Streamlining Requirements and Improving Integrity in the SFSP Final Rule - Comparison Table

Previous Regulations

Current and Previous Guidance and Waivers

New Regulations

§ 225.15(d)(2) required sponsors to visit each of their sites at least once during the first week of operation in the program.

§ 225.15(d)(3) requires sponsors to conduct a review of the food service at each site during the first four weeks of program operations.

The following policy memoranda provided flexibility for sponsors to not conduct first week site visits if sites operated successfully in the previous year or the sponsor was in good standing in the CACFP or NSLP:

• SFSP12-2011, Waiver of Site Monitoring Requirements in the Summer Food Service Program, April 5, 2011;
• SP07, SFSP04-2013 - REVISED, Summer Feeding Options for School Food Authorities, Nov. 23, 2012; and
• SP06, SFSP06, CACFP03-2014, Available Flexibilities for CACFP At-risk Sponsors and Centers Transitioning to Summer Food Service Program (SFSP), Nov. 12, 2013.

That guidance was rescinded in 2018 by SFSP 01-2019, Summer Food Service Program Memoranda Rescission, Oct. 11, 2018. Since that time, FNS approved waivers of first week site visit requirements through individual waivers and COVID-related nationwide waivers, most recently Nationwide Waiver to Waive First Week Site Visits in the Summer Food Service Program for Summer 2021 Operations – EXTENSION 3, March 9, 2021.

• Revises § 225.15(d)(2) to require a visit in the first two weeks of operation for new sites, sites with operational problems in the prior year, and any site where the state agency determines a visit is needed. For sites that operate for a week or less, the site visit must be conducted during the period of operation, as proposed.
• Adds to § 225.7 a new paragraph, (o) Sponsor site visit, that requires each state agency to establish criteria for what constitutes operational problems in order to help sponsors determine which of their returning sites are required to receive a visit.
• Revises § 225.15(d)(3) to allow food service reviews to occur at the same time as the site visit.

Through previous policy guidance in SP10, SFSP06-2017, Meal Service Requirements in the Summer Meal Programs, with Questions and Answers – Revised, Dec. 5, 2016, FNS extended the option to use OVS at all sites, regardless of location or type of sponsorship, and allowed SFA sponsors electing to use the SFSP meal pattern to use SFSP OVS guidelines.

That guidance was rescinded in 2018 by SFSP 01-2019, Summer Food Service Program Memoranda Rescission, Oct. 11, 2018. Since that time, FNS approved waivers of OVS requirements through individual and COVID-related nationwide waivers, most recently Nationwide Waiver to Allow Offer Versus Serve Flexibilities in the Summer Food Service Program for Summer 2021 Operations– EXTENSION 3, March 9, 2021.

• Retains the requirement at § 225.16(f)(1)(ii) that only SFA sponsors may utilize the OVS option, consistent with the statute.
• Allows SFA sponsors electing to use the SFSP meal pattern to use SFSP OVS guidelines.

§ 225.16(c) restricted meal service times in SFSP. Three hours were required to elapse between the beginning of one meal service, including snacks, and the beginning of another, with the exception that four hours must have lapsed between the service of a lunch and supper when no snack was served between lunch and supper.

The service of supper could not begin later than 7 p.m., unless the state agency granted a waiver of this requirement due to extenuating circumstances; however, in no case could the service of supper extend beyond 8 p.m.

The duration of the meal service was limited to two hours for lunch or supper and one hour for all other meals. These restrictions did not apply to residential camps.

Through previous policy guidance in SFSP 11-2011, Waiver of Meal Time Restrictions and Unitized Meal Requirements in the Summer Food Service Program, Oct. 31, 2011, FNS waived all meal service time restrictions.

That guidance was rescinded in 2018 by SFSP 01-2019, Summer Food Service Program Memoranda Rescission, Oct. 11, 2018. Since that time, FNS has approved waivers of meal service time requirements through individual and COVID-related nationwide waivers, most recently Nationwide Waiver of Meal Service Time Restrictions for Summer 2022 Operations – EXTENSION 4, July 6, 2022.

