§ 1786.
(b)
Definitions
As used in this section—
(1)
“Breastfeeding women” means women up to one year postpartum who are breastfeeding their infants.
(2)
“Children” means persons who have had their first birthday but have not yet attained their fifth birthday.
(3)
“Competent professional authority” means physicians, nutritionists, registered nurses, dietitians, or State or local medically trained health officials, or persons designated by physicians or State or local medically trained health officials, in accordance with standards prescribed by the Secretary, as being competent professionally to evaluate nutritional risk.
(4)
“Costs of nutrition services and administration” or “nutrition services and administration” means costs that shall include, but not be limited to, costs for certification of eligibility of persons for participation in the program (including centrifuges, measuring boards, spectrophotometers, and scales used for the certification), food delivery, monitoring, nutrition education, breastfeeding support and promotion, outreach, startup costs, and general administration applicable to implementation of the program under this section, such as the cost of staff, transportation, insurance, developing and printing food instruments, and administration of State and local agency offices.
(5)
“Infants” means persons under one year of age.
(6)
“Local agency” means a public health or welfare agency or a private nonprofit health or welfare agency, which, directly or through an agency or physician with which it has contracted, provides health services. The term shall include an Indian tribe, band, or group recognized by the Department of the Interior, the Indian Health Service of the Department of Health and Human Services, or an intertribal council or group that is an authorized representative of Indian tribes, bands, or groups recognized by the Department of the Interior.
(7)
Nutrition education.—
The term “nutrition education” means individual and group sessions and the provision of material that are designed to improve health status and achieve positive change in dietary and physical activity habits, and that emphasize the relationship between nutrition, physical activity, and health, all in keeping with the personal and cultural preferences of the individual.
(8)
“Nutritional risk” means (A) detrimental or abnormal nutritional conditions detectable by biochemical or anthropometric measurements, (B) other documented nutritionally related medical conditions, (C) dietary deficiencies that impair or endanger health, (D) conditions that directly affect the nutritional health of a person, such as alcoholism or drug abuse, or (E) conditions that predispose persons to inadequate nutritional patterns or nutritionally related medical conditions, including, but not limited to, homelessness and migrancy.
(9)
“Plan of operation and administration” means a document that describes the manner in which the State agency intends to implement and operate the program.
(10)
“Postpartum women” means women up to six months after termination of pregnancy.
(11)
“Pregnant women” means women determined to have one or more fetuses in utero.
(12)
“Secretary” means the Secretary of Agriculture.
(13)
“State agency” means the health department or comparable agency of each State; an Indian tribe, band, or group recognized by the Department of the Interior; an intertribal council or group that is the authorized representative of Indian tribes, bands, or groups recognized by the Department of the Interior; or the Indian Health Service of the Department of Health and Human Services.
(14)
“Supplemental foods” means those foods containing nutrients determined by nutritional research to be lacking in the diets of pregnant, breastfeeding, and postpartum women, infants, and children and foods that promote the health of the population served by the program authorized by this section, as indicated by relevant nutrition science, public health concerns, and cultural eating patterns, as prescribed by the Secretary. State agencies may, with the approval of the Secretary, substitute different foods providing the nutritional equivalent of foods prescribed by the Secretary, to allow for different cultural eating patterns.
(15)
“Homeless individual” means—
(A)
an individual who lacks a fixed and regular nighttime residence; or
(B)
an individual whose primary nighttime residence is—
(i)
a supervised publicly or privately operated shelter (including a welfare hotel or congregate shelter) designed to provide temporary living accommodations;
(ii)
an institution that provides a temporary residence for individuals intended to be institutionalized;
(iii)
a temporary accommodation of not more than 365 days in the residence of another individual; or
(iv)
a public or private place not designed for, or ordinarily used as, a regular sleeping accommodation for human beings.
(16)
“Drug abuse education” means—
(A)
the provision of information concerning the dangers of drug abuse; and
(B)
the referral of participants who are suspected drug abusers to drug abuse clinics, treatment programs, counselors, or other drug abuse professionals.
(17)
“Competitive bidding” means a procurement process under which the Secretary or a State agency selects a single source (a single infant formula manufacturer) offering the lowest price, as determined by the submission of sealed bids, for a product for which bids are sought for use in the program authorized by this section.
(18)
“Rebate” means the amount of money refunded under cost containment procedures to any State agency from the manufacturer or other supplier of the particular food product as the result of the purchase of the supplemental food with a voucher or other purchase instrument by a participant in each such agency’s program established under this section.
