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U.S. Code as of:
01/19/04
Section 1786. Special supplemental nutrition program for women, infants, and children
(a) Congressional findings and declaration of purpose
Congress finds that substantial numbers of pregnant, postpartum,
and breastfeeding women, infants, and young children from families
with inadequate income are at special risk with respect to their
physical and mental health by reason of inadequate nutrition or
health care, or both. It is, therefore, the purpose of the program
authorized by this section to provide, up to the authorization
levels set forth in subsection (g) of this section, supplemental
foods and nutrition education through any eligible local agency
that applies for participation in the program. The program shall
serve as an adjunct to good health care, during critical times of
growth and development, to prevent the occurrence of health
problems, including drug abuse, and improve the health status of
these persons.
(b) Definitions
As used in this section -
(1) "Breastfeeding women" means women up to one year postpartum
who are breastfeeding their infants.
(2) "Children" means persons who have had their first birthday
but have not yet attained their fifth birthday.
(3) "Competent professional authority" means physicians,
nutritionists, registered nurses, dietitians, or State or local
medically trained health officials, or persons designated by
physicians or State or local medically trained health officials,
in accordance with standards prescribed by the Secretary, as
being competent professionally to evaluate nutritional risk.
(4) "Costs of nutrition services and administration" or
"nutrition services and administration" means costs that shall
include, but not be limited to, costs for certification of
eligibility of persons for participation in the program
(including centrifuges, measuring boards, spectrophotometers, and
scales used for the certification), food delivery, monitoring,
nutrition education, outreach, startup costs, and general
administration applicable to implementation of the program under
this section, such as the cost of staff, transportation,
insurance, developing and printing food instruments, and
administration of State and local agency offices.
(5) "Infants" means persons under one year of age.
(6) "Local agency" means a public health or welfare agency or a
private nonprofit health or welfare agency, which, directly or
through an agency or physician with which it has contracted,
provides health services. The term shall include an Indian tribe,
band, or group recognized by the Department of the Interior, the
Indian Health Service of the Department of Health and Human
Services, or an intertribal council or group that is an
authorized representative of Indian tribes, bands, or groups
recognized by the Department of the Interior.
(7) "Nutrition education" means individual or group sessions
and the provision of materials designed to improve health status
that achieve positive change in dietary habits, and emphasize
relationships between nutrition and health, all in keeping with
the individual's personal, cultural, and socioeconomic
preferences.
(8) "Nutritional risk" means (A) detrimental or abnormal
nutritional conditions detectable by biochemical or
anthropometric measurements, (B) other documented nutritionally
related medical conditions, (C) dietary deficiencies that impair
or endanger health, (D) conditions that directly affect the
nutritional health of a person, such as alcoholism or drug abuse,
or (E) conditions that predispose persons to inadequate
nutritional patterns or nutritionally related medical conditions,
including, but not limited to, homelessness and migrancy.
(9) "Plan of operation and administration" means a document
that describes the manner in which the State agency intends to
implement and operate the program.
(10) "Postpartum women" means women up to six months after
termination of pregnancy.
(11) "Pregnant women" means women determined to have one or
more fetuses in utero.
(12) "Secretary" means the Secretary of Agriculture.
(13) "State agency" means the health department or comparable
agency of each State; an Indian tribe, band, or group recognized
by the Department of the Interior; an intertribal council or
group that is the authorized representative of Indian tribes,
bands, or groups recognized by the Department of the Interior; or
the Indian Health Service of the Department of Health and Human
Services.
(14) "Supplemental foods" means those foods containing
nutrients determined by nutritional research to be lacking in the
diets of pregnant, breastfeeding, and postpartum women, infants,
and children, as prescribed by the Secretary. State agencies may,
with the approval of the Secretary, substitute different foods
providing the nutritional equivalent of foods prescribed by the
Secretary, to allow for different cultural eating patterns.
(15) "Homeless individual" means -
(A) an individual who lacks a fixed and regular nighttime
residence; or
(B) an individual whose primary nighttime residence is -
(i) a supervised publicly or privately operated shelter
(including a welfare hotel or congregate shelter) designed to
provide temporary living accommodations;
(ii) an institution that provides a temporary residence for
individuals intended to be institutionalized;
(iii) a temporary accommodation of not more than 365 days
in the residence of another individual; or
(iv) a public or private place not designed for, or
ordinarily used as, a regular sleeping accommodation for
human beings.
(16) "Drug abuse education" means -
(A) the provision of information concerning the dangers of
drug abuse; and
(B) the referral of participants who are suspected drug
abusers to drug abuse clinics, treatment programs, counselors,
or other drug abuse professionals.
(17) "Competitive bidding" means a procurement process under
which the Secretary or a State agency selects a single source (a
single infant formula manufacturer) offering the lowest price, as
determined by the submission of sealed bids, for a product for
which bids are sought for use in the program authorized by this
section.
(18) "Rebate" means the amount of money refunded under cost
containment procedures to any State agency from the manufacturer
or other supplier of the particular food product as the result of
the purchase of the supplemental food with a voucher or other
purchase instrument by a participant in each such agency's
program established under this section.
(19) "Discount" means, with respect to a State agency that
provides program foods to participants without the use of retail
grocery stores (such as a State that provides for the home
delivery or direct distribution of supplemental food), the amount
of the price reduction or other price concession provided to any
State agency by the manufacturer or other supplier of the
particular food product as the result of the purchase of program
food by each such State agency, or its representative, from the
supplier.
(20) "Net price" means the difference between the
manufacturer's wholesale price for infant formula and the rebate
level or the discount offered or provided by the manufacturer
under a cost containment contract entered into with the pertinent
State agency.
(21) Remote indian or native village. - The term "remote Indian
or Native village" means an Indian or Native village that -
(A) is located in a rural area;
(B) has a population of less than 5,000 inhabitants; and
(C) is not accessible year-around by means of a public road
(as defined in section 101 of title 23).
(c) Grants-in-aid; cash grants; ratable reduction of amount an
agency may distribute; affirmative action; regulations relating
to dual receipt of benefits under commodity supplemental food
program
(1) The Secretary may carry out a special supplemental nutrition
program to assist State agencies through grants-in-aid and other
means to provide, through local agencies, at no cost, supplemental
foods and nutrition education to low-income pregnant, postpartum,
and breastfeeding women, infants, and children who satisfy the
eligibility requirements specified in subsection (d) of this
section. The program shall be supplementary to -
(A) the food stamp program;
(B) any program under which foods are distributed to needy
families in lieu of food stamps; and
(C) receipt of food or meals from soup kitchens, or shelters,
or other forms of emergency food assistance.
(2) Subject to amounts appropriated to carry out this section
under subsection (g) of this section -
(A) the Secretary shall make cash grants to State agencies for
the purpose of administering the program, and
(B) any State agency approved eligible local agency that
applies to participate in or expand the program under this
section shall immediately be provided with the necessary funds to
carry out the program.
(3) Nothing in this subsection shall be construed to permit the
Secretary to reduce ratably the amount of foods that an eligible
local agency shall distribute under the program to participants.
The Secretary shall take affirmative action to ensure that the
program is instituted in areas most in need of supplemental foods.
The existence of a commodity supplemental food program under
section 4 of the Agriculture and Consumer Protection Act of 1973
shall not preclude the approval of an application from an eligible
local agency to participate in the program under this section nor
the operation of such program within the same geographic area as
that of the commodity supplemental food program, but the Secretary
shall issue such regulations as are necessary to prevent dual
receipt of benefits under the commodity supplemental food program
and the program under this section.
(4) A State shall be ineligible to participate in programs
authorized under this section if the Secretary determines that
State or local sales taxes are collected within the State on
purchases of food made to carry out this section.
(d) Eligible participants
(1) Participation in the program under this section shall be
limited to pregnant, postpartum, and breastfeeding women, infants,
and children from low-income families who are determined by a
competent professional authority to be at nutritional risk.
(2)(A) The Secretary shall establish income eligibility standards
to be used in conjunction with the nutritional risk criteria in
determining eligibility of individuals for participation in the
program. Any individual at nutritional risk shall be eligible for
the program under this section only if such individual -
(i) is a member of a family with an income that is less than
the maximum income limit prescribed under section 1758(b) of this
title for free and reduced price meals;
(ii)(I) receives food stamps under the Food Stamp Act of 1977
[7 U.S.C. 2011 et seq.]; or
(II) is a member of a family that receives assistance under the
State program funded under part A of title IV of the Social
Security Act [42 U.S.C. 601 et seq.] that the Secretary
determines complies with standards established by the Secretary
that ensure that the standards under the State program are
comparable to or more restrictive than those in effect on June 1,
1995; or
(iii)(I) receives medical assistance under title XIX of the
Social Security Act [42 U.S.C. 1396 et seq.]; or
(II) is a member of a family in which a pregnant woman or an
infant receives such assistance.
