Part 1.
TEXAS DEPARTMENT OF HUMAN SERVICES
Chapter 12.
SPECIAL NUTRITION PROGRAMS
Subchapter A. CHILD AND ADULT CARE FOOD PROGRAM
40 TAC §§12.3, 12.5, 12.15, 12.19, 12.25
The Texas Department of Human Services (DHS) adopts amendments
to §§12.3, 12.5, 12.15, 12.19, and 12.25 to comply with the mandate
of the Consolidated Appropriations Act of 2001 (Public Law 106-554) amending
section 17(a)(2)(B) of the Richard B. Russell National School Lunch Act (42
U.S.C 1766). In addition, DHS is reinstating a section of its Child and Adults
Care Food Program (CACFP) rules inadvertently deleted during a recent rule
amendment. The deleted section related to monitoring requirements will be
reinstated by the adoption of §12.19(h).
The justification for the amendments to §§12.3, 12.5, 12.15,
12.19, and 12.25 is to comply with a federally legislated mandate to implement
a pilot project in the Child and Adult Care Program (CACFP) to establish that
proprietary, for profit child care centers are eligible to participate in
the program if 25% or more of the center's children are receiving benefits
through Title XX of the Social Security Act, or if 25% or more of the center's
children are eligible for free or reduced price meals as defined in the National
School Lunch Act. In addition, these amendments correct a technical error.
The amendments are adopted under the Human Resources Code, Title
2, Chapters 22 and 33, which authorize the department to administer public
and nutritional assistance programs.
The amendments implement the Human Resources Code, §§22.001-
22.030 and §§33.001-33.024. The amendments are adopted in compliance
with federal requirements effective December 21, 2000.
§12.3.Eligibility of Contractors, Facilities, and Food Service Management Companies.
(a)
To be eligible to participate in the Child and Adult Care
Food Program (CACFP), contractors and facilities must meet the definitions
in, and perform in accordance with, 7 Code of Federal Regulations §226.2,
the appropriate requirements of 7 Code of Federal Regulations §§226.6,
226.15-226.19(a), 226.23, Section 17(a)(2)(B) of the Richard B. Russell National
School Lunch Act (42 U.S.C. 1766), as amended by the Consolidated Appropriations
Act of 2001, and this chapter.
(b)
To be eligible to participate in the CACFP as a day care
home sponsor, applicants must:
(1)
provide documentation that verifies that a minimum of 50
registered or licensed day care homes have signed an application and agreement,
as specified by the Texas Department of Human Services (DHS), to participate
under the contractor's sponsorship. Each day care home must be providing child
care to at least one nonresidential child. Day care homes must be eligible
to execute a sponsorship agreement in accordance with §12.6(f) of this
title (relating to Agreement). DHS may approve applications for fewer than
50 day care homes, if the sponsorship of day care homes is an integral but
subordinate part of an existing nonprofit or governmental community service
provided by the sponsor;
(2)
demonstrate that the governing authority is aware of the
responsibilities and liabilities it accepts by agreeing to participate in
the program;
(3)
submit a comprehensive financial statement showing all
expenditures and sources of income to the organization for the three years
preceding the year for which application is made. Nongovernmental entities
with fewer than three years of administrative and financial history that apply
or reapply to participate in the CACFP as day care home contractors must submit
a performance bond in an amount equal to the value of the contractor's projected
annual level of reimbursement as determined by DHS. The performance bond must
be obtained from a company designated in United States Treasury Circular 570
as certified to issue bonds for federally funded programs. Contractors required
to submit a performance bond as a condition of eligibility must submit a performance
bond as a condition of eligibility for each contract renewal until relief
from the bonding requirement has been granted, and must adjust the amount
of the performance bond based on fluctuations in the value of the contract
as determined by DHS. Contractors subject to the bonding requirement who have,
at the time of application or reapplication, less than three but more than
two years of administrative and financial history, may request relief from
the bonding requirement after 12 months of successful program participation.
Contractors who have less than two, but more than one year of administrative
and financial history, may request relief from the bonding requirement after
24 months of successful program participation. Contractors who have less than
one year of administrative and financial history may request relief from the
bonding requirement after 36 months of successful program participation. DHS
grants relief from the bonding requirement based on the above schedule and
the contractor's successful program operation;
(4)
designate the primary physical location at which they can
be contacted, and where all program records will be maintained and essential
program management functions will be conducted. Program records must be available
to DHS staff during normal business hours. Normal business hours are 8:00
a.m. through 5:00 p.m., Monday through Friday. An appropriate representative
of the contractor must be available to DHS staff and providers during normal
business hours. Contractors are considered to be available to DHS staff and
providers if a representative of the contractor can be contacted by telephone
at the primary business location during normal business hours, or if the contractor
has established a procedure which allows DHS staff and providers to leave
a voice message at the primary business location, and the contractor returns
the call not later than 24 hours from the time the voice message is left.