(19)
“Discount” means, with respect to a State agency that provides program foods to participants without the use of retail grocery stores (such as a State that provides for the home delivery or direct distribution of supplemental food), the amount of the price reduction or other price concession provided to any State agency by the manufacturer or other supplier of the particular food product as the result of the purchase of program food by each such State agency, or its representative, from the supplier.
(20)
“Net price” means the difference between the manufacturer’s wholesale price for infant formula and the rebate level or the discount offered or provided by the manufacturer under a cost containment contract entered into with the pertinent State agency.
(21)
Remote indian or native village.—
The term “remote Indian or Native village” means an Indian or Native village that—
(A)
is located in a rural area;
(B)
has a population of less than 5,000 inhabitants; and
(22)
Primary contract infant formula.—
The term “primary contract infant formula” means the specific infant formula for which manufacturers submit a bid to a State agency in response to a rebate solicitation under this section and for which a contract is awarded by the State agency as a result of that bid.
(23)
State alliance.—
The term “State alliance” means 2 or more State agencies that join together for the purpose of procuring infant formula under the program by soliciting competitive bids for infant formula.
(24)
Supply chain disruption.—
The term “supply chain disruption” means a shortage of supplemental foods that impedes the redemption of food instruments, as determined by the Secretary.
(f)
Plan of operation and administration by State agency
(1)
(A)
Each State agency shall submit to the Secretary, by a date specified by the Secretary, an initial plan of operation and administration for a fiscal year. After submitting the initial plan, a State shall be required to submit to the Secretary for approval only a substantive change in the plan.
(B)
To be eligible to receive funds under this section for a fiscal year, a State agency must receive the approval of the Secretary for the plan submitted for the fiscal year.
(C)
The plan shall include—
(i)
a description of the food delivery system of the State agency and the method of enabling participants to receive supplemental foods under the program at any of the authorized retail stores under the program, to be administered in accordance with standards developed by the Secretary, including a description of the State agency’s vendor peer group system, competitive price criteria, and allowable reimbursement levels that demonstrate that the State is in compliance with the cost-containment provisions in subsection (h)(11);
(ii)
procedures for accepting and processing vendor applications outside of the established timeframes if the State agency determines there will be inadequate access to the program, including in a case in which a previously authorized vendor sells a store under circumstances that do not permit timely notification to the State agency of the change in ownership;
(iii)
a description of the financial management system of the State agency;
(iv)
a plan to coordinate operations under the program with other services or programs that may benefit participants in, and applicants for, the program;
(v)
a plan to provide program benefits under this section to, and to meet the special nutrition education needs of, eligible migrants, homeless individuals, and Indians;
(vi)
a plan to expend funds to carry out the program during the relevant fiscal year;
(vii)
a plan to provide program benefits under this section to unserved and underserved areas in the State (including a plan to improve access to the program for participants and prospective applicants who are employed, or who reside in rural areas), if sufficient funds are available to carry out this clause;
(viii)
a plan for reaching and enrolling eligible women in the early months of pregnancy, including provisions to reach and enroll eligible migrants;
(ix)
a plan to provide program benefits under this section to unserved infants and children under the care of foster parents, protective services, or child welfare authorities, including infants exposed to drugs perinatally;
(x)
a plan to provide nutrition education and promote breastfeeding; and
(xi)
such other information as the Secretary may reasonably require.
(D)
The Secretary may not approve any plan that permits a person to participate simultaneously in both the program authorized under this section and the commodity supplemental food program authorized under sections 4 and 5 of the Agriculture and Consumer Protection Act of 1973 (
7 U.S.C. 612c note).
(2)
A State agency shall establish a procedure under which members of the general public are provided an opportunity to comment on the development of the State agency plan.
(3)
The Secretary shall establish procedures under which eligible migrants may, to the maximum extent feasible, continue to participate in the program under this section when they are present in States other than the State in which they were originally certified for participation in the program and shall ensure that local programs provide priority consideration to serving migrant participants who are residing in the State for a limited period of time. Each State agency shall be responsible for administering the program for migrant populations within its jurisdiction.
(4)
State agencies shall submit monthly financial reports and participation data to the Secretary.
(5)
State and local agencies operating under the program shall keep such accounts and records, including medical records, as may be necessary to enable the Secretary to determine whether there has been compliance with this section and to determine and evaluate the benefits of the nutritional assistance provided under this section. Such accounts and records shall be available at any reasonable time for inspection and audit by representatives of the Secretary and shall be preserved for such period of time, not in excess of five years, as the Secretary determines necessary.
