This chapter provides rules that regulate the administration and operation of Summer Nutrition Programs.

 

DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES

Division of Food, Nutrition and Wellness

RULE NOS.:RULE TITLES:

5P-3.001Summer Food Service Program Participation

5P-3.002Program Responsibilities

5P-3.003Procurement Standards

5P-3.004Reimbursement Process and Financial Management

5P-3.005Administrative Reviews

5P-3.006Fiscal Action

5P-3.007Seamless Summer Option

5P-3.008Waiver Requests

5P-3.009Civil Rights Compliance and Enforcement

PURPOSE AND EFFECT: This chapter provides rules that regulate the administration and operation of Summer Nutrition Programs.

SUMMARY: The proposed rules in Chapter 5P-3 regulate Summer Nutrition Programs and establish eligibility criteria, identify program responsibilities, set procurement standards, present requirements for reimbursement and financial management, set out the Administrative Review process for determining any necessary fiscal action, and establish Seamless Summer Option requirements, the waiver request process, and civil rights compliance and enforcement requirements. The proposed rules adopt federal regulations and are specific to Florida’s practices that are not covered in the Code 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 as participation in the programs are 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), F.S.

LAW IMPLEMENTED: 595.404; 595.501, F.S.

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

Pursuant to the provisions of the Americans with Disabilities Act, any person requiring special accommodations to participate in this workshop/meeting is asked to advise the agency at least 7 days before the workshop/meeting by contacting: Nedra Harrington, 600 S. Calhoun Street, Suite 120 (H2), Tallahassee, FL 32399, [phone].. If you are hearing or speech impaired, please contact the agency using the Florida Relay Service, 1(800)955-8771 (TDD) or 1(800)955-8770 (Voice).

THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE IS: Nedra Harrington, 600 S. Calhoun Street, Suite 120 (H2), Tallahassee, FL 32399, [phone].

 

THE FULL TEXT OF THE PROPOSED RULE IS:

 

DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES

SUMMER NUTRITION PROGRAMS FOOD SERVICE PROGRAM

5P-3.001 Summer Food Service 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, 2021 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.FDACS.gov 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 03/2201/19, which is hereby incorporated by reference and available online at https://www.flrules.org/Gateway/reference.asp?No=Ref-xxxxx10332. 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. 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 subsection 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 shall demonstrate has the financial capability to operate a Summer Food Service Program if it has financial resources to operate the Summer Food Service Program on a daily basis, to continue to pay employees and contractors during periods of temporary interruptions in Summer Food Service Program payments, to pay debts when fiscal claims have been assessed against the organization, and documents its financial capability as specified in subparagraph 5P-3.001(1)(a)3.b., F.A.C. The following information must be included with the management plan: 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) The organization must indicate what financial resources it has and how long those financial resources have been available to the organization, whether the level, function or nature of the financial resources is expected to change during the program year and, if so, what impact the change will have on the organization’s financial capability.

(II) Organizations operating solely to administer the Summer Food Service Program and no other income generating venture, must provide verification that the organization has sources of funding other than the Summer Food Service Program to pay for the preparation of IRS filings for corporations, state corporate reporting requirements, and the cost of conducting required board meetings. Organizations with no available financial resources (e.g., cash, loans, closed-end lines of credit) other than the Summer Food Service Program shall be deemed not financially capable and ineligible to participate in the Summer Food Service Program.

b. The organization shall further demonstrate financial capability by providing the following documentation, which must be included with the organization’s management plan:

(I) Administrative and operational budgets that are necessary, reasonable, allowable, and allocable and include projected expenses;

(II) Twelve (12) consecutive months of financial institution bank statements for the organization’s most recent fiscal prior year and for the month prior to the submission of the application 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, food service credit lines, and purchase commitments, each of which must be closed-end. Credit lines from food service distributors and food service management companies must be supported by a current executed contract that has been reviewed and approved by the department in accordance with Rule 5P-3.003, F.A.C., and 2 CFR part 200 prior to the line of credit being extended;

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

(V) Documentation to demonstrate eligibility to participate in one of the three tiers set out in subparagraphs (A) through (C) below:

(A) In consideration for Tier 3, as defined in subsection 5P-3.002(2), F.A.C., complete financial statements, audited by a Certified Public Accountant, for the organization’s most recent fiscal year and at a minimum, all of the following: statement of financial position balance sheet, statement of activities, statement of changes in net assets, statement of cash flows, and notes to financial statements, which all must conform to generally accepted accounting principles. Audited financial statements containing all statements and note disclosures required by generally accepted accounting principles, but which are titled differently from this list, shall be deemed to meet this requirement. From these documents, the following factors will be considered:

I. Assets exceeding liabilities (i.e., positive net assets or positive 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; and

VI. Financial resources cover the costs of at least fifty (50) percent of expenses as indicated in the proposed budget – independent of any reimbursement from the department.

(B) In consideration for Tier 2, at a minimum, internally-prepared statements conforming to generally accepted accounting principles including at least the statement of financial position balance sheet and statement of activities, or financial statements conveying substantially the same information, as required by generally accepted accounting principles, but are titled using different terms, for the organization’s most recent fiscal year from which the following factors will be considered:

I. Assets exceeding liabilities (i.e., positive net assets or positive 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; and or

V. Financial resources cover at least twenty-five (25) percent of expenses as indicated in the proposed budget – independent of any reimbursement from the department.

(C) In consideration for Tier 1, at a minimum, a trial balance report including all statements of financial position at least the balance sheet and a statement of activities that account for the organization’s most recent fiscal year from which the following factors will be considered:

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

II. Assets exceeding liabilities (i.e., positive net assets or positive 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; and.

VI. Financial resources cover at least twenty-five (25) percent of expenses as indicated in the proposed budget – independent of any reimbursement from the department.

c.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 paragraph 5P-1.004(1)(a), F.A.C., and has repaid any outstanding debts owed to federal Child Nutrition Programs; and

(II) Has written policies and procedures that assign Summer Food Service Program responsibilities and duties to officers, directors and staff of the organization, to include, at a minimum, an organizational chart, organizational mission statement and bylaws, written job descriptions on full-time and part-time positions, and ensure compliance with civil rights requirements; 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 subsection 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) Has sufficient, qualified staff  to ensure the operation of the Summer Food Service Program in accordance with program regulations and this rule. Sponsors shall provide a description of qualifications for all Summer Food Service Program positions and their prospective salary ranges, as well as resumes of individuals employed by the organization who will be performing Summer Food Service Program duties, and a Summer Food Service Program staff training plan to demonstrate staff qualifications. 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.

(A) Minimum hiring standards for program administrators and directors. Program administrators and/or directors hired on or after January 1, 2022, must have at least one year of relevant Child Nutrition Program or food service experience and must have completed at least eight hours of food safety training not more than five years prior to their hiring date as the program administrator or director. Program administrators and directors hired prior to January 1, 2022, will be carried over in their respective administrator or director position; however, an annual application must still be submitted by the organization to the department for review to determine the organization’s operational tier. Relevant Child Nutrition Program experience refers to previous work experience in the National School Lunch Program and School Breakfast Program, as well as experience in other Child Nutrition Programs, including the Child and Adult Care Food Program or the Summer Food Service Program. Relevant food service experience refers to work in the food service industry, including, but not limited to, hospitals, healthcare facilities, nursing homes, restaurants, cafeterias, soup kitchens, and university dining services. Examples of skills employees would obtain in the food service industry include food handling and preparation, food ordering, nutrition education, financial management, and customer service.

(B) Staff-to-Children Ratio.  The Summer Food Service Program staff-to-child ratio must be at least one staff person for every 25 children unless superseded by the minimum standards for the care of children in a licensed child care facility as established in section 402.305(4)(a), F.S.

(IV) Has well supported and documented rationales for its hiring decisions; and

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

d.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 Summer Food Service Program program by an independent governing board of directors that, at a minimum:

(A) Meets applicable federal and state statutes and requirements;

(B) Is comprised of members, the majority of which are members of the community the organization serves, who are not financially interested in the organization’s activities, and are not related to the organization’s personnel or to each other;

(C) Is responsible for policy setting, fiscal guidance, and ongoing governance of the organization;

(D) Reviews the organization’s policies, programs, and budgets at a minimum on an annual basis;

(E) Approves decisions about compensation of employees and other parties providing services to the organization; and

(F) Possesses Summer Food Service Program knowledge and has  operational oversight.