Contractors must notify DHS in advance of their intent to change their physical
location;
(5)
maintain a secondary business office physically located
in each DHS region in which they sponsor a day care home to conduct program
management functions, except that a secondary business location is not required
in the DHS region in which a sponsor's primary business office is located.
An appropriate representative of the contractor must be available to DHS staff
and providers during normal business hours. Normal business hours are 8:00
a.m. through 5:00 p.m., Monday through Friday. Contractors are considered
to be available to DHS staff and providers if a representative of the contractor
can be contacted by telephone at the secondary business location during normal
business hours, or if the contractor has established a procedure which allows
DHS staff and providers to leave a voice message at the secondary business
location, and the contractor returns the call not later than 24 hours from
the time the voice message is left. Contractors must notify DHS in advance
of their intent to change a secondary business location; and
(6)
submit a uniform set of management information each month,
as described in §12.9 of this title (relating to Reporting and Record
Retention), in fixed length, ASCII-Text (Standard Data File) format.
(c)
Facilities, except emergency shelters and participants
in the CACFP At Risk Afterschool program not subject to state licensing requirements,
must be licensed or otherwise approved by federal, state, or local authorities
to provide child care. CACFP At Risk Afterschool programs that are not subject
to state licensing requirements must provide documentation from the Texas
Department of Protective and Regulatory Services (TDPRS) to show that they
are not subject to state licensing requirements. Adult day care centers must
be licensed by DHS or the Texas Department of Mental Health and Mental Retardation
(TxMHMR), except that receipt of Title XIX funds (Medicaid) constitutes approval
for program participation. Child care centers must be licensed or registered
by TDPRS. General Exception: Facilities operated by federal and Indian tribal
governments are not required to be licensed or otherwise approved by DHS or
TxMHMR.
(d)
To be eligible to participate in the CACFP, contractors
must participate in program and program-related training deemed reasonable
and necessary by DHS.
(e)
To be eligible to participate in the CACFP as a sponsor
of child or adult care centers, contractors who purchase meals from a food
service management company (FSMC) must purchase such meals only from a FSMC
that is:
(1)
currently registered with DHS; or
(2)
exempt from registration.
(f)
To be eligible to provide food service to a contractor
sponsoring the participation of child or adult care centers, FSMCs except
public institutions, including but not limited to schools and hospitals, must
register with the DHS's Special Nutrition Programs according to the stipulations
and conditions listed in paragraphs (1)-(4) of this subsection.
(1)
DHS approves applications for registration for a period
not to exceed one year, with registrations expiring on March 14 of each year.
The effective date of registration is the date DHS approves the application.
FSMCs must reapply for registration each fiscal year.
(2)
A registered FSMC must request the addition of a new or
previously unregistered food preparation facility to its current registration
prior to providing meals from such a facility to a child or adult care center
participating in the CACFP.
(3)
DHS conducts a preapproval visit to the FSMC and each food
preparation facility to validate the information provided by the FSMC prior
to approval of the application. The new facility cannot be approved retroactively.
(4)
FSMCs applying for registration to provide food service
to contractors sponsoring the participation of child and adult care centers
in the CACFP, or applying to add a new or previously unregistered food preparation
facility, must provide documentation of:
(A)
the number of food preparation facilities under their direct
control;
(B)
compliance with state and local health and sanitation requirements
at each food preparation facility;
(C)
the number of meals the FSMC can produce daily at each
food preparation facility;
(D)
the ability of the FSMC to provide special diets to meet
medical or religious needs;
(E)
the ability of the FSMC to safely transport meals; and
(F)
the availability of a registered dietitian for consultation.
(g)
DHS requires contractors to submit as proof of eligibility
one or more of the following forms of documentation of tax-exempt status:
(1)
a letter from the IRS notifying the contractor that he
has been granted tax-exempt status under the Internal Revenue Code of 1986
or
(2)
proof of participation in another federal program that
requires non-profit status.