(B) For the purpose of determining income eligibility under this
section, any State agency may choose to exclude from income -
(i) any basic allowance -
(I) for housing received by military service personnel
residing off military installations; or
(II) provided under section 403 of title 37 for housing that
is acquired or constructed under subchapter IV of chapter 169
of title 10 or any related provision of law; and
(ii) any cost-of-living allowance provided under section 405 of
title 37 to a member of a uniformed service who is on duty
outside the contiguous States of the United States.
(C) In the case of a pregnant woman who is otherwise ineligible
for participation in the program because the family of the woman is
of insufficient size to meet the income eligibility standards of
the program, the pregnant woman shall be considered to have
satisfied the income eligibility standards if, by increasing the
number of individuals in the family of the woman by 1 individual,
the income eligibility standards would be met.
(3)(A) Persons shall be certified for participation in accordance
with general procedures prescribed by the Secretary.
(B) A State may consider pregnant women who meet the income
eligibility standards to be presumptively eligible to participate
in the program and may certify the women for participation
immediately, without delaying certification until an evaluation is
made concerning nutritional risk. A nutritional risk evaluation of
such a woman shall be completed not later than 60 days after the
woman is certified for participation. If it is subsequently
determined that the woman does not meet nutritional risk criteria,
the certification of the woman shall terminate on the date of the
determination.
(C) Physical presence. -
(i) In general. - Except as provided in clause (ii) and subject
to the requirements of the Americans with Disabilities Act of
1990 (42 U.S.C. 12101 et seq.) and section 794 of title 29, each
individual seeking certification or recertification for
participation in the program shall be physically present at each
certification or recertification determination in order to
determine eligibility under the program.
(ii) Waivers. - If the agency determines that the requirement
of clause (i) would present an unreasonable barrier to
participation, a local agency may waive the requirement of clause
(i) with respect to -
(I) an infant or child who -
(aa) was present at the initial certification visit; and
(bb) is receiving ongoing health care from a provider other
than the local agency; or
(II) an infant or child who -
(aa) was present at the initial certification visit;
(bb) was present at a certification or recertification
determination within the 1-year period ending on the date of
the certification or recertification determination described
in clause (i); and
(cc) has one or more parents who work.
(D) Income documentation. -
(i) In general. - Except as provided in clause (ii), in order
to participate in the program pursuant to clause (i) of paragraph
(2)(A), an individual seeking certification or recertification
for participation in the program shall provide documentation of
family income.
(ii) Waivers. - A State agency may waive the documentation
requirement of clause (i), in accordance with criteria
established by the Secretary, with respect to -
(I) an individual for whom the necessary documentation is not
available; or
(II) an individual, such as a homeless woman or child, for
whom the agency determines the requirement of clause (i) would
present an unreasonable barrier to participation.
(E) Adjunct documentation. - In order to participate in the
program pursuant to clause (ii) or (iii) of paragraph (2)(A), an
individual seeking certification or recertification for
participation in the program shall provide documentation of receipt
of assistance described in that clause.
(F) Proof of residency. - An individual residing in a remote
Indian or Native village or an individual served by an Indian
tribal organization and residing on a reservation or pueblo may,
under standards established by the Secretary, establish proof of
residency under this section by providing to the State agency the
mailing address of the individual and the name of the remote Indian
or Native village.
(e) Nutrition education and drug abuse education
(1) The State agency shall ensure that nutrition education and
drug abuse education is provided to all pregnant, postpartum, and
breastfeeding participants in the program and to parents or
caretakers of infant and child participants in the program. The
State agency may also provide nutrition education and drug abuse
education to pregnant, postpartum, and breastfeeding women and to
parents or caretakers of infants and children enrolled at local
agencies operating the program under this section who do not
participate in the program. A local agency participating in the
program shall provide education or educational materials relating
to the effects of drug and alcohol use by a pregnant, postpartum,
or breastfeeding woman on the developing child of the woman.
(2) The Secretary shall prescribe standards to ensure that
adequate nutrition education services and breastfeeding promotion
and support are provided. The State agency shall provide training
to persons providing nutrition education under this section.
(3) Nutrition education materials. -
(A) In general. - The Secretary shall, after submitting
proposed nutrition education materials to the Secretary of Health
and Human Services for comment, issue such materials for use in
the program under this section.
(B) Sharing of materials. - The Secretary may provide, in bulk
quantity, nutrition education materials (including materials
promoting breastfeeding) developed with funds made available for
the program authorized under this section to State agencies
administering the commodity supplemental food program authorized
under sections 4(a) and 5 of the Agriculture and Consumer
Protection Act of 1973 (7 U.S.C. 612c note; Public Law 93-86) at
no cost to that program.
(4) The State agency -
(A) shall provide each local agency with materials showing the
maximum income limits, according to family size, applicable to
pregnant women, infants, and children up to age 5 under the
medical assistance program established under title XIX of the
Social Security Act [42 U.S.C. 1396 et seq.] (in this section
referred to as the "medicaid program");
(B) shall provide to individuals applying for the program under
this section, or reapplying at the end of their certification
period, written information about the medicaid program and
referral to such program or to agencies authorized to determine
presumptive eligibility for such program, if such individuals are
not participating in such program and appear to have family
income below the applicable maximum income limits for such
program; and
(C) may provide a local agency with materials describing other
programs for which a participant in the program may be eligible.
(5) Each local agency shall maintain and make available for
distribution a list of local resources for substance abuse
counseling and treatment.
(f) Plan of operation and administration by State agency
(1)(A) Each State agency shall submit to the Secretary, by a date
specified by the Secretary, an initial plan of operation and
administration for a fiscal year. After submitting the initial
plan, a State shall be required to submit to the Secretary for
approval only a substantive change in the plan.
(B) To be eligible to receive funds under this section for a
fiscal year, a State agency must receive the approval of the
Secretary for the plan submitted for the fiscal year.
(C) The plan shall include -
(i) a description of the food delivery system of the State
agency and the method of enabling participants to receive
supplemental foods under the program, to be administered in
accordance with standards developed by the Secretary;
(ii) a description of the financial management system of the
State agency;
(iii) a plan to coordinate operations under the program with
other services or programs that may benefit participants in, and
applicants for, the program;
(iv) a plan to provide program benefits under this section to,
and to meet the special nutrition education needs of, eligible
migrants, homeless individuals, and Indians;
(v) a plan to expend funds to carry out the program during the
relevant fiscal year;
(vi) a plan to provide program benefits under this section to
unserved and underserved areas in the State (including a plan to
improve access to the program for participants and prospective
applicants who are employed, or who reside in rural areas), if
sufficient funds are available to carry out this clause;
(vii) a plan for reaching and enrolling eligible women in the
early months of pregnancy, including provisions to reach and
enroll eligible migrants;
(viii) a plan to provide program benefits under this section to
unserved infants and children under the care of foster parents,
protective services, or child welfare authorities, including
infants exposed to drugs perinatally;
(ix) a plan to provide nutrition education and promote
breastfeeding; and
(x) such other information as the Secretary may reasonably
require.
(D) The Secretary may not approve any plan that permits a person
to participate simultaneously in both the program authorized under
this section and the commodity supplemental food program authorized
under sections 4 and 5 of the Agriculture and Consumer Protection
Act of 1973 (7 U.S.C. 612c note).
(2) A State agency shall establish a procedure under which
members of the general public are provided an opportunity to
comment on the development of the State agency plan.
(3) The Secretary shall establish procedures under which eligible
migrants may, to the maximum extent feasible, continue to
participate in the program under this section when they are present
in States other than the State in which they were originally
certified for participation in the program and shall ensure that
local programs provide priority consideration to serving migrant
participants who are residing in the State for a limited period of
time. Each State agency shall be responsible for administering the
program for migrant populations within its jurisdiction.
(4) State agencies shall submit monthly financial reports and
participation data to the Secretary.
(5) State and local agencies operating under the program shall
keep such accounts and records, including medical records, as may
be necessary to enable the Secretary to determine whether there has
been compliance with this section and to determine and evaluate the
benefits of the nutritional assistance provided under this section.
