42 USC 1766 - Child and adult care food program

U.S Code last checked for updates: Nov 23, 2024

§ 1766.

Child and adult care food program

(a)

Program purpose, grant authority and institution eligibility

(1)

In general

(A)

Program purpose

(i)

Findings

Congress finds that—

(I)

eating habits and other wellness-related behavior habits are established early in life; and

(II)

good nutrition and wellness are important contributors to the overall health of young children and essential to cognitive development.

(ii)

Purpose

(B)

Grant authority

(2)

Definition of institution

In this section, the term “institution” means—

(A)

any public or private nonprofit organization providing nonresidential child care or day care outside school hours for school children, including any child care center, settlement house, recreational center, Head Start center, and institution providing child care facilities for children with disabilities;

(B)

any other private organization providing nonresidential child care or day care outside school hours for school children, if—

(i)

at least 25 percent of the children served by the organization meet the income eligibility criteria established under section 1758(b) of this title for free or reduced price meals; or

(ii)

the organization receives compensation from amounts granted to the States under title XX of the Social Security Act (42 U.S.C. 1397 et seq.) (but only if the organization receives compensation under that title for at least 25 percent of its enrolled children or 25 percent of its licensed capacity, whichever is less);

(C)

any public or private nonprofit organization acting as a sponsoring organization for one or more of the organizations described in subparagraph (A) or (B) or for an adult day care center (as defined in subsection (o)(2));

(D)

any other private organization acting as a sponsoring organization for, and that is part of the same legal entity as, one or more organizations that are—

(i)

described in subparagraph (B); or

(ii)

proprietary title XIX or title XX centers (as defined in subsection (o)(2));

(E)

any public or private nonprofit organization acting as a sponsoring organization for one or more family or group day care homes; and

(F)

any emergency shelter (as defined in subsection (t)).

(3)

Age limit

(4)

Additional guidelines

(5)

Licensing

In order to be eligible, an institution (except a school or family or group day care home sponsoring organization) or family or group day care home shall—

(A)

(i)

be licensed, or otherwise have approval, by the appropriate Federal, State, or local licensing authority; or

(ii)

be in compliance with appropriate procedures for renewing participation in the program, as prescribed by the Secretary, and not be the subject of information possessed by the State indicating that the license of the institution or home will not be renewed;

(B)

if Federal, State, or local licensing or approval is not available—

(i)

meet any alternate approval standards established by the appropriate State or local governmental agency; or

(ii)

meet any alternate approval standards established by the Secretary after consultation with the Secretary of Health and Human Services; or

(C)

if the institution provides care to school children outside of school hours and Federal, State, or local licensing or approval is not required for the institution, meet State or local health and safety standards.

(6)

Eligibility criteria

No institution shall be eligible to participate in the program unless it satisfies the following criteria:

(A)

accepts final administrative and financial responsibility for management of an effective food service;

(B)

has not been seriously deficient in its operation of the child and adult care food program, or any other program under this chapter or the Child Nutrition Act of 1966 [42 U.S.C. 1771 et seq.], or has not been determined to be ineligible to participate in any other publicly funded program by reason of violation of the requirements of the program, for a period of time specified by the Secretary;

(C)

(i)

will provide adequate supervisory and operational personnel for overall monitoring and management of the child care food program; and

(ii)

in the case of a sponsoring organization, the organization shall employ an appropriate number of monitoring personnel based on the number and characteristics of child care centers and family or group day care homes sponsored by the organization, as approved by the State (in accordance with regulations promulgated by the Secretary), to ensure effective oversight of the operations of the child care centers and family or group day care homes;

(D)

in the case of a family or group day care home sponsoring organization that employs more than one employee, the organization does not base payments to an employee of the organization on the number of family or group day care homes recruited;

(E)

in the case of a sponsoring organization, the organization has in effect a policy that restricts other employment by employees that interferes with the responsibilities and duties of the employees of the organization with respect to the program; and

(F)

in the case of a sponsoring organization that applies for initial participation in the program on or after June 20, 2000, and that operates in a State that requires such institutions to be bonded under State law, regulation, or policy, the institution is bonded in accordance with such law, regulation, or policy.

(b)

Limitations on cash assistance

(c)

Formula for computation of payments; national average payment rate

(1)

For purposes of this section, except as provided in subsection (f)(3), the national average payment rate for free lunches and suppers, the national average payment rate for reduced price lunches and suppers, and the national average payment rate for paid lunches and suppers shall be the same as the national average payment rates for free lunches, reduced price lunches, and paid lunches, respectively, under sections 1753 and 1759a of this title as appropriate (as adjusted pursuant to section 1759a(a) of this title).

(2)

For purposes of this section, except as provided in subsection (f)(3), the national average payment rate for free breakfasts, the national average payment rate for reduced price breakfasts, and the national average payment rate for paid breakfasts shall be the same as the national average payment rates for free breakfasts, reduced price breakfasts, and paid breakfasts, respectively, under section 4(b) of the Child Nutrition Act of 1966 [42 U.S.C. 1773(b)] (as adjusted pursuant to section 1759a(a) of this title).

(3)

For purposes of this section, except as provided in subsection (f)(3), the national average payment rate for free supplements shall be 30 cents, the national average payment rate for reduced price supplements shall be one-half the rate for free supplements, and the national average payment rate for paid supplements shall be 2.75 cents (as adjusted pursuant to section 1759a(a) of this title).

