The purpose of this rulemaking is to clarify current appeals procedures and penalties for violations of Chapter 595, F.S., the rules adopted under Chapter 595, F.S., and any federal regulations incorporated by reference relative to all programs ...

 

DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES

Division of Food, Nutrition and Wellness

RULE NOS.:RULE TITLES:

5P-1.001Definitions

5P-1.002Appeals

5P-1.004Penalties and Sanctions

PURPOSE AND EFFECT: The purpose of this rulemaking is to clarify current appeals procedures and penalties for violations of Chapter 595, F.S., the rules adopted under Chapter 595, F.S., and any federal regulations incorporated by reference relative to all programs administered by the division.

SUMMARY: The proposed rulemaking amends the definition of School Nutrition Programs to include the Fresh Fruit and Vegetable Program; clarifies appealable agency actions for the type of appellant; reduces the time to complete corrective action after a determination of Seriously Deficient status to 30 days; and clarifies eligibility for participation in other division administered programs after suspension or termination.

SUMMARY OF STATEMENT OF ESTIMATED REGULATORY COSTS AND LEGISLATIVE RATIFICATION:

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

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

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

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

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

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

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

 

THE FULL TEXT OF THE PROPOSED RULE IS:

 

CHAPTER 5P-1

SCHOOL FOOD SERVICE PROGRAMS

5P-1.001 Definitions.

For the purposes of this chapter, the definitions in section 595.402, F.S., and Sections 7 CFR 210.2, 7 CFR 215.2, 7 CFR 220.2, 7 CFR 225.2, 7 CFR 245.2, 7 CFR 247.1, 7 CFR 248.2, 7 CFR 250.2, 7 CFR 251.3, 7 CFR 252.2, all revised as of January 1, 2018, and hereby adopted and incorporated by reference and available online at http://www.flrules.org/Gateway/reference.asp?No=Ref-09512, and the following shall apply:

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

(2) through (44) No change.

Rulemaking Authority 570.07(23), 595.404(4), (10), (11) FS. Law Implemented 595.402, 595.404 FS. History–New 4-19-73, Repromulgated 12-5-74, Formerly 6A-7.40, Amended 5-3-88, Formerly 6A-7.040, Amended 6-21-18, _________.

 

5P-1.002 Appeals.

(1) through (2) No change.

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

(a) A denial of an application for participation;

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

(c) A denial of a Sponsor's claim for reimbursement (except for late submission under 7 CFR 225.9(d)(6));

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

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

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

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

(h) The suspension of a Sponsor or Recipient Agency, or

(i) The imposition of an administrative fine.

(4) through (16) No change.

Rulemaking Authority 570.07(23), 595.404(4), (10), (11) FS. Law Implemented 595.404 FS. History–New 3-22-66, 4-11-70, 4-19-73, Repromulgated 12-5-74, Amended 6-28-83, Formerly 6A-7.41, 6A-7.040, Amended 6-21-18, _________.

 

5P-1.004 Penalties and Sanctions.

(1) Child Nutrition Programs and Food Distribution Programs.

(a) Seriously Deficient.

1. A Sponsor or Recipient Agency, and the officials identified on the Sponsor or Recipient Agency’s application, may be declared by the department as Seriously Deficient if:

a. through h. No change.

i. The Sponsor or Recipient Agency has misused, at a minimum, ten percent (10%) or $10,000, whichever is greater, of USDA Foods including improper distribution or foods lost, spoiled, stolen, or damaged as a result of improper storage, care, or handling.

j. The Recipient Agency failed to publicly notice dates of distribution at ten percent (10%) or ten (10), whichever is greater, sites as required in FNS Instruction 113-1 Form FNS-620 (1-99), which is hereby adopted and incorporated by reference and available online at http://www.flrules.org/Gateway/reference.asp?No=Ref-09518.