Such accounts and records shall be available at any reasonable time
for inspection and audit by representatives of the Secretary and
shall be preserved for such period of time, not in excess of five
years, as the Secretary determines necessary.
(6)(A) Local agencies participating in the program under this
section shall notify persons of their eligibility or ineligibility
for the program within twenty days of the date that the household,
during office hours of a local agency, personally makes an oral or
written request to participate in the program. The Secretary shall
establish a shorter notification period for categories of persons
who, due to special nutritional risk conditions, must receive
benefits more expeditiously.
(B) State agencies may provide for the delivery of vouchers to
any participant who is not scheduled for nutrition education
counseling or a recertification interview through means, such as
mailing, that do not require the participant to travel to the local
agency to obtain vouchers. The State agency shall describe any
plans for issuance of vouchers by mail in its plan submitted under
paragraph (1). The Secretary may disapprove a State plan with
respect to the issuance of vouchers by mail in any specified
jurisdiction or part of a jurisdiction within a State only if the
Secretary finds that such issuance would pose a significant threat
to the integrity of the program under this section in such
jurisdiction or part of a jurisdiction.
(7)(A) The State agency shall, in cooperation with participating
local agencies, publicly announce and distribute information on the
availability of program benefits (including the eligibility
criteria for participation and the location of local agencies
operating the program) to offices and organizations that deal with
significant numbers of potentially eligible individuals (including
health and medical organizations, hospitals and clinics, welfare
and unemployment offices, social service agencies, farmworker
organizations, Indian tribal organizations, organizations and
agencies serving homeless individuals and shelters for victims of
domestic violence, and religious and community organizations in low
income areas).
(B) The information shall be publicly announced by the State
agency and by local agencies at least annually.
(C) The State agency and local agencies shall distribute the
information in a manner designed to provide the information to
potentially eligible individuals who are most in need of the
benefits, including pregnant women in the early months of
pregnancy.
(D) Each local agency operating the program within a hospital and
each local agency operating the program that has a cooperative
arrangement with a hospital shall -
(i) advise potentially eligible individuals that receive
inpatient or outpatient prenatal, maternity, or postpartum
services, or accompany a child under the age of 5 who receives
well-child services, of the availability of program benefits; and
(ii) to the extent feasible, provide an opportunity for
individuals who may be eligible to be certified within the
hospital for participation in such program.
(8)(A) The State agency shall grant a fair hearing, and a prompt
determination thereafter, in accordance with regulations issued by
the Secretary, to any applicant, participant, or local agency
aggrieved by the action of a State or local agency as it affects
participation.
(B) Any State agency that must suspend or terminate benefits to
any participant during the participant's certification period due
to a shortage of funds for the program shall first issue a notice
to such participant.
(9) If an individual certified as eligible for participation in
the program under this section in one area moves to another area in
which the program is operating, that individual's certification of
eligibility shall remain valid for the period for which the
individual was originally certified.
(10) The Secretary shall establish standards for the proper,
efficient, and effective administration of the program. If the
Secretary determines that a State agency has failed without good
cause to administer the program in a manner consistent with this
section or to implement the approved plan of operation and
administration under this subsection, the Secretary may withhold
such amounts of the State agency's funds for nutrition services and
administration as the Secretary deems appropriate. Upon correction
of such failure during a fiscal year by a State agency, any funds
so withheld for such fiscal year shall be provided the State
agency.
(11) The Secretary shall prescribe by regulation the supplemental
foods to be made available in the program under this section. To
the degree possible, the Secretary shall assure that the fat,
sugar, and salt content of the prescribed foods is appropriate.
(12) A competent professional authority shall be responsible for
prescribing the appropriate supplemental foods, taking into account
medical and nutritional conditions and cultural eating patterns,
and, in the case of homeless individuals, the special needs and
problems of such individuals.
(13) The State agency may (A) provide nutrition education,
breastfeeding promotion, and drug abuse education materials and
instruction in languages other than English and (B) use appropriate
foreign language materials in the administration of the program, in
areas in which a substantial number of low-income households speak
a language other than English.
(14) If a State agency determines that a member of a family has
received an overissuance of food benefits under the program
authorized by this section as the result of such member
intentionally making a false or misleading statement or
intentionally misrepresenting, concealing, or withholding facts,
the State agency shall recover, in cash, from such member an amount
that the State agency determines is equal to the value of the
overissued food benefits, unless the State agency determines that
the recovery of the benefits would not be cost effective.
(15) To be eligible to participate in the program authorized by
this section, a manufacturer of infant formula that supplies
formula for the program shall -
(A) register with the Secretary of Health and Human Services
under the Federal Food, Drug, and Cosmetic Act [21 U.S.C. 301 et
seq.]; and
(B) before bidding for a State contract to supply infant
formula for the program, certify with the State health department
that the formula complies with such Act and regulations issued
pursuant to such Act.
(16) The State agency may adopt methods of delivering benefits to
accommodate the special needs and problems of homeless individuals.
(17) Notwithstanding subsection (d)(2)(A)(i) of this section, not
later than July 1 of each year, a State agency may implement income
eligibility guidelines under this section concurrently with the
implementation of income eligibility guidelines under the medicaid
program established under title XIX of the Social Security Act (42
U.S.C. 1396 et seq.).
(18) Each local agency participating in the program under this
section may provide information about other potential sources of
food assistance in the local area to individuals who apply in
person to participate in the program under this section, but who
cannot be served because the program is operating at capacity in
the local area.
(19) The State agency shall adopt policies that -
(A) require each local agency to attempt to contact each
pregnant woman who misses an appointment to apply for
participation in the program under this section, in order to
reschedule the appointment, unless the phone number and the
address of the woman are unavailable to such local agency; and
(B) in the case of local agencies that do not routinely
schedule appointments for individuals seeking to apply or be
recertified for participation in the program under this section,
require each such local agency to schedule appointments for each
employed individual seeking to apply or be recertified for
participation in such program so as to minimize the time each
such individual is absent from the workplace due to such
application or request for recertification.
(20) Each State agency shall conduct monitoring reviews of each
local agency at least biennially.
(21) Use of claims from vendors and participants. - A State
agency may use funds recovered from vendors and participants, as a
result of a claim arising under the program, to carry out the
program during -
(A) the fiscal year in which the claim arises;
(B) the fiscal year in which the funds are collected; and
(C) the fiscal year following the fiscal year in which the
funds are collected.
(22) The Secretary and the Secretary of Health and Human Services
shall carry out an initiative to assure that, in a case in which a
State medicaid program uses coordinated care providers under a
contract entered into under section 1903(m), or a waiver granted
under section 1915(b), of the Social Security Act (42 U.S.C.
1396b(m) or 1396n(b)), coordination between the program authorized
by this section and the medicaid program is continued, including -
(A) the referral of potentially eligible women, infants, and
children between the 2 programs; and
(B) the timely provision of medical information related to the
program authorized by this section to agencies carrying out the
program.
(23) Individuals participating at more than one site. - Each
State agency shall implement a system designed by the State agency
to identify individuals who are participating at more than one site
under the program.
(24) High risk vendors. - Each State agency shall -
(A) identify vendors that have a high probability of program
abuse; and
(B) conduct compliance investigations of the vendors.
(g) Authorization of appropriations; allocation of funds; estimate
of families having income below limit for participation
(1) There are authorized to be appropriated to carry out this
section $2,158,000,000 for the fiscal year 1990, and such sums as
may be necessary for each of the fiscal years 1995 through 2003. As
authorized by section 1752 of this title, appropriations to carry
out the provisions of this section may be made not more than 1 year
in advance of the beginning of the fiscal year in which the funds
will become available for disbursement to the States, and shall
remain available for the purposes for which appropriated until
expended.
(2)(A) Notwithstanding any other provision of law, unless enacted
in express limitation of this subparagraph, the Secretary -
(i) in the case of legislation providing funds through the end
of a fiscal year, shall issue -
(I) an initial allocation of funds provided by the enactment
of such legislation not later than the expiration of the 15-day
period beginning on the date of the enactment of such
legislation; and
(II) subsequent allocations of funds provided by the
enactment of such legislation not later than the beginning of
each of the second, third, and fourth quarters of the fiscal
year; and
(ii) in the case of legislation providing funds for a period
that ends prior to the end of a fiscal year, shall issue an
initial allocation of funds provided by the enactment of such
legislation not later than the expiration of the 10-day period
beginning on the date of the enactment of such legislation.