(4)

Determinations with regard to eligibility for free and reduced price meals and supplements shall be made in accordance with the income eligibility guidelines for free lunches and reduced price lunches, respectively, under section 1758 of this title.

(5)

A child shall be considered automatically eligible for benefits under this section without further application or eligibility determination, if the child is enrolled as a participant in a Head Start program authorized under the Head Start Act (42 U.S.C. 9831 et seq.), on the basis of a determination that the child meets the eligibility criteria prescribed under section 645(a)(1)(B) of the Head Start Act (42 U.S.C. 9840(a)(1)(B)).

(6)

A child who has not yet entered kindergarten shall be considered automatically eligible for benefits under this section without further application or eligibility determination if the child is enrolled as a participant in the Even Start program under part B of chapter 1 of title I of the Elementary and Secondary Education Act of 1965 (20 U.S.C. 2741 et seq.).1

 See References in Text note below.

(d)

Institution approval and applications

(1)

Institution approval

(A)

Administrative capability

Subject to subparagraph (B) and except as provided in subparagraph (C), the State agency shall approve an institution that meets the requirements of this section for participation in the child and adult care food program if the State agency determines that the institution—

(i)

is financially viable;

(ii)

is administratively capable of operating the program (including whether the sponsoring organization has business experience and management plans appropriate to operate the program) described in the application of the institution; and

(iii)

has internal controls in effect to ensure program accountability.

(B)

Approval of private institutions

(i)

In general

In addition to the requirements established by subparagraph (A) and subject to clause (ii), the State agency shall approve a private institution that meets the requirements of this section for participation in the child and adult care food program only if—

(I)

the State agency conducts a satisfactory visit to the institution before approving the participation of the institution in the program; and

(II)

the institution—

(aa)

has tax exempt status under title 26;

(bb)

is operating a Federal program requiring nonprofit status to participate in the program; or

(cc)

is described in subsection (a)(2)(B).

(ii)

Exception for family or group day care homes

(C)

Exception for certain sponsoring organizations

(i)

In general

The State agency may approve an eligible institution acting as a sponsoring organization for one or more family or group day care homes or centers that, at the time of application, is not participating in the child and adult care food program only if the State agency determines that—

(I)

the institution meets the requirements established by subparagraphs (A) and (B); and

(II)

the participation of the institution will help to ensure the delivery of benefits to otherwise unserved family or group day care homes or centers or to unserved children in an area.

(ii)

Criteria for selection

(D)

Notification to applicants

(E)

Permanent operating agreements

(i)

In general

(ii)

Amendments

(iii)

Termination

A permanent agreement described in clause (i)—

(I)

may be terminated for convenience by the institution or State agency that is a party to the permanent agreement; and

(II)

shall be terminated—

(aa)

for cause by the applicable State agency in accordance with paragraph (5); or

(bb)

on termination of participation of the institution in the child and adult care food program.

(2)

Program applications

(A)

In general

The Secretary shall develop a policy under which each institution providing child care that participates in the program under this section shall—

(i)

submit to the State agency an initial application to participate in the program that meets all requirements established by the Secretary by regulation;

(ii)

annually confirm to the State agency that the institution, and any facilities of the institution in which the program is operated by a sponsoring organization, is in compliance with subsection (a)(5); and

(iii)

annually submit to the State agency any additional information necessary to confirm that the institution is in compliance with all other requirements to participate in the program, as established in this chapter and by the Secretary by regulation.

(B)

Required reviews of sponsored facilities

(i)

In general

The Secretary shall develop a policy under which each sponsoring organization participating in the program under this section shall conduct—

(I)

periodic unannounced site visits at not less than 3-year intervals to sponsored child and adult care centers and family or group day care homes to identify and prevent management deficiencies and fraud and abuse under the program; and

(II)

at least 1 scheduled site visit each year to sponsored child and adult care centers and family or group day care homes to identify and prevent management deficiencies and fraud and abuse under the program and to improve program operations.

(ii)

Varied timing

(C)

Required reviews of institutions

The Secretary shall develop a policy under which each State agency shall conduct—

(i)

at least 1 scheduled site visit at not less than 3-year intervals to each institution under the State agency participating in the program under this section—

(I)

to identify and prevent management deficiencies and fraud and abuse under the program; and

(II)

to improve program operations; and

(ii)

more frequent reviews of any institution that—

(I)

sponsors a significant share of the facilities participating in the program;

(II)

conducts activities other than the program authorized under this section;

(III)

has serious management problems, as identified in a prior review, or is at risk of having serious management problems; or

(IV)

meets such other criteria as are defined by the Secretary.

(D)

Detection and deterrence of erroneous payments and false claims

(i)

In general

(ii)

Block claims

(I)

Definition of block claim

(II)

Program edit checks

(III)

Allowance

(3)

Program information

(A)

In general

On enrollment of a child in a sponsored child care center or family or group day care home participating in the program, the center or home (or its sponsoring organization) shall provide to the child’s parents or guardians—

(i)

information that describes the program and its benefits; and

(ii)

the name and telephone number of the sponsoring organization of the center or home and the State agency involved in the operation of the program.