(h)
To be eligible to participate in the CACFP as a day care
home sponsor, contractors must demonstrate their ability to perform according
to the standards specified in §12.5 (b) of this title (relating to Application
for Program Benefits - Contractors). In addition, contractors must provide
as proof of their current tax- exempt status not less frequently than annually,
a copy of their most recent IRS Form 990 (Return of Organization Exempt From
Income Tax) submitted to the Internal Revenue Service.
(i)
DHS requires applicants/contractors that are proprietary,
for- profit entities to submit as proof of eligibility, a letter certifying
that at least 25% of the enrollment or licensed capacity of the facility or
facilities for which the contractor is making application received benefits
under Title XX of the Social Security Act or that at least 25% of the enrollment
or licensed capacity of the facility or facilities for which the contractor
is making application are eligible for free or reduced-price meals in accordance
with Section 17(a)(2)(B) of the Richard B. Russell National School Lunch Action
(42 U.S.C. 1766) as amended by the Consolidated Appropriations Act of 2001
in the month before the month in which the application is submitted.
(j)
DHS requires contractors to submit copies of a current
licensure or registration to operate a day care facility when they:
(1)
apply to participate in the CACFP; or
(2)
receive a renewed or amended license or registration.
(k)
Contractors are ineligible for the CACFP if they have permitted
a member of the governing body, an agent, a consultant, or an employee of
the contractor to enter the facility when children are present and any of
these persons have been convicted of:
(1)
a felony or misdemeanor classified as an offense against
the person or the family, or as public indecency; or
(2)
a felony violation of any statute intended to control the
possession or distribution of a substance included in the Texas Controlled
Substances Act.
(l)
Contractors are ineligible for the CACFP if they have permitted
a member of the governing body, an agent, a consultant, or an employee of
the contractor to engage in any activity related to the administration of
the CACFP and any of these persons have been convicted of a fraudulent activity,
including cases in which adjudication is deferred.
(m)
Contractors are ineligible for the CACFP if they sponsor
the participation of a day care home which, after being afforded due process
by the contractor, has been terminated for cause, including but not limited
to program abuse, deficient program operation, and fraudulent activities,
unless DHS has granted prior approval.
(n)
DHS requires contractors to submit documentation of compliance
with the requirements of the Single Audit Act. Contractors must submit as
proof of eligibility one or more of the forms of documentation of compliance
specified in paragraphs (1)-(3) of this subsection:
(1)
a copy of an audit for a specific contractor fiscal year
which has been determined to meet the requirements of the Single Audit Act;
(2)
a completed DHS Single Audit Identification Data form containing
assurance that the contractor will obtain an acceptable audit which will meet
the requirements of the Single Audit Act; or
(3)
documentation that the contractor is not subject to the
Single Audit Act.
(o)
To be eligible to participate in the CACFP At Risk Afterschool
program, contractors and facilities must:
(1)
be an organization eligible to participate in the CACFP
in accordance with this chapter;
(2)
operate an after school program which:
(A)
provides individuals with regularly scheduled activities
in an organized, structured, and supervised environment, including weekends
and holidays during the regular school year;
(B)
includes educational or enrichment activities;
(C)
is located in a geographical area served by a school in
which 50% or more of the children enrolled are eligible for free or reduced
price school meals; and
(D)
is not comprised of an organized athletic program engaged
in interscholastic or community level competitive sports including, but not
limited to, youth sports leagues. After school programs that include supervised
athletic activity are allowed in the CACFP At Risk Afterschool program provided
the programs are open to all and do not limit membership for reasons other
than space or security or licensing requirements, if applicable; and
(3)
meet state or local licensing requirements as applicable,
or otherwise meet state or local health and safety standards.
(p)
Contractors that operate or sponsor the participation of
one or more emergency shelters in the CACFP must provide documentation that
the contractors':
(1)
primary purpose is to temporarily house and provide meals
to children and their parents or guardians; and
(2)
facility or facilities meet all applicable state and local
health, sanitation, and safety standards.
(q)
To be eligible to participate in the CACFP, contractors
must:
(1)
distribute program information materials relating to the
Special Supplemental Nutrition Program for Women, Infants, and Children (WIC)
as prescribed by the United States Department of Agriculture and DHS; and
(2)
ensure that the program information materials relating
to the WIC Program are distributed to the parents of children enrolled for
child care in each child care facility participating in the CACFP under their
sponsorship. Exception: Contractors are not required to distribute WIC program
information materials to outside-school-hours centers or to the parents of
children enrolled in outside-school-hours centers participating in the CACFP
under their sponsorship.