(B) In any fiscal year -
(i) unused amounts from a prior fiscal year that are identified
by the end of the first quarter of the fiscal year shall be
recovered and reallocated not later than the beginning of the
second quarter of the fiscal year; and
(ii) unused amounts from a prior fiscal year that are
identified after the end of the first quarter of the fiscal year
shall be recovered and reallocated on a timely basis.
(3) Notwithstanding any other provision of law, unless enacted in
express limitation of this paragraph -
(A) the allocation of funds required by paragraph (2)(A)(i)(I)
shall include not less than 1/3 of the amounts appropriated by
the legislation described in such paragraph;
(B) the allocations of funds required by paragraph
(2)(A)(i)(II) to be made not later than the beginning of the
second and third quarters of the fiscal year shall each include
not less than 1/4 of the amounts appropriated by the
legislation described in such paragraph; and
(C) in the case of the enactment of legislation providing
appropriations for a period of not more than 4 months, the
allocation of funds required by paragraph (2)(A)(ii) shall
include all amounts appropriated by such legislation except
amounts reserved by the Secretary for purposes of carrying out
paragraph (5).
(4) Of the sums appropriated for any fiscal year for programs
authorized under this section, not less than nine-tenths of 1
percent shall be available first for services to eligible members
of migrant populations. The migrant services shall be provided in a
manner consistent with the priority system of a State for program
participation.
(5) Of the sums appropriated for any fiscal year for the program
under this section, one-half of 1 percent, not to exceed
$5,000,000, shall be available to the Secretary for the purpose of
evaluating program performance, evaluating health benefits,
preparing reports on program participant characteristics, providing
technical assistance to improve State agency administrative
systems, administration of pilot projects, including projects
designed to meet the special needs of migrants, Indians, and rural
populations, and carrying out technical assistance and research
evaluation projects of the programs under this section.
(h) Funds for nutrition services and administration
(1)(A) Each fiscal year, the Secretary shall make available, from
amounts appropriated for such fiscal year under subsection (g)(1)
of this section and amounts remaining from amounts appropriated
under such subsection for the preceding fiscal year, an amount
sufficient to guarantee a national average per participant grant to
be allocated among State agencies for costs of nutrition services
and administration incurred by State and local agencies for such
year.
(B)(i) The amount of the national average per participant grant
for nutrition services and administration for any fiscal year shall
be an amount equal to the amount of the national average per
participant grant for nutrition services and administration issued
for the preceding fiscal year, as adjusted.
(ii) Such adjustment, for any fiscal year, shall be made by
revising the national average per participant grant for nutrition
services and administration for the preceding fiscal year to
reflect the percentage change between -
(I) the value of the index for State and local government
purchases, as published by the Bureau of Economic Analysis of the
Department of Commerce, for the 12-month period ending June 30 of
the second preceding fiscal year; and
(II) the best estimate that is available as of the start of the
fiscal year of the value of such index for the 12-month period
ending June 30 of the previous fiscal year.
(C) Remaining amounts. -
(i) In general. - Except as provided in clause (ii), in any
fiscal year, amounts remaining from amounts appropriated for such
fiscal year under subsection (g)(1) of this section and from
amounts appropriated under such section for the preceding fiscal
year, after carrying out subparagraph (A), shall be made
available for food benefits under this section, except to the
extent that such amounts are needed to carry out the purposes of
subsections (g)(4) and (g)(5) of this section.
(ii) Breast pumps. - A State agency may use amounts made
available under clause (i) for the purchase of breast pumps.
(2)(A) For each of the fiscal years 1995 through 2003, the
Secretary shall allocate to each State agency from the amount
described in paragraph (1)(A) an amount for costs of nutrition
services and administration on the basis of a formula prescribed by
the Secretary. Such formula -
(i) shall be designed to take into account -
(I) the varying needs of each State;
(II) the number of individuals participating in each State;
and
(III) other factors which serve to promote the proper,
efficient, and effective administration of the program under
this section;
(ii) shall provide for each State agency -
(I) an estimate of the number of participants for the fiscal
year involved; and
(II) a per participant grant for nutrition services and
administration for such year;
(iii) shall provide for a minimum grant amount for State
agencies; and
(iv) may provide funds to help defray reasonable anticipated
expenses associated with innovations in cost containment or
associated with procedures that tend to enhance competition.
(B)(i) Except as provided in clause (ii) and subparagraph (C), in
any fiscal year, the total amount allocated to a State agency for
costs of nutrition services and administration under the formula
prescribed by the Secretary under subparagraph (A) shall constitute
the State agency's operational level for such costs for such year
even if the number of participants in the program at such agency is
lower than the estimate provided under subparagraph (A)(ii)(I).
(ii) If a State agency's per participant expenditure for
nutrition services and administration is more than 10 percent
(except that the Secretary may establish a higher percentage for
State agencies that are small) higher than its per participant
grant for nutrition services and administration without good cause,
the Secretary may reduce such State agency's operational level for
costs of nutrition services and administration.
(C) In any fiscal year, the Secretary may reallocate amounts
provided to State agencies under subparagraph (A) for such fiscal
year. When reallocating amounts under the preceding sentence, the
Secretary may provide additional amounts to, or recover amounts
from, any State agency.
(3)(A) Except as provided in subparagraphs (B) and (C), in each
fiscal year, each State agency shall expend -
(i) for nutrition education activities and breastfeeding
promotion and support activities, an aggregate amount that is not
less than the sum of -
(I) 1/6 of the amounts expended by the State for costs of
nutrition services and administration; and
(II) except as otherwise provided in subparagraphs (F) and
(G), an amount equal to a proportionate share of the national
minimum breastfeeding promotion expenditure, as described in
subparagraph (E), with each State's share determined on the
basis of the number of pregnant women and breastfeeding women
in the program in the State as a percentage of the number of
pregnant women and breastfeeding women in the program in all
States; and
(ii) for breastfeeding promotion and support activities an
amount that is not less than the amount determined for such State
under clause (i)(II).
(B) The Secretary may authorize a State agency to expend an
amount less than the amount described in subparagraph (A)(ii) for
purposes of breastfeeding promotion and support activities if -
(i) the State agency so requests; and
(ii) the request is accompanied by documentation that other
funds will be used to conduct nutrition education activities at a
level commensurate with the level at which such activities would
be conducted if the amount described in subparagraph (A)(ii) were
expended for such activities.
(C) The Secretary may authorize a State agency to expend for
purposes of nutrition education an amount that is less than the
difference between the aggregate amount described in subparagraph
(A) and the amount expended by the State for breastfeeding
promotion and support programs if -
(i) the State agency so requests; and
(ii) the request is accompanied by documentation that other
funds will be used to conduct such activities.
(D) The Secretary shall limit to a minimal level any
documentation required under this paragraph.
(E) For each fiscal year, the national minimum breastfeeding
promotion expenditure means an amount that is -
(i) equal to $21 multiplied by the number of pregnant women and
breastfeeding women participating in the program nationwide,
based on the average number of pregnant women and breastfeeding
women so participating during the last 3 months for which the
Secretary has final data; and
(ii) adjusted for inflation on October 1, 1996, and each
October 1 thereafter, in accordance with paragraph (1)(B)(ii).
(4) The Secretary shall -
(A) in consultation with the Secretary of Health and Human
Services, develop a definition of breastfeeding for the purposes
of the program under this section;
(B) authorize the purchase of breastfeeding aids by State and
local agencies as an allowable expense under nutrition services
and administration;
(C) require each State agency to designate an agency staff
member to coordinate breastfeeding promotion efforts identified
in the State plan of operation and administration;
(D) require the State agency to provide training on the
promotion and management of breastfeeding to staff members of
local agencies who are responsible for counseling participants in
the program under this section concerning breastfeeding; and
(E) not later than 1 year after November 2, 1994, develop
uniform requirements for the collection of data regarding the
incidence and duration of breastfeeding among participants in the
program.
(5)(A) Subject to subparagraph (B), in any fiscal year that a
State agency submits a plan to reduce average food costs per
participant and to increase participation above the level estimated
for the State agency, the State agency may, with the approval of
the Secretary, convert amounts allocated for food benefits for such
fiscal year for costs of nutrition services and administration to
the extent that such conversion is necessary -
(i) to cover allowable expenditures in such fiscal year; and
(ii) to ensure that the State agency maintains the level
established for the per participant grant for nutrition services
and administration for such fiscal year.