(B)

Form

(4)

Allowable administrative expenses for sponsoring organizations

(5)

Termination or suspension of participating organizations

(A)

In general

(B)

Standards

Procedures established pursuant to subparagraph (A) shall include standards for terminating the participation of an institution or family or group day care home that—

(i)

engages in unlawful practices, falsifies information provided to the State agency, or conceals a criminal background; or

(ii)

substantially fails to fulfill the terms of its agreement with the State agency.

(C)

Corrective action

Procedures established pursuant to subparagraph (A)—

(i)

shall require an entity described in subparagraph (B) to undertake corrective action; and

(ii)

may require the immediate suspension of operation of the program by an entity described in subparagraph (B), without the opportunity for corrective action, if the State agency determines that there is imminent threat to the health or safety of a participant at the entity or the entity engages in any activity that poses a threat to public health or safety.

(D)

Hearing

(i)

In general

(ii)

Exception for false or fraudulent claims

(I)

In general

(II)

Requirement for review

(III)

Review procedure

The review shall—

(aa)

be conducted by an independent and impartial official other than, and not accountable to, any person involved in the determination to suspend the institution;

(bb)

provide the State agency and the institution the right to submit written documentation relating to the suspension, including State agency documentation of the alleged false or fraudulent claim for reimbursement and the response of the institution to the documentation;

(cc)

require the reviewing official to determine, based on the review, whether the State agency has established, based on a preponderance of the evidence, that the institution has knowingly submitted a false or fraudulent claim for reimbursement;

(dd)

require the suspension to be in effect for not more than 120 calendar days after the institution has received notification of a determination of suspension in accordance with this clause; and

(ee)

require the State agency during the suspension to ensure that payments continue to be made to sponsored centers and family and group day care homes meeting the requirements of the program.

(IV)

Hearing

(E)

List of disqualified institutions and individuals

(i)

In general

(ii)

Availability

(e)

Hearings

(1)

In general

Except as provided in paragraph (4), each State agency shall provide, in accordance with regulations promulgated by the Secretary, an opportunity for a fair hearing and a prompt determination to any institution aggrieved by any action of the State agency that affects—

(A)

the participation of the institution in the program authorized by this section; or

(B)

the claim of the institution for reimbursement under this section.

(2)

Reimbursement

(3)

Notice to State agency

(4)

Federal audit determination

(5)

Secretarial hearing

(f)

State disbursements to institutions

(1)

In general.—

(A)

Requirement.—

Funds paid to any State under this section shall be disbursed to eligible institutions by the State under agreements approved by the Secretary. Disbursements to any institution shall be made only for the purpose of assisting in providing meals to children attending institutions, or in family or group day care homes. Disbursement to any institution shall not be dependent upon the collection of moneys from participating children. All valid claims from such institutions shall be paid within forty-five days of receipt by the State. The State shall notify the institution within fifteen days of receipt of a claim if the claim as submitted is not valid because it is incomplete or incorrect.

(B)

Fraud or abuse.—

(i)

In general.—

The State may recover funds disbursed under subparagraph (A) to an institution if the State determines that the institution has engaged in fraud or abuse with respect to the program or has submitted an invalid claim for reimbursement.

(ii)

Payment.—

Amounts recovered under clause (i)—

(I)

may be paid by the institution to the State over a period of one or more years; and

(II)

shall not be paid from funds used to provide meals and supplements.

(iii)

Hearing.—

An institution shall be provided a fair hearing in accordance with subsection (e)(1) prior to any determination to recover funds under this subparagraph.

(2)

(A)

Subject to subparagraph (B) of this paragraph, the disbursement for any fiscal year to any State for disbursement to institutions, other than family or group day care home sponsoring organizations, for meals provided under this section shall be equal to the sum of the products obtained by multiplying the total number of each type of meal (breakfast, lunch or supper, or supplement) served in such institution in that fiscal year by the applicable national average payment rate for each such type of meal, as determined under subsection (c).

(B)

No reimbursement may be made to any institution under this paragraph, or to family or group day care home sponsoring organizations under paragraph (3) of this subsection, for more than two meals and one supplement per day per child, or in the case of an institution (but not in the case of a family or group day care home sponsoring organization), 2 meals and 1 supplement per day per child, for children that are maintained in a child care setting for eight or more hours per day.

(C)

Limitation on administrative expenses for certain sponsoring organizations.—

(i)

In general.—

Except as provided in clause (ii), a sponsoring organization of a day care center may reserve not more than 15 percent of the funds provided under paragraph (1) for the administrative expenses of the organization.

(ii)

Waiver.—

A State may waive the requirement in clause (i) with respect to a sponsoring organization if the organization provides justification to the State that the organization requires funds in excess of 15 percent of the funds provided under paragraph (1) to pay the administrative expenses of the organization.

(3)

Reimbursement of family or group day care home sponsoring organizations.—

(A)

Reimbursement factor.—

(i)

In general.—

An institution that participates in the program under this section as a family or group day care home sponsoring organization shall be provided, for payment to a home sponsored by the organization, reimbursement factors in accordance with this subparagraph for the cost of obtaining and preparing food and prescribed labor costs involved in providing meals under this section.