(r)
Contractors are ineligible for the Child and Adult Care
Food Program (CACFP) if they have been determined to be ineligible to participate
in any other publicly-funded program for having violated that program's requirements.
(s)
To be eligible to participate in the CACFP, contractors
that sponsor child care centers or family day care homes must employ an appropriate
number of program monitors as approved by DHS in accordance with federal regulations
and guidance.
(t)
To be eligible to participate in the CACFP, contractors
that sponsor child or adult care centers or family day care homes must establish
and implement policies that restrict other employment activities engaged in
by an employee of the contractor that would interfere with the employee's
CACFP program responsibilities and duties.
§12.5.Application for Program Benefits - Contractors.
(a)
To participate in the Child Care Food Program, contractors
must submit applications to the Texas Department of Human Services (DHS).
The contractor must submit an amended application to DHS when changes occur.
DHS approves or denies application for participation according to 7 Code of
Federal Regulations §§226.6, 226.15-226.18, 226.23, Section 17(a)(2)(B)
of the Richard B. Russell National School Lunch Act (42 U.S.C. 1766) as amended
by the Consolidated Appropriations Act of 2001, and this chapter.
(b)
A sponsoring organization of day care homes must include
in its applications for participation in the CACFP, sufficient detail to demonstrate
that the organization will operate according to the following standards:
(1)
the majority of the governing body must be composed of
members of the community who are not financially interested in its activities,
nor who are related parties. For the purpose of this section:
(A)
majority means 50% plus one;
(B)
individuals who are not financially interested in the activities
of the organization are individuals other than the employees of the organization
or sponsored day care providers;
(C)
related parties are individuals who are related within
the second degree by consanguinity or third degree by affinity to any member
of the board of directors or employee of the sponsoring organization;
(2)
members of the governing body may not vote on decisions
relating to their own compensation (or of a related party);
(3)
decisions about compensation of employees and other parties
providing services to the organization must be made by the governing body;
(4)
no person receiving compensation for services under CACFP
may receive compensation for services from any other sponsoring organization;
and
(5)
sponsoring organizations must accept any qualified day
care provider, consistent with their capacity to provide services to sponsored
providers.
(c)
Each contractor must submit to DHS as part of its program
application the names of all officers, agents, consultants, and other employees
of the sponsoring organization involved in any aspect of the Child Care Food
Program.
(d)
Contractors applying to sponsor the participation of child
and adult care centers in the program must include sufficient information
in their applications to demonstrate how they will:
(1)
conduct preapproval visits of food service management companies
(FSMCs) to determine their suitability and capacity to provide food service
according to §12.3 of this title (relating to Eligibility of Contractors
and Facilities), prior to awarding a contract;
(2)
review the FSMCs and ensure that program deficiencies discovered
during a review or by other means are corrected according to §12.19 of
this title (relating to Program Reviews); and
(3)
terminate the FSMC's contract for failure to comply with
program requirements according to §12.25 of this title (relating to Denials
and Terminations).
(e)
DHS conducts a pre-approval visit of contractors who are
private nonprofit or private for-profit organizations who apply to participate
in the CACFP in order to determine that the contractor demonstrates the capability
of successfully operating the CACFP in accordance with the requirements of
7 Code of Federal Regulations 226 and this chapter.
(f)
If a contractor's application for participation is incomplete,
DHS will deny the application if the requested additional information is not
submitted to DHS within 30 days of the date of the written request. The contractor
may reapply when all required information and documentation is available.
(g)
To be eligible for start-up funds or expansion funds, contractors
that sponsor day care homes must submit an application. DHS approves or denies
applications for start-up and expansion funds according to 7 Code of Federal
Regulations §§226.6, 226.12, 226.15, 226.16, and 226.23.
(1)
Start-up funds are available only to sponsors of day care
homes or contractors that are attempting to add day care homes to their operation,
and to assist potential day care home providers who are unlicensed or unregistered
to become licensed or registered.
(2)
Expansion funds are available only to contractors that
have sponsored day care homes for at least one year at the time of application
and may be used only to expand program operations in low-income and/or rural
areas, and to assist potential day care home providers who are unlicensed
or unregistered to become licensed or registered. DHS considers the anticipated
amount of expansion funds and alternate sources of funds when evaluating an
applicant sponsor's plan for expansion. Contractors that are eligible to receive
expansion funds may receive expansion funds only once in any 12-month period
and one time only for an expansion effort in any geographic area. Applications
for expansion funds must include:
(A)
an acceptable and realistic plan for recruiting day care
homes to participate in the program, including activities which the sponsoring
organization will undertake;
(B)
the amount of expansion funds needed and a budget detailing
the costs the organization will incur, document, and claim;
(C)
the time necessary for the expansion of program operations;
and
(D)
documentation that the expansion area meets the definition
of a rural or low-income area.