(II) Has a screening system in place to scrutinize any criminal convictions of board members which may disqualify them from performing Summer Food Service Program administrative functions; and

(III) Has a documented financial management system in accordance with 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/Reference.asp?No=Ref-xxxxx10317, with management controls specified in writing. At a minimum, the financial management system shall provide: Provides an ongoing service to the community as evidenced by payroll records or timesheets;

(A) Accounting records that are supported by source documents;

(B) Records showing the source and application of funds and contain information pertaining to Program funds and income (e.g., authorizations, obligations, unobligated balances, assets, liabilities, and outlays);

(C) Accurate, current, and complete disclosures of the financial transactions of the program;

(D) Identification of each Summer Food Service Program expense as either an operating or administrative cost, including a consistent and rational basis for the proration of costs which benefit both the operation and administration of the Summer Food Service Program, and an approved direct cost base (subject to review by the department and FNS) for costs which benefit both the Summer Food Service Program and other activities of the Sponsor, such as occupancy and telephone services.

(E) Effective control over, and accountability for, all funds, property, and other program assets to assure that they are safeguarded and used solely for authorized purposes;

(F) A system of safeguards and controls is in place to prevent and detect improper financial activities by employees;

(G) A comparison of actual outlays against budgeted amounts;

(H) Organization-wide audits to determine, at a minimum, the fiscal integrity of financial transactions and reports, and compliance with laws, regulations, and administrative requirements;

(I) A systematic method to assure timely and appropriate resolution of all audit findings and recommendations (including organization-wide);

(J) Maintenance of appropriate records to document compliance with Summer Food Service Program requirements, including budgets, accounting records, approved budget amendments, management plans and appropriate records on Summer Food Service Program site operations; Has procedures in place for record keeping of all advances, program expenditures, Claims for Reimbursement; and

(K) Regular training of administrative staff and site personnel Has a written, detailed plan for providing, and maintaining records for, program training, as prescribed in subsection 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.

(L) Monitoring in accordance with 7 C.F.R. §225.15(d)(2)-(3), as previously incorporated in this rule, to ensure that sites accountably and appropriately operate the Summer Food Service Program; and

(M) Documented practices that result in the operation of the Summer Food Service Program in accordance with the meal service, recordkeeping, and other operational requirements that demonstrate that sites will:

I. Provide meals that meet the meal patterns set forth in 7 C.F.R. §225.16, previously incorporated in this rule as incorporated by reference;

II. Have a food service that complies with applicable State and local health and sanitation requirements;

III. Comply with civil rights requirements;

IV. Maintain complete and appropriate records on file; and

V. Claim reimbursement only for eligible meals.

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 (1)(a)3. of this rule and will be approved to operate the Summer Food Service Program at Tier 3 unless the organization has been Sponsor is declared Seriously Deficient, as described in paragraph 5P-1.004(1)(a), F.A.C., in the year prior to the current year, if the following criteria are met:, The sponsor will be considered a Tier 3 that meet the a or b.

a. The organization is audited on a predetermined, continual cycle with the Florida Auditor General and is a current participant in good standing in the National School Lunch Program; or

b. The organization is a local, municipal, county, or state government organization.

5. All supporting materials provided with or related to an application must be completely responsive and submitted using the Management Plan structure in the Florida Automated Nutrition System., including the following:

a. Administrative and operational budgets that include projected expenses;

b. Twelve (12) consecutive months of bank, credit union, or other financial institution statements for the organization’s prior fiscal year or for a more recent period of twelve (12) consecutive complete months beginning during such prior fiscal year and continuing through a month prior to the submission of the application for all cash accounts in the name of the organization;

c. All agreements for loans, lines of credit, revolving credit card accounts, non-cancelable leases, vended food credit lines, and purchase commitments, each of which must be closed-end;

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

e. Financial statements;

f. Documented financial management system as identified in rule 5P-3.001(1)(a)3.c.(III), F.A.C.; and

g. A written, detailed monitoring plan identified in rule 5P-3.001(1)(a)3.c.(V), F.A.C. 

(b) Correct its application and supporting documentation, including revised or additional information, submitted by the organization, when the documentation provides contradictory or inconsistent information.

(c) Any application, including the supporting materials thereto, which is not completely and accurately submitted by the applicant prior to the application deadlines as otherwise provided in subsection 5P-3.001(2), F.A.C. will be deemed incomplete and denied.

(d) (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 the 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.

(2)(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.

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

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

(c)(d) Applications that remain incomplete submitted after April 15 will be denied remain unapproved and deactivated in the Florida Automated Nutrition System. and organizations may apply again the following year.

(3)Operational Tiers. Sponsors approved to operate the Summer Food Service Program will be designated to operate within the parameters for one of three tiers determined during the application process each year, unless exempt per subparagraph 5P-3.001(1)(a)4., F.A.C.

(a) Tier 3 allows Sponsors to serve over 150,000 meals;

(b) Tier 2 allows Sponsors to serve up to 150,000; and

(c) Tier 1 allows Sponsors to serve up to 60,000 meals;

(d) A 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.

(e) Only experienced sponsors will be permitted to operate above Tier 1 in the Summer Food Service Program. For the purposes of this rule, an experienced sponsor means a Sponsor that has successfully participated in the Summer Food Service Program for each of the prior three (3) consecutive years.

(f) Experienced sponsors will not be permitted to operate at Tier 2 if they have had any significant operational issues as defined in subparagraphs 5P-3.005(14)(e)1., F.A.C. through 5P-3.005(14)(e)8., F.A.C., or serious deficiencies as defined in sub-subparagraphs 5P-1.004(1)(a)1.a., F.A.C., through 5P-1.004(1)(a)1.k., F.A.C., while operating at a Tier 1, in their most recently conducted Administrative Review, Site Review, Site Visit, or Technical Assistance Visit.

(g) Experienced sponsors will not be permitted to operate at Tier 3 if they have had any significant operational issues as defined in subparagraphs 5P-3.005(14)(e)1., F.A.C. through 5P-3.005(14)(e)8., F.A.C., or serious deficiencies as defined in sub-subparagraphs 5P-1.004(1)(a)1.a., F.A.C., through 5P-1.004(1)(a)1.k., F.A.C., while operating at Tier 2 or Tier 3, in their most recently conducted Administrative Review, Site Review, Site Visit, or Technical Assistance Visit.

(h) Sponsors approved to participate in the Summer Food Service Program prior to January 1, 2022 will be approved to continue to operate in their respective Tier 2 or Tier 3 operational tiers if, based upon the Sponsor’s annual application, the department determines that the Sponsor has demonstrated capability to maintain that operational tier and if they have not had any significant operational issues as defined in subparagraphs 5P-3.005(14)(e)1., F.A.C. through 5P-3.005(14)(e)8., F.A.C., or serious deficiencies as defined in sub-subparagraphs 5P-1.004(1)(a)1.a., F.A.C., through 5P-1.004(1)(a)1.k., F.A.C., while operating at Tier 2 or Tier 3, in their most recently conducted Administrative Review, Site Review, Site Visit, or Technical Assistance Visit.

(4)(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 that which did not operate the program in the year prior to the current year, unless the organization has otherwise been determined ineligible to participate in the Summer Food Service Program, 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. 03/2206/18, which is hereby incorporated by reference and available online at https://www.flrules.org/Gateway/reference.asp?No=Ref-xxxxx10333. A pre-approval site visit will not be conducted for Sponsors deemed ineligible.

(a) No change.

(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, as identified by the department on form ‘Summer Food Service Program State Pre-Approval Site Visit’, FDACS-01735 Rev. 03/2206/18, 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. through 2. No change.

(6) renumbered (5) No change.

(6)(7) Delinquent Ineligible Sponsors. Sponsors that have outstanding debts to owe money to the department from previous fiscal action taken within the context of Child Nutrition Programs are not eligible to participate in the Summer Food Service Program the program.

(a) Sponsors that have outstanding debts with the department from previous fiscal action taken within the context of the Child Nutrition Programs and have not agreed upon a satisfactory repayment schedule with the department will be declared Seriously Deficient and terminated from the Summer Food Service Program in accordance with 5P-3.006(3)(d), F.A.C., and 5P-1.004(1)(a), F.A.C., where appropriate.

(b) While terminated, delinquent Sponsors, their board members, corporate officials, and the officials identified on the Sponsor application in the Florida Automated Nutrition System at the time of the conduct leading to the termination shall not participate in any Child Nutrition or Food Distribution Program, which includes, but is not limited to, receiving USDA Foods, conducting business as a contractor, providing consulting services, or obtaining program related funds by any other means.

(7)(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.FDACS.gov 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) through (c) No change.

