5816137 Education, Office of the State Superintendent of - Notice of Final Rulemaking - Amending regulations to add a new Chapter 10 (Healthy Tots) to provide additional funding to child care facilities who participate in the federal CACFP and to ...

OFFICE OF THE STATE SUPERINTENDENT OF EDUCATION

 

NOTICE OF FINAL RULEMAKING

 

The State Superintendent of Education (Superintendent), pursuant to the authority set forth in Sections 4073 and 4074 of the Healthy Tots Act of 2014, effective February 26, 2015 (D.C. Law 20-155; D.C. Official Code §§ 38-281 et seq. (2012 Repl.)), hereby gives notice of the adoption of a new Chapter 10 (Healthy Tots) of Title 5 (Education), Subtitle A (Office of the State Superintendent of Education) of the District of Columbia Municipal Regulations (DCMR).  

 

The purpose of the rulemaking is to provide additional funding for District of Columbia child development facilities that: (1) participate in the Child and Adult Care Food Program (CACFP) authorized by Section 17 of the National School Lunch Act, approved October 7, 1975 (89 Stat. 522; 42 U.S.C. § 1766); and (2) meet the United States Department of Agriculture (USDA) meal requirements in 7 C.F.R. § 226.20.

 

Emergency and proposed regulations were published in the D.C. Register on October 30, 2015, at 62 DCR 14119. The comment period officially closed on November 30, 2015, with the State Superintendent having received comments from nine (9) advocates and members of the regulated community. The State Superintendent has made one (1) non-substantive clarification amendment. Subsection 1002.1 is amended to add the language “provide technical assistance and” and to strike the word “determine” and insert the word “ensure” in its place. These changes reflect the title of the section, which the State Superintendent intended to include in the proposed rulemaking but was omitted in error. This amendment is made in response to comments raising concerns that the proposed rulemaking did not provide technical assistance necessary for implementation on the provider level. This amendment is intended to clarify that the State Superintendent has and will continue to provide technical assistance. Three (3) commenters requested clarification on this issue.

 

The State Superintendent received several comments regarding the proposed rules’ alignment with the USDA CACFP meal requirements for the additional ten cent reimbursement, specifically suggesting the State Superintendent adopt higher nutrition standards than the USDA CACFP meal requirements. The State Superintendent has considered these comments and has decided to retain the alignment with the USDA CACFP meal requirements as proposed because there are anticipated changes to regulations governing the USDA CACFP meal requirements. Once the regulations governing the USDA CACFP meal requirements are updated, the State Superintendent will then reconsider this issue through a separate rulemaking action.

 

In addition, the State Superintendent received several comments requesting the proposed rules be expanded to set forth physical activity requirements and an infrastructure for a grant program. The State Superintendent recognizes that the Healthy Tots Act requires the State Superintendent issue rules to “establish physical activity standards for child development facilities; improve the educational sustainability of child development facilities; enhance nutrition and healthy eating education programming for infants, toddlers, and preschoolers at child development facilities, including farm-to-preschool programs; and ensure that child development facilities provide sufficient training to staff on improving nutrition and increasing the physical activity.” However, the State Superintendent did not intend to address these aspects of the Healthy Tots Act through the current rulemaking. The intent of the current rulemaking was to set forth a structure to provide reimbursements to child development facilities as soon as the funding was made available to the State Superintendent. The State Superintendent does intend to address the components of the Healthy Tots Act listed above through separate rulemaking action in the near future.  

 

These rules were adopted as final on January 11, 2016 and will become effective upon publication in the D.C. Register.

 

Title 5- A DCMR, OFFICE OF THE STATE SUPERINTENDENT OF EDUCATION, is amended by adding a new Chapter 10 to read as follows:

 

CHAPTER 10     HEALTHY TOTS

 

1000                GENERAL PROVISIONS 

 

1000.1             This chapter is promulgated pursuant to Sections 4073 and 4074 of the Healthy Tots Act of 2014, effective February 26, 2015 (D.C. Law 20-155; D.C. Official Code §§ 38-282 and 38-283) (“the Act”).