(B) If a State agency increases its participation level through
measures that are not in the nutritional interests of participants
or not otherwise allowable (such as reducing the quantities of
foods provided for reasons not related to nutritional need), the
Secretary may refuse to allow the State agency to convert amounts
allocated for food benefits to defray costs of nutrition services
and administration.
(C) For the purposes of this paragraph, the term "acceptable
measures" includes use of cost containment measures, curtailment of
vendor abuse, and breastfeeding promotion activities.
(D) Remote indian or native villages. - For noncontiguous States
containing a significant number of remote Indian or Native
villages, a State agency may convert amounts allocated for food
benefits for a fiscal year to the costs of nutrition services and
administration to the extent that the conversion is necessary to
cover expenditures incurred in providing services (including the
full cost of air transportation and other transportation) to remote
Indian or Native villages and to provide breastfeeding support in
remote Indian or Native villages.
(6) In each fiscal year, each State agency shall provide, from
the amounts allocated to such agency for such year for costs of
nutrition services and administration, an amount to each local
agency for its costs of nutrition services and administration. The
amount to be provided to each local agency under the preceding
sentence shall be determined under allocation standards developed
by the State agency in cooperation with the several local agencies,
taking into account factors deemed appropriate to further proper,
efficient, and effective administration of the program, such as -
(A) local agency staffing needs;
(B) density of population;
(C) number of individuals served; and
(D) availability of administrative support from other sources.
(7) The State agency may provide in advance to any local agency
any amounts for nutrition services and administration deemed
necessary for successful commencement or significant expansion of
program operations during a reasonable period following approval of
-
(A) a new local agency;
(B) a new cost containment measure; or
(C) a significant change in an existing cost containment
measure.
(8)(A)(i) Except as provided in subparagraphs (B) and (C)(iii),
any State that provides for the purchase of foods under the program
at retail grocery stores shall, with respect to the procurement of
infant formula, use -
(I) a competitive bidding system; or
(II) any other cost containment measure that yields savings
equal to or greater than savings generated by a competitive
bidding system when such savings are determined by comparing the
amounts of savings that would be provided over the full term of
contracts offered in response to a single invitation to submit
both competitive bids and bids for other cost containment systems
for the sale of infant formula.
(ii) In determining whether a cost containment measure other than
competitive bidding yields equal or greater savings, the State, in
accordance with regulations issued by the Secretary, may take into
account other cost factors (in addition to rebate levels and
procedures for adjusting rebate levels when wholesale price levels
rise), such as -
(I) the number of infants who would not be expected to receive
the contract brand of infant formula under a competitive bidding
system;
(II) the number of cans of infant formula for which no rebate
would be provided under another rebate system; and
(III) differences in administrative costs relating to the
implementation of the various cost containment systems (such as
costs of converting a computer system for the purpose of
operating a cost containment system and costs of preparing
participants for conversion to a new or alternate cost
containment system).
(iii) Competitive bidding system. - A State agency using a
competitive bidding system for infant formula shall award contracts
to bidders offering the lowest net price unless the State agency
demonstrates to the satisfaction of the Secretary that the weighted
average retail price for different brands of infant formula in the
State does not vary by more than 5 percent.
(B)(i) The Secretary shall waive the requirement of subparagraph
(A) in the case of any State that demonstrates to the Secretary
that -
(I) compliance with subparagraph (A) would be inconsistent with
efficient or effective operation of the program operated by such
State under this section; or
(II) the amount by which the savings yielded by an alternative
cost containment system would be less than the savings yielded by
a competitive bidding system is sufficiently minimal that the
difference is not significant.
(ii) The Secretary shall prescribe criteria under which a waiver
may be granted pursuant to clause (i).
(iii) The Secretary shall provide information on a timely basis
to the Committee on Education and Labor of the House of
Representatives and the Committee on Agriculture, Nutrition, and
Forestry of the Senate on waivers that have been granted under
clause (i).
(C)(i) The Secretary shall provide technical assistance to small
Indian State agencies carrying out this paragraph in order to
assist such agencies to achieve the maximum cost containment
savings feasible.
(ii) The Secretary shall also provide technical assistance, on
request, to State agencies that desire to consider a cost
containment system that covers more than 1 State agency.
(iii) The Secretary may waive the requirement of subparagraph (A)
in the case of any Indian State agency that has not more than 1,000
participants.
(D) No State may enter into a cost containment contract (in this
subparagraph referred to as the "original contract") that
prescribes conditions that would void, reduce the savings under, or
otherwise limit the original contract if the State solicited or
secured bids for, or entered into, a subsequent cost containment
contract to take effect after the expiration of the original
contract.
(E) The Secretary shall offer to solicit bids on behalf of State
agencies regarding cost-containment contracts to be entered into by
infant formula manufacturers and State agencies. The Secretary
shall make the offer to State agencies once every 12 months. Each
such bid solicitation shall only take place if two or more State
agencies request the Secretary to perform the solicitation. For
such State agencies, the Secretary shall solicit bids and select
the winning bidder for a cost containment contract to be entered
into by State agencies and infant formula manufacturers or
suppliers.
(F) In soliciting bids for contracts for infant formula for the
program authorized by this section, the Secretary shall solicit
bids from infant formula manufacturers under procedures in which
bids for rebates or discounts are solicited for milk-based and
soy-based infant formula, separately, except where the Secretary
determines that such solicitation procedures are not in the best
interest of the program.
(G) To reduce the costs of any supplemental foods, the Secretary
may make available additional funds to State agencies out of the
funds otherwise available under paragraph (1)(A) for nutrition
services and administration in an amount not exceeding one half of
1 percent of the amounts to help defray reasonable anticipated
expenses associated with innovations in cost containment or
associated with procedures that tend to enhance competition.
(H)(i) Any person, company, corporation, or other legal entity
that submits a bid to supply infant formula to carry out the
program authorized by this section and announces or otherwise
discloses the amount of the bid, or the rebate or discount
practices of such entities, in advance of the time the bids are
opened by the Secretary or the State agency, or any person,
company, corporation, or other legal entity that makes a statement
(prior to the opening of bids) relating to levels of rebates or
discounts, for the purpose of influencing a bid submitted by any
other person, shall be ineligible to submit bids to supply infant
formula to the program for the bidding in progress for up to 2
years from the date the bids are opened and shall be subject to a
civil penalty of up to $100,000,000, as determined by the Secretary
to provide restitution to the program for harm done to the program.
The Secretary shall issue regulations providing such person,
company, corporation, or other legal entity appropriate notice, and
an opportunity to be heard and to respond to charges.
(ii) The Secretary shall determine the length of the
disqualification, and the amount of the civil penalty referred to
in clause (i) based on such factors as the Secretary by regulation
determines appropriate.
(iii) Any person, company, corporation, or other legal entity
disqualified under clause (i) shall remain obligated to perform any
requirements under any contract to supply infant formula existing
at the time of the disqualification and until each such contract
expires by its terms.
(I) Not later than the expiration of the 180-day period beginning
on October 24, 1992, the Secretary shall prescribe regulations to
carry out this paragraph.
(J) A State shall not incur any interest liability to the Federal
Government on rebate funds for infant formula and other foods if
all interest earned by the State on the funds is used for program
purposes.
(9) For purposes of this subsection, the term "cost containment
measure" means a competitive bidding, rebate, direct distribution,
or home delivery system implemented by a State agency as described
in its approved plan of operation and administration.
(10)(A) For each of fiscal years 1995 through 2003, the Secretary
shall use for the purposes specified in subparagraph (B),
$10,000,000 or the amount of nutrition services and administration
funds and supplemental foods funds for the prior fiscal year that
has not been obligated, whichever is less.
(B) Funds under subparagraph (A) shall be used for -
(i) development of infrastructure for the program under this
section, including management information systems;
(ii) special State projects of regional or national
significance to improve the services of the program under this
section; and
(iii) special breastfeeding support and promotion projects,
including projects to assess the effectiveness of particular
breastfeeding promotion strategies and to develop State or local
agency capacity or facilities to provide quality breastfeeding
services.
(11) Consideration of price levels of retail stores for
participation in program. -
(A) In general. - For the purpose of promoting efficiency and
to contain costs under the program, a State agency shall, in
selecting a retail store for participation in the program, take
into consideration the prices that the store charges for foods
under the program as compared to the prices that other stores
charge for the foods.
(B) Subsequent price increases. - The State agency shall
establish procedures to ensure that a retail store selected for
participation in the program does not subsequently raise prices
to levels that would otherwise make the store ineligible for
participation in the program.