§12.15.Reimbursement Methodology.
(a)
The Texas Department of Human Services (DHS) reimburses
contractors and contractors reimburse facilities according to 7 Code of Federal
Regulations §§226.2, 226.4, 226.6, 226.7, and 226.9- 19a, 226.23,
Code 7 of Federal Regulations Part 3015, and Section 17(a)(2)(B) of the Richard
B. Russell National School Lunch Act (42 U.S.C. 1766) as amended by the Consolidated
Appropriations Act of 2001. To assign rates of reimbursement for contractors,
DHS uses the option in 7 Code of Federal Regulations §226.9(b)(3). DHS
reimburses contractors according to the options in 7 Code of Federal Regulations §226.9(c)(1).
DHS does not use the option described in 7 Code of Federal Regulations §226.9(d).
DHS computes reimbursement for approved child care centers, outside-school-hours-care
centers, adult day care centers, and family day care homes, according to the
option in 7 Code of Federal Regulations §226.11(c)(3) and 226.13.
(b)
Adult day centers that are independent centers and contractors
that sponsor adult day care centers must ensure that the meals for which they
claim reimbursement, whether prepared on site or by a food service management
company, are not supported by Title III of the Older Americans Act. Title
III benefits include all benefits provided under Part C of the Older Americans
Act (OAA), including commodities (or cash-in-lieu of commodities) authorized
by the OAA and provided by the U.S. Department of Health and Human Services.
If the meals served at the ADC center are prepared by a food service management
company, it is the responsibility of the contractor to ensure that neither
Title III funds nor commodities were used in the meals they have bought.
(c)
Contractors approved to operate the Child and Adult Care
Food Program (CACFP) At Risk Afterschool program may submit a claim for reimbursement
for one snack per child per day for all eligible after school snacks served
to eligible program participants. DHS reimburses contractors for eligible
snacks at the free rate of reimbursement.
(d)
Contractors are not eligible to be reimbursed for after
school snacks served to participants in an approved At Risk Afterschool program
if the participants have already received the maximum number of reimbursable
meals under the CACFP (two meals and one supplement, or two supplements and
one meal per child per day).
(e)
To be eligible for reimbursement, contractors must ensure
that claims for reimbursement are postmarked or received by DHS no later than
60 days after the end of the claim month. Persons who sign the DHS certificate
of authority form as the authorized representative of the contractor must
sign claims.
(f)
DHS may not pay claims postmarked or received by DHS later
than 60 days after the end of the claim month, unless the United States Department
of Agriculture (USDA) determines that the submission of the late claim is
the result of good cause beyond the contractor's control. For claims postmarked
or received by DHS later than 60 days after the end of the claim month, DHS
will notify the contractor that they may submit a written request for payment
which demonstrates that the claim was submitted late for good cause beyond
the control of the contractor. If DHS does not agree that good cause beyond
the control of the contractor exists for the submission of a claim later than
60 days after the end of the claim month, DHS will notify the contractor that
the request for payment will not be forwarded to USDA for consideration. If
DHS agrees that the claim was submitted late for good cause beyond the control
of the contractor, DHS will forward the request for payment to USDA with a
recommendation that the claim be paid. If USDA determines that good cause
exists, DHS may pay the claim. If USDA determines that good cause beyond the
control of the contractor does not exist or if the contractor chooses not
to submit a request for payment of a late claim demonstrating that good cause
beyond his control exists, DHS may grant an exception and pay a claim postmarked
or received by DHS later than 60 days after the end of the claim period provided
that the contractor:
(1)
requests an exception in writing; and
(2)
has not been granted an exception in the 36 months preceding
the month for which a request for an exception is submitted.
(g)
Contractors serve and claim second meals for reimbursement
according to 7 Code of Federal Regulations §226.20(j). Contractors that
serve meals family style are not eligible for reimbursement for second meals.
(h)
Day home providers may not claim Child and Adult Care Food
Program (CACFP) reimbursement for meals served to another day home provider's
own children at any time when both day home providers are participating in
the CACFP. The "providers' own child" of one day home provider may be considered
a "nonresidential child" for the purpose of claiming reimbursement for a meal
service at the day home of another provider only if the criteria in paragraphs
(1) and (2) are met:
(1)
the children are enrolled for child care at the substitute
facility; and
(2)
the provider for whom substitute care is being provided
does not claim reimbursement for any meals served during the period of substitute
care.