 

1000.2             The purpose of this chapter is to implement the requirements of the Act, as amended. 

 

1000.3             All child development facilities must participate in the Child and Adult Care Food Program (CACFP) authorized by Section 17 of the National School Lunch Act, approved October 7, 1975 (89 Stat. 522; 42 U.S.C. § 1766) and comply with the rules issued pursuant to this chapter if fifty-percent (50%) or more of the enrolled children are eligible for subsidized child care unless the child development facility is exempted from participation through a waiver from the Office of the State Superintendent of Education (OSSE). 

 

1000.4             An eligible child is child who is a District resident who occupies a slot funded in whole or in part by the subsidized child care, authorized by section 3 of the Day Care Policy Act of 1979, effective September 19, 1979 (D.C. Law 3-16; D.C. Official Code § 4-402), the Uniform Per Student Funding Formula for Public Schools and Public Charter Schools Act of 1998, effective March 26, 1999 (D.C. Law 12-207; D.C. Official Code §§ 38-2901 et seq.), or the District of Columbia Public Schools' Head Start program.

 

1000.5             A child development facility may be eligible for a waiver exempting the facility from participation in the CACFP if the facility demonstrates to OSSE that participation in the CACFP constitutes a hardship or proves the facility is exempt under Subsection 1000.10 of this chapter.

 

1000.6             OSSE shall accept applications for a waiver exempting a child development facility from participating in CACFP on an annual basis. 

 

1000.7             OSSE shall determine whether good cause exists to grant the child development facility a waiver from participating in the CACFP based on the facility’s application and any other information available to OSSE.  If OSSE grants a waiver, OSSE shall provide written notice to the facility that it is excused from participating in the CACFP for the one (1) year following the date of the notice.

 

1000.8             Applications for waiver exempting a child development facility from participating in CACFP shall be in a format and shall contain the information designated by OSSE.

 

1000.9             To the extent possible, OSSE shall work with a child development facility granted a waiver to address barriers to participating in the CACFP.

 

1000.10           A child development facility shall be exempt from participation in the CACFP through a waiver from OSSE if:

 

(a)        OSSE has denied a facility’s initial application to participate in CACFP or a facility’s subsequent application to renew participation in the CACFP because the application does not meet all of the requirements in 7 C.F.R. Part 226; or

 

(b)        The facility’s CACFP agreement is terminated and deemed disqualified, the responsible individual(s) are disqualified, and the facility and/or individual(s) have been placed on the National Disqualified List pursuant to 7 C.F.R. §§ 226.6(c) et seq.

 

1001                ADDITIONAL LOCAL MONTHLY REIMBURSEMENT FUNDING AND MEAL REQUIREMENTS

 

1001.1             This section establishes rules for additional funding from the Healthy Tots Fund established by the Act for meals served by child development facilities participating in the CACFP.

 

1001.2             In order to be eligible for reimbursement from the Healthy Tots Fund, a meal (breakfast, lunch, or supper) must meet the regulatory requirements of the United States Department of Agriculture (USDA) CACFP (7 C.F.R. § 226.20).  Each child development facility participating in the CACFP may request an additional ten cents ($0.10) for each eligible breakfast, lunch and supper served to an eligible child.

 

1001.3             No additional funding from the Health Tots Fund is available for snacks served by a child development facility that meet the CACFP meal requirements.

                                                 

1001.4             Each child development facility participating in the CACFP that serves a lunch or supper which is eligible for reimbursement, may request an additional five cents ($0.05) per lunch or supper when at least one component of the meal is comprised entirely of locally grown, as defined in Section 101(3) of the Healthy Schools Act of 2010 (D.C. Official Code § 38–821.01) and unprocessed foods, as defined in Section 101(10) of the Healthy Schools Act of 2010 (D.C. Official Code § 38–821.01).

 

1001.5             Locally grown and unprocessed foods do not include milk.

 

1001.6             Each child care development facility must maintain documentation of locally grown and unprocessed foods. As a means of documentation, each facility shall indicate on the daily menus for each meal type, which food item served was locally grown.  In addition, each facility shall maintain receipts from farms and/or grocery stores indicating which are local food items, the date of purchase. and if available the name and address of the farm(s) and/or grocery stores. Each facility may be required to submit this documentation to OSSE each quarter, or as requested, to monitor compliance with this provision.

