rule 5P-2.001, F.A.C. Sponsors desiring to implement an alternate point of service must submit a request for approval to the department online at https://fans.freshfromflorida.com, or by mail to 600 S. Calhoun Street (H2), Tallahassee, FL 32399, using the form entitled “Alternative Point of Service Request”, FDACS-01912 Rev. 12/18, which is hereby incorporated by reference and available online at https://www.flrules.org/gateway/reference.asp?no=ref-XXXXX. The school principal and local school staff shall schedule meal serving periods in such a manner as to permit and encourage maximum student participation in the School Nutrition Program.

    (4) Competitive Foods. Each Sponsor must control the sale of food and beverage items in competition with the School Nutrition Program in accordance with 7 CFR 210.11, previously incorporated in Rule 5P-2.001, F.A.C. 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 Sponsor, 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, previously incorporated in Rule 5P-2.001, F.A.C., and grain products as defined in 7 CFR 210.11. Each Sponsor is permitted to grant sites a special exemption from the standards for competitive foods as specified above for the purpose of conducting school-sponsored fundraisers, not to exceed the following maximum number of school days per site each school year:

    Site 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 must 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, will 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” is defined as any event or activity occurring on site 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 policy and has been approved by the school principal or designee. 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 Rev. 04/18, National School Lunch Program Claim Form, http://www.flrules.org/Gateway/reference.asp?No=Ref-09514.

    (b) FDACS 01718 Rev. 04/18, Special Milk Program Claim Form, http://www.flrules.org/Gateway/reference.asp?No=Ref-09515.

    (c) FDACS 01713 Rev. 04/18, Net Cash Resources Report, http://www.flrules.org/Gateway/reference.asp?No=Ref-09516.

    (d) FDACS 01716 Rev. 04/18, Child Nutrition Programs Agreement, http://www.flrules.org/Gateway/reference.asp?No=Ref-09517.

    (5) Healthy School Teams. Sponsors must maintain a Healthy School Team for all sites under its jurisdiction. 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. A Healthy School Team will:

    (a) Be responsible for ensuring compliance with subsection (4) of this rule and 7 CFR 210.11, previously incorporated in Rule 5P-2.001, F.A.C., as it relates to competitive food and beverage items sold on site;

    (b) Maintain a calendar identifying the dates when exempted competitive food fundraisers will occur in accordance with the frequency specified in subsection (4) of this rule; and

    (c) Report its compliance with this rule and the local school wellness policy required in 7 CFR 210.31, previously incorporated in Rule 5P-2.001, F.A.C., to the designated official responsible for overall compliance with 7 CFR 210.31.

    (6) Food Service Management Companies. Sponsors must provide for the control, administration, supervision, and operation of all School Nutrition Programs. The Sponsor may contract with a food service management company to provide food service for one (1) or more sites but the Sponsor must retain responsibility for the program’s operation, administration, supervision and control.

    (7) Economically-needy Students. Sponsors must adopt a policy for providing economically needy students with free and reduced price meals that will comply with and 7 CFR 210, 7 CFR 220, and 7 CFR 245, previously incorporated in Rule 5P-2.001, F.A.C.

    (8) Direct Certification. Sponsors must Directly Certify children as eligible for free program participation as specified in 7 CFR 245.6(b), previously incorporated in Rule 5P-2.001, F.A.C., except for residential child care institutions only serving its residents.

    (a) All Sponsors must conduct Direct Certification with SNAP, TANF, and Medicaid at least three times each school year as scheduled below:

    1. Before October 1;

    2. After October 1 and before January 15; and

    3. After January 15 and before April 1.

    (b) Direct Certification for SNAP, TANF, and Medicaid must be conducted using the Florida Direct Certification system online at https://fdc.freshfromflorida.com, or by requesting the Direct Certification List for specific counties.

    1. Requests for access to the Florida Direct Certification system or the Direct Certification List must be submitted online at https://fans.freshfromflorida.com, or by mail to 600 S. Calhoun Street (H2), Tallahassee, FL 32399, using the form entitled “Direct Certification Agreement”, FDACS-01804 Rev. 12/18, which is hereby incorporated by reference and available online at https://www.flrules.org/gateway/reference.asp?no=ref-XXXXX.