(i)
Contractors that sponsor child and adult care centers may
not include in a claim for reimbursement any meals:
(1)
purchased from a food service management company (FSMC)
that is not registered with DHS on or before the date of the meal service;
or
(2)
prepared at an unapproved food preparation facility operated
by a registered FSMC.
(j)
Contractors that sponsor or operate emergency shelters
for homeless children may include in a claim for reimbursement a maximum of:
(1)
three meals (breakfast, lunch, and supper) per child per
day; or
(2)
two meals (breakfast, lunch, or supper) and one supplement
per child per day; or
(3)
two supplements and one meal (breakfast, lunch, or supper)
per child per day.
(k)
Contractors that sponsor or operate emergency shelters
for homeless children may not include in a claim for reimbursement meals served:
(1)
in private family quarters, except meals served to infants
from birth to age 11 months; or
(2)
to nonresidential children.
(l)
To be eligible to operate a homeless site in the CACFP,
a contractor must provide benefits to children age 12 and under. Exception:
Eligible meals served to children of migrant workers age 15 or younger, and
children with disabilities regardless of age are eligible for reimbursement.
§12.19.Program Reviews.
(a)
Contractors must monitor their program operations and conduct
administrative reviews according to 7 Code of Federal Regulations §§226.15
and 226.16. The Texas Department of Human Services (DHS) does not use the
averaging option described in 7 Code of Federal Regulations §226.16(d)(4)(ii).
(b)
DHS will conduct periodic visits to private nonprofit and
private for-profit contractors participating in the Child and Adult Care Food
Program (CACFP) who have been determined by DHS through the program review
process and technical assistance sessions to have demonstrated potential for
noncompliance with program requirements.
(c)
Each fiscal year, DHS will select by random sample at least
10% of the providers of each sponsor participating in the CACFP. Each contractor
that sponsors day care homes must verify that the children for which meals
are being claimed for reimbursement are enrolled for and receiving child care
services and participating in the program. For each provider selected, the
sponsor must contact the family of each child reported as enrolled for child
care and participating in the program, excluding the day care home provider,
during a test period established by DHS. Nothing in this chapter shall prohibit
a contractor from verifying the participation of children in day care homes
not randomly selected for verification by DHS or from conducting additional
verification of participation in homes randomly selected by DHS.
(d)
Contractors that sponsor day homes conduct their reviews
of day home providers according to 7 Code of Federal Regulations §226.16
and this chapter.
(e)
Day home sponsoring organizations must conduct a minimum
of one scheduled (announced in advance) and two unscheduled (unannounced)
monitoring reviews of each of their day care homes each 12 months. A meal
service must be observed during each of the reviews. An unannounced follow-up
review must be made no more than two weeks after a review at which the sponsor
is unable to confirm program participation.
(f)
Day home sponsoring organizations must ensure that at least
one of their three monitoring reviews of day home providers participating
on weekends is conducted on Saturday or Sunday.
(g)
Contractors that sponsor the participation of child and
adult care centers must conduct a minimum of three monitor reviews of each
of their facilities each 12 months; one visit each 12 months must be scheduled
(announced in advance). Contractors that sponsor child or adult care centers
must also conduct periodic unscheduled (unannounced) visits not less than
once every three years.
(h)
Contractors that sponsor the participation of child and
adult care centers must:
(1)
conduct a preapproval visit to each food preparation site
and the administrative offices of the food service management company (FSMC)
prior to awarding a contract for food service;
(2)
review the FSMC, including each food preparation site and
administrative offices, at least three times per contract period. The first
review must occur within the first six weeks of the beginning of the program
year, and no more than six months can pass between reviews. If a food service
contract is executed after the beginning of the contract period, the contract
may adjust the number of reviews based on the number of months remaining in
the contract period;
(3)
review the FSMC meal preparation and delivery system, including
but not limited to sanitation and food preparation practices, transportation
of food, record keeping, and compliance with state and local health requirements;
(4)
maintain written verification of monitoring visits, including
the date of the visit and all findings; and
(5)
require the FSMC to take the appropriate action to correct
all deficiencies discovered during the review within a reasonable amount of
time. If the health and well being of program participants are at risk as
a result of program deficiencies identified during a FSMC review, the contractor
may immediately terminate the contract for cause.
§12.25.Denials and Terminations.