(ii)

Tier i family or group day care homes.—

(I)

Definition of tier i family or group day care home.—

In this paragraph, the term “tier I family or group day care home” means—

(aa)

a family or group day care home that is located in a geographic area, as defined by the Secretary based on census data, in which at least 50 percent of the children residing in the area are members of households whose incomes meet the income eligibility guidelines for free or reduced price meals under section 1758 of this title;

(bb)

a family or group day care home that is located in an area served by a school enrolling students in which at least 50 percent of the total number of children enrolled are certified eligible to receive free or reduced price school meals under this chapter or the Child Nutrition Act of 1966 (42 U.S.C. 1771 et seq.); or

(cc)

a family or group day care home that is operated by a provider whose household meets the income eligibility guidelines for free or reduced price meals under section 1758 of this title and whose income is verified by the sponsoring organization of the home under regulations established by the Secretary.

(II)

Reimbursement.—

Except as provided in subclause (III), a tier I family or group day care home shall be provided reimbursement factors under this clause without a requirement for documentation of the costs described in clause (i), except that reimbursement shall not be provided under this subclause for meals or supplements served to the children of a person acting as a family or group day care home provider unless the children meet the income eligibility guidelines for free or reduced price meals under section 1758 of this title.

(III)

Factors.—

Except as provided in subclause (IV), the reimbursement factors applied to a home referred to in subclause (II) shall be the factors in effect on July 1, 1996.

(IV)

Adjustments.—

The reimbursement factors under this subparagraph shall be adjusted on July 1, 1997, and each July 1 thereafter, to reflect changes in the Consumer Price Index for food at home for the most recent 12-month period for which the data are available. The reimbursement factors under this subparagraph shall be rounded to the nearest lower cent increment and based on the unrounded adjustment in effect on June 30 of the preceding school year.

(iii)

Tier ii family or group day care homes.—

(I)

In general.—

(aa)

Factors.—

Except as provided in subclause (II), with respect to meals or supplements served under this clause by a family or group day care home that does not meet the criteria set forth in clause (ii)(I), the reimbursement factors shall be 95 cents for lunches and suppers, 27 cents for breakfasts, and 13 cents for supplements.

(bb)

Adjustments.—

The factors shall be adjusted on July 1, 1997, and each July 1 thereafter, to reflect changes in the Consumer Price Index for food at home for the most recent 12-month period for which the data are available. The reimbursement factors under this item shall be rounded down to the nearest lower cent increment and based on the unrounded adjustment for the preceding 12-month period.

(cc)

Reimbursement.—

A family or group day care home shall be provided reimbursement factors under this subclause without a requirement for documentation of the costs described in clause (i), except that reimbursement shall not be provided under this subclause for meals or supplements served to the children of a person acting as a family or group day care home provider unless the children meet the income eligibility guidelines for free or reduced price meals under section 1758 of this title.

(II)

Other factors.—

A family or group day care home that does not meet the criteria set forth in clause (ii)(I) may elect to be provided reimbursement factors determined in accordance with the following requirements:

(aa)

Children eligible for free or reduced price meals.—

In the case of meals or supplements served under this subsection to children who are members of households whose incomes meet the income eligibility guidelines for free or reduced price meals under section 1758 of this title, the family or group day care home shall be provided reimbursement factors set by the Secretary in accordance with clause (ii)(III).

(bb)

Ineligible children.—

In the case of meals or supplements served under this subsection to children who are members of households whose incomes do not meet the income eligibility guidelines, the family or group day care home shall be provided reimbursement factors in accordance with subclause (I).

(III)

Information and determinations.—

(aa)

In general.—

If a family or group day care home elects to claim the factors described in subclause (II), the family or group day care home sponsoring organization serving the home shall collect the necessary income information, as determined by the Secretary, from any parent or other caretaker to make the determinations specified in subclause (II) and shall make the determinations in accordance with rules prescribed by the Secretary.

(bb)

Categorical eligibility.—

In making a determination under item (aa), a family or group day care home sponsoring organization may consider a child participating in or subsidized under, or a child with a parent participating in or subsidized under, a federally or State supported child care or other benefit program with an income eligibility limit that does not exceed the eligibility standard for free or reduced price meals under section 1758 of this title to be a child who is a member of a household whose income meets the income eligibility guidelines under section 1758 of this title.

(cc)

Factors for children only.—

A family or group day care home may elect to receive the reimbursement factors prescribed under clause (ii)(III) solely for the children participating in a program referred to in item (bb) if the home elects not to have income statements collected from parents or other caretakers.

(dd)

Transmission of income information by sponsored family or group day care homes.—

If a family or group day care home elects to be provided reimbursement factors described in subclause (II), the family or group day care home may assist in the transmission of necessary household income information to the family or group day care home sponsoring organization in accordance with the policy described in item (ee).

(ee)

Policy.—

The Secretary shall develop a policy under which a sponsored family or group day care home described in item (dd) may, under terms and conditions specified by the Secretary and with the written consent of the parents or guardians of a child in a family or group day care home participating in the program, assist in the transmission of the income information of the family to the family or group day care home sponsoring organization.

(IV)

Simplified meal counting and reporting procedures.—

The Secretary shall prescribe simplified meal counting and reporting procedures for use by a family or group day care home that elects to claim the factors under subclause (II) and by a family or group day care home sponsoring organization that sponsors the home. The procedures the Secretary prescribes may include 1 or more of the following:

(aa)

Setting an annual percentage for each home of the number of meals served that are to be reimbursed in accordance with the reimbursement factors prescribed under clause (ii)(III) and an annual percentage of the number of meals served that are to be reimbursed in accordance with the reimbursement factors prescribed under subclause (I), based on the family income of children enrolled in the home in a specified month or other period.