 

1001.7             For those child development facilities  that have maximized the number of daily meal services eligible for CACFP reimbursements allowed (two (2) meals and one (1) snack or one (1) meal and two (2) snacks), reimbursements from the Healthy Tots Fund shall be made available for each breakfast served to each  enrolled and participating child, if seventy-five percent (75%) of the children enrolled and attending the child development facility are District of Columbia residents and at least fifty percent (50%) of the enrolled and attending children are eligible for subsidized child care.

 

1001.8             The amount of the local funding for the breakfast meal, in accordance with the Act, shall be equal to the per meal free rate as established under the federal CACFP rate of reimbursement pursuant to 7 C.F.R. § 226, as amended.

 

1001.9             The breakfast meal shall meet the CACFP meal requirements.

 

1001.10           Child development facilities requesting reimbursement for the breakfast meal shall submit a monthly report documenting the residency and eligibility of the child receiving that meal.

 

1001.11           Each child development facility participating in CACFP shall plan and post monthly menus for all foods served, including snacks, and shall update the menus daily to indicate the modification or substitutions to the menus  to reflect food actually served. The menus shall be posted in a prominent place where parents/guardians are able to view them.  In addition, all menus shall be posted on the website of the child development facility, if one exists. The facility shall maintain the menus for the current fiscal year and three years after the date of the submission of the final claim for the fiscal year to which the menu pertains. 

                       

1001.12           Each child development facility seeking reimbursement pursuant to this chapter shall make meals available at no charge to any enrolled and attending infant, toddler or preschooler.

           

1001.13           OSSE may deny monthly reimbursement requests from a child development facility that does not meet all the requirements of 7 C.F.R. Part 226 and this chapter.

 

1002                MONITORING AND TECHNICAL ASSISTANCE

 

1002.1             OSSE may provide technical assistance and monitor the progress of a child development facility receiving reimbursements under this chapter to ensure if the facility is complying with this chapter.

 

1002.2             Each child development facility, or its sponsoring organization, as defined in 7 C.F.R. § 226.2, if applicable, seeking reimbursement pursuant to this chapter shall, as part of its recordkeeping procedures, identify, document and maintain records of expenditures for meals for the current year and three (3) years after the date of submission of the final claim for the fiscal year to which it pertains.

 

1002.3             OSSE shall provide periodic training (as determined by OSSE) to child development facilities participating or desiring to participate in CACFP to support and adhere to the requirements of this chapter and the CACFP.

 

1099                DEFINITIONS

                       

When used in this chapter, the following terms shall have the meaning ascribed:

 

“Child and Adult Care Food Program” or “CACFP”-- The program authorized by Section 17 of the National School Lunch Act, approved October 7, 1975 (89 Stat. 522; 42 U.S.C. § 1766).

 

“Child development facility” --- A licensed community-based center, home, or other structure, regardless of its name, that provides care, supervision, guidance, and other services for infants, toddlers, and preschoolers on a regular basis. The term "child development facility" does not include a child development center or program that is sponsored or run by a public or private school.

 

“Infant” --- A child younger than twelve (12) months of age.

 

“OSSE” --- The Office of the State Superintendent of Education, established by Section 2 of the State Education Office Establishment Act of 2000, effective October 21, 2000 (D.C. Law 13-176; D.C Official Code § 38-2601).

 

“Preschool” or “preschooler” ----A child twenty- four (24) months of age or older but younger than compulsory school attendance age, who is not enrolled in a public, charter, or private school.

 

“Subsidized child care” --- Part-time or full-time child care services, subsidized in whole or in part to eligible families pursuant to local and federal law, including but not limited to Sections 5a and 6 of the Day Care Policy Amendment Act of 1998, effective April 13, 1999 (D.C. Law 12-216; D.C. Official Code §§ 4-404.01 and 4-405), Title 29 DCMR § 380 (“Direct-Subsidized Child Care Services”), and the Child Care and Development Block Grant Act of 2014, approved  November 19, 2014 (Pub. L 113-186, 128 Stat. 1971).

 

“Toddler” ---A child between twelve  (12 ) months of age and twenty-four (24) months of age.