Nondiscretionary non-EBT Related Provision of PL 111-296

BACKGROUND

The Healthy, Hunger-Free Kids Act of 2010 (the Act), PL 111-296, includes several changes affecting the Special Supplemental Nutrition Program for Women, Infants, and Children (42 USC 1786 et. seq.) (WIC) and the Richard B. Russell National School Lunch Act (42 USC 1751 et. seq.) (NSLA). The Act was signed into law by President Obama on Dec. 13, 2010. These WIC provisions address: (1) certification periods for children participating in the WIC program; (2) increased emphasis on breastfeeding promotion and support; (3) data collection for partially and fully breastfed infants; (4) state and local cooperation in the Department of Agriculture (USDA) studies; (5) sharing nutrition education materials with institutions participating in the Child and Adult Care Food Program (CACFP); and (6) infant formula (and other foods) rebate management.

The provisions in this memorandum are nondiscretionary (i.e., they are to be implemented exactly as written in the law). Congress expects the Department to implement these legislative provisions as soon as possible following enactment of the law. Therefore, WIC state agencies may implement them under the authority of this policy memorandum. The provisions set forth in this policy memorandum will also be incorporated into the WIC program regulations through future rulemaking.

Implementation memoranda addressing WIC Electronic Benefits Transfer (EBT) provisions, as well as the provision addressing full use of federal funds by state agencies, will be issued separately.

Certification Period for Children

Legislative Change: Section 131 of PL 111-296 amends section 17(d)(3) of the CNA (42 USC 1786(d)(3)) to allow state agencies the option to certify participant children for a period of up to one year if the state electing this option ensures that participant children receive required health and nutrition assessments.

Implementation Date: This provision became effective on Oct. 1, 2010. State agencies that elect to implement this option must submit a state plan amendment to the appropriate Food and Nutrition Service (FNS) regional office for approval to implement this provision.

Current Regulatory Requirement: Section 246.7(g)(1)(v) of the federal WIC regulations provides that children shall be certified at intervals of approximately six months and ending with the last day of the month in which a child reaches his/her fifth birthday.

Effect of PL 111-296: A participant child may, at the state agency’s option, be certified for a period for up to one year. This will provide administrative relief for participant children's parents, as well as for state and local WIC agencies. In some cases, it will also allow a local WIC agency to certify a toddler, a breastfeeding mother and an infant in the same family for the same relative period of time.

INCREASED SUPPORT FOR BREASTFEEDING IN THE WIC PROGRAM

Legislative Change: Section 231 of PL 111-296 amends several paragraphs in section 17 of the CNA to reinforce the importance of, and the Department's commitment to, the promotion and support of breastfeeding as an integral element of WIC services and benefits. The specific changes are as follows:

• “Breastfeeding promotion and support” is added to the statement of purpose of the WIC program in section 17(a);
• The definition of “Costs of nutrition services and administration” in section 17(b)(4) is amended to include “breastfeeding support and promotion”;
• Section 17(c)(1) is amended to include “breastfeeding support and promotion” as one of the specific services to be provided under the WIC program;
• Section 17(e)(2) expands WIC state and local agency staff training requirements to include breastfeeding support and education; and Section 17(f)(6)(B) is amended to expand the limitations on state agencies' authority to provide WIC vouchers by a method other than direct pick-up at the local agency. The limitation is expanded to include participants scheduled for breastfeeding counseling.

Implementation Date: These provisions became effective on Oct. 1, 2010. Current Regulatory Requirement: Although the federal WIC regulations contain numerous references to breastfeeding promotion and support, the specific references mandated by PL 111-296 are not currently reflected.

Effect of PL 111-296: The addition of references to breastfeeding promotion and support to the WIC program's general purpose and to the benefits provided will be incorporated into the federal WIC regulations as necessary, but do not require any specific action on the part of WIC state agencies. Breastfeeding support and promotion has always been an allowable cost under nutrition services and administration (NSA) funds. However, state agencies will be expected to provide an assurance via the state Plan of Operations to the effect that any training related to nutrition education and counseling provided to state and local staff will include breastfeeding as part of the subject matter. State agencies must also ensure that WIC vouchers (food instruments) will not be mailed (or otherwise issued to participants in some method besides face-to-face distribution at the local agency) if the participant is scheduled for nutrition education or breastfeeding counseling, or for recertification. If a state agency does not currently provide such assurances, a state plan amendment must be submitted to the appropriate FNS regional office.

WIC PROGRAM ADMINISTRATION

Data Collection
Legislative Change: Section 231 of PL 111-296 amends section 17(h)(4)(A) of the CNA (42 USC 1786(h)(4)(A)) to require USDA to compile, and publish annually, breastfeeding performance measurements based on program participant data on the number of partially and fully breastfed infants for each WIC state agency and each local WIC agency.