(bb)

Placing a home into 1 of 2 or more reimbursement categories annually based on the percentage of children in the home whose households have incomes that meet the income eligibility guidelines under section 1758 of this title, with each such reimbursement category carrying a set of reimbursement factors such as the factors prescribed under clause (ii)(III) or subclause (I) or factors established within the range of factors prescribed under clause (ii)(III) and subclause (I).

(cc)

Such other simplified procedures as the Secretary may prescribe.

(V)

Minimum verification requirements.—

The Secretary may establish any minimum verification requirements that are necessary to carry out this clause.

(B)

Administrative funds.—

(i)

In general.—

In addition to reimbursement factors described in subparagraph (A), a family or group day care home sponsoring organization shall receive reimbursement for the administrative expenses of the sponsoring organization in an amount that is not less than the product obtained each month by multiplying—

(I)

the number of family and group day care homes of the sponsoring organization submitting a claim for reimbursement during the month; by

(II)

the appropriate administrative rate determined by the Secretary.

(ii)

Annual adjustment.—

The administrative reimbursement levels specified in clause (i) shall be adjusted July 1 of each year to reflect changes in the Consumer Price Index for All Urban Consumers published by the Bureau of Labor Statistics of the Department of Labor for the most recent 12-month period for which such data are available.

(iii)

Carryover funds.—

The Secretary shall develop procedures under which not more than 10 percent of the amount made available to sponsoring organizations under this section for administrative expenses for a fiscal year may remain available for obligation or expenditure in the succeeding fiscal year.

(C)

(i)

Reimbursement for administrative expenses shall also include start-up funds to finance the administrative expenses for such institutions to initiate successful operation under the program and expansion funds to finance the administrative expenses for such institutions to expand into low-income or rural areas. Institutions that have received start-up funds may also apply at a later date for expansion funds. Such start-up funds and expansion funds shall be in addition to other reimbursement to such institutions for administrative expenses. Start-up funds and expansion funds shall be payable to enable institutions satisfying the criteria of subsection (d) of this section, and any other standards prescribed by the Secretary, to develop an application for participation in the program as a family or group day care home sponsoring organization or to implement the program upon approval of the application. Such start-up funds and expansion funds shall be payable in accordance with the procedures prescribed by the Secretary. The amount of start-up funds and expansion funds payable to an institution shall be not less than the institution’s anticipated reimbursement for administrative expenses under the program for one month and not more than the institution’s anticipated reimbursement for administrative expenses under the program for two months.

(ii)

Funds for administrative expenses may be used by family or group day care home sponsoring organizations to assist unlicensed family or group day care homes in becoming licensed.

(D)

Limitations on ability of family or group day care homes to transfer sponsoring organizations.—

(i)

In general.—

Subject to clause (ii), a State agency shall limit the ability of a family or group day care home to transfer from a sponsoring organization to another sponsoring organization more frequently than once a year.

(ii)

Good cause.—

The State agency may permit or require a family or group day care home to transfer from a sponsoring organization to another sponsoring organization more frequently than once a year for good cause (as determined by the State agency), including circumstances in which the sponsoring organization of the family or group day care home ceases to participate in the child and adult care food program.

(E)

Provision of data to family or group day care home sponsoring organizations.—

(i)

Census data.—

The Secretary shall provide to each State agency administering a child and adult care food program under this section data from the most recent decennial census survey or other appropriate census survey for which the data are available showing which areas in the State meet the requirements of subparagraph (A)(ii)(I)(aa). The State agency shall provide the data to family or group day care home sponsoring organizations located in the State.

(ii)

School data.—

(I)

In general.—

A State agency administering the school lunch program under this chapter or the school breakfast program under the Child Nutrition Act of 1966 (42 U.S.C. 1771 et seq.) shall provide to approved family or group day care home sponsoring organizations a list of schools serving elementary school children in the State in which not less than ½ of the children enrolled are certified to receive free or reduced price meals. The State agency shall collect the data necessary to create the list annually and provide the list on a timely basis to any approved family or group day care home sponsoring organization that requests the list.

(II)

Use of data from preceding school year.—

In determining for a fiscal year or other annual period whether a home qualifies as a tier I family or group day care home under subparagraph (A)(ii)(I), the State agency administering the program under this section, and a family or group day care home sponsoring organization, shall use the most current available data at the time of the determination.

(iii)

Duration of determination.—

For purposes of this section, a determination that a family or group day care home is located in an area that qualifies the home as a tier I family or group day care home (as the term is defined in subparagraph (A)(ii)(I)), shall be in effect for 5 years (unless the determination is made on the basis of census data, in which case the determination shall remain in effect until more recent census data are available) unless the State agency determines that the area in which the home is located no longer qualifies the home as a tier I family or group day care home.

(4)

By the first day of each month of operation, the State may provide advance payments for the month to each approved institution in an amount that reflects the full level of valid claims customarily received from such institution for one month’s operation. In the case of a newly participating institution, the amount of the advance shall reflect the State’s best estimate of the level of valid claims such institutions will submit. If the State has reason to believe that an institution will not be able to submit a valid claim covering the period for which such an advance has been made, the subsequent month’s advance payment shall be withheld until the State receives a valid claim. Payments advanced to institutions that are not subsequently deducted from a valid claim for reimbursement shall be repaid upon demand by the State. Any prior payment that is under dispute may be subtracted from an advance payment.