(6)
(A)
Local agencies participating in the program under this section shall notify persons of their eligibility or ineligibility for the program within twenty days of the date that the household, during office hours of a local agency, personally makes an oral or written request to participate in the program. The Secretary shall establish a shorter notification period for categories of persons who, due to special nutritional risk conditions, must receive benefits more expeditiously.
(B)
State agencies may provide for the delivery of vouchers to any participant who is not scheduled for nutrition education and breastfeeding counseling or a recertification interview through means, such as mailing, that do not require the participant to travel to the local agency to obtain vouchers. The State agency shall describe any plans for issuance of vouchers by mail in its plan submitted under paragraph (1). The Secretary may disapprove a State plan with respect to the issuance of vouchers by mail in any specified jurisdiction or part of a jurisdiction within a State only if the Secretary finds that such issuance would pose a significant threat to the integrity of the program under this section in such jurisdiction or part of a jurisdiction.
(7)
(A)
The State agency shall, in cooperation with participating local agencies, publicly announce and distribute information on the availability of program benefits (including the eligibility criteria for participation and the location of local agencies operating the program) to offices and organizations that deal with significant numbers of potentially eligible individuals (including health and medical organizations, hospitals and clinics, welfare and unemployment offices, social service agencies, farmworker organizations, Indian tribal organizations, organizations and agencies serving homeless individuals and shelters for victims of domestic violence, and religious and community organizations in low income areas).
(B)
The information shall be publicly announced by the State agency and by local agencies at least annually.
(C)
The State agency and local agencies shall distribute the information in a manner designed to provide the information to potentially eligible individuals who are most in need of the benefits, including pregnant women in the early months of pregnancy.
(D)
Each local agency operating the program within a hospital and each local agency operating the program that has a cooperative arrangement with a hospital shall—
(i)
advise potentially eligible individuals that receive inpatient or outpatient prenatal, maternity, or postpartum services, or accompany a child under the age of 5 who receives well-child services, of the availability of program benefits; and
(ii)
to the extent feasible, provide an opportunity for individuals who may be eligible to be certified within the hospital for participation in such program.
(8)
(A)
The State agency shall grant a fair hearing, and a prompt determination thereafter, in accordance with regulations issued by the Secretary, to any applicant, participant, or local agency aggrieved by the action of a State or local agency as it affects participation.
(B)
Any State agency that must suspend or terminate benefits to any participant during the participant’s certification period due to a shortage of funds for the program shall first issue a notice to such participant.
(9)
If an individual certified as eligible for participation in the program under this section in one area moves to another area in which the program is operating, that individual’s certification of eligibility shall remain valid for the period for which the individual was originally certified.
(10)
The Secretary shall establish standards for the proper, efficient, and effective administration of the program. If the Secretary determines that a State agency has failed without good cause to administer the program in a manner consistent with this section or to implement the approved plan of operation and administration under this subsection, the Secretary may withhold such amounts of the State agency’s funds for nutrition services and administration as the Secretary deems appropriate. Upon correction of such failure during a fiscal year by a State agency, any funds so withheld for such fiscal year shall be provided the State agency.
(11)
Supplemental foods.—
(A)
In general.—
The Secretary shall prescribe by regulation the supplemental foods to be made available in the program under this section.
(B)
Appropriate content.—
To the degree possible, the Secretary shall assure that the fat, sugar, and salt content of the prescribed foods is appropriate.
(C)
Review of available supplemental foods.—
As frequently as determined by the Secretary to be necessary to reflect the most recent scientific knowledge, but not less than every 10 years, the Secretary shall—
(i)
conduct a scientific review of the supplemental foods available under the program; and
(ii)
amend the supplemental foods available, as necessary, to reflect nutrition science, public health concerns, and cultural eating patterns.
(12)
A competent professional authority shall be responsible for prescribing the appropriate supplemental foods, taking into account medical and nutritional conditions and cultural eating patterns, and, in the case of homeless individuals, the special needs and problems of such individuals.
(13)
The State agency may (A) provide nutrition education, breastfeeding promotion, and drug abuse education materials and instruction in languages other than English and (B) use appropriate foreign language materials in the administration of the program, in areas in which a substantial number of low-income households speak a language other than English.