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

2. The department will notify the Sponsor or Recipient Agency in a Notice of Action, via email and certified mail, return receipt requested, that the Sponsor or Recipient Agency has been declared Seriously Deficient, the causes for Seriously Deficient status, and the required Corrective Actions to bring the Sponsor back into compliance with Chapter 595, F.S., and the rules adopted thereunder. The Sponsor or Recipient Agency will have thirty (30) days from the date it receives the Notice of Action to 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.

a. The corrective action plan must include:

I. Each identified program deficiency;

II. The corrective action required;

III. The timeframe by which the corrective action will be, or was completed; and

IV. Documentation to demonstrate corrective action was completed as prescribed in the Administrative Review Report.

b. Upon receipt of the Sponsor or Recipient Agency’s corrective action plan, the department shall determine if the corrective action plan permanently corrects all causes for being declared Seriously Deficient and implements the required Corrective Actions. If the corrective action plan permanently corrects all causes for being declared Seriously Deficient and implements the required Corrective Actions, the department will rescind the Sponsor’s Seriously Deficient status and the Sponsor may continue to operate the program.

c. If after thirty (30) days from the date of receipt for the Notice of Action, the Sponsor or Recipient Agency fails to respond to the Notice of Action or the corrective action plan does not permanently correct all causes for being declared Seriously Deficient and implement the required Corrective Actions, the department shall move to suspend the Sponsor or Recipient Agency under paragraph (b) of this rule.

(b) Suspension.

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

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

1.b. If after thirty (30) ninety (90) calendar days from the date of receipt for the Notice of Action, the Sponsor or Recipient Agency fails to submit a corrective action plan with supporting documentation that permanently corrects all causes for being declared Seriously Deficient and implements the required Corrective Actions or fails to respond to the Notice of Action, complete the required Corrective Actions, the Sponsor or Recipient Agency will be suspended from program operations for one (1) calendar year from the original date of receipt of the Notice of Action email notification.

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

3. After If the Sponsor or Recipient Agency completes all required Corrective Action during the one (1) year suspension, and, if applicable, the Sponsor or Recipient Agency has met all requirements in a written settlement agreement, or has complied with all requirements in a written settlement agreement, the Sponsor or Recipient Agency may reapply for the Child Nutrition or Food Distribution Program from which they were suspended, at the end of the suspension period, or once all requirements in a written settlement agreement are met, subject to any the deadlines for submitting applications. If applicable deadlines have already occurred at the time suspension is removed, the Sponsor or Recipient Agency must reapply for program participation the following year. When reapplying, the Sponsor or Recipient Agency must meet all federal and state requirements of a School Food Authority or organization that did not operate the program in the year prior to the current year, in the respective programs for which they are applying.

4. Sponsors or Recipient Agencies that are declared Seriously Deficient twice in one year of operation, or in two consecutive years of operation, regardless of any subsequent actions taken by the department, will be immediately suspended.

(c) Termination.

1. If after a one (1) year suspension, the Sponsor or Recipient Agency is declared Seriously Deficient within the first year of operation since returning to the program, has failed to complete Corrective Actions, the Sponsor or Recipient Agency will be terminated from the program for seven (7) years.

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

a. Intentionally making false or misleading statements, orally or in writing or the intentional submission of false or misleading information to the department;

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

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

3. After If after seven (7) years, the Sponsor or Recipient Agency completes the Corrective Action, they may reapply for any Child Nutrition Program or Food Distribution Program. When reapplying, the Sponsor or Recipient Agency must meet all federal and state requirements of a School Food Authority or organization that did not operated the program in the year prior to the current year, in the respective programs for which they are applying,

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

(2) No change.

Rulemaking Authority 570.07(23), 595.404(4), (10), (11) FS. Law Implemented 595.404, 595.501, 590.971, 1001.42(16) FS. History–New 9-5-77, Amended 9-6-78, 10-17-78, 10-23-79, 1-7-81, 8-12-81, 4-27-82, 6-28-83, Formerly 6A-7.421, 6A-7.0421, Amended 6-21-18, _________.

 

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

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

DATE PROPOSED RULE APPROVED BY AGENCY HEAD: August 14, 2018

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