    2. Direct Certification must only be conducted using the Florida Direct Certification system or the Direct Certification List.

    (9) October Data. All Sponsors must submit October Data to the department online at https://fans.freshfromflorida.com, or by mail to 600 S. Calhoun Street (H2), Tallahassee, FL 32399, using the form entitled “October Data Collection Form”, FDACS-01943 Rev. 12/18, which is hereby incorporated by reference and available online at https://www.flrules.org/gateway/reference.asp?no=ref-XXXXX, no later than November 30 of each year.

    (10) Verification. Verification must be conducted in accordance with 7 CFR 245.6a(c), previously incorporated in Rule 5P-2.001, F.A.C. All Sponsors must submit data retrieved during Verification efforts to the department online at https://fans.freshfromflorida.com, or by mail to 600 S. Calhoun Street (H2), Tallahassee, FL 32399, using the form entitled “School Food Authority (SFA) Verification Collection Report,” FNS-742 (10/12), which is hereby adopted and incorporated by reference and available online at https://www.flrules.org/gateway/reference.asp?no=ref-XXXXX, no later than November 30 of each year.

    (11) April Data. All Sponsors must submit April data to the department online at https://fans.freshfromflorida.com, or by mail to 600 S. Calhoun Street (H2), Tallahassee, FL 32399, using the form entitled “April Data Collection Form”, FDACS-01940 Rev. 12/18, which is hereby incorporated by reference and available online at https://www.flrules.org/gateway/reference.asp?no=ref-XXXXX, no later than April 10 of each year.

    (12) Food Safety Inspections. Each Sponsor must attempt to obtain a minimum of two (2) food safety inspections for each site during each school year as specified in 7 CFR 210.13(b) and 7 CFR 220.7(a)(2), previously incorporated in Rule 5P-2.001, F.A.C. The scope of the food safety inspections may vary according to the type of food service operations and is determined by the agency responsible for inspections.

    (a) If less than two (2) inspections are completed, one of the following reasons must be reported as to why:

    1. The site is a satellite self-preparation site or a service only site;

    2. The site opened after the last day of February in the current school year;

    3. The site closed on or before the last day of February in the current school year; or

    4. The agency responsible for performing the inspections did not have a health inspector available.

    (b) Sponsors must report to the department online at https://fans.freshfromflorida.com, or by mail to 600 S. Calhoun Street (H2), Tallahassee, FL 32399, no later than May 15 of each year, the number of food safety inspections for all sites operating School Nutrition Programs. If less than two (2) inspections are completed, the Sponsor must have documentation demonstrating a second inspection was requested and the result of the request.

    (13) Indirect Costs. Sponsors must limit the amount of funds recovered annually for food service indirect costs to the restricted federal indirect cost rate approved annually by the Florida Department of Education, multiplied by the total Nonprofit School Food Service Account expenditures less expenditures for capital outlay, replacement of equipment, and USDA Foods; and cash-in-lieu of donated foods.

    (14) Net Cash Resources. Sponsors must report net cash resources for the prior fiscal year to the department as part of the annual renewal process online at https://fans.freshfromflorida.com, or by mail to 600 S. Calhoun Street (H2), Tallahassee, FL 32399, using the form entitled “Net Cash Resources Report”, FDACS-02045 Rev. 12/18, which is hereby incorporated by reference and available online at https://www.flrules.org/gateway/reference.asp?no=ref-XXXXX.

    (a) Sponsors reporting net cash resources in excess of three months’ average expenditures must within 60 days of submitting the Net Cash Resources Report, submit an action plan, online at https://fans.freshfromflorida.com, or by mail to 600 S. Calhoun Street (H2), Tallahassee, FL 32399, using the form entitled “Net Cash Resources Action Plan”, FDACS-02044 12/18, which is hereby incorporated by reference and available online at https://www.flrules.org/gateway/reference.asp?no=ref-XXXXX, to reduce their nonprofit school food service account to no more than three months’ average expenditures.