(8)(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) A private, nonprofit organization or nonprofit private school claiming exempt status through affiliation with a church or religious organization that is not required to make application to the Internal Revenue Service for recognition of its status to be tax-exempt must:

1. Provide a group exemption letter from the Internal Revenue Service that demonstrates its relationship to the church or religious organization pursuant to Revenue Procedure 80-27, 1980-1 C.B. 677, which is hereby adopted and incorporated by reference and available online at https://www.flrules.org/gateway/reference.asp?no=ref-XXXXX; or

2. Establish that it is affiliated with a church or religious organization by providing documentation that demonstrates the organization or school is operated, supervised, or controlled by or in connection with the church, a convention or association of churches, or religious organization as defined in 26 CFR 1.509(a)-4, which is hereby adopted and incorporated by reference and available online at https://www.flrules.org/gateway/reference.asp?no=ref-XXXXX; or

3. Show that it is otherwise affiliated with the church or religious organization based upon relevant facts and circumstances as specified in 26 CFR 1.6033-2(h)(3), which is hereby adopted and incorporated by reference and available online at https://www.flrules.org/gateway/reference.asp?no=ref-XXXXX.

4. A private, nonprofit organization or nonprofit private school claiming exempt status as a unit affiliated with and under the general supervision or control of another tax exempt organization must also provide to the department a group exemption letter from the Internal Revenue Service that demonstrates its relationship to the tax exempt organization pursuant to Revenue Procedure 80-27, 1980-1 C.B. 677, as previously incorporated.

(a) reordered (b) No change.

(c)(b) The Sponsor must submit to the department online at https://fans.FDACS.gov 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-10334, prior to the first operating day of each site identified as for-profit.

(9)(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. 06/1906/18, incorporated in Rule 5P-2.002, F.A.C.

(10)(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(6), F.S. Section 595.402(5), F.S., with current Child Nutrition Programs Agreement agreements to operate the Summer Food Service Program, if the Sponsor has previously indicated to the department its intent to provide such emergency meals.

(a) This intent to serve emergency meals during an unanticipated school closure must be designated in provided in writing as an attachment to the Sponsor’s application to participate in a Summer Nutrition Program, and contain the following information: the Summer Food Service program and contain a list of the sites that would be activated to serve emergency meals.

1. A list of the sites that would be activated to serve emergency meals;

2. The contact person for the Sponsor regarding service of emergency meals;

3. The estimated number of children to be served;

4. Time(s) at which meals will be served; and

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

Sponsors in good standing will be approved for participation during an unanticipated school closure without a prior application if the Sponsor participated in the Summer Food Service Program or Seamless Summer Option at any time during the current year or in the prior calendar year.  

(b) The In the event a School District is unable to provide an Emergency Meal Service, the department will approve or deny solicit the remaining Sponsors with current Child Nutrition Program Agreements of the Summer Food Service Program for operation during the unanticipated school closure 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 that are exempt in accordance with paragraph 5P-3.001(1)(a)4., F.A.C. and Sponsors approved to operate a operating the Tier 3 program who have not been declared Seriously Deficient in the current year or and the year prior to the current year. 

2. Sponsors approved to operate a operating the Tier 2 program who have not been declared Seriously Deficient in the current year or and the year prior to the current year when approved Sponsors operating a Tier 3 program and exempt Sponsors are not providing emergency meal service in all areas within a county in which at least 50 percent of the children are eligible for free or reduced priced school meals.; then 

3. Sponsors approved to operate a operating the Tier 1 program who have not been declared Seriously Deficient in the current year or and  the year prior to the current year when Sponsors operating a Tier 2 or Tier 3 program and exempt Sponsors are not providing emergency meal service in all areas within a county in which at least 50 percent of the children are eligible for free or reduced priced school meals.  

(c) Sponsors with current Child Nutrition Program agreements and operating the National School Lunch Program’s Seamless Summer Option shall submit documentation to the department sufficient for the department to make a tier determination for the Sponsor as set out in paragraph 5P-3.001(1)(a)3.a. with its initial or renewal School Nutrition Program application as set out in paragraph 5P-2.001(1). Upon determination of the Sponsor’s tier, the Sponsor will be approved to operate during the unanticipated school closure as set out in paragraph 5P-3.001(10)(f).  The department will only approve a school site to operate the National School Lunch Program’s Seamless Summer Option during an unanticipated closure if the school building where the Sponsor is approved to serve meals is unaffected by the emergency or disaster, and it is determined to be the most appropriate location for emergency meal service, or is expressly permitted by the United States Department of Agriculture (USDA).

(d) For standalone unanticipated school closures, the department will expedite approval to provide emergency meals in accordance with Rule 5P-2.001, F.A.C. for the Seamless Summer Option or paragraph 5P-3.001(1), F.A.C., for the Summer Food Service Program, as needed, for the affected Sponsor upon submission of the written intent to serve emergency meals. The process set forth in paragraph (b) will not be applied for standalone unanticipated school closures.

(e) Location. Emergency meals during an unanticipated school closure must be served at the location and during the time(s) indicated in the Sponsor’s application for the Summer Nutrition Program. If the Sponsor is unable to serve meals at the location and during the time(s) indicated in the application, the Sponsor must submit a request to change the location or time and the reason for the change.

(f) Meal Pattern. All emergency meals served during an unanticipated school closure must meet the meal pattern requirements in 7 CFR 210.10 and 7 CFR 220.8 for Sponsors operating the Seamless Summer Option and 7 CFR 225.16(d) for Sponsors operating the Summer Food Service Program, all revised as of January 1, 2021, which are hereby adopted and incorporated by reference and available online at http://www.flrules.org/Gateway/reference.asp?No=Ref-xxxxx. Waivers of these provisions will be issued in accordance with sections 412 and 413 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5179-80), which is hereby incorporated by reference and available online at http://www.flrules.org/Gateway/reference.asp?No=Ref-xxxxx.  

(g) Claims for Reimbursement. Sponsors must submit Claims for Reimbursement for emergency meals served during an unanticipated school closure in accordance with Rules 5P-2.004, F.A.C., for the Seamless Summer Option, and 5P-3.004, F.A.C. for the Summer Food Service Program. Sponsors that have been approved to serve emergency meals without a prior application must submit a complete Summer Food Service Program or Seamless Summer Option application to the department prior to the submission of its claim for reimbursement for the emergency meals served during the unanticipated school closure.

(h) Record Retention. Sponsors must maintain all records necessary to demonstrate compliance with the requirements in this rule, pursuant to 7 CFR 210.15 and 7 CFR 220.7(e)(13) for Sponsors operating the Seamless Summer Option, and 7 CFR 225.15(c) for Sponsors operating the Summer Food Service Program, all revised as of January 1, 2021, which are hereby adopted and incorporated by reference and available online at http://www.flrules.org/Gateway/reference.asp?No=Ref-xxxxx10856 for all emergency meals served during an unanticipated school closure.

  (11)(12) Terminated Sponsors. While terminated, Sponsors, their board members, corporate officials, and the officials identified on the Sponsor application in the Florida Automated Nutrition System at the time of the conduct leading to the termination, shall not participate in any Child Nutrition or Food Distribution Program to include receiving USDA Foods, conducting business as a contractor, providing consulting services, or obtaining program related funds by any other means. Sponsors that have been terminated, as described in paragraph 5P-1.004(1)(a), F.A.C., 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 5-2-19.

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 Food Service 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-10342, 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 subparagraph 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.

(2)(3) Site Information. Sponsors must submit any additional site information or changes to current site information as requested by the department on the application not less than two business days prior to the proposed date of implementation of the additional or updated site information submitted. Sponsors requesting to operate a Summer Food Service Program site at a School Food Authority school as defined in 5P-2.001(1), F.A.C. must provide to the department a letter of permission from that School Food Authority’s nutrition service department online at https://fans.FDACS.gov, or by mail to 600 S. Calhoun Street (H2), Tallahassee, FL 32399.

(4) renumbered (3) No change.

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

(5)(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 Food Service Program operations. Sponsors must complete the site review using the form entitled “Summer Food Service Programs Sponsor Site Review”, FDACS-01926 Rev. 06/18, which is hereby incorporated by reference and available online at https://www.flrules.org/Gateway/reference.asp?No=Ref-10337.

(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. No change.

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.FDACS.gov 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-10335.

(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), revised as of January 1, 2021 January 1, 2018, which is hereby adopted and incorporated by reference and made available online at https://www.flrules.org/Gateway/reference.asp?No=Ref-xxxxx10331.

(c) No change.

(d) Summer Food Service Program meals Meals may not be served between the hours of 8:00 p.m. and 6:00 a.m. (EST).  Pursuant to 7 CFR 225.16, previously incorporated in Rule 5P-3.001, F.A.C., supper meal service may not begin later than 7:00 p.m. (EST).

(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.FDACS.gov 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/reference.asp?No=Ref-10336. Notification must be made forty-eight (48) hours prior to date of the field trip.

(7) renumbered (6) No change.

(a) No change.

(b) A copy of the audit report must be submitted to the department online at https://fans.FDACS.gov 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) No change.