• Revises § 225.16(c) to remove all existing meal service time restrictions.
• Clarifies at § 225.16(c)(2) that meals claimed as breakfast must be served at or close to the beginning of the day and cannot be served after a lunch or supper.
• Adds at § 225.16(c)(3) a requirement that for all sites (except residential camps) a minimum of one hour must elapse between the end of one meal service and the beginning of another.
• Adds at § 225.16(c)(4)(ii) that a state agency may approve for reimbursement meals served outside of the approved meal service time if an unanticipated event, outside of the sponsor's control, occurs.
• Reorganizes § 225.16(c) to improve the clarity of the section.

Through previous guidance in Summer Food Service Program (SFSP) Waiver for Closed Enrolled Sites, Nov. 17, 2002, FNS waived the requirement in the definition of “closed enrolled site” that required collection of income eligibility forms to determine site eligibility. This allowed sites to establish eligibility based on community data.

That guidance was rescinded in 2018 by SFSP 01-2019, Summer Food Service Program Memoranda Rescission, Oct. 11, 2018. Since that time, FNS waived area eligibility requirements for closed enrolled sites through individual and COVID-related nationwide waivers, most recently Nationwide Waiver to Allow Area Eligibility for Closed Enrolled Sites for Summer 2022 Operations, June 30, 2022.

• Amends the definition of “areas in which poor economic conditions exist” and “closed enrolled site” at § 225.2 to clarify eligibility requirements and include eligibility determination based on area data of children eligible for free or reduced-price meals, including school or census data.
• Amends § 225.6(a)(2) to require state agencies to establish criteria for approving closed enrolled sites to ensure operation of a site as closed enrolled does not limit program access in the area that the site is located.
• Updates redesignated §§ 225.6(g)(1)(ix) and 225.6(g)(2)(iii) to establish the frequency at which sites must re-establish eligibility, if based on area data. When school data are used, new documentation is required every five years; when census data are used, new documentation is required every five years, or earlier, if the state agency believes that an area's socioeconomic status has changed significantly since the last census.

Section 12(l) of the NSLA, 42 USC 1760(l), provides the Secretary the authority to waive statutory requirements under the NSLA and Child Nutrition Act, and any regulations issued under either Act for state agencies and eligible service providers if certain conditions are met. This authority applies to all child nutrition programs including the SFSP, National School Lunch Program (NSLP), School Breakfast Program (SBP), Child and Adult Care Food Program (CACFP), Special Milk Program, and the Fresh Fruit and Vegetable Program.

Current regulations do not address this waiver authority.

• Adds new paragraphs at § 210.3(e), § 215.3(e), § 220.3(f), § 225.3(d), and § 226.3(e) which:
  • Codify USDA’s authority to issue waivers of statutory and regulatory requirements for all child nutrition programs.
  • Clarify that waivers must be consistent with current 12(l) requirements, which includes a prohibition on waivers relating to program requirements that derive from other statutes or regulations.
  • Clarify that USDA may only approve requests for a waiver that are submitted by a state agency and comply with the requirements at Section 12(l)(1) and the limitations at Section 12(l)(4), including that USDA may not grant a waiver that increases federal costs. Allow SAs the discretion to deny a waiver submitted by an eligible service provider.
  • Require that, when states provide written notice to a provider that a waiver is denied, they must state the reason for denying the request within 30 calendar days.
  • Clarify that state agencies responses of denial are final and may not be appealed to FNS.

§ 225.14(c)(1) requires sponsors applying to participate as sponsors in SFSP to demonstrate financial and administrative capability for program operations

CACFP regulations at § 226.6 include performance standards that assist state agencies in assessing an applicant’s financial viability and financial management, administrative capability, and accountability.