(14)
If a State agency determines that a member of a family has received an overissuance of food benefits under the program authorized by this section as the result of such member intentionally making a false or misleading statement or intentionally misrepresenting, concealing, or withholding facts, the State agency shall recover, in cash, from such member an amount that the State agency determines is equal to the value of the overissued food benefits, unless the State agency determines that the recovery of the benefits would not be cost effective.
(15)
To be eligible to participate in the program authorized by this section, a manufacturer of infant formula that supplies formula for the program shall—
(A)
register with the Secretary of Health and Human Services under the Federal Food, Drug, and Cosmetic Act [
21 U.S.C. 301 et seq.]; and
(B)
before bidding for a State contract to supply infant formula for the program, certify with the State health department that the formula complies with such Act and regulations issued pursuant to such Act.
(16)
The State agency may adopt methods of delivering benefits to accommodate the special needs and problems of homeless individuals.
(17)
Notwithstanding subsection (d)(2)(A)(i), not later than July 1 of each year, a State agency may implement income eligibility guidelines under this section concurrently with the implementation of income eligibility guidelines under the medicaid program established under title XIX of the Social Security Act (
42 U.S.C. 1396 et seq.).
(18)
Each local agency participating in the program under this section may provide information about other potential sources of food assistance in the local area to individuals who apply in person to participate in the program under this section, but who cannot be served because the program is operating at capacity in the local area.
(19)
The State agency shall adopt policies that—
(A)
require each local agency to attempt to contact each pregnant woman who misses an appointment to apply for participation in the program under this section, in order to reschedule the appointment, unless the phone number and the address of the woman are unavailable to such local agency; and
(B)
in the case of local agencies that do not routinely schedule appointments for individuals seeking to apply or be recertified for participation in the program under this section, require each such local agency to schedule appointments for each employed individual seeking to apply or be recertified for participation in such program so as to minimize the time each such individual is absent from the workplace due to such application or request for recertification.
(20)
Each State agency shall conduct monitoring reviews of each local agency at least biennially.
(21)
Use of claims from local agencies, vendors, and participants.—
A State agency may use funds recovered from local agencies, vendors, and participants, as a result of a claim arising under the program, to carry out the program during—
(A)
the fiscal year in which the claim arises;
(B)
the fiscal year in which the funds are collected; and
(C)
the fiscal year following the fiscal year in which the funds are collected.
(22)
The Secretary and the Secretary of Health and Human Services shall carry out an initiative to assure that, in a case in which a State medicaid program uses coordinated care providers under a contract entered into under section 1903(m), or a waiver granted under section 1915(b), of the Social Security Act (
42 U.S.C. 1396b(m) or 1396n(b)), coordination between the program authorized by this section and the medicaid program is continued, including—
(A)
the referral of potentially eligible women, infants, and children between the 2 programs; and
(B)
the timely provision of medical information related to the program authorized by this section to agencies carrying out the program.
(23)
Individuals participating at more than one site.—
Each State agency shall implement a system designed by the State agency to identify individuals who are participating at more than one site under the program.
(24)
High risk vendors.—
Each State agency shall—
(A)
identify vendors that have a high probability of program abuse; and
(B)
conduct compliance investigations of the vendors.
(25)
Infant formula benefits.—
A State agency may round up to the next whole can of infant formula to allow all participants under the program to receive the full-authorized nutritional benefit specified by regulation.
(26)
Notification of violations.—
If a State agency finds that a vendor has committed a violation that requires a pattern of occurrences in order to impose a penalty or sanction, the State agency shall notify the vendor of the initial violation in writing prior to documentation of another violation, unless the State agency determines that notifying the vendor would compromise an investigation.
(i)
Division of funds formula; reallocation of unspent funds; use of State allocation to buy supplemental foods; use of amounts available for succeeding fiscal year
(1)
By the beginning of each fiscal year, the Secretary shall divide, among the State agencies, the amounts made available for food benefits under subsection (h)(1)(C) on the basis of a formula determined by the Secretary.
(2)
Each State agency’s allocation, as so determined, shall constitute the State agency’s authorized operational level for that year, except that the Secretary shall reallocate funds periodically if the Secretary determines that a State agency is unable to spend its allocation.