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

(a) A separate financial institution account for Summer Food Service Program funds where all income and expenses must be for the benefit of the Summer Food Service Program. Failure to maintain such records shall be grounds for denial of reimbursement for meals served;

 

(b) The use of balance sheet account numbers and fund and expenditure account numbers for Sponsors subject to the Financial and Program Cost Accounting and Reporting for Florida Schools (2021) Manual, which is hereby incorporated by reference and available online at http://www.flrules.org/Gateway/reference.asp?No=Ref-XXXXX,  accounting codes to indicate what income and expenses are for the benefit of the Summer Food Service Program if the account is used for other Child Nutrition Programs in rule 5P-1.001(3), F.A.C. as defined in rule 5P-1.001(3), F.A.C. and under the Richard B. Russell National School Lunch Act, as amended ((42 U.S.C. 1751 et seq.), which is hereby incorporated by reference and available online at http://www.flrules.org/Gateway/reference.asp?No=Ref-XXXXX; or any purpose outside of the program.

(c) The use of uniform accounting practices and procedures, including fund groups, account codes, object codes, and sub-object codes, for Sponsors subject to the Uniform Accounting System Chart of Accounts mandated by section 218.33(2), F.S., which is hereby incorporated by reference and available online at http://www.flrules.org/Gateway/reference.asp?No=Ref-XXXXX, 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 Summer Food Service Program.

(d) Unallowable expenses charged to the Summer Food Service Program account or improperly coded to the Summer Food Service Program identified by the department, including during the application process, must be repaid to the Summer Food Service Program account or reallocated to a different account number.

(8) Salary Restrictions. Salaries paid to employees who operate and administer the Summer Food Service Program must be based upon hourly rates that are reasonable for the services provided and documented by payroll records.

(a) To ensure compensation is reasonable, Sponsors should ensure salaries are consistent with compensation paid for similar work as reported by the U.S. Department of Labor, Bureau of Labor Statistics (BLS).

(b) The service industry within the BLS most closely aligned with Summer Food Service Program functions is the “Social Assistance” service industry. To establish employee salaries, Sponsors must use the BLS Occupational Employment Estimates for Florida for the following Standard Occupational Classification codes within the Social Assistance industry most closely aligned to the Official Types delineated below and in the Florida Automated Nutrition System’s Budget Module:

1. Occupational Code: 11-1021 - General and Operations Managers; Official Types:

a. Administrator

b. Director

2. Occupational Code: 13-1041 - Compliance Officers; Official Types:

a. Program/Claims Specialist

b. Monitor(s)

3. Occupational Code: 35-1012 - First-Line Supervisors of Food Preparation and Serving Workers; Official Type - Site Supervisors(s)

4. Occupational Code: 35-2012 - Cooks, Institution and Cafeteria; Official Type - Cooks

5. Occupational Code: 35-2021 - Food Preparation Workers; Official Type - Food Service Staff

6. Occupational Code: 37-2011 - Janitors and Cleaners, Except Maids and Housekeeping Cleaners; Official Type - Custodian

7. Occupational Code: 43-3031 - Bookkeeping, Accounting, and Auditing Clerks; Official Type - Bookkeeper

8. Occupational Code: 53-3058 - Passenger Vehicles Drivers, Except Bus Drivers Transit and Intercity; Official Type - Driver

(c) The median hourly salary for each occupational code should be used to determine the maximum salary to be paid to Summer Food Service Program employees.

(d) All salaries paid to Summer Food Service Program employees utilizing Program funds must be adjusted, where necessary, as to not exceed the salary limits. If the Sponsor pays salaries higher than the BLS Occupational Employment Estimates, it must use non-Program funds to pay the additional salary.

(e) The salaries associated with employees who work only a portion of their time for the Summer Food Service Program must be prorated based on the hours worked for the program. In order to establish the portion of costs which may be claimed as program related, a daily log or other valid record must document the amount of time spent by each person on Summer Food Service Program food service duties.

(f) The salary restrictions imposed in this section are not applicable to organizations that are exempt as specified in 5P-3.001(1)(a)4., F.A.C.

(9) Consultants. In accordance with 7 CFR 225.15(a)(3), Sponsors may not contract out for the management responsibilities of the Summer Food Service Program.  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. 01/19, which is hereby incorporated by reference and available online at https://www.flrules.org/Gateway/reference.asp?No=Ref-10338, 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) Fees paid to a consultant for the performance of management responsibilities of the Summer Food Service Program shall be deemed an unallowable expense.  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) Management responsibilities include, but are not limited to, those described in 7 CFR 225.15 and maintenance of documentation of a nonprofit food service, meal ordering, maintenance of records justifying all meals claimed, producing and maintaining documentation that supports all Summer Food Service Program funds are spent only on allowable costs, submission of claims for reimbursement, training of administrative and site personnel, site visits and site reviews, receiving, processing and verifying applications for free Summer Food Service Program meals to determine the eligibility of children attending camps and the eligibility of sites that are not open sites, compliance with competitive bid procedures as specified in 7 CFR 225.15(m)(4), ensuring food service management company compliance with all the applicable provisions of this rule and 7 CFR 225, and the other responsibilities designated in this rule section. 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 subsection 5P-3.002(6), 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 5-2-19.

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.FDACS.gov https://fans.freshfromflorida.com, or by mail to 600 S. Calhoun Street (H2), Tallahassee, FL 32399, prior to issuance or execution.

(b) No change.

(c) In lieu of requesting a competitive solicitation, a Sponsors may make purchases at or below specified prices from contracts awarded by other Sponsors can enter into a Successive Purchasing Agreement, as defined in subsection 5P-1.001(37), F.A.C., when the Sponsor that awarded the contract and the awarded Contractor mutually permit purchases by a Sponsor agrees, in writing, to permit the Successive Purchasing Agreement at the same terms, conditions, and prices, (or below such prices) awarded in such contract. Such purchases must meet the following conditions:

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

2. Sponsors must conduct a separate procurement to obtain goods and services if the proposed contract Successive Purchasing Agreement results in a material change to the underlying awarding Sponsor’s contract 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) Noncompetitive Procurement.  Noncompetitive procurement of good and services can only be awarded by a Sponsor if the circumstances in 2 CFR 200.320(c),which is hereby incorporated by reference and available online at https://www.flrules.org/gateway/reference.asp?No=Ref-XXXXX, apply. Noncompetitive agreements shall not be permitted as the underlying agreement in the implementation of the procurement practice described in paragraph 5P-3.003(1)(c), F.A.C. of this rule. Sponsors desiring to award noncompetitively procured contracts must obtain approval from the department prior to entering into the agreement. The department will approve noncompetitively procured contracts under the following circumstances:  

(a) Emergency Procurement. Noncompetitive procurement may be utilized when a public exigency or emergency will not permit delay resulting from a competitive procurement. The resulting contract shall not exceed 12 months in duration and must be nonrenewable.  When the public exigency or emergency no longer exists, the Sponsor must utilize competitive procurement procedures to establish its contracts.

(b) Inadequate Competition. If, after solicitation of a number of sources, competition is determined inadequate, the Sponsor may award a contract by noncompetitive procurement. In such instances, the Sponsor must maintain documentation of its efforts to solicit bids.

(3)(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 sponsor number;

(b) through (h) No change.

(3) Invoices and Receipts. All items listed in program invoices and receipts must be allowable program expenses as required in  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/Reference.asp?No=Ref-10317.

(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 food service management company vendor training found at http://FDACS.gov/trainFNW  http://freshfromflorida.com/trainFNW, with eighty (80) percent accuracy or higher, or attend an in-person food service management company vendor training, conducted by the department, prior to bidding on any Sponsor solicitations entering into an agreement for food services. Opportunities to complete the online food service management company training are offered year-round.

(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.

(6) Conflicts of Interest. Sponsors must maintain written standards of conduct covering conflicts of interest and governing the actions of its employees engaged in the selection, award and administration of contracts and other procurement actions. Sponsors must disclose in writing any potential conflicts of interest to the department.

(a) No employee, officer, or agent of the Sponsor may participate in the selection, award, or administration of a purchase or contract supported by Summer Food Service Program funds if a real or apparent conflict of interest exists.

(b) Such a conflict of interest would arise when the Sponsor’s employee, officer, or agent, any member of his or her immediate family, his or her partner, or an organization which employs or is about to employ any of the parties indicated herein, has a financial or other interest in or a tangible personal benefit from a firm considered for a contract.

(c) The Sponsor and the officers, employees, and agents of the Sponsor may neither solicit nor accept gratuities, favors, or anything of monetary value from contractors or parties to subcontracts.

(d) The Sponsor’s standards of conduct must provide for disciplinary actions to be applied for violations of such standards by officers, employees, or agents of the Sponsor.

(e) If the Sponsor has a parent, affiliate, or subsidiary organization that is not a local government or Indian tribe, the Sponsor must also maintain written standards of conduct covering organizational conflicts of interest. Organizational conflicts of interest, means that because of relationships with a parent company, affiliate, or subsidiary organization, the Sponsor is unable or appears to be unable to be impartial in conducting a procurement action involving a related organization.