(a)
The Texas Department of Human Services (DHS) denies applications
for participation and terminates agreements, in whole or in part, between
DHS and contractors for failure to meet basic eligibility requirements, and
according to 7 Code of Federal Regulations §§226.6, 226.14-226.16,
226.18, 226.23, 226.25, and 7 Code of Federal Regulations Part 3015, and Section
17(a)(2)(B) of the Richard B. Russell National School Lunch Act (42 U.S.C.
1766) as amended by the Consolidated Appropriations Act of 2001.
(b)
DHS terminates agreements, in whole or in part, and denies
subsequent applications of sponsoring organization of day care homes who fail
to submit reports in accordance with §12.9 of this title (relating to
Reporting and Record Retention).
(c)
DHS terminates agreements, in whole or in part, and denies
applications of contractors who have been determined to be seriously deficient
in their administration of the program for failure to comply with program
requirements as described in §§12.3, 12.5, 12.6, 12.20, and 12.24
of this title (relating to Eligibility of Contractors and Facilities, Application
for Program Benefits-Contractors, Agreement, Training/Technical Assistance,
and Sanctions and Penalties). DHS may approve an application and execute a
contract with a contractor found to be seriously deficient for failure to
comply with program requirements if such contractor demonstrates to the satisfaction
of DHS that all serious deficiencies identified by DHS have been or will be
corrected. DHS will establish a date by which the day care home sponsoring
organization must submit an acceptable plan to correct the serious deficiencies
identified by DHS. If a contractor fails to demonstrate by submission of an
acceptable corrective action plan by the specified date that all serious deficiencies
identified by DHS have been or will be corrected, DHS will notify the contractor
that their agreement is terminated, in whole or in part, effective the last
day of the month in which their corrective action plan was due and that DHS
will deny payment of any claims for reimbursement after that date.
(d)
DHS denies applications for participation and terminates
agreements, in whole or in part, with contractors sponsoring day homes for
failure to submit a balanced and reasonable budget.
(e)
Sponsoring organizations of day homes must terminate the
participation of day home providers who have been found guilty of committing
fraud in the Child and Adult Care Food Program (CACFP), including cases in
which adjudication is deferred. Denial of participation in the CACFP is effective
for the duration of the sentence of the court, and termination is effective
when the sentence is pronounced.
(f)
DHS denies applications and terminates agreements, in whole
or in part, with contractors if they have permitted any individual identified
in §12.3(h) of this title (relating to Eligibility of Contractors and
Facilities) to enter the facility when children are present.
(g)
DHS denies applications and terminates agreements, in whole
or in part, with contractors if they have permitted any individual identified
in 12.3(i) of this title (relating to Eligibility of Contractors and Facilities)
to engage in any activity related to the administration of the CACFP.
(h)
DHS terminates agreements, in whole or in part, with contractors
that sponsor day care homes if they receive reimbursement for fewer than 50
day care homes for three consecutive months.
(i)
DHS denies applications for participation and terminates
agreements, in whole or in part, with contractors subject to the bonding requirement
identified in §12.3(b) of this title (relating to Eligibility of Contractors
and Facilities) if they fail to submit and maintain in good standing a performance
bond in the amount established by DHS. DHS denies requests for relief from
the bonding requirement if the contractor has an outstanding financial obligation
to DHS.
(j)
Sponsoring organizations of day homes must:
(1)
terminate the participation of any day care home provider
that they have determined has knowingly claimed meals for a child not enrolled
for child care or not in attendance on a day that meals were claimed for the
child; and
(2)
submit the provider for inclusion on a list of seriously
deficient providers.
(k)
Sponsoring organizations of day homes must:
(1)
terminate the participation of any day care home provider
that refuses to enter into or comply with a corrective action plan designed
to achieve compliance with program requirements: and
(2)
submit the provider for inclusion on a list of seriously
deficient providers.
(l)
DHS denies or revokes the registration of a food service
management company (FSMC) for failure to demonstrate its ability to perform
according to program requirements, or for failure to submit all necessary
documentation to complete the application within 60 calendar days. DHS may
deny participation to a FSMC or any combination of its food preparation facilities.
If DHS denies the application, the FSMC may not reapply for the remainder
of the fiscal year in which the application was submitted. A FSMC may appeal
the denial or revocation of registration according to §12.26 of this
title (relating to Appeals).
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on May 7, 2001.