(3)
(A)
Notwithstanding paragraph (2) and subject to subparagraph (B)—
(i)
(I)
not more than 1 percent (except as provided in subparagraph (C)) of the amount of funds allocated to a State agency under this section for supplemental foods for a fiscal year may be expended by the State agency for allowable expenses incurred under this section for supplemental foods during the preceding fiscal year; and
(II)
not more than 1 percent of the amount of funds allocated to a State agency under this section for nutrition services and administration for a fiscal year may be expended by the State agency for allowable expenses incurred under this section for supplemental foods and nutrition services and administration during the preceding fiscal year; and
(ii)
(I)
for each fiscal year, of the amounts allocated to a State agency for nutrition services and administration, an amount equal to not more than 3 percent of the amount allocated to the State agency under this section for the fiscal year may be expended by the State agency for allowable expenses incurred under this section for nutrition services and administration during the subsequent fiscal year; and
(II)
for each fiscal year, of the amounts allocated to a State agency for nutrition services and administration, an amount equal to not more than ½ of 1 percent of the amount allocated to the State agency under this section for the fiscal year may be expended by the State agency, with the prior approval of the Secretary, for the development of a management information system, including an electronic benefit transfer system, during the subsequent fiscal year.
(B)
Any funds made available to a State agency in accordance with subparagraph (A)(ii) for a fiscal year shall not affect the amount of funds allocated to the State agency for such year.
(C)
The Secretary may authorize a State agency to expend not more than 3 percent of the amount of funds allocated to a State under this section for supplemental foods for a fiscal year for expenses incurred under this section for supplemental foods during the preceding fiscal year, if the Secretary determines that there has been a significant reduction in infant formula cost containment savings provided to the State agency that would affect the ability of the State agency to at least maintain the level of participation by eligible participants served by the State agency.
(4)
For purposes of the formula, if Indians are served by the health department of a State, the formula shall be based on the State population inclusive of the Indians within the State boundaries.
(5)
If Indians residing in the State are served by a State agency other than the health department of the State, the population of the tribes within the jurisdiction of the State being so served shall not be included in the formula for such State, and shall instead be included in the formula for the State agency serving the Indians.
(6)
Notwithstanding any other provision of this section, the Secretary may use a portion of a State agency’s allocation to purchase supplemental foods for donation to the State agency under this section.
(7)
In addition to any amounts expended under paragraph (3)(A)(i), any State agency using cost containment measures as defined in subsection (h)(9) may temporarily use amounts made available to such agency for the first quarter of a fiscal year to defray expenses for costs incurred during the final quarter of the preceding fiscal year. In any fiscal year, any State agency that uses amounts made available for a succeeding fiscal year under the authority of the preceding sentence shall restore or reimburse such amounts when such agency receives payment as a result of its cost containment measures for such expenses.
(8)
Temporary spending authority.—
During each of fiscal years 2012 and 2013, the Secretary may authorize a State agency to expend more than the amount otherwise authorized under paragraph (3)(C) for expenses incurred under this section for supplemental foods during the preceding fiscal year, if the Secretary determines that—
(A)
there has been a significant reduction in reported infant formula cost containment savings for the preceding fiscal year due to the implementation of subsection (h)(8)(K); and
(B)
the reduction would affect the ability of the State agency to serve all eligible participants.
(k)
National Advisory Council on Maternal, Infant, and Fetal Nutrition; establishment; membership; term; officers; meetings; quorum; technical assistance by Secretary
(1)
There is hereby established a National Advisory Council on Maternal, Infant, and Fetal Nutrition (referred to in this subsection as the “Council”) composed of 24 members appointed by the Secretary. One member shall be a State director of a program under this section; one member shall be a State official responsible for a commodity supplemental food program under section 1304 of the Food and Agriculture Act of 1977; one member shall be a State fiscal officer of a program under this section (or the equivalent thereof); one member shall be a State health officer (or the equivalent thereof); one member shall be a local agency director of a program under this section in an urban area; one member shall be a local agency director of a program under this section in a rural area; one member shall be a project director of a commodity supplemental food program; one member shall be a State public health nutrition director (or the equivalent thereof); one member shall be a representative of an organization serving migrants; one member shall be an official from a State agency predominantly serving Indians; three members shall be parent participants of a program under this section or of a commodity supplemental food program; one member shall be a pediatrician; one member shall be an obstetrician; one member shall be a representative of a nonprofit public interest organization that has experience with and knowledge of the special supplemental nutrition program; one member shall be a person involved at the retail sales level of food in the special supplemental nutrition program; two members shall be officials of the Department of Health and Human Services appointed by the Secretary of Health and Human Services; two members shall be officials of the Department of Agriculture appointed by the Secretary; 1 member shall be an expert in the promotion of breast feeding; one member shall be an expert in drug abuse education and prevention; and one member shall be an expert in alcohol abuse education and prevention.