(f) The Sponsor may not award any contract or make any purchase supported by Summer Food Service Program funds where the Sponsor or an employee, officer, or agent of the Sponsor has a real, apparent, or organizational conflict of interest.

(g) All costs resulting from purchases or contracts selected or awarded in contradiction of this rule are unallowable nonprofit food service account expenses.

(h) The Sponsor will be deemed Seriously Deficient and subject to termination, pursuant to paragraph 5P-1.004(1)(a), F.A.C., for failure to make required disclosures of any potential conflicts of interest. Identification of any real or apparent conflicts of interest or organizational conflicts of interest by the department is cause for termination pursuant to paragraph 5P-1.004(1)(b)5., F.A.C.

Rulemaking Authority 570.07(23), 595.404(4), 595.404(10) FS. Law Implemented 595.404 FS. History–New 4-7-19.

5P-3.004 Reimbursement Process and Financial Management.

(1) No change.

(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. If the Sponsor was declared Seriously Deficient in accordance with paragraph 5P-1.004(1)(a), F.A.C, the Sponsor’s June Claim for Reimbursement must be submitted and accepted by the department prior to the release of advance payments for July, and the July Claim for Reimbursement must be submitted and accepted by the department prior to the release of advance payments for August.

(a) When processing requests for advance payments, the department will take into consideration unused reimbursement, as defined in paragraph (9) of this rule, 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 any 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 Rule 5P-2.002, F.A.C., with the department. Reimbursements shall not be paid for meals served at a site before the Sponsor has received written notification from the department that the site has been approved for participation in the Summer Food Service Program. If the number of meals claimed for any site is 20% or greater than the site’s average daily participation during the previous program year, a justification must be provided to the department online at https://fans.FDACS.gov, or by mail to 600 S. Calhoun Street (H2), Tallahassee, FL 32399, as to why the increase occurred. If the number of meals claimed for any site is 100% greater or more than the site’s average daily participation during the previous program year, a claim validation review will be conducted by the department.

(4) Due Dates. All Sponsors must submit to the department a monthly Claim for Reimbursement online at https://fans.FDACS.gov 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/reference.asp?No=Ref-10340.

(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 month covered by the claim. Upward adjustments on Claims for Reimbursement are limited to two adjustments per month per Sponsor unless the adjustment results from an Administrative Review or from federally-required or state-imposed audits.

(5) No change.

(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.FDACS.gov https://fans.freshfromflorida.com or by mail to 600 S. Calhoun Street (H2), Tallahassee, FL 32399.

(b) No change.

(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, to the extent such future Claims for Reimbursement exist. In the event such future Claims for Reimbursement either do not exist or are insufficient to recover such overpayments, the department will recover current fiscal year overpayments utilizing the collection procedures outlined in paragraph (8) of this section.

(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) through (b) No change.

(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 demand debt.

(d) No change.

(9) Unused Reimbursement. If a Sponsor receives more reimbursement than is expended on allowable costs, the Sponsor must use this unused reimbursement to improve the meal service or management of the Summer Food Service Program. Sponsors with unused reimbursement remaining at the end of the program year must submit a statement to the department online at https://fans.FDACS.gov 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/reference.asp?No=Ref-xxxxx10339, certifying that all unused reimbursement will be used either as startup funds for or the improvement of for improving the Summer Food Service Program in 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 such certificate 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 primary the sole purpose of the transfer or 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, and the Sponsor operates other Child Nutrition Programs, the unused reimbursement must be used towards the Sponsor’s provision of other Child Nutrition Programs.  If the Sponsor does not operate any other Child Nutrition Programs and will not be participating in the Summer Food Service Program the next year, then the Sponsor is not required to return the unused reimbursement to the department.

(10) Financial Management. Sponsor must maintain documentation of all revenues received and expenses paid from the nonprofit food service account. All items listed in program invoices and receipts must be allowable program expenses as required in  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/Reference.asp?No=Ref-xxxxx10317.

Rulemaking Authority 570.07(23), 595.404(4), 595.404(10) FS. Law Implemented 595.404 FS. History-New 5-2-19.

5P-3.005 Administrative Reviews.

(1) through (2) No change.

(3) Disregard of Overpayment. In conducting Administrative Reviews for any fiscal year, the department will disregard any 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 Programs State Site Review”, FDACS-01947 Rev. 11/1901/19, which is hereby incorporated by reference and available online at https://www.flrules.org/gateway/reference.asp?No=Ref-XXXXX. previously incorporated in subsection 5P-3.002(8), 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.FDACS.gov https://fans.freshfromflorida.com, or by mail to 600 S. Calhoun Street (H2), Tallahassee, FL 32399, after the meal operation has ended for the month 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. 06/18 04/16, incorporated in Rule 5P-2.002, F.A.C. The Sponsor must make available to the department all required program records no later than the close of business on the day of the Exit Conference 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, financial institution 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) Claim Meal Validation. During the Administrative Review, mMeal 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 records invoices and receipts for an to determine the accurate number of meals eligible for reimbursement. unless the Sponsor can provide the following: The Sponsor must provide records to the department as required to validate the meal counts submitted with the Claim for Reimbursement including, but not limited to, 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;.

(c) Receiving reports prepared at sites or wherever food is received from suppliers and signed by receiving personnel (i.e. delivery slips);

(d) Purchase invoices received from food suppliers;

(e) Records of returns, allowances, cash discounts taken, and other credits when they are not reflected on purchase invoices;

(f) Canceled checks or other forms of receipts showing receipt or proof of payment by the Sponsor; and

(g) Records of major inventory adjustments showing the same kinds of information as inventory records.

(h) Sponsors which contract with School Food Authorities or food service management companies to provide all meals, including supplements, must provide billings by site from the School Food Authority or food service management company, less returns, allowances, discounts, and rebates for the meals delivered and evidence that the Sponsor received or paid for the meals.

(7) Review Expansion.  The department will expand the scope of the Administrative Review beyond the one month review period when any of the program violations as specified in paragraph 5P-1.004(a)1.f., F.A.C., noncompliance with the cost principles identified in 2 CFR 200, Subpart E, or conflicts of interest as prohibited by 5P-3.003(6), F.A.C. are identified.

(8) Pre-Exit Debrief. Prior to the exit conference, the department will hold a pre-exit debrief with the Sponsor to discuss the preliminary and tentative program deficiencies that have been identified prior to the completion of the Administrative Review. Program deficiencies preliminarily identified that result in needed corrective action will be addressed during the exit conference.  A preliminary and tentative report will be sent via email, not later than the next business day following the pre-exit Debrief.

(9)(7) Exit Conference. The department will hold an exit conference after at the completion 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.

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

(a) through (b) No change.

(c) The Administrative Review Report will be provided within thirty (30) calendar days of the exit conference at the close of the Administrative Review period. The Administrative Review Report will be sent via email to the Sponsor’s email address on record with the department. If requested by the Sponsor at the exit conference, the Administrative Review Report may be sent by regular United States mail. The Administrative Review Report will be deemed received by the Sponsor five (5) calendar days following the date the report was emailed by the department. 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 mail and will be considered received by the Sponsor five (5) calendar days following the date the notice was sent.

(11)(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.FDACS.gov 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) through (d) No change.

(12)(10) Extension Requests. The department may extend the timeframe(s) specified to complete the required corrective action(s) upon the written request of the 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.FDACS.gov 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) No change.

1. No change.

2. Specify the Sponsor’s proposed new desired completion date.

(13)(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.

(a) If after thirty (30) calendar days of the date the Sponsor receives the Administrative Review Report, 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 pursuant to paragraph 5P-1.004(1)(a), F.A.C.

(b) If after thirty (30) calendar days of the date the Sponsor received the Administrative Review Report in which the Sponsor was declared Seriously Deficient, 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 shall be terminated from the Summer Food Service Program pursuant to paragraph 5P-1.004(1)(b), F.A.C.

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

(a) If the The Sponsor is declared Seriously Deficient as a result of an Administrative or Site Review;

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

(c) If the number of meals served by a site on any of the five preceding days of operation is 50% or more higher than the number of meals served as observed by the department or its designated representative during a Site Review; or 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.