• Adds a new paragraph, § 225.6(d), which clarifies standards for states to assess an applicant sponsor’s viability, capability, and accountability and clarifies the contents of the required management plan.
• Requires in §§ 225.6(c)(2)(i), 225.6(c)(3)(i) and the new 225.6(e) the submission of a management plan demonstrating compliance with the performance standards in the new § 225.6(d) and describes the requirements for the plans.
• Requires at 225.6(e)(2) that new sponsors and those with significant operational problems must submit a complete management plan that demonstrates compliance with the performance standards in § 225.6(d).
• Requires at 225.6(e)(3) that experienced sponsors must submit a full or simplified management plan, at the discretion of the state agency. A full management plan must be submitted at least once every three years. The simplified management plan must include a certification that information previously submitted to the state agency to satisfy eligibility requirements is current.
• Explains at 225.6(e)(4) that school and CACFP sponsors in good standing may be exempt from submitting a management plan at the discretion of the state agency.
• Amends §§ 225.14 (a), 225.14(c)(1), and 225.14(c)(4) to reference application requirements, performance standards, and the management plan, respectively, in the reorganized § 225.6.

• Codifies in § 225.6(c)(4) the flexibility for SFAs and CACFP institutions in good standing applying to the SFSP as new sponsors to use the application procedures for experienced sponsors at the discretion of the state agency.

Amends § 225.14(c)(1) to:

• Include the flexibility previously outlined in guidance that SFAs and CACFP institutions in good standing applying to operate the SFSP do not have to provide further evidence of financial and administrative capabilities; however, state agencies may request a management plan or additional evidence of financial and administrative capabilities if they have reason to believe that financial or administrative capability would pose significant challenges for an applicant sponsor.
• Add a requirement that state agencies develop an information sharing process if programs are administered by separate agencies within the state.

• Codifies in § 225.7(e)(6):
  • A method for conducting meal claim validations along with a table to explain the validation process.
  • A multi-step approach to site-based meal claim validation. State agencies would initially validate a small sample of claims (10 percent of each reviewed sponsor's sites, or one site, whichever number is greater) and would only be required to validate additional claims (25%, 50%, or 100%) if they detect 5% error or more at each step.
  • Instructions for calculating the percent error and determining when the site sample needs to be expanded.

In lieu of the multi-step approach, state agencies may complete a validation which includes all meals served on all operating days for all sites under a sponsor for the review period.

§ 225.7(d)(8) gave states the option to use statistical monitoring procedures in lieu of the site monitoring requirements.

Site selection criteria for conducting reviews are not addressed in the regulations.

Statistical Monitoring

• Removes the option at §225.6(d)(8) for statistical monitoring in lieu of site monitoring requirements

Site Selection for Site Reviews

• Codifies at § 225.7(e)(5) that state agencies must develop criteria for site selection for reviews. To the maximum extent possible, selected sites should reflect the sponsor's entire population of sites. Characteristics that should be reflected are listed. Renumbers and rephrases portions of §225.7 to make the regulations easier to understand.

• Amends § 225.6(h)(2)(iii), as redesignated through the rule, to clarify that sponsors of vended sites may request an adjustment to the maximum approved level of meal service at any time prior to submitting a claim for reimbursement. The term “request” is used to clarify that states have discretion on whether or not to approve site cap adjustments.
• Amends § 225.6(h)(2)(i) by including further guidance for determining the maximum approved level of meal service for sites lacking accurate records from prior years.

• Adds to § 225.6(i)(15) that sponsors may allow a child to take one fruit, vegetable, or grain item off-site for later consumption if the requirements in § 225.16(h) are met.
• In the new § 225.16(h), codifies that:
  • Sponsors may allow a child to take one fruit, vegetable, or grain item off-site for later consumption without prior state agency approval provided that all applicable state and local health, safety, and sanitation standards will be met.
  • Sponsors should only allow an item to be taken off-site if the site has adequate staffing to properly administer and monitor the site.
  • A state agency may prohibit individual sponsors on a case-by-case basis from using this option if the state agency determines that the sponsor’s ability to provide adequate oversight is in question.
  • The state agency’s decision to prohibit a sponsor from utilizing this option is not an appealable action.