(2)
Members of the Council appointed from outside the Department of Agriculture and the Department of Health and Human Services shall be appointed for terms not exceeding three years. State and local officials shall serve only during their official tenure, and the tenure of parent participants shall not exceed two years. Persons appointed to complete an unexpired term shall serve only for the remainder of such term.
(3)
The Council shall elect a Chairman and a Vice Chairman. The Council shall meet at the call of the Chairman, but shall meet at least once a year. Eleven members shall constitute a quorum.
(4)
The Secretary shall provide the Council with such technical and other assistance, including secretarial and clerical assistance, as may be required to carry out its functions.
(5)
Members of the Council shall serve without compensation but shall be reimbursed for necessary travel and subsistence expenses incurred by them in the performance of the duties of the Council. Parent participant members of the Council, in addition to reimbursement for necessary travel and subsistence, shall, at the discretion of the Secretary, be compensated in advance for other personal expenses related to participation on the Council, such as child care expenses and lost wages during scheduled Council meetings.
(m)
Women, infants, and children farmers’ market nutrition program; establishment, grants, etc.
(1)
Subject to the availability of funds appropriated for the purposes of this subsection, and as specified in this subsection, the Secretary shall award grants to States that submit State plans that are approved for the establishment or maintenance of programs designed to provide recipients of assistance under subsection (c), or those who are on the waiting list to receive the assistance, with coupons that may be exchanged for fresh, nutritious, unprepared foods at farmers’ markets and (at the option of a State) roadside stands, as defined in the State plans submitted under this subsection.
(2)
A grant provided to any State under this subsection shall be provided to the chief executive officer of the State, who shall—
(A)
designate the appropriate State agency or agencies to administer the program in conjunction with the appropriate nonprofit organizations; and
(B)
ensure coordination of the program among the appropriate agencies and organizations.
(3)
The Secretary shall not make a grant to any State under this subsection unless the State agrees to provide State, local, or private funds for the program in an amount that is equal to not less than 30 percent of the administrative cost of the program, which may be satisfied from program income or State contributions that are made for similar programs. The Secretary may negotiate with an Indian State agency a lower percentage of matching funds than is required under the preceding sentence, but not lower than 10 percent of the administrative cost of the program, if the Indian State agency demonstrates to the Secretary financial hardship for the affected Indian tribe, band, group, or council.
(4)
Subject to paragraph (6), the Secretary shall establish a formula for determining the amount of the grant to be awarded under this subsection to each State for which a State plan is approved under paragraph (6), according to the number of recipients proposed to participate as specified in the State plan. In determining the amount to be awarded to new States, the Secretary shall rank order the State plans according to the criteria of operation set forth in this subsection, and award grants accordingly. The Secretary shall take into consideration the minimum amount needed to fund each approved State plan, and need not award grants to each State that submits a State plan.
(5)
Each State that receives a grant under this subsection shall ensure that the program for which the grant is received complies with the following requirements:
(A)
Individuals who are eligible to receive Federal benefits under the program shall only be individuals who are receiving assistance under subsection (c), or who are on the waiting list to receive the assistance.
(B)
Construction or operation of a farmers’ market may not be carried out using funds—
(i)
provided under the grant; or
(ii)
required to be provided by the State under paragraph (3).
(C)
The value of the Federal share of the benefits received by any recipient under the program may not be—
(i)
less than $10 per year; or
(ii)
more than $30 per year.
(D)
The coupon issuance process under the program shall be designed to ensure that coupons are targeted to areas with—
(i)
the highest concentration of eligible individuals;
(ii)
the greatest access to farmers’ markets; and
(iii)
certain characteristics, in addition to those described in clauses (i) and (ii), that are determined to be relevant by the Secretary and that maximize the availability of benefits to eligible individuals.
(E)
The coupon redemption process under the program shall be designed to ensure that the coupons may be—
(i)
redeemed only by producers authorized by the State to participate in the program; and
(ii)
redeemed only to purchase fresh nutritious unprepared food for human consumption.
(F)
(i)
Except as provided in clauses (ii) and (iii), the State may use for administration of the program in any fiscal year not more than 17 percent of the total amount of program funds.