(g)

Nutritional requirements for meals and snacks served in institutions and family or group day care homes

(1)

Definition of dietary guidelines

(2)

Nutritional requirements

(A)

In general

(B)

Conformity with the dietary guidelines and authoritative science

(i)

In general

Not less frequently than once every 10 years, the Secretary shall review and, as appropriate, update requirements for meals served under the program under this section to ensure that the meals—

(I)

are consistent with the goals of the most recent Dietary Guidelines; and

(II)

promote the health of the population served by the program authorized under this section, as indicated by the most recent relevant nutrition science and appropriate authoritative scientific agency and organization recommendations.

(ii)

Cost review

(iii)

Regulations

(C)

Exceptions

(i)

Special dietary needs

(ii)

Exempt institutions

(3)

Meal service

(4)

Fluid milk

(A)

In general

(B)

Milk substitutes

In the case of children who cannot consume fluid milk due to medical or other special dietary needs other than a disability, an institution, family or group day care home, or sponsored center may substitute for the fluid milk required in meals served, a nondairy beverage that—

(i)

is nutritionally equivalent to fluid milk; and

(ii)

meets nutritional standards established by the Secretary, including, among other requirements established by the Secretary, fortification of calcium, protein, vitamin A, and vitamin D to levels found in cow’s milk.

(C)

Approval

(i)

In general

A substitution authorized under subparagraph (B) may be made—

(I)

at the discretion of and on approval by the participating day care institution; and

(II)

if the substitution is requested by written statement of a medical authority, or by the parent or legal guardian of the child, that identifies the medical or other special dietary need that restricts the diet of the child.

(ii)

Exception

(D)

Excess expenses borne by institution

A participating institution, family or group day care home, or sponsored center shall be responsible for any expenses that—

(i)

are incurred by the institution, family or group day care home, or sponsored center to provide substitutions under this paragraph; and

(ii)

are in excess of expenses covered under reimbursements under this chapter.

(5)

Nondiscrimination policy

(6)

Use of abundant and donated foods

To the maximum extent practicable, each institution shall use in its food service foods that are—

(A)

designated from time to time by the Secretary as being in abundance, either nationally or in the food service area; or

(B)

donated by the Secretary.

(h)

Donation of agricultural commodities by Secretary; measurement of value; annual readjustment of assistance; cash in lieu of commodities; Department of Defense child care feeding program

(1)

(A)

The Secretary shall donate agricultural commodities produced in the United States for use in institutions participating in the child care food program under this section.

(B)

The value of the commodities donated under subparagraph (A) (or cash in lieu of commodities) to each State for each school year shall be, at a minimum, the amount obtained by multiplying the number of lunches and suppers served in participating institutions in that State during the preceding school year by the rate for commodities or cash in lieu of commodities established under section 1755(c) of this title for the school year concerned.

(C)

After the end of each school year, the Secretary shall—

(i)

reconcile the number of lunches and suppers served in participating institutions in each State during such school year with the number of lunches and suppers served by participating institutions in each State during the preceding school year; and

(ii)

based on such reconciliation, increase or reduce subsequent commodity assistance or cash in lieu of commodities provided to each State.

(D)

Any State receiving assistance under this section for institutions participating in the child care food program may, upon application to the Secretary, receive cash in lieu of some or all of the commodities to which it would otherwise be entitled under this subsection. In determining whether to request cash in lieu of commodities, the State shall base its decision on the preferences of individual participating institutions within the State, unless this proves impracticable due to the small number of institutions preferring donated commodities.

(2)

The Secretary is authorized to provide agricultural commodities obtained by the Secretary under the provisions of the Agricultural Act of 1949 (7 U.S.C. 1421 et seq.) and donated under the provisions of section 416 of such Act [7 U.S.C. 1431], to the Department of Defense for use by its institutions providing child care services, when such commodities are in excess of the quantities needed to meet the needs of all other child nutrition programs, domestic and foreign food assistance and export enhancement programs. The Secretary shall require reimbursement from the Department of Defense for the costs, or some portion thereof, of delivering such commodities to overseas locations, unless the Secretary determines that it is in the best interest of the program that the Department of Agriculture shall assume such costs.

(i)

Audits

(1)

Disregards

(A)

In general

(B)

Criminal or fraud violations

(2)

Funding

(A)

In general

(B)

Additional funding

(i)

In general

(ii)

Limitation

(j)

Agreements

(1)

In general

(2)

Duration

(k)

Training and technical assistance

(l)

Non-diminishment of State and local funds

(m)

Accounts and records

(n)

Authorization of appropriations

(o)

Participation of older persons and chronically impaired disabled persons

(1)

For purposes of this section, adult day care centers shall be considered eligible institutions for reimbursement for meals or supplements served to persons 60 years of age or older or to chronically impaired disabled persons, including victims of Alzheimer’s disease and related disorders with neurological and organic brain dysfunction. Reimbursement provided to such institutions for such purposes shall improve the quality of meals or level of services provided or increase participation in the program. Lunches served by each such institution for which reimbursement is claimed under this section shall provide, on the average, approximately ⅓ of the daily recommended dietary allowance established by the Food and Nutrition Board of the National Research Council of the National Academy of Sciences. Such institutions shall make reasonable efforts to serve meals that meet the special dietary requirements of participants, including efforts to serve foods in forms palatable to participants.