(12) Management information system plan. -
(A) In general. - In consultation with State agencies, vendors,
and other interested persons, the Secretary shall establish a
long-range plan for the development and implementation of
management information systems (including electronic benefit
transfers) to be used in carrying out the program.
(B) Report. - Not later than 2 years after October 31, 1998,
the Secretary shall submit to the Committee on Education and the
Workforce of the House of Representatives and the Committee on
Agriculture, Nutrition, and Forestry of the Senate a report on
actions taken to carry out subparagraph (A).
(C) Interim period. - Prior to the date of submission of the
report of the Secretary required under subparagraph (B), a State
agency may not require retail stores to pay the cost of systems
or equipment that may be required to test electronic benefit
transfer systems.
(i) Division of funds formula; reallocation of unspent funds; use
of State allocation to buy supplemental foods; use of amounts
available for succeeding fiscal year
(1) By the beginning of each fiscal year, the Secretary shall
divide, among the State agencies, the amounts made available for
food benefits under subsection (h)(1)(C) of this section on the
basis of a formula determined by the Secretary.
(2) Each State agency's allocation, as so determined, shall
constitute the State agency's authorized operational level for that
year, except that the Secretary shall reallocate funds periodically
if the Secretary determines that a State agency is unable to spend
its allocation.
(3)(A) Notwithstanding paragraph (2) and subject to subparagraph
(B) -
(i)(I) not more than 1 percent (except as provided in
subparagraph (C)) of the amount of funds allocated to a State
agency under this section for supplemental foods for a fiscal
year may be expended by the State agency for allowable expenses
incurred under this section for supplemental foods during the
preceding fiscal year; and
(II) not more than 1 percent of the amount of funds allocated
to a State agency under this section for nutrition services and
administration for a fiscal year may be expended by the State
agency for allowable expenses incurred under this section for
supplemental foods and nutrition services and administration
during the preceding fiscal year; and
(ii)(I) for each fiscal year, of the amounts allocated to a
State agency for nutrition services and administration, an amount
equal to not more than 1 percent of the amount allocated to the
State agency under this section for the fiscal year may be
expended by the State agency for allowable expenses incurred
under this section for nutrition services and administration
during the subsequent fiscal year; and
(II) for each fiscal year, of the amounts allocated to a State
agency for nutrition services and administration, an amount equal
to not more than 1/2 of 1 percent of the amount allocated to
the State agency under this section for the fiscal year may be
expended by the State agency, with the prior approval of the
Secretary, for the development of a management information
system, including an electronic benefit transfer system, during
the subsequent fiscal year.
(B) Any funds made available to a State agency in accordance with
subparagraph (A)(ii) for a fiscal year shall not affect the amount
of funds allocated to the State agency for such year.
(C) The Secretary may authorize a State agency to expend not more
than 3 percent of the amount of funds allocated to a State under
this section for supplemental foods for a fiscal year for expenses
incurred under this section for supplemental foods during the
preceding fiscal year, if the Secretary determines that there has
been a significant reduction in infant formula cost containment
savings provided to the State agency that would affect the ability
of the State agency to at least maintain the level of participation
by eligible participants served by the State agency.
(4) For purposes of the formula, if Indians are served by the
health department of a State, the formula shall be based on the
State population inclusive of the Indians within the State
boundaries.
(5) If Indians residing in the State are served by a State agency
other than the health department of the State, the population of
the tribes within the jurisdiction of the State being so served
shall not be included in the formula for such State, and shall
instead be included in the formula for the State agency serving the
Indians.
(6) Notwithstanding any other provision of this section, the
Secretary may use a portion of a State agency's allocation to
purchase supplemental foods for donation to the State agency under
this section.
(7) In addition to any amounts expended under paragraph
(3)(A)(i), any State agency using cost containment measures as
defined in subsection (h)(9) of this section may temporarily use
amounts made available to such agency for the first quarter of a
fiscal year to defray expenses for costs incurred during the final
quarter of the preceding fiscal year. In any fiscal year, any State
agency that uses amounts made available for a succeeding fiscal
year under the authority of the preceding sentence shall restore or
reimburse such amounts when such agency receives payment as a
result of its cost containment measures for such expenses.
(j) Initiative to provide program services at community and migrant
health centers
(1) The Secretary and the Secretary of Health and Human Services
(referred to in this subsection as the "Secretaries") shall jointly
establish and carry out an initiative for the purpose of providing
both supplemental foods and nutrition education under the special
supplemental nutrition program and health care services to
low-income pregnant, postpartum, and breastfeeding women, infants,
and children at substantially more community health centers and
migrant health centers.
(2) The initiative shall also include -
(A) activities to improve the coordination of the provision of
supplemental foods and nutrition education under the special
supplemental nutrition program and health care services at
facilities funded by the Indian Health Service; and
(B) the development and implementation of strategies to ensure
that, to the maximum extent feasible, new community health
centers, migrant health centers, and other federally supported
health care facilities established in medically underserved areas
provide supplemental foods and nutrition education under the
special supplemental nutrition program.
(3) The initiative may include -
(A) outreach and technical assistance for State and local
agencies and the facilities described in paragraph (2)(A) and the
health centers and facilities described in paragraph (2)(B);
(B) demonstration projects in selected State or local areas;
and
(C) such other activities as the Secretaries find are
appropriate.
(4)(A) Not later than April 1, 1995, the Secretaries shall
provide to Congress a notification concerning the actions the
Secretaries intend to take to carry out the initiative.
(B) Not later than July 1, 1996, the Secretaries shall provide to
Congress a notification concerning the actions the Secretaries are
taking under the initiative or actions the Secretaries intend to
take under the initiative as a result of their experience in
implementing the initiative.
(C) On completion of the initiative, the Secretaries shall
provide to Congress a notification concerning an evaluation of the
initiative by the Secretaries and a plan of the Secretaries to
further the goals of the initiative.
(5) As used in this subsection:
(A) The term "community health center" has the meaning given
the term in section 254c(a) )1(! of this title.
(B) The term "migrant health center" has the meaning given the
term in section 254b(a)(1) )1(! of this title.
(k) National Advisory Council on Maternal, Infant, and Fetal
Nutrition; establishment; membership; term; officers; meetings;
quorum; technical assistance by Secretary
(1) There is hereby established a National Advisory Council on
Maternal, Infant, and Fetal Nutrition (referred to in this
subsection as the "Council") composed of 24 members appointed by
the Secretary. One member shall be a State director of a program
under this section; one member shall be a State official
responsible for a commodity supplemental food program under section
1304 of the Food and Agriculture Act of 1977; one member shall be a
State fiscal officer of a program under this section (or the
equivalent thereof); one member shall be a State health officer (or
the equivalent thereof); one member shall be a local agency
director of a program under this section in an urban area; one
member shall be a local agency director of a program under this
section in a rural area; one member shall be a project director of
a commodity supplemental food program; one member shall be a State
public health nutrition director (or the equivalent thereof); one
member shall be a representative of an organization serving
migrants; one member shall be an official from a State agency
predominantly serving Indians; three members shall be parent
participants of a program under this section or of a commodity
supplemental food program; one member shall be a pediatrician; one
member shall be an obstetrician; one member shall be a
representative of a nonprofit public interest organization that has
experience with and knowledge of the special supplemental nutrition
program; one member shall be a person involved at the retail sales
level of food in the special supplemental nutrition program; two
members shall be officials of the Department of Health and Human
Services appointed by the Secretary of Health and Human Services;
two members shall be officials of the Department of Agriculture
appointed by the Secretary; 1 member shall be an expert in the
promotion of breast feeding; one member shall be an expert in drug
abuse education and prevention; and one member shall be an expert
in alcohol abuse education and prevention.
(2) Members of the Council appointed from outside the Department
of Agriculture and the Department of Health and Human Services
shall be appointed for terms not exceeding three years. State and
local officials shall serve only during their official tenure, and
the tenure of parent participants shall not exceed two years.
Persons appointed to complete an unexpired term shall serve only
for the remainder of such term.
(3) The Council shall elect a Chairman and a Vice Chairman. The
Council shall meet at the call of the Chairman, but shall meet at
least once a year. Eleven members shall constitute a quorum.
(4) The Secretary shall provide the Council with such technical
and other assistance, including secretarial and clerical
assistance, as may be required to carry out its functions.
(5) Members of the Council shall serve without compensation but
shall be reimbursed for necessary travel and subsistence expenses
incurred by them in the performance of the duties of the Council.