• FNS Instruction 788-13: Sub-Sites in the Summer Food Service Program, Aug. 7, 1986, stated that meals are reimbursable only when served at sites which have been approved by the administering agency and granted state agencies the flexibility to approve exceptions to this requirement for the operation of field trips.
• Field Trips in the Summer Food Service Program (SFSP), Feb. 3, 2003, clarified that formal approval of the alternative meal service is not a federal requirement. Whenever sponsors plan field trips that may affect the time or location of meal services, the state should be informed.

• The redesignated § 225.6(i)(7)(v), allows sponsors to claim reimbursement for only meals specified in the state-sponsor agreement at an approved site, unless the requirements in § 225.16(g) are met.
• Adds a new § 225.16(g), which codifies the flexibility extended through policy guidance to allow sponsors the option to receive reimbursement for meals served away from the approved site when the following conditions are met:
  • The sponsor notifies the state agency in advance that meals will be served away from the approved site;
  • The state agency has determined that all Program requirements in § 225.16(g) will be met, including applicable state and local health, safety, and sanitation standards;
  • The meals are served at the approved meal service time, unless a change is approved by the state agency; and
  • Sponsors of open sites continue operating at the approved location. If not possible, the state agency may permit an open site to close, in which case the sponsor must notify the community of the change in meal service and provide information about alternative open sites.
  • The state agency may determine that meals served away from the approved site location are not reimbursable if the sponsor did not provide notification in advance of the meal service. The state agency may establish guidelines for the amount of advance notice needed.

42 USC 1761(a)(1)(A)(i)(I-II) authorizes the use of school data and census data to establish area eligibility in the SFSP, and that area eligibility determinations are valid for 5 years.

§ 225.6(c)(3)(i)(B) required open sites and restricted open sites to submit new documentation supporting the eligibility of each site as serving an area in which poor economic conditions exist every three years, or when census data are used, such documentation shall be submitted when new census data are available, or earlier if the state agency believes that an area's socioeconomic status has changed significantly since the last census.

• Policy guidance in SP 08, CACFP 04, SFSP 03-2017 Area Eligibility in Child Nutrition Programs, Dec. 01, 2017 allows sponsors of sites determined to be area eligible based upon school or census data to be required to re-determine site eligibility every five years instead of every three years.

• Amends the regulations in redesignated §§ 225.6(g)(1)(viii) and 225.6(g)(2)(ii) for open and restricted open sites and §§ 225.6(g)(1)(ix) and 225.6(g)(2)(iii) for closed enrolled sites.
• When school data are used, new documentation is required every five years. When census data are used, new documentation is required every five years, or earlier, if the state agency believes that an area's socioeconomic status has changed significantly since the last census

§ 225.9(d)(4) requires state agencies to forward reimbursements to sponsors within 45 calendar days of receiving a valid claim. The regulations also require that if a sponsor submits a claim for reimbursement that is incomplete or invalid, the state agency must return the claim to the sponsor within 30 calendar days with an explanation of the reason for disapproval. If the sponsor submits a complete revised claim, the state agency must take final action within 45 calendar days of receipt.

225.9(d)(10) provides state agencies the ability to use evidence found in audits, reviews, or investigations as the basis for nonpayment of a claim for reimbursement.

• Amends § 225.9(d)(4) to:
  • Indicate that if a claim is determined to be potentially unlawful based on § 225.9(d)(10), the state agency must still disapprove the claim within 30 calendar days with an explanation of the reason for disapproval and how the claim must be revised for payment.
  • Specify that the state agency must notify the sponsor of its right under § 225.13(a) to appeal a denied claim.
• Amends § 225.9(d)(10) to:
  • Clarify that a state agency may be exempt from the 45 calendar day timeframe for final action in § 225.9(d)(4) if more time is needed to complete a thorough examination of the sponsor’s claim.
  • Clarify that a state agency must provide notification to the FNSRO that it is taking the exemption to the 45 calendar day timeframe at the same time as the sponsor’s claim is disapproved.