    (b) Should the Sponsor fail to submit an action plan to the department, the department will require the Sponsor to reduce the price children are charged for lunch, improve food quality, or take other action designed to improve the school food service, such as upgrading food service equipment, developing nutrition education materials and curricula, or training of food service personnel, and any other use in accordance with 2 CFR 200, previously incorporated in Rule 5P-2.001, F.A.C. The department will work with each Sponsor to determine the best course of action.

    (15) Equipment and Capital Expenditures. All equipment and capital expenditures, as defined by 2 CFR 200.439, previously incorporated in Rule 5P-2.001, F.A.C., with a per-unit acquisition cost of $5,000 or more and accruing to a Sponsor’s nonprofit school food service account must be pre-approved by the department.

    (a) Requests for approval of equipment and capital expenditures must be submitted to the department online at https://fans.freshfromflorida.com, or by mail to 600 S. Calhoun Street (H2), Tallahassee, FL 32399 using the form entitled “Capital Expenditure Pre-Approval Request”, FDACS-02011 Rev. 10/18, which is hereby incorporated by reference and available online at https://www.flrules.org/gateway/reference.asp?no=ref-XXXXX.

    (b) Any equipment and capital expenditures not meeting the general criteria for allowability as set out in Subpart E – Cost Principles of 2 CFR 200, previously incorporated in Rule 5P-2.001, F.A.C., will not be approved by the department.

    (c) Any equipment and capital expenditures found on the department’s FNS-approved equipment list will receive automatic department approval without submission of a request for approval. The FNS-approved equipment list is made available online at https://fans.freshfromflorida.com or by written request mailed to 600 S. Calhoun Street (H2), Tallahassee, FL 32399.

    (16) 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, previously incorporated in Rule 5P-2.001, 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 Summer Food Service Program, if applicable, School Nutrition Programs, and all other federal awards as defined in 2 CFR 200.38, previously incorporated in Rule 5P-2.001, 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 (800) 504-6609.

    (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 School Nutrition Programs are noted in the audit report, and require corrective action, 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.

    Rulemaking Authority 570.07(23), 595.404(4), (10), (11) FS. Law Implemented 595.404 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, 6-21-18, Formerly 5P-1.003, Amended __________.

     

    5P-2.003 Procurement Standards.

    (1) Contracts. All contracts must be issued using the standards outlined in 7 CFR 210.21, 7 CFR 220.16 and 2 CFR 200, previously incorporated in Rule 5P-2.001, F.A.C.

    (a) Pursuant to 7 CFR 210.21(c)(1) and 7 CFR 220.16(c)(1), the department will conduct a pre-issuance review of each Sponsor’s proposed contracts.

    (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, previously incorporated in Rule 5P-2.001, F.A.C., for all other Sponsors.

    (c) Sponsors are allowed to enter into a Successive Purchasing Agreement, as defined in subsection 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-2.003(1)(b)2, F.A.C.

    (2) Training. A contractor or food service management company 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://freshfromflorida.com/trainFNW, or attend an in-person vendor training, prior to bidding on Sponsor solicitations.

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

     

    5P-2.004Reimbursement Process.

    (1) Advances. In accordance with 7 CFR 210.8(d) and 7 CFR 220.11(e), previously incorporated in Rule 5P-2.001, F.A.C., the department will not advance funds to Sponsors for School Nutrition Programs.

    (2) Claims. Claims for Reimbursement must only be made by Sponsors operating under written agreement, incorporated in subsection 5P-2.001(6), F.A.C., with the department except as provided in paragraph (a) through (c) of this subsection.

    (a) If a Sponsor has not executed a written agreement with the department prior to beginning program operations, the department will make reimbursement payments for meals served during the calendar month preceding the calendar month in which the written agreement is executed.

    (b) All meals must meet meal pattern requirements pursuant to 7 CFR 210.10, previously incorporated in Rule 5P-2.001, F.A.C.

    (c) The Sponsor must provide sufficient documentation to support the Claim for Reimbursement when submitted to the department. Such documentation must include the number of free, reduced price, and paid meals served to eligible children.