Parent participant members of the Council, in addition to
reimbursement for necessary travel and subsistence, shall, at the
discretion of the Secretary, be compensated in advance for other
personal expenses related to participation on the Council, such as
child care expenses and lost wages during scheduled Council
meetings.
(l) Donation of foods by Secretary
Foods available under section 1431 of title 7, including, but not
limited to, dry milk, or purchased under section 612c of title 7,
may be donated by the Secretary, at the request of a State agency,
for distribution to programs conducted under this section. The
Secretary may purchase and distribute, at the request of a State
agency, supplemental foods for donation to programs conducted under
this section, with appropriated funds, including funds appropriated
under this section.
(m) Women, infants, and children farmers' market nutrition program;
establishment, grants, etc.
(1) Subject to the availability of funds appropriated for the
purposes of this subsection, and as specified in this subsection,
the Secretary shall award grants to States that submit State plans
that are approved for the establishment or maintenance of programs
designed to provide recipients of assistance under subsection (c)
of this section, or those who are on the waiting list to receive
the assistance, with coupons that may be exchanged for fresh,
nutritious, unprepared foods at farmers' markets, as defined in the
State plans submitted under this subsection.
(2) A grant provided to any State under this subsection shall be
provided to the chief executive officer of the State, who shall -
(A) designate the appropriate State agency or agencies to
administer the program in conjunction with the appropriate
nonprofit organizations; and
(B) ensure coordination of the program among the appropriate
agencies and organizations.
(3) The Secretary shall not make a grant to any State under this
subsection unless the State agrees to provide State, local, or
private funds for the program in an amount that is equal to not
less than 30 percent of the total cost of the program, which may be
satisfied from program income or State contributions that are made
for similar programs. The Secretary may negotiate with an Indian
State agency a lower percentage of matching funds than is required
under the preceding sentence, but not lower than 10 percent of the
total cost of the program, if the Indian State agency demonstrates
to the Secretary financial hardship for the affected Indian tribe,
band, group, or council.
(4) Subject to paragraph (6), the Secretary shall establish a
formula for determining the amount of the grant to be awarded under
this subsection to each State for which a State plan is approved
under paragraph (6), according to the number of recipients proposed
to participate as specified in the State plan. In determining the
amount to be awarded to new States, the Secretary shall rank order
the State plans according to the criteria of operation set forth in
this subsection, and award grants accordingly. The Secretary shall
take into consideration the minimum amount needed to fund each
approved State plan, and need not award grants to each State that
submits a State plan.
(5) Each State that receives a grant under this subsection shall
ensure that the program for which the grant is received complies
with the following requirements:
(A) Individuals who are eligible to receive Federal benefits
under the program shall only be individuals who are receiving
assistance under subsection (c) of this section, or who are on
the waiting list to receive the assistance.
(B) Construction or operation of a farmers' market may not be
carried out using funds -
(i) provided under the grant; or
(ii) required to be provided by the State under paragraph
(3).
(C) The value of the Federal share of the benefits received by
any recipient under the program may not be -
(i) less than $10 per year; or
(ii) more than $20 per year.
(D) The coupon issuance process under the program shall be
designed to ensure that coupons are targeted to areas with -
(i) the highest concentration of eligible individuals;
(ii) the greatest access to farmers' markets; and
(iii) certain characteristics, in addition to those described
in clauses (i) and (ii), that are determined to be relevant by
the Secretary and that maximize the availability of benefits to
eligible individuals.
(E) The coupon redemption process under the program shall be
designed to ensure that the coupons may be -
(i) redeemed only by producers authorized by the State to
participate in the program; and
(ii) redeemed only to purchase fresh nutritious unprepared
food for human consumption.
(F)(i) Except as provided in clauses (ii) and (iii), the State
may use for administration of the program in any fiscal year not
more than 17 percent of the total amount of program funds.
(ii) During any fiscal year for which a State receives
assistance under this subsection, the Secretary shall permit the
State to use not more than 2 percent of total program funds for
market development or technical assistance to farmers' markets if
the Secretary determines that the State intends to promote the
development of farmers' markets in socially or economically
disadvantaged areas, or remote rural areas, where individuals
eligible for participation in the program have limited access to
locally grown fruits and vegetables.
(iii) The provisions of clauses (i) and (ii) with respect to
the use of program funds shall not apply to any funds that a
State may contribute in excess of the funds used by the State to
meet the requirements of paragraph (3).
(G) The State shall ensure that no State or local taxes are
collected within the State on purchases of food with coupons
distributed under the program.
(6)(A) The Secretary shall give the same preference for funding
under this subsection to eligible States that participated in the
program under this subsection in a prior fiscal year as to States
that participated in the program in the most recent fiscal year.
The Secretary shall inform each State of the award of funds as
prescribed by subparagraph (G) by February 15 of each year.
(B)(i) Subject to the availability of appropriations, if a State
provides the amount of matching funds required under paragraph (3),
the State shall receive assistance under this subsection in an
amount that is not less than the amount of such assistance that the
State received in the most recent fiscal year in which it received
such assistance.
(ii) If amounts appropriated for any fiscal year pursuant to the
authorization contained in paragraph (10) for grants under this
subsection are not sufficient to pay to each State for which a
State plan is approved under paragraph (6) the amount that the
Secretary determines each such State is entitled to under this
subsection, each State's grant shall be ratably reduced, except
that (if sufficient funds are available) each State shall receive
at least $75,000 or the amount that the State received for the
prior fiscal year if that amount is less than $75,000.
(C) In providing funds to a State that received assistance under
this subsection in the previous fiscal year, the Secretary shall
consider -
(i) the availability of any such assistance not spent by the
State during the program year for which the assistance was
received;
(ii) documentation that demonstrates that -
(I) there is a need for an increase in funds; and
(II) the use of the increased funding will be consistent with
serving nutritionally at-risk persons and expanding the
awareness and use of farmers' markets;
(iii) demonstrated ability to satisfactorily operate the
existing program; and
(iv) whether, in the case of a State that intends to use any
funding provided under subparagraph (G)(i) )2(! to increase the
value of the Federal share of the benefits received by a
recipient, the funding provided under subparagraph (G)(i) )2(!
will increase the rate of coupon redemption.
(D)(i) A State that desires to receive a grant under this
subsection shall submit, for each fiscal year, a State plan to the
Secretary by November 15 of each year.
(ii) Each State plan submitted under this paragraph shall contain
-
(I) the estimated cost of the program and the estimated number
of individuals to be served by the program;
(II) a description of the State plan for complying with the
requirements established in paragraph (5); and
(III) criteria developed by the State with respect to
authorization of producers to participate in the program.
(iii) The criteria developed by the State as required by clause
(ii)(III) shall require any authorized producer to sell fresh
nutritious unprepared foods (such as fruits and vegetables) to
recipients, in exchange for coupons distributed under the program.
(E) The Secretary shall establish objective criteria for the
approval and ranking of State plans submitted under this paragraph.
(F)(i) An amount equal to 75 percent of the funds available after
satisfying the requirements of subparagraph (B) shall be made
available to States participating in the program whose State plan
is approved by the Secretary. If this amount is greater than that
necessary to satisfy the approved State plans, the unallocated
amount shall be applied toward satisfying any unmet need of States
that have not participated in the program in the prior fiscal year,
and whose State plans have been approved.
(ii) An amount equal to 25 percent of the funds available after
satisfying the requirements of subparagraph (B) shall be made
available to States that have not participated in the program in
the prior fiscal year, and whose State plans have been approved by
the Secretary. If this amount is greater than that necessary to
satisfy the approved State plans for new States, the unallocated
amount shall be applied toward satisfying any unmet need of States
whose State plans have been approved.
(iii) In any fiscal year, any funds that remain unallocated after
satisfying the requirements of clauses (i) and (ii) shall be
reallocated in the following fiscal year according to procedures
established pursuant to paragraph (10)(B)(ii).
(7)(A) The value of the benefit received by any recipient under
any program for which a grant is received under this subsection may
not affect the eligibility or benefit levels for assistance under
other Federal or State programs.
(B) Any programs for which a grant is received under this
subsection shall be supplementary to the food stamp program carried
out under the Food Stamp Act of 1977 (7 U.S.C. 2011 et seq.) and to
any other Federal or State program under which foods are
distributed to needy families in lieu of food stamps.