(e) During the follow-up review, the department shall document its findings on the form entitled “Summer Food Service Programs State Site Review”, FDACS-01947 Rev. 11/19, previously incorporated in this rule. If the department determines that significant, repeated operational issues still exist at the Sponsor level or site level, the Sponsor will be declared Seriously Deficient by the department. A significant operational issue exists if, during the follow-up review, one or more of the following repeat operational issues still exist at the Sponsor level or for at least 50% of the Sponsor sites being reviewed:

1. Failure to count meals at the point of service as prescribed in paragraph 5P-3.002(6)(c), F.A.C., that results in fiscal action exceeding ten (10) percent of the Claim for Reimbursement reviewed with the meal counts submitted during the follow-up review;

2. Failure to maintain program records as prescribed in 7 CFR 225.15(c), including, but not limited to, meal count sheets, production records, invoices and delivery slips, that results in fiscal action that exceeds the $100 overpayment disregard as prescribed in 7 CFR 225.10(c);

3. Noncompliance with meal service times as prescribed in 7 CFR 225.16(c) that results in fiscal action that exceeds the $100 overpayment disregard as prescribed in 7 CFR 225.10(c);

4. Claiming of reimbursement payments for meals not served as prescribed in 7 CFR 225.12(a) that results in fiscal action that exceeds the $100 overpayment disregard as prescribed in 7 CFR 225.10(c);

5. Serving of meals that do not meet the meal component or portion size requirements as prescribed in 7 CFR 225.16(d) that results in fiscal action that exceeds the $100 overpayment disregard as prescribed in 7 CFR 225.10(c);

6. Noncompliance with applicable procurement procedures and contract requirements of 2 CFR 200, previously incorporated in paragraph 5P-1.003(1)(a), F.A.C.;

7. Unallowable expenses charged to the non-profit food service account or improperly coded to the Summer Food Service Program that exceed the $100 overpayment disregard as prescribed in 7 CFR 225.10(c); or 

8. Failure to maintain proper sanitation and health standards in conformance with all applicable State and local laws and regulations.

(f) If a Sponsor is declared seriously deficient during an Administrative or Site Review and is also declared seriously deficient during the follow-up review, or the follow-up review identifies a repeat violation of health, safety and sanitation standards, the Sponsor shall be terminated. While terminated, Sponsors, their officers, and directors shall not participate in the Summer Food Service Program to include receiving USDA Foods, conducting business as a contractor, providing consulting services, or obtaining program related funds by any other means.

(15) Ad Hoc Reviews. The department will conduct ad hoc Administrative Reviews, Claim Reviews, Site Visits, or Technical Assistance Visits of a Sponsor’s operation of the Summer Food Service Program at its discretion or and when the following circumstances exist:

(a) The department receives a complaint regarding the Sponsor’s operation of the Summer Food Service Program; or

(b) The department identifies unusual data or trends within the Sponsor’s claims for reimbursement and any other information collected by the department about the Sponsor’s operation of the Summer Food Service Program, such as block claiming, substantially higher or substantially lower meal counts, recurrent field trips, duplicative site officials, continual changes to meal service times, or prohibited use of consultants. For the purposes of the Summer Food Service Program, a block claim is a claim with no variation in meal counts, for any single meal type or combination of meal types, for any continuous 3 day period within the claim month. 

(13) renumbered (16) No change.

Rulemaking Authority 570.07(23), 595.404(4), 595.404(10) FS. Law Implemented 595.404, 595.501 FS. History–New 5-2-19.

5P-3.006 Fiscal Action.

(1) through (2) No change.

(3) Recovery of Payment. The department will recover any fiscal action assessed pursuant to subsection (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. Written demands are deemed received by Sponsor five (5) calendar days after the postmark date of the certified mailing by the department.

(b) If after thirty (30) calendar days following receipt of the written demand, the Sponsor has failed to remit full payment or agree to a satisfactory repayment schedule, a second written demand stating the Fiscal Action assessed will be sent to the Sponsor by the department via certified mail, return receipt requested. the Sponsor will be declared Seriously Deficient pursuant to paragraph 5P-1.004(1)(a), F.A.C.

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

(d) If after ninety (90) calendar days following receipt of the original written demand, the Sponsor fails to remit full payment or agree to a satisfactory repayment schedule, the department will begin the procedure for collection of delinquent accounts as set forth in Section 17.20, F. S., the Sponsor will be declared Seriously Deficient, and the department will move to terminate the Sponsor pursuant to paragraph 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 4-7-19.

5P-3.007Seamless Summer Option.

School Food Authorities currently administering the National School Lunch Program and/or School Breakfast Program participating or desiring to participate in the Seamless Summer Option, as defined in subsection 5P-1.001(31), 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 210, 7 CFR 225 and 7 CFR 250 all revised as of January 1, 2021, and which are hereby adopted and incorporated by reference and available online at https://www.flrules.org/Gateway/reference.asp?No=Ref-xxxxx10330, Chapter 595, Florida Statutes, and this rule chapter.

(1) Participation. Only School Food Authorities administering the National School Lunch Program or School Breakfast Program may participate in the Seamless Summer Option. With department approval, School Food Authorities may sponsor non-school meal sites under the Seamless Summer Option.

(a) School Food Authorities must be able to demonstrate administrative capability and financial viability as specified in 5P-3.001(1)(a)(3) a. and 5P-3.001(1)(a)(3) c., F.A.C., to properly operate the Seamless Summer Option meal service during school vacation periods. School Food Authorities currently in good standing in the National School Lunch Program or School Breakfast Program are not required to submit further evidence of financial and administrative capability. For the purposes of this rule, School Food Authorities are considered to be in good standing if they have been reviewed during the previous 12 months and had no significant operational issues.

(b) The department will deny Seamless Summer Option applications from School Food Authorities that have significant operational issues either in the National School Lunch Program or School Breakfast Program as specified in 5P-2.005(13)(e)1., F.A.C., through 5P-2.005(13)(e)8., F.A.C.

(c) Completion of the Seamless Summer Option training found at http://FDACS.gov/trainFNW with eighty (80) percent accuracy or higher is a prerequisite for approval to participate. Previous participation in the Summer Food Service Program is not a requirement for participating in the Seamless Summer Option.

(d) Applications to participate in the Seamless Summer Option are due May 15 for all School Food Authorities.

(2) Periods of Operation.  For schools operating under a traditional school calendar, the months of operation for Seamless Summer Option are May through September when school is not in session and October through April for non-school sites only in response to an unanticipated school closure as specified in paragraph 5P-3.001(10), F.A.C.  At year-round schools, School Food Authorities may operate the Seamless Summer option during school vacation periods longer than 10 school days.  For year-round schools that have vacation periods shorter than 10 school days, the department will waive the 10-day requirement to allow for Seamless Summer Option participation.

(3) Site Eligibility.  The site eligibility requirements for the Seamless Summer Option are those specified in 7 CFR part 225 and Rule 5P-3.002, F.A.C. 

(4) Meal Service.  Meals at all approved Seamless Summer Option sites, except for camps, must be served free of charge to all children. School Food Authorities that sponsor camps may charge for the meals served to children who are not eligible to receive free or reduced price meals.

(a) All persons in the community who are 18 years of age and under and those persons over age 18 who are mentally or physically disabled may receive meals under the SSO.

(b) School Food Authorities offering the Seamless Summer Option must follow the National School Lunch Program and School Breakfast Program meal pattern requirements established in 7 CFR 210.10 and 7 CFR 220.8, respectively.

1. School Food Authorities must use the National School Lunch Program meal pattern for lunches established in 7 CFR 210.10 when serving supper meals.

2. School Food Authorities operating open and restricted open Seamless Summer Option sites that have difficulty implementing the age grade/group requirement should work with the department to make accommodations, including using a single age/grade group meeting the minimum meal pattern requirements for the most common age/grade group attending the site. All accommodations must have a reasonable justification for the need to deviate from the age/grade group requirement and be added as an addendum to the Child Nutrition Program agreement between the School Food Authority and the department. All other sites that serve an identified group of children, including closed enrolled sites and camps, must follow the meal pattern for each age/grade established in 7 CFR 210.10 and 7 CFR 220.8.

3. Seamless Summer Option sites must provide meal accommodations consistent with the policy established in SP 59-2016, Policy Memorandum on Modifications to Accommodate Disabilities in the School Meal Programs, which is hereby adopted and incorporated by reference and available online at https://www.flrules.org/Gateway/reference.asp?No=Ref-xxxxx.  The competitive food service standards at 7 CFR 210.11 do not apply to Seamless Summer Option.

4. Offer versus serve is allowed, but not required at Seamless Summer Option sites.

5. School food authorities participating in the Seamless Summer Option must comply with the requirements of the Buy American provision in the National School Lunch Act as provided in 7 CFR 210.21(d).

(c) With department approval, a School Food Authority can serve meals on weekends under the Seamless Summer Option.  A School Food Authority that plans to serve weekend meals in the Seamless Summer Option must include this information in its application to the department. Seamless Summer Option sites operating more than five days a week must increase the weekly grains quantity by approximately 20 percent (1/5) to account for each additional operating day.

(d) Meal times for breakfast and lunch must follow the designated times in the National School Lunch Program and School Breakfast Program regulations at 7 CFR 210.10(l) and 7 CFR 220.2(b).  Breakfast must be served between the hours of 6:00 a.m. and 10:00 a.m.  Snacks must be evenly and adequately spaced between other meal service times to minimize food waste and ensure good nutrition practices. Supper meal service may not begin later than 7:00 p.m. (EST).  Meal service outside of the designated times must be approved by the department.