    (d) All Claims for Reimbursement must be submitted to the department online at https://fans.freshfromflorida.com, or by mail to 600 S. Calhoun Street (H2), Tallahassee, FL 32399, using the form entitled “National School Lunch Program Claim Form”, FDACS 01717 Rev. 12/18, which is hereby incorporated by reference and available online at http://www.flrules.org/Gateway/reference.asp?No=Ref-XXXXX.

    (3) 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 “National School Lunch Program Claim Form”, FDACS 01717 Rev. 12/18, previously incorporated in Rule 5P-2.002(2)(d), F.A.C.

    (a) Claim for Reimbursement forms must be postmarked or submitted online to the department not later than thirty (30) days following the last day of the full 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) 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 other federally-required or state-imposed audits.

    (4) 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 for all School Nutrition Programs collectively. 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 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.

    (5) Inactivation. Failure by any Sponsor to submit a Claim for Reimbursement for three (3) consecutive program months will result in the inactivation of the Sponsor’s participation in the School Nutrition Program. If the Sponsor would like to continue their active participation in the School Nutrition Program, the Sponsor will need to reapply as described in Rule 5P-2.001, F.A.C.

    Rulemaking Authority 570.07(23), 595.404(4), 595.404(5), 595.404(10) FS. Law Implemented 595.404 FS. History-New_____.

     

    5P-2.005 Administrative Reviews.

    (1) Administrative Review. The department will conduct Administrative Reviews of all Sponsors participating in the School Nutrition Programs in accordance with 7 CFR 210.18, previously incorporated in Rule 5P-2.001, F.A.C., and the 2018-2019 Administrative Review Guidance Manual, 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 findings 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 School Nutrition Programs 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 $600, in accordance with 7 CFR 210.19(d) and 7 CFR 220.15(c), previously incorporated in Rule 5P-2.001, F.A.C.

    (4) State Site Reviews. The department will review food service operations at each site included in the Administrative Review. Should any meals be disallowed at a site for reasons outlined in 7 CFR 210.18, previously incorporated in Rule 5P-2.001, F.A.C., and the 2018-2019 Administrative Review Guidance Manual, 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 must make available to the department all required program records no later than the last day of the scheduled Administrative Review period. 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 school closures, natural disasters, extreme weather conditions, or other circumstances beyond the Sponsor’s control. Documentation will not be accepted beyond the date established between the Sponsor and the department.

    (6) 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.

    (7) Report. The department will provide the Sponsor and the Sponsor’s Superintendent (or equivalent for a non-public 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 findings 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) The Administrative Review Report will be sent via email and certified mail, return receipt requested within thirty (30) calendar days of the exit conference at the close of the Administrative Review period and will be deemed received by the Sponsor five (5) calendar days following the date the notice was sent.

    (7) 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 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 prescribed in the Administrative Review Report.

    (8) Extension Requests. The department may extend the timeframe(s) specified to complete the required corrective action(s) upon the request of Sponsor when extraordinary circumstances arise; such as temporary school 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 thirty (30) calendar days 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.

    (9) 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.

    (10) 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 Review; or

    (c) When the number of student eligible for free or reduced-price meals as observed by the department is significantly different than the number of student eligible for free or reduced price 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.

    Rulemaking Authority 570.07(23), 595.404(4), 595.404(10), 595.501(1) FS. Law Implemented 595.404, 595.501 FS. History-New_____.

     

    5P-2.006 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 210.10 and 7 CFR 220.8, previously incorporated in Rule 5P-2.001, F.A.C., and restoration of the nonprofit school food service account from a nonfederal source for unallowable costs pursuant to 2 CFR 200, previously incorporated in Rule 5P-2.001, F.A.C.

    (2) Assessment of Fiscal Action. The department will assess fiscal action for program deficiencies identified in 7 CFR 210.18(l)(1) through (2), previously incorporated in Rule 5P-2.001, F.A.C., and identified unallowable costs to the program, embezzlement, willful misapplication of funds, theft, or fraudulent activity.