(8) For each fiscal year, the Secretary shall collect from each
State that receives a grant under this subsection information
relating to -
(A) the number and type of recipients served by both Federal
and non-Federal benefits under the program for which the grant is
received;
(B) the rate of redemption of coupons distributed under the
program;
(C) the average amount distributed in coupons to each
recipient;
(D) the change in consumption of fresh fruits and vegetables by
recipients, if the information is available;
(E) the effects of the program on farmers' markets, if the
information is available; and
(F) any other information determined to be necessary by the
Secretary.
(9) Funding. -
(A) In general. -
(i) Authorization of appropriations. - There are authorized
to be appropriated to carry out this subsection $8,000,000 for
fiscal year 1994, $10,500,000 for fiscal year 1995, and such
sums as may be necessary for each of fiscal years 1996 through
2003.
(ii) Mandatory funding. - Not later than 30 days after May
13, 2002, of the funds of the Commodity Credit Corporation, the
Secretary shall make available to carry out this subsection
$15,000,000, to remain available until expended.
(B)(i)(I) Each State shall return to the Secretary any funds made
available to the State that are unobligated at the end of the
fiscal year for which the funds were originally allocated. The
unexpended funds shall be returned to the Secretary by February 1st
of the following fiscal year.
(II) Notwithstanding any other provision of this subsection, a
total of not more than 5 percent of funds made available to a State
for any fiscal year may be expended by the State to reimburse
expenses incurred for a program assisted under this subsection
during the preceding fiscal year.
(ii) The Secretary shall establish procedures to reallocate funds
that are returned under clause (i).
(10) For purposes of this subsection:
(A) The term "coupon" means a coupon, voucher, or other
negotiable financial instrument by which benefits under this
section are transferred.
(B) The term "program" means -
(i) the State farmers' market coupon nutrition program
authorized by this subsection (as it existed on September 30,
1991); or
(ii) the farmers' market nutrition program authorized by this
subsection.
(C) The term "recipient" means a person or household, as
determined by the State, who is chosen by a State to receive
benefits under this subsection, or who is on a waiting list to
receive such benefits.
(D) The term "State agency" has the meaning provided in
subsection (b)(13) of this section, except that the term also
includes the agriculture department of each State and any other
agency approved by the chief executive officer of the State.
(n) Disqualification of vendors who are disqualified under food
stamp program
(1) In general
The Secretary shall issue regulations providing criteria for
the disqualification under this section of an approved vendor
that is disqualified from accepting benefits under the food stamp
program established under the Food Stamp Act of 1977 (7 U.S.C.
2011 et seq.).
(2) Terms
A disqualification under paragraph (1) -
(A) shall be for the same period as the disqualification from
the program referred to in paragraph (1);
(B) may begin at a later date than the disqualification from
the program referred to in paragraph (1); and
(C) shall not be subject to judicial or administrative
review.
(o) Disqualification of vendors convicted of trafficking or illegal
sales
(1) In general
Except as provided in paragraph (4), a State agency shall
permanently disqualify from participation in the program
authorized under this section a vendor convicted of -
(A) trafficking in food instruments (including any voucher,
draft, check, or access device (including an electronic benefit
transfer card or personal identification number) issued in lieu
of a food instrument under this section); or
(B) selling firearms, ammunition, explosives, or controlled
substances (as defined in section 802 of title 21) in exchange
for food instruments (including any item described in
subparagraph (A) issued in lieu of a food instrument under this
section).
(2) Notice of disqualification
The State agency shall -
(A) provide the vendor with notification of the
disqualification; and
(B) make the disqualification effective on the date of
receipt of the notice of disqualification.
(3) Prohibition of receipt of lost revenues
A vendor shall not be entitled to receive any compensation for
revenues lost as a result of disqualification under this
subsection.
(4) Exceptions in lieu of disqualification
(A) In general
A State agency may permit a vendor that, but for this
paragraph, would be disqualified under paragraph (1), to
continue to participate in the program if the State agency
determines, in its sole discretion according to criteria
established by the Secretary, that -
(i) disqualification of the vendor would cause hardship to
participants in the program authorized under this section; or
(ii)(I) the vendor had, at the time of the violation under
paragraph (1), an effective policy and program in effect to
prevent violations described in paragraph (1); and
(II) the ownership of the vendor was not aware of, did not
approve of, and was not involved in the conduct of the
violation.
(B) Civil penalty
If a State agency under subparagraph (A) permits a vendor to
continue to participate in the program in lieu of
disqualification, the State agency shall assess the vendor a
civil penalty in an amount determined by the State agency, in
accordance with criteria established by the Secretary, except
that -
(i) the amount of the civil penalty shall not exceed
$10,000 for each violation; and
(ii) the amount of civil penalties imposed for violations
investigated as part of a single investigation may not exceed
$40,000.
(p) Criminal forfeiture
(1) In general
Notwithstanding any provision of State law and in addition to
any other penalty authorized by law, a court may order a person
that is convicted of a violation of a provision of law described
in paragraph (2), with respect to food instruments (including any
item described in subsection (o)(1)(A) of this section issued in
lieu of a food instrument under this section), funds, assets, or
property that have a value of $100 or more and that are the
subject of a grant or other form of assistance under this
section, to forfeit to the United States all property described
in paragraph (3).
(2) Applicable laws
A provision of law described in this paragraph is -
(A) section 1760(g) of this title; and
(B) any other Federal law imposing a penalty for
embezzlement, willful misapplication, stealing, obtaining by
fraud, or trafficking in food instruments (including any item
described in subsection (o)(1)(A) of this section issued in
lieu of a food instrument under this section), funds, assets,
or property.
(3) Property subject to forfeiture
The following property shall be subject to forfeiture under
paragraph (1):
(A) All property, real and personal, used in a transaction or
attempted transaction, to commit, or to facilitate the
commission of, a violation described in paragraph (1).
(B) All property, real and personal, constituting, derived
from, or traceable to any proceeds a person obtained directly
or indirectly as a result of a violation described in paragraph
(1).
(4) Procedures; interest of owner
Except as provided in paragraph (5), all property subject to
forfeiture under this subsection, any seizure or disposition of
the property, and any proceeding relating to the forfeiture,
seizure, or disposition shall be subject to section 853 of title
21, other than subsection (d) of that section.
(5) Proceeds
The proceeds from any sale of forfeited property and any
amounts forfeited under this subsection shall be used -
(A) first, to reimburse the Department of Justice, the
Department of the Treasury, and the United States Postal
Service for the costs incurred by the Departments or Service to
initiate and complete the forfeiture proceeding;
(B) second, to reimburse the Office of Inspector General of
the Department of Agriculture for any costs incurred by the
Office in the law enforcement effort resulting in the
forfeiture;
(C) third, to reimburse any Federal, State, or local law
enforcement agency for any costs incurred in the law
enforcement effort resulting in the forfeiture; and
(D) fourth, by the State agency to carry out approval,
reauthorization, and compliance investigations of vendors.
(q) Provision of technical assistance to Secretary of Defense
The Secretary of Agriculture shall provide technical assistance
to the Secretary of Defense, if so requested by the Secretary of
Defense, for the purpose of carrying out the overseas special
supplemental food program established under section 1060a(a) of
title 10.
(r) Demonstration project relating to use of the WIC program for
identification and enrollment of children in certain health
programs
(1) In general
In accordance with paragraph (2), the Secretary shall establish
a demonstration project in not more than 20 local agencies in one
State under which costs of nutrition services and administration
(as defined in subsection (b)(4) of this section) shall include
the costs of identification of children eligible for benefits
under, and the provision of enrollment assistance for children in
-
(A) the State medicaid program under title XIX of the Social
Security Act (42 U.S.C. 1396 et seq.); and
(B) the State children's health insurance program under title
XXI of that Act (42 U.S.C. 1397aa et seq.).
(2) State-related requirements
The State in which a demonstration project is established under
paragraph (1) -
(A) shall operate not fewer than 20 pilot site locations;
(B) as of the date of establishment of the demonstration
project -
(i) with respect to the programs referred to in
subparagraphs (A) and (B) of paragraph (1) -
(I) shall have in use a simplified application form with
a length of not more than two pages;
(II) shall accept mail-in applications; and
(III) shall permit enrollment in the program in a variety
of locations; and
(ii) shall have served as an original pilot site for the
program under this section; and
(C) as of December 31, 1998, shall have had -
(i) an infant mortality rate that is above the national
average; and
(ii) an overall rate of age-appropriate immunizations
against vaccine-preventable diseases that is below 80
percent.
(3) Termination of authority
The authority provided by this subsection terminates September
30, 2003.
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