(ii)
During any fiscal year for which a State receives assistance under this subsection, the Secretary shall permit the State to use not more than 2 percent of total program funds for market development or technical assistance to farmers’ markets if the Secretary determines that the State intends to promote the development of farmers’ markets in socially or economically disadvantaged areas, or remote rural areas, where individuals eligible for participation in the program have limited access to locally grown fruits and vegetables.
(iii)
The provisions of clauses (i) and (ii) with respect to the use of program funds shall not apply to any funds that a State may contribute in excess of the funds used by the State to meet the requirements of paragraph (3).
(G)
The State shall ensure that no State or local taxes are collected within the State on purchases of food with coupons distributed under the program.
(6)
(A)
The Secretary shall give the same preference for funding under this subsection to eligible States that participated in the program under this subsection in a prior fiscal year as to States that participated in the program in the most recent fiscal year. The Secretary shall inform each State of the award of funds as prescribed by subparagraph (G) by February 15 of each year.
(B)
(i)
Subject to the availability of appropriations, if a State provides the amount of matching funds required under paragraph (3), the State shall receive assistance under this subsection in an amount that is not less than the amount of such assistance that the State received in the most recent fiscal year in which it received such assistance.
(ii)
If amounts appropriated for any fiscal year pursuant to the authorization contained in paragraph (10) for grants under this subsection are not sufficient to pay to each State for which a State plan is approved under paragraph (6) the amount that the Secretary determines each such State is entitled to under this subsection, each State’s grant shall be ratably reduced, except that (if sufficient funds are available) each State shall receive at least $75,000 or the amount that the State received for the prior fiscal year if that amount is less than $75,000.
(C)
In providing funds to a State that received assistance under this subsection in the previous fiscal year, the Secretary shall consider—
(i)
the availability of any such assistance not spent by the State during the program year for which the assistance was received;
(ii)
documentation that demonstrates that—
(I)
there is a need for an increase in funds; and
(II)
the use of the increased funding will be consistent with serving nutritionally at-risk persons and expanding the awareness and use of farmers’ markets;
(iii)
demonstrated ability to satisfactorily operate the existing program; and
(iv)
whether, in the case of a State that intends to use any funding provided under subparagraph (G)(i) 2 to increase the value of the Federal share of the benefits received by a recipient, the funding provided under subparagraph (G)(i) 2 will increase the rate of coupon redemption.
(D)
(i)
A State that desires to receive a grant under this subsection shall submit, for each fiscal year, a State plan to the Secretary by November 15 of each year.
(ii)
Each State plan submitted under this paragraph shall contain—
(I)
the estimated cost of the program and the estimated number of individuals to be served by the program;
(II)
a description of the State plan for complying with the requirements established in paragraph (5); and
(III)
criteria developed by the State with respect to authorization of producers to participate in the program.
(iii)
The criteria developed by the State as required by clause (ii)(III) shall require any authorized producer to sell fresh nutritious unprepared foods (such as fruits and vegetables) to recipients, in exchange for coupons distributed under the program.
(E)
The Secretary shall establish objective criteria for the approval and ranking of State plans submitted under this paragraph.
(F)
(i)
An amount equal to 75 percent of the funds available after satisfying the requirements of subparagraph (B) shall be made available to States participating in the program whose State plan is approved by the Secretary. If this amount is greater than that necessary to satisfy the approved State plans, the unallocated amount shall be applied toward satisfying any unmet need of States that have not participated in the program in the prior fiscal year, and whose State plans have been approved.
(ii)
An amount equal to 25 percent of the funds available after satisfying the requirements of subparagraph (B) shall be made available to States that have not participated in the program in the prior fiscal year, and whose State plans have been approved by the Secretary. If this amount is greater than that necessary to satisfy the approved State plans for new States, the unallocated amount shall be applied toward satisfying any unmet need of States whose State plans have been approved.
(iii)
In any fiscal year, any funds that remain unallocated after satisfying the requirements of clauses (i) and (ii) shall be reallocated in the following fiscal year according to procedures established pursuant to paragraph (10)(B)(ii).
(7)
(A)
The value of the benefit received by any recipient under any program for which a grant is received under this subsection may not affect the eligibility or benefit levels for assistance under other Federal or State programs.
(B)
Any programs for which a grant is received under this subsection shall be supplementary to the supplemental nutrition assistance program carried out under the Food and Nutrition Act of 2008 (
7 U.S.C. 2011 et seq.) and to any other Federal or State program under which foods are distributed to needy families in lieu of supplemental nutrition assistance program benefits.