(2)

For purposes of this subsection—

(A)

the term “adult day care center” means any public agency or private nonprofit organization, or any proprietary title XIX or title XX center, which—

(i)

is licensed or approved by Federal, State, or local authorities to provide adult day care services to chronically impaired disabled adults or persons 60 years of age or older in a group setting outside their homes, or a group living arrangement, on a less than 24-hour basis; and

(ii)

provides for such care and services directly or under arrangements made by the agency or organization whereby the agency or organization maintains professional management responsibility for all such services; and

(B)

the term “proprietary title XIX or title XX center” means any private, for-profit center providing adult day care services for which it receives compensation from amounts granted to the States under title XIX or XX of the Social Security Act [42 U.S.C. 1396 et seq., 1397 et seq.] and which title XIX or title XX beneficiaries were not less than 25 percent of enrolled eligible participants in a calendar month preceding initial application or annual reapplication for program participation.

(3)

(A)

The Secretary, in consulation 2

 So in original. Probably should be “consultation”.

with the Assistant Secretary for Aging, shall establish, within 6 months of October 1, 1988, separate guidelines for reimbursement of institutions described in this subsection. Such reimbursement shall take into account the nutritional requirements of eligible persons, as determined by the Secretary on the basis of tested nutritional research, except that such reimbursement shall not be less than would otherwise be required under this section.

(B)

The guidelines shall contain provisions designed to assure that reimbursement under this subsection shall not duplicate reimbursement under part C of title III of the Older Americans Act of 1965 [42 U.S.C. 3030e et seq.], for the same meal served.

(4)

For the purpose of establishing eligibility for free or reduced price meals or supplements under this subsection, income shall include only the income of an eligible person and, if any, the spouse and dependents with whom the eligible person resides.

(5)

A person described in paragraph (1) shall be considered automatically eligible for free meals or supplements under this subsection, without further application or eligibility determination, if the person is—

(A)

a member of a household receiving assistance under the Food and Nutrition Act of 2008 (7 U.S.C. 2011 et seq.); or

(B)

a recipient of assistance under title XVI or XIX of the Social Security Act [42 U.S.C. 1381 et seq., 1396 et seq.].

(6)

The Governor of any State may designate to administer the program under this subsection a State agency other than the agency that administers the child care food program under this section.

(p)

Repealed. Pub. L. 111–296, title IV, § 441(a)(7), Dec. 13, 2010, 124 Stat. 3264

(q)

Management support

(1)

Technical and training assistance

(2)

Technical and training assistance for identification and prevention of fraud and abuse

(r)

Program for at-risk school children

(1)

Definition of at-risk school child

In this subsection, the term “at-risk school child” means a school child who—

(A)

is not more than 18 years of age, except that the age limitation provided by this subparagraph shall not apply to a child described in section 1760(d)(1)(A) of this title; and

(B)

participates in a program authorized under this section operated at a site located in a geographical area served by a school in which at least 50 percent of the children enrolled are certified as eligible to receive free or reduced price school meals under this chapter or the Child Nutrition Act of 1966 (42 U.S.C. 1771 et seq.).

(2)

Participation in child and adult care food program

An institution may participate in the program authorized under this section only if the institution provides meals or supplements under a program—

(A)

organized primarily to provide care to at-risk school children during after-school hours, weekends, or holidays during the regular school year; and

(B)

with an educational or enrichment purpose.

(3)

Administration

(4)

Meal and supplement reimbursement

(A)

Limitations

(B)

Rates

(i)

Meals

(ii)

Supplements

(C)

No charge

(5)

Limitation

(6)

Handbook

(A)

In general

Not later than 180 days after December 13, 2010, the Secretary shall—

(i)

issue guidelines for afterschool meals for at-risk school children; and

(ii)

publish a handbook reflecting those guidelines.

(B)

Review

Each year after the issuance of guidelines under subparagraph (A), the Secretary shall—

(i)

review the guidelines; and

(ii)

issue a revised handbook reflecting changes made to the guidelines.

(s)

Information concerning the special supplemental nutrition program for women, infants, and children

(1)

In general

(2)

Requirements for State agencies

Each State agency shall ensure that each participating family and group day care home and child care center (other than an institution providing care to school children outside school hours)—

(A)

receives materials that include—

(i)

a basic explanation of the importance and benefits of the special supplemental nutrition program for women, infants, and children;

(ii)

the maximum State income eligibility standards, according to family size, for the program; and

(iii)

information concerning how benefits under the program may be obtained;

(B)

receives periodic updates of the information described in subparagraph (A); and

(C)

provides the information described in subparagraph (A) to parents of enrolled children at enrollment.

(t)

Participation by emergency shelters

(1)

Definition of emergency shelter

In this subsection, the term “emergency shelter” means—

(A)

an emergency shelter (as defined in section 11351 of this title); or

(B)

a site operated by the shelter.

(2)

Administration

(3)

Licensing requirements

(4)

Health and safety standards

(5)

Meal or supplement reimbursement

(A)

Limitations

An emergency shelter may claim reimbursement under this subsection—

(i)

only for a meal or supplement served to children residing at an emergency shelter, if the children are—

(I)

not more than 18 years of age; or

(II)

children with disabilities; and

(ii)

for not more than 3 meals, or 2 meals and a supplement, per child per day.