(e) In year-round school sites, School Food Authorities must differentiate between meal counts for children receiving meals through the National School Lunch Program and School Breakfast Program during the traditional school calendar and children receiving meals through the Seamless Summer Option during summer and other school vacation periods.

(f) Seamless Summer Option sites are required to notify the department prior to field trips in accordance with 5P-3.002(6)(e), F.A.C.

(g) All Seamless Summer Option sites must plan for and prepare one meal per child per meal service.  Seamless Summer Option sites are allowed to offer eligible children a second breakfast and claim it for reimbursement in accordance with the requirements in 7 CFR 220.9(a).  Seamless Summer Option sites may not claim second lunches or snacks for reimbursement.

(5) Monitoring. School Food Authorities are required to review each Seamless Summer Option site at least once during its operation. The School Food Authority must review the site’s compliance with meal counting, claiming, menu planning, and food safety requirements.

(a) As set forth in 7 CFR 210.10(a)(3) and 7 CFR 220.8(a)(3), schools and non-school sites must keep production records and menu records for the meals they produce, including those offered under the Seamless Summer Option. The production records must allow the department to evaluate how the meals contribute to the required food components or food items. Records for food purchases (e.g. invoices, receipts) are required to document the expenditure of funds from the nonprofit food service account for compliance with determining the proportion of program and non-program food expenditures in relation to revenues.

(b) Edit checks are not required for Seamless Summer Option sites during the period of time that the School Food Authority is operating the sites under the Seamless Summer Option policies. School Food Authorities must ensure that meal counts match actual participation and claims reflect the number of meals served. If a school is operating the National School Lunch Program or School Breakfast Program for academic summer schools, edit checks are required as outlined in 7 CFR 210.8.

(6) Reimbursement Rates. Meals served under the Seamless Summer Option are reimbursed at the “free” rates prescribed by the USDA for the National School Lunch Program, afterschool snacks served in afterschool care programs, and for the School Breakfast Program. Supper meals are reimbursed at the National School Lunch Program’s free lunch rate.  Camps operating the Seamless Summer Option will only be reimbursed for those meals served to children who are eligible for free or reduced-price school meals at the free rate. Meals served to children at the camp site who are ineligible for free or reduced-price meals are not reimbursable. 

(a) Lunches claimed under the Seamless Summer Option will count toward the determination of the School Food Authority’s eligibility for the extra reimbursement differential and the school’s eligibility for the severe need breakfast rate. School Food Authorities certified to receive the performance-based reimbursement in accordance with 7 CFR 210.7(d) will receive the additional reimbursement for lunches and suppers served under the Seamless Summer Option.

(b) Claims for reimbursement under the Seamless Summer Option may be combined in accordance with 7 CFR 210.8(c)(1).  School Food Authorities may not combine June and July claims for reimbursement because of the National School Lunch Program rate change that occurs on July 1. 

(7) Administrative Reviews.  The department will review at least one Seamless Summer Option site in operation at all School Food Authorities scheduled for an administrative review. The review will be conducted in the summer prior to or following the scheduled administrative review.

(a) The department will schedule administrative reviews during the summer to avoid making a second visit to the Seamless Summer Option site if the school is operating the National School Lunch Program on a year-round basis and both the National School Lunch Program schools and Seamless Summer Options schools will be operating at the time of review.

(b) Seamless Summer Option administrative reviews will be conducted in accordance with 5P-2.005, F.A.C.

(c) The department will conduct ad hoc Administrative Reviews, Claim Reviews, Site Visits, or Technical Assistance Visits of a Sponsor’s operation of the Seamless Summer Option Program if, but not limited to, the following circumstances exist:

1. The department receives a complaint regarding the Sponsor’s operation of the Seamless Summer Option Program; or

2. The department identifies unusual data or trends within the Sponsor’s claims for reimbursement and any other information collected by the department about the Sponsor’s operation of the Seamless Summer Option Program, such as block claiming, substantially higher or substantially lower meal counts, recurrent field trips, duplicative site officials, or continual changes to meal service times.

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

5P-3.008          Waiver Requests.

(1) Waiver Request Protocol. As provided in Section 12(l) of the National School Lunch Act, 42 U.S.C. 1760(l), which is hereby adopted and incorporated by reference and available online at http://www.flrules.org/Gateway/reference.asp?No=Ref-xxxxx, the USDA Secretary may waive federal statutory and regulatory requirements for the Summer Food Service Program upon request. Sponsors desiring a waiver of a federal statutory or regulatory requirement must submit a request to the department online at https://fans.FDACS.gov, or by mail to 600 S. Calhoun Street (H2), Tallahassee, FL 32399, using the FNS Child Nutrition Program State Waiver Request Template, which is hereby adopted and incorporated by reference and available online at https://www.flrules.org/gateway/reference.asp?no=ref-xxxxx. Sponsors must submit complete waiver requests to the department via the Florida Automated Nutrition System and receive written approval from the USDA Secretary through Food and Nutrition Services (FNS) prior to implementing the waiver.

(a) Each section of the FNS Child Nutrition Program State Waiver Request Template must be completed in order for the waiver request to be considered. A complete waiver request must provide the information required by 42 U.S.C. 1760(l), including:

1. The federal statutory or regulatory requirements that are requested to be waived;

2. A description of the goal of the waiver to improve services under the Summer Food Service Program and the expected outcomes if the waiver is granted; and

3. A description of the impediments to the efficient operation and administration of the program.

(b) The department will submit completed FNS Child Nutrition Program State Waiver Request Templates to the USDA Food and Nutrition Service (FNS) regional office.

(c) The department will publish notice of waiver requests on behalf of the Sponsor prior to sending to FNS by publishing a notice in the Florida Administrative Register (FAR), which is the same manner in which the department usually provides similar notices and information to the public.

(2) Waiver Decisions.

(a) Waivers will be granted or denied by FNS in accordance with 42 USC 1760(1). All responses to waiver requests, including approvals or denials, will be provided by FNS in writing through the department. 

(b) When possible, waiver requests should be submitted, at minimum, 60 days prior to Sponsor’s anticipated implementation of the waiver.

(c) Waivers will only be effective for the limited time period stated in the waiver. After the initial waiver period provided by FNS has expired, if the waiver is still needed, Sponsors must request renewal of the waiver through the department. A renewal waiver request will be processed in the same manner as an initial waiver request.

(3) Monitoring and Reporting. The department and FNS will review the performance of Sponsors’ Summer Food Service Program operations under the waiver.

(a) Each request to waive Summer Food Service Program requirements must include proposed data reporting that will enable FNS and the department to assess the effect of the waiver on Summer Food Service Program administration and monitor its impact. At a minimum, reports must include:

1. A summary of the use of waiver by the Sponsor(s);

2. A description of whether the waiver resulted in improved services to recipients/participants;

3. A description of the impact of the waiver on providing nutritional meals to participants;

4. A description of how the waiver reduced the quantity of paperwork necessary to administer the program; and

5. Any additional information requested in the waiver approval by the department or FNS.

(b) The department and FNS will consider the data reports during the implementation of the waiver by the Sponsor and with any request for renewal of the waiver. Sponsors must adhere to existing applicable monitoring and reporting requirements, as well as those outlined in the waiver approval issued by FNS, to ensure continued operation throughout the approved waiver period. FNS may revoke a Sponsor’s waiver or deny future waiver requests if the Sponsor fails to fulfill the monitoring and reporting requirements.

(4) Waiver Termination. If the department or FNS determines that the waiver leads to deficits in Summer Food Service Program operations or to an increase in the overall cost of the program to the federal government and the increase has not been paid for with non-federal funds, FNS may terminate the waiver as provided in 42 USC 1760(1).

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

5P-3.009              Civil Rights Compliance and Enforcement.

All Sponsors must comply with all requirements of Title VI of the Civil Rights Act of 1964, Americans with Disabilities Act of 1990, American with Disabilities Act Amendment Act of 2008, Title IX of the Education Amendments of 1972, Section 504 of the Rehabilitation Act of 1973, Section 508 of the Rehabilitation Act of 1973, the Age Discrimination Act of 1975, the Civil Rights Restoration Act of 1987, the Department of Justice Guidelines for Enforcement of Title VI of the Civil Rights Act of 1964 at 28 CFR 50.3, and the USDA’s regulations concerning nondiscrimination (7 CFR parts 15, 15a,15b and 16), including requirements for racial and ethnic participation data collection, public notification of the nondiscrimination policy, and reviews to assure compliance with such policy. No person shall, on the grounds of race, color, national origin, sex, age, or disability, be excluded from participation in, be denied the benefits of, or be otherwise subjected to discrimination, or reprisal or retaliation for prior civil rights activity under the Summer Food Service Program.