TRD-200102564
Paul Leche
General Counsel, Legal Services
Texas Department of Human Services
Effective date: December 21, 2000
For further information, please call: (512) 438-3108
40 TAC §12.115
The Texas Department of Human Services (DHS) adopts an amendment
to §12.115 as mandated by the Consolidated Appropriations Act of 2001
(Public Law 106-554) amending section 18(f) of the Richard B. Russell National
School Lunch Act (42 U.S.C. 1769), in its Special Nutrition Programs chapter.
Justification for the amendment to §12.115 is to comply with a federally
legislated mandate to implement a pilot project in the Summer Food Service
Program (SFSP) to increase participation by simplifying administrative requirements
for certain sponsors in states with low SFSP participation. Government sponsors,
public and private nonprofit school sponsors, public and private nonprofit
National Youth Sports Program sponsors, and public and private nonprofit residential
camp sponsors will be reimbursed strictly based on meals times rates with
no comparison between meals times rates, costs, and budgets. All other private
nonprofit sponsors will continue to be reimbursed using the current comparison
formula.
The amendments are adopted under the Human Resources Code, Title
2, Chapters 22 and 33, which authorize the department to administer public
and nutritional assistance programs.
The amendments implement the Human Resources Code, §§22.001-
22.030 and §§33.001-33.024. The amendments are adopted in compliance
with federal requirements effective May 1, 2001.
§12.115.Reimbursement Methodology.
(a)
Sponsors must comply with and the Texas Department of Human
Services (DHS) reimburses sponsors according to the provisions of 7 Code of
Federal Regulations §225.9 and Section 18(f) of the Richard B. Russell
National School Lunch Act (42 U.S.C. 1769) as amended by the Consolidated
Appropriations Act of 2001.
(b)
Sponsors are reimbursed according to the rates of reimbursement
stipulated in 7 Code of Federal Regulations §225.9.
(c)
To be eligible for reimbursement, sponsors must ensure
that claims for reimbursement are postmarked or received by DHS, no later
than 60 days after the end of the claim month. Persons who sign the DHS certificate
of authority form as the authorized representative of the sponsor must sign
claims.
(d)
DHS does not pay claims postmarked or received by DHS later
than 60 days after the last day of the month covered by the claim, unless
the United States Department of Agriculture (USDA) determines that the submission
of the late claim is the result of good cause beyond the contractor's control.
If the final month of service is combined with the immediate preceding month
to make a single claim, sponsors must ensure that the claim for reimbursement
is postmarked, or received by DHS, no later than 60 days after the last day
of meal service in the final month covered by the claim. For claims postmarked
or received by DHS later than 60 days after the end of the month(s) covered
by the claim, DHS will notify the contractor that they may submit a written
request for payment which demonstrates that the claim was submitted late for
good cause beyond the control of the contractor. If DHS does not agree that
good cause beyond the control of the contractor exists for the submission
of a claim later than 60 days after the end of the month(s) covered by the
claim, DHS will notify the contractor that the request for payment will not
be forwarded to USDA for consideration. If DHS agrees that the claim was submitted
late for good cause beyond the control of the contractor, DHS will forward
the request for payment to USDA with a recommendation that the claim be paid.
If USDA determines that good cause exists, DHS may pay the claim. If USDA
determines that good cause beyond the control of the contractor does not exist
or if the contractor chooses not to submit a request for payment of a late
claim demonstrating that good cause beyond his control exists, DHS may grant
an exception and pay a claim postmarked or received by DHS later than 60 days
after the end of the claim period provided that the contractor:
(1)
requests an exception in writing; and
(2)
has not been granted an exception in the 36 months preceding
the month for which a request for an exception is submitted.
(e)
Sponsors that operate fewer than 10 days in the last month
of operation must submit a final combined claim which includes the last and
immediate preceding month of operation.
(f)
DHS elects to exercise the state option to consider the
cost of meals served to adults performing labor necessary for the operation
of the Summer Food Service Program (SFSP) to be an allowable program cost
according to 7 Code of Federal Regulations §225.9(d)(4).
(g)
Subject to the availability of state funding as appropriated
by the Texas Legislature, DHS will provide a supplemental reimbursement for
eligible meals served to eligible children by approved SFSP sponsors.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on May 7, 2001.
TRD-200102565
Paul Leche
General Counsel, Legal Services
Texas Department of Human Services
Effective date: May 1, 2001
For further information, please call: (512) 438-3108
Subchapter E. FLEET MANAGEMENT
Subchapter B. SUMMER FOOD SERVICE PROGRAM
Chapter 68.
BUSINESS SERVICES