(B)

Rate

(C)

No charge

(u)

Promoting health and wellness in child care

(1)

Physical activity and electronic media use

The Secretary shall encourage participating child care centers and family or group day care homes—

(A)

to provide to all children under the supervision of the participating child care centers and family or group day care homes daily opportunities for structured and unstructured age-appropriate physical activity; and

(B)

to limit among children under the supervision of the participating child care centers and family or group day care homes the use of electronic media to an appropriate level.

(2)

Water consumption

(3)

Technical assistance and guidance

(A)

In general

(B)

Guidance

Not later than January 1, 2012, the Secretary shall issue guidance to States and institutions to encourage participating child care centers and family or group day care homes serving meals and snacks under this section to—

(i)

include foods that are recommended for increased serving consumption in amounts recommended by the most recent Dietary Guidelines for Americans published under section 5341 of title 7, including fresh, canned, dried, or frozen fruits and vegetables, whole grain products, lean meat products, and low-fat and non-fat dairy products; and

(ii)

reduce sedentary activities and provide opportunities for regular physical activity in quantities recommended by the most recent Dietary Guidelines for Americans described in clause (i).

(C)

Nutrition

Technical assistance relating to the nutritional requirements of this subsection and subsection (g) shall include—

(i)

nutrition education, including education that emphasizes the relationship between nutrition, physical activity, and health;

(ii)

menu planning;

(iii)

interpretation of nutrition labels; and

(iv)

food preparation and purchasing guidance to produce meals and snacks that are—

(I)

consistent with the goals of the most recent Dietary Guidelines; and

(II)

promote the health of the population served by the program under this section, as recommended by authoritative scientific organizations.

(D)

Physical activity

Technical assistance relating to the physical activity requirements of this subsection shall include—

(i)

education on the importance of regular physical activity to overall health and well being; and

(ii)

sharing of best practices for physical activity plans in child care centers and homes as recommended by authoritative scientific organizations.

(E)

Electronic media use

Technical assistance relating to the electronic media use requirements of this subsection shall include—

(i)

education on the benefits of limiting exposure to electronic media by children; and

(ii)

sharing of best practices for the development of daily activity plans that limit use of electronic media.

(F)

Minimum assistance

(G)

Additional assistance

(H)

Funding

(i)

In general

(ii)

Receipt and acceptance

(June 4, 1946, ch. 281, § 17, as added Pub. L. 94–105, § 16, Oct. 7, 1975, 89 Stat. 522; amended Pub. L. 95–166, §§ 3, 19(d), Nov. 10, 1977, 91 Stat. 1332, 1345; Pub. L. 95–627, § 2, Nov. 10, 1978, 92 Stat. 3603; Pub. L. 96–499, title II, §§ 207(a), 208(b), (c), Dec. 5, 1980, 94 Stat. 2602; Pub. L. 97–35, title VIII, §§ 810, 817(c), 819(k), Aug. 13, 1981, 95 Stat. 528, 532, 534; Pub. L. 99–500, title III, §§ 361, 372(a), Oct. 18, 1986, 100 Stat. 1783–367, 1783–369, and Pub. L. 99–591, title III, §§ 361, 372(a), Oct. 30, 1986, 100 Stat. 3341–370, 3341–372; Pub. L. 99–661, div. D, title IV, § 4401, title V, § 4502(a), Nov. 14, 1986, 100 Stat. 4079, 4080; Pub. L. 100–175, title IV, § 401, Nov. 29, 1987, 101 Stat. 972; Pub. L. 100–435, title II, §§ 211, 214, Sept. 19, 1988, 102 Stat. 1657, 1659; Pub. L. 100–460, title VI, § 641, Oct. 1, 1988, 102 Stat. 2265; Pub. L. 101–147, title I, §§ 105(a), (b), 131(b), title II, § 204(a), title III, §§ 310, 312(2), Nov. 10, 1989, 103 Stat. 883, 907, 909, 915, 916; Pub. L. 102–342, title II, §§ 202, 203, Aug. 14, 1992, 106 Stat. 913; Pub. L. 102–375, title VIII, § 811(a), Sept. 30, 1992, 106 Stat. 1295; Pub. L. 103–171, § 3(b)(4), Dec. 2, 1993, 107 Stat. 1991; Pub. L. 103–448, title I, §§ 105(c), 109(b), 116, Nov. 2, 1994, 108 Stat. 4702, 4705, 4714; Pub. L. 104–193, title VII, § 708(a)–(j), Aug. 22, 1996, 110 Stat. 2293–2299; Pub. L. 105–336, title I, §§ 101(b), 107(a)–(j)(1), (2)(B), (3)(C), Oct. 31, 1998, 112 Stat. 3144, 3149–3153; Pub. L. 106–224, title II, § 243(a), (b)(1)–(4)(A), (5), (c)–(g)(1), (h), (i), June 20, 2000, 114 Stat. 413–420; Pub. L. 106–400, § 2, Oct. 30, 2000, 114 Stat. 1675; Pub. L. 106–472, title III, § 307(c), Nov. 9, 2000, 114 Stat. 2073; Pub. L. 106–554, § 1(a)(4) [div. B, title I, § 101(a)], Dec. 21, 2000, 114 Stat. 2763, 2763A–214; Pub. L. 107–76, title VII, §§ 743, 771, Nov. 28, 2001,

cite as: 42 USC 1766

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