(1) Complaints.  Any person or representative alleging discrimination based on a prohibited basis has the right to file a complaint within 180 days of the alleged discriminatory action by completing and submitting the USDA Program Discrimination Complaint Form (AD-3027 1/19/12 OMB Control Number 0508-0002), which is hereby adopted and incorporated by reference and available online at https://www.flrules.org/gateway/reference.asp?no=ref-XXXXX, by mail to  USDA, Office of the Assistant Secretary for Civil Rights, 1400 Independence Ave, SW, Stop 9410, Washington, D.C. 20250-9410, or by facsimile to 1-833-256-1665.

(a) In the event a complainant makes the allegations verbally or in person, or refuses or is not inclined to place such allegations in writing, the person to whom the allegations are made must write up the elements of the complaint for the complainant. Every effort should be made to have the complainant provide the following information:

1. Name, address, and telephone number or other means of contacting the complainant;

2. The specific location and name of the Sponsor and/or Summer Food Service Program site;

3. The nature of the incident or action that led the complainant to feel discrimination was a factor, and an example of the method of administration that is having a disparate effect on the public, potential eligible persons, applicants, or participants;

4. The basis on which the complainant believes discrimination exists;

5. The names, telephone numbers, titles, and business or personal addresses of persons who may have knowledge of the alleged discriminatory action; and

6. The date(s) during which the alleged discriminatory actions occurred or, if continuing, the duration of such actions.

(b) Complaints of discrimination filed by applicants or participants shall be referred by the department to the Food and Nutrition Service Civil Rights Division (FNS CRD) within five (5) calendars of receipt of the complaint. 

(c) Complaints alleging discrimination on the basis of age, regardless of whether other bases of discrimination are alleged, will be referred to the Food and Nutrition Service Civil Rights Division within five (5) working days after receiving the complaint.  FNS CRD will refer the complaint to the Federal Mediation and Conciliation Service (FMCS) for mediation within 10 calendar days of initial receipt.

(2) Limited English Proficiency.  Sponsors must take reasonable steps to assure meaningful access to the information and services they provide as required in FNS Instruction 113-1 FNS-620 (1-99), incorporated in Rule 5P-3.002, F.A.C.  Reasonable steps to assure meaningful access shall be contingent on the following factors:

(a) The number or proportion of persons with Limited English Proficiency eligible to be served or likely to be encountered by the Sponsor’s Summer Food Service Program;

(b) The frequency with which individuals with Limited English Proficiency come in contact with the Sponsor’s Summer Food Service Program;

(c) The nature and importance of the Sponsor’s Summer Food Service Program to people’s lives; and

(d) The resources available to the Sponsor and costs.

(3) Effective Communication.  Sponsors must provide aids and services when needed to communicate effectively with applicants, participants, and potentially eligible persons of their program who have communication disabilities to ensure that the persons with a vision, hearing, or speech disability can communicate with, receive information from, and convey information to, the Sponsor unless doing so would result in significant difficulty or expense with regard to the nature and cost of the aid or service relative to the Sponsor’s size, overall financial resources, and overall expenses. If a particular aid or service would result in significant difficulty or expense, the Sponsor must provide another effective aid or service, if possible, that would not result in significant difficulty or expense.

(a) Sponsors are not required to provide any particular aid or service in rare circumstances where it would fundamentally alter the nature of the services provided to the public; however, Sponsors are required to accept telephone calls placed through Telecommunications Relay Service (TRS) and Video Relay Service (VRS), and staff who answer the telephone must treat relay calls just like other calls.             

(b) Sponsors must consider the nature, length, complexity, and context of the communication and the person’s normal method(s) of communication as well as that person’s parent, spouse, or companion in appropriate circumstances. The term “companion” includes any family member, friend, or associate of a person seeking or receiving services who is an appropriate person with whom the Sponsor should communicate. Responsibility for providing effective communication, including the use of interpreters, is placed directly on the Sponsor.

(c) Sponsors cannot require a person to bring someone to interpret for him or her. A Sponsor can rely on a companion to interpret in the following situations:

1. In an emergency involving an imminent threat to the safety or welfare of an individual or the public, an adult or minor child accompanying a person who uses sign language may be relied upon to interpret or facilitate communication only when a qualified interpreter is not available; or

2. In situations not involving an imminent threat, an adult accompanying someone who uses sign language may be relied upon to interpret or facilitate communication when the individual requests this, the accompanying adult agrees, and reliance on the accompanying adult is appropriate under the circumstances. This exception does not apply to minor children. Sponsors may not rely on an accompanying adult to interpret when there is reason to doubt the person’s impartiality or effectiveness. 

(d) Sponsors are encouraged to consult with the person with a disability to discuss what aid or service is appropriate. Sponsors may require reasonable advance notice from people requesting aids or services, based on the length of time needed to acquire the aid or service, but may not impose excessive advance notice requirements. “Walk-in” requests for aids and services must also be honored to the extent possible.

(e) Sponsors must provide comprehensive and ongoing training to front line staff regarding the Americans with Disabilities Act (ADA) requirements for communicating effectively with people who have communication disabilities.

(4) Public Notification. Each Sponsor must take specific action to inform applicants, participants, and potentially eligible persons of their program rights and responsibilities and the steps necessary for participation. 

(a) Applicants and participants must be advised at the service delivery point of their right to file a complaint, how to file a complaint, and the complaint procedures. 

(b) All information materials and sources, including websites, used by the Sponsor to inform the public about the Summer Food Service Program must contain a nondiscrimination statement. At the minimum, the nondiscrimination statement, or a link to it, must be included on the home page of the program information.

(c) Each Sponsor must take the following actions to inform the general public, potentially eligible populations, community leaders, grassroots organizations, and referral sources about the Summer Food Service Program and the applicable Civil Rights requirements:

1. Prominently display the USDA nondiscrimination poster "And Justice for All," or an FNS approved substitute;

2. Inform potentially eligible persons, applicants, participants, and grassroots organizations (particularly those in underserved populations), of the Summer Food Service Program or changes in the Summer Food Service Program. This includes information pertaining to eligibility, benefits, and services, the location of local facilities or service delivery points, and hours of service. This information shall be communicated by methods such as, but not limited to, internet, newspaper articles, radio and television announcements, letters, leaflets, brochures, computer-based applications, and bulletins;

3. Provide appropriate information, including web-based information, in alternative formats for persons with disabilities;

4. Include the required nondiscrimination statement on all appropriate Summer Food Service Program publications, websites, posters, and informational materials provided to the public; and 

5. Convey the message of equal opportunity in all photographic and other graphics that are used to provide Summer Food Service Program or program-related information.

(5) Civil Rights Training. Sponsors are responsible for training their staff who interact with program applicants or participants, and those persons who supervise those staff, must be provided civil rights training on an annual basis. Specific subject matter must include, but not be limited to, collection and use of data, effective public notification systems, complaint procedures, compliance review techniques, resolution of noncompliance, requirements for reasonable accommodation of persons with disabilities, requirements for language assistance, conflict resolution, and customer service.

(6) Data Collection and Reporting.  Sponsors must provide for and maintain a system to collect the racial and ethnic data in accordance with 7 CFR 225.7(g) and FNS Instruction 113-1 FNS-620 (1-99), as previously incorporated in rule, to determine how effectively the Summer Food Service Program is reaching potential eligible persons and beneficiaries, identify areas where additional outreach is needed, assist in the selection of locations for compliance reviews, and complete reports as required.

(a) Program applicants or participants may not be required to furnish information on their race or ethnicity. Self-identification by the applicant or participant is the preferred method of obtaining characteristic data.

(b) The number of potentially eligible beneficiaries by racial or ethnic category for the area served by each Sponsor must be determined each year. Data concerning the number of potentially eligible beneficiaries, along with identification of all sources of the information, must be updated annually and maintained on file for 3 years. Sources for obtaining such data include census data or public school enrollment data.

(c) Actual beneficiary data by racial or ethnic category for each site under a Sponsor’s jurisdiction must be collected by the Sponsor each year. Sponsors of residential camps must collect and maintain this information separately for each session of the camp. For all other sites, the Sponsor must count the participating children at least once during the site’s operation.

(d) Once collected, actual beneficiary data shall be maintained on file by the Sponsor. Data, as well as documentation for the data, shall be retained by the Sponsor for the required 3 years. The data and documentation shall be maintained using safeguards that prevent its use for discriminatory purposes. Such safeguards shall include allowing access to program records containing this data only by authorized personnel.

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

 

NAME OF PERSON ORIGINATING PROPOSED RULE: Vianka Colin, Director, Division of Food, Nutrition and Wellness

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

DATE PROPOSED RULE APPROVED BY AGENCY HEAD:

DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAR: February 8, 2022.