(8)
For each fiscal year, the Secretary shall collect from each State that receives a grant under this subsection information relating to—
(A)
the number and type of recipients served by both Federal and non-Federal benefits under the program for which the grant is received;
(B)
the rate of redemption of coupons distributed under the program;
(C)
the average amount distributed in coupons to each recipient;
(D)
the change in consumption of fresh fruits and vegetables by recipients, if the information is available;
(E)
the effects of the program on farmers’ markets, if the information is available; and
(F)
any other information determined to be necessary by the Secretary.
(9)
Funding.—
(A)
Authorization of appropriations.—
There are authorized to be appropriated to carry out this subsection such sums as are necessary for each of fiscal years 2010 through 2015.
(B)
(i)
(I)
Each State shall return to the Secretary any funds made available to the State that are unobligated at the end of the fiscal year for which the funds were originally allocated. The unexpended funds shall be returned to the Secretary by February 1st of the following fiscal year.
(II)
Notwithstanding any other provision of this subsection, a total of not more than 5 percent of funds made available to a State for any fiscal year may be expended by the State to reimburse expenses incurred for a program assisted under this subsection during the preceding fiscal year.
(ii)
The Secretary shall establish procedures to reallocate funds that are returned under clause (i).
(10)
For purposes of this subsection:
(A)
The term “coupon” means a coupon, voucher, or other negotiable financial instrument by which benefits under this section are transferred.
(B)
The term “program” means—
(i)
the State farmers’ market coupon nutrition program authorized by this subsection (as it existed on September 30, 1991); or
(ii)
the farmers’ market nutrition program authorized by this subsection.
(C)
The term “recipient” means a person or household, as determined by the State, who is chosen by a State to receive benefits under this subsection, or who is on a waiting list to receive such benefits.
(D)
The term “State agency” has the meaning provided in subsection (b)(13), except that the term also includes the agriculture department of each State and any other agency approved by the chief executive officer of the State.
([Pub. L. 89–642, § 17], as added [Pub. L. 92–433, § 9], Sept. 26, 1972, [86 Stat. 729]; amended [Pub. L. 93–150, § 6], Nov. 7, 1973, [87 Stat. 563]; [Pub. L. 93–326, § 6], June 30, 1974, [88 Stat. 287]; [Pub. L. 94–28], May 28, 1975, [89 Stat. 96]; [Pub. L. 94–105, § 14], Oct. 7, 1975, [89 Stat. 518]; [Pub. L. 95–166], §§ 18, 20(6), Nov. 10, 1977, [91 Stat. 1345], 1346; [Pub. L. 95–627, § 3], Nov. 10, 1978, [92 Stat. 3611]; [Pub. L. 96–108, title III, § 301], Nov. 9, 1979, [93 Stat. 838]; [Pub. L. 96–499, title II, § 203(d)], Dec. 5, 1980, [94 Stat. 2601]; [Pub. L. 97–35, title VIII, § 815], Aug. 13, 1981, [95 Stat. 531]; [Pub. L. 99–500, title III], §§ 314, 341, 342(a), 343, 344(a), 345–348(a), 349–353(a), 372(b)(1), Oct. 18, 1986, [100 Stat. 1783–360], 1783–364 to 1783–367, 1783–369, and [Pub. L. 99–591, title III], §§ 314, 341, 342(a), 343, 344(a), 345–348(a), 349–353(a), 372(b)(1), Oct. 30, 1986, [100 Stat. 3341–363], 3341–367 to 3341–370, 3341–372; [Pub. L. 99–661, div. D, title I, § 4104], title III, §§ 4301, 4302(a), 4303, 4304(a), 4305–4308(a), 4309–4313(a), title V, § 4502(b)(1), Nov. 14, 1986, [100 Stat. 4071], 4075–4078, 4080; [Pub. L. 100–71, title I], July 11, 1987, [101 Stat. 425]; [Pub. L. 100–237], §§ 8(a), (b), 9, 11, 12, Jan. 8, 1988, [101 Stat. 1740], 1741; [Pub. L. 100–356, § 3], June 28, 1988, [102 Stat. 669]; [Pub. L. 100–435, title II, § 212], title V, § 501(b), Sept. 19, 1988, [102 Stat. 1657], 1668; [Pub. L. 100–690, title III, § 3201], Nov. 18, 1988, [102 Stat. 4246]; [Pub. L. 101–147, title I, § 123(a)]