    (3) Recovery of Payment. The department’s response to a Sponsor failing to submit an accurate Claim for Reimbursement is governed by 7 CFR 210.8 and 7 CFR 220.14, previously incorporated in Rule 5P-2.001, F.A.C., except that the department will recover current fiscal year overpayments from a Sponsor by offsetting future Claims for Reimbursement. The department will recover overpayments identified from a prior fiscal year from a Sponsor, and any fiscal action assessed pursuant to subsection (2) of this rule, through direct assessment using the following collection 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 paragraph 5P-1.004(1)(a), F.A.C.

    (4) Withholding Payments. The department will withhold fifty (50) percent of program payments pursuant to 7 CFR 210.24 and 7 CFR 220.18 for the causes specified in 7 CFR 210.18(l)(1), previously incorporated in Rule 5P-2.001, F.A.C.

    (5) 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 210.25, 210.26, 7 CFR 220.6(b) through (c), and 7 CFR 220.19, previously incorporated in Rule 5P-2.001, F.A.C.

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

     

    5P-2.009 Emergency Meals

    Emergency meal services shall be administered as provided in paragraph 5P-3.001(11)(a), F.A.C. In addition, Sponsors must do the following:

    (1) Eligibility. In the event of an unanticipated school closure during the school year, the department will provide an expedited approval for School Districts, as defined in Section 595.402(5), F.S., operating the National School Lunch Program with current agreements to operate the Summer Food Service Program, pursuant to Rule 5P-3.001(11), F.A.C., if the Sponsor submits a letter of intention to provide such emergency meals to the department online at https://fans.freshfromflorida.com, or by mail to 600 S. Calhoun Street (H2), Tallahassee, FL 32399, accompanied by the Sponsor’s application to participate in the Summer Food Service Program, pursuant to Rule 5P-3.001(1)(a), F.A.C., and contain the following:

    (a) A list of the sites that would be activated to serve emergency meals;

    (b) The contact person for the School District regarding service of emergency meals;

    (c) The estimated number of children to be served;

    (d) Time(s) in which meals will be served;

    (e) Type(s) of meals to be served (i.e., breakfast, lunch, snack, and/or supper);

    (2) Location. Emergency meals must be served at the site and during the time(s) indicated in the letter of intention. If the Sponsor is unable to serve meals at the location and during the time(s) indicated in the letter of intention, the Sponsor must submit, using the same method described in Rule 5P-2.009(1), F.A.C., a request to change the location or time and the reason for the change.

    (3) Meal Pattern. All emergency meals served must meet the meal pattern requirements in 7 CFR 225.16(d) revised as of January 1, 2018, which is hereby adopted and incorporated by reference and available online at https://www.flrules.org/gateway/reference.asp?no=ref-XXXXX.

    (4) Claims for Reimbursement. Sponsors must submit Claims for Reimbursement in accordance with Rule 5P-3.004, F.A.C.

    (5) Record Retention. Sponsors must maintain all records necessary to demonstrate compliance with the requirements in this Rule, pursuant to 7 CFR 225.15(c) revised as of January 1, 2018, which is hereby adopted and incorporated by reference and available online at https://www.flrules.org/gateway/reference.asp?no=ref-XXXXX.

    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

    NAME OF AGENCY HEAD WHO APPROVED THE PROPOSED RULE: Commissioner of Agriculture Nicole Fried

    DATE PROPOSED RULE APPROVED BY AGENCY HEAD: April 25, 2019

    DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAR: November 30, 2018

Document Information

Comments Open:
5/1/2019
Summary:
The proposed rules establish eligibility criteria, identify program responsibilities, set procurement standards, present requirements for reimbursement, and demonstrate how Administrative Reviews will be conducted to determine any necessary fiscal action of School Nutrition Programs. The proposed rules are specific to Florida’s practices as allowed by the applicable Codes of Federal Regulations.
Purpose:
This rulemaking adopts rules for the administration of School Nutrition Programs.
Rulemaking Authority:
570.07(23); 595.404(4); 595.404(10), F.S.
Law:
595.404; 595.501, F.S.
Contact:
S. Quinn Skinner, 600 S. Calhoun Street, Tallahassee, FL 32399, (850) 617-7400
Related Rules: (7)
5P-2.001.
5P-2.002. Program Responsibilities
5P-2.003.
5P-2.004.
5P-2.005.
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