Implementation Date: This requirement became effective on Oct. 1, 2010. Current Regulatory Requirement: Sections 246.25 (a) and(b) of the federal WIC regulations require state and local WIC agencies to maintain full and complete records concerning program operations, and to submit monthly program performance data as specified by FNS. WIC state agencies currently report cumulative data on the number of partially and fully breastfed infants as part of their monthly participation report. WIC local agencies provide their data on partially and fully breastfed infants to the state agency for the cumulative monthly participation report; however, the local-level data are currently not reported to FNS.

Effect of PL 111-296: The number of fully and partially breastfed infants served by the WIC program will be compiled at the state and local levels and published annually by USDA. FNS will provide WIC state agencies with a format (an Excel chart) to use for the annual local level data reporting. The first report from state agencies will be due to FNS in July 2011, reflecting fiscal year (FY) 2010 data.

Program Evaluation

Legislative Change: Section 305 of PL 111-296 amends section 28 of the Richard B. Russell National School Lunch Act (42 USC 1769(i)), (NSLA) by adding a new provision to require state and local cooperation in USDA studies related to programs authorized under the NSLA or the CNA.

Implementation Date: This requirement became effective on Oct. 1, 2010.

Current Regulatory Requirement: No express requirement currently exists in the federal WIC regulations.

Effect of PL 111-296: State and local agencies are now expressly required by law to cooperate with FNS in completing authorized studies.

Sharing Materials with CACFP

Legislative Change: Section 351 of PL 111-296 amends section 17(e)(3)(B) of the CNA (42 USC 1786(e)(3)(B)) to allow local WIC agencies, at the state agency's option, to share nutrition educational materials with institutions participating in the CACFP at no cost, if a written materials sharing agreement exists between WIC state or local agencies and CACFP institutions.

Implementation Date: This requirement became effective on Oct. 1, 2010. State agencies who elect to implement this option must submit a state plan amendment to the appropriate FNS regional office for approval.

Current Regulatory Requirement: No such provision currently exists in the federal WIC regulations.

Effect of PL 111-296: WIC state agencies now have the option to provide nutrition education materials to institutions participating in the CACFP at no cost, as long as a written agreement for sharing such materials is in place between the relevant WIC and CACFP entities.

Recording WIC Rebate Payments

Legislative Change: Section 352(b) of PL 111-296 amends section 17(h)(8) of the CNA (42 USC 1786(h)(8)) to add a new provision (K) requiring WIC state agencies to report rebate payments received from manufacturers in the month in which the payments are received, rather than in the month in which the payments are earned. To assist state agencies in making the transition to this change in reporting, Section 352(f) of PL 111-296 amends section 17(i) of the CNA (42 USC 1786(i)) to add a new provision (8) providing for temporary adjustments in spending authority.

Implementation Date: This requirement becomes effective on Oct. 1, 2011.

Current Regulatory Requirement: No such provision currently exists in the federal WIC regulations. However, 7 CFR 3016 references OMB Circular A-87, which currently requires rebate payments (i.e., applicable credits) to be reported in the month in which they are earned.

Effects of PL 111-296: WIC state agencies are required to report rebate payments in the month in which such payments are received. To assist state agencies during the transition process of implementing this provision, Section 352(f) of PL 111-296 also allows a WIC state agency to increase the amount of food funds back spent from FY 2012 into FY 2011, and from FY 2013 into FY 2012, to address the impact of this new rebate reporting method.

New Rebate Bid Solicitation Requirements

Legislative Change: Section 352(c) of PL 111-296 amends section 17(h)(9) of the CNA (42 USC 1786(h)(9)) to add several new requirements for the solicitation and billing of all rebates on authorized foods, including infant formula, as follows:

The bid solicitation must:

• Identify the composition of state alliances for the purpose of a cost containment measure, and verify that no additional states shall be added to the state alliance between the date of the bid solicitation and the end of the contract.
• The state agency must have a system to ensure that rebate invoices under competitive bidding provide a reasonable estimate or an actual count of the number of units sold to WIC participants.
• The state agency must publicly open and read all bids aloud on the day the bids are due.
• The state agency must provide a minimum of 30 days between the publication of the solicitation and the date on which the bids are due, unless exempted by the Secretary.
• Current provisions and requirements regarding state alliances for infant formula rebates are expanded to include all other authorized foods for which rebates are sought.

Implementation Date: This requirement became effective on Oct. 1, 2010.

Current Regulatory Requirement: No such provisions currently exist in the WIC program regulations.

Effect of PL 111-296: WIC state agencies are required to include the specific bid solicitation and billing requirements set forth in PL 111-296 when developing requests for bids on rebates for authorized foods and/or infant formula.

State agencies should direct questions related to any of the above provisions to their respective FNS regional offices.

DEBRA R. WHITFORD
Director
Supplemental Food Programs Division