Program Participation, Program Responsibilities, Procurement Standards, Reimbursement Process, Administrative Reviews, Fiscal Action
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
NOTICE OF CHANGE
Notice is hereby given that the following changes have been made to the proposed rule in accordance with subparagraph 120.54(3)(d)1., F.S., published in Vol. 45 No. 85, May 1, 2019 issue of the Florida Administrative Register.
5P-2.001 Program Participation.
Each School Food Authority, as defined in 7 CFR 210.2 incorporated in Rule 5P-1.001, F.A.C., 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 applicable 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. A Sponsor participating in the Summer Food Service Program, as defined in Rule 5P-1.001, F.A.C., must also comply with the standards provided in 7 CFR 225, incorporated in Rule 5P-3.001, F.A.C.
(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. 06/19 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. through 2. No change.
(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 offered by the department with eighty (80) percent accuracy or higher prior to being considered for approval for participation.
(2) through (5) No change.
(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. 06/1918, 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 paragraph subsection 5P-2.001(1)(a), 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) through (7) No change.
(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 Supplemental Nutrition Assistance Program (SNAP), Temporary Assistance for Needy Families (TANF), and Medicaid at least three times each school year as scheduled below:
1. through 3. No change.
(b) No change.
(9) October Data. All Sponsors must submit October Data, as defined in Rule 5P-1.001, F.A.C., 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) No change.
(11) April Data. All Sponsors must submit April Data, as defined in Rule 5P-1.001, F.A.C., 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.
(a) Each Sponsor must attempt to obtain a minimum of two (2) food safety inspections for each site during each school year as required by 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) food safety inspections are completed during a school year, the Sponsor must also provide to the department a brief explanation of the reasons for failing to meet the requirement 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 as required by paragraph (a), the department will require the Sponsor must, within 90 days of submitting the Net Cash Resources Report, take one or more of the following actions designed to improve the school food service: 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 upgradeing food service equipment, developing nutrition education materials and curricula, or provide additional 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 measures taken by the Sponsor in accordance with this paragraph must reduce their nonprofit school food service account to no more than three months’ average expenditures. 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. 06/19 10/18, which is hereby incorporated by reference and available online at https://www.flrules.org/gateway/reference.asp?no=ref-XXXXX.
(b) though (c) No change.
(16) No change.
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) No change.
(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 provided by the department, 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-2.004 Reimbursement Process.
(1) Advances. The 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) No change.
(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) through (b) No change.
(4) through (5) No change.
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) through (4) No change.
(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) No change.
(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) through (b) No change.
(c) The Administrative Review Report will be sent via email and regular United States 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.
(8)(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) through (d) No change.
(9)(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) through (b) No change.
(10)(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.
(11)(10) Follow-up Reviews. Follow-up reviews of Sponsors and sites will be conducted if:
(a) through (b) No change.
(c) The 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) No change.
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) No change.
(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) No change.
(b) If after thirty (30) calendar days from receipt of the written demand, 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) No change.
(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_____.