• Amends § 225.15(e) by:
  • Renaming the subsection “Notification to the Community,”
  • Specifying that state agencies may issue a media release on behalf of all sponsors operating sites in the state, including open sites, closed enrolled sites, and camps.
  • Clarifying that sponsors of camps and closed enrolled sites must only notify participants or enrolled children of the availability of free meals.

• At § 225.2, adds the following definitions:
  • Vended site means a site that serves unitized meals, with or without milk, that were procured through a formal agreement or contract with: (a) Public agencies or entities such as a school food authority; (b) private, nonprofit organizations; or (c) private, for-profit companies such as a commercial food distributor or food service management company.
  • Self-preparation site means a site that prepares the majority of meals that will be served at its site or receives meals that are prepared at its sponsors’ central kitchen. The site does not contract with a food service management company for unitized meals, with or without milk, or for management services.
• Retains at § 225.2 the sponsor-level definitions, which apply for states that are claiming at the sponsor level.
• Amends §§ 225.6(c)(2)(viii) and 225.6(c)(3)(vi) to require sponsors to provide a summary of how meals will be obtained at each site, rather than at the sponsor level, as part of the sponsor application.

• Adds to § 225.2 a definition of site supervisor: the individual on site for the duration of the meal service, who has been trained by the sponsor, and is responsible for all administrative and management activities at the site including, but not limited to: maintaining documentation of meal deliveries, ensuring that all meals served are safe, and maintaining accurate point of service meal counts.
• Adds a reference to “site supervisor” at § 225.14(c)(4), which provides some of the general requirements for a sponsor to participate in the program. 

• Adds to § 225.2 a definition for “unaffiliated site”: a site that is legally distinct from the sponsor.

• Adds to § 225.2 a definition of “unanticipated school closure” that aligns with statutory requirements and current regulatory language: any period from October through April (or any time of the year in an area with a continuous school calendar) during which children who are not in school due to a natural disaster, building repair, court order, labor-management disputes, or, when approved by the state agency, similar cause, may be served meals at non-school sites through the Summer Food Service Program.
• Revises all references to unanticipated school closures in § 225 to remove text that is duplicative and repetitive with the inclusion of this new definition.

§ 225.2 does not include definitions for “nonprofit food service,” “nonprofits food service account,” and “net cash resources”

These terms are already defined in 7 CFR 210 (National School Lunch Program regulations).

• Adds to § 225.2 a definition of “nonprofit food service account”: the restricted account in which all of the revenue from all food service operations conducted by the sponsor principally for the benefit of children is retained and used only for the operation or improvement of the nonprofit food service. This account must include, as appropriate, non-federal funds used to support program operations, and proceeds from non-program foods.
• Adds to § 225.2 a definition “net cash resources”: all monies, as determined in accordance with the state agency's established accounting system that are available to or have accrued to a sponsor's nonprofit food service at any given time, less cash payable. Such monies may include, but are not limited to, cash on hand, cash receivable, earnings on investments, cash on deposit and the value of stocks, bonds, or other negotiable securities.
• Adds to § 225.2, a definition “nonprofit food service”: all food service operations conducted by the sponsor principally for the benefit of children, all of the revenue from which is used solely for the operation or improvement of such food services.

• Amends § 225.7(a) to include the option for training to be conducted via the internet.

• Amends § 225.7:
  • To include a newly redesignated paragraph, (i), which includes information on Food service management company facility visits previously included in § 225.7(d)(6).
  • By renaming the paragraph Meal preparation facility reviews.
  • Clarifying that:
    • Facility reviews are part of a vended sponsor’s review.
    • The facility review must be conducted at least one time within the appropriate review cycle for each vended sponsor and that in the instance where multiple sponsors use the same food service management company, then a single facility review will satisfy the review requirements for those vended sponsors.
    • The state agency must respond promptly to complaints concerning facilities and not reimburse for meals if the facility does not correct violations noted by the state agency.
    • Funds provided in § 225.5(f) may be used for conducting meal preparation facility reviews.