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  • Writer's pictureSamantha Marshall

[SD Proposed Rule Discussion Prompt #1] Making the determination: the five criteria and the removal of the lists of serious deficiencies

USDA FNS released the proposed rule, Serious Deficiency in the Child and Adult Care Food Program and Summer Food Service Program in February. We have until May 21st to provide public comment. It’s coming up fast! CACFP Roundtable wants to assist you with your discussions and positions on elements of the proposed rule. We’ll dig into a few of the provisions here and we’re hosting an educational opportunity on May 10th to share why it’s important to comment, what you might want to focus on for these comments, share resources, and open it up for questions.


You may also be asking who this proposed rule impacts. It will apply to all CACFP operators including Head Start, at risk afterschool, adult day health services, emergency shelters, family child care providers, sponsored unaffiliated centers, sponsors.


If you want to know more about serious deficiency such as what it is, how it works, and the challenges the community has expressed to USDA, read this issue brief. If you want to know some community reactions to serious deficiency process and the proposed rule, see this one-pager from our deliberative forum conversation.


Now, let’s dig in.


Five Criteria

During previous opportunities for public comment, the CACFP community expressed concerns about the subjectivity as well as the lack of consistency and clarity of problems that trigger a serious deficiency determination. In response, USDA FNS proposes that the following five criteria be required as consideration prior to placing a CACFP operator on the serious deficiency path. The five criteria are:


  1. The severity of the problem. Is the noncompliance on a minor or substantial scale? Are the findings indicative of a systemic problem, or is the problem truly an isolated event? There is a point at which continued problems indicate serious mismanagement. Problems that initially appear manageable may become serious if not corrected within a reasonable period of time. Even minor problems may be serious if systemic. Some problems are serious even though they have occurred only once. For example, missing the recording of meal counts at the point of service for one day out of a month could be resolved with technical assistance. However, a second review with the same problem or an initial review with multiple days of incomplete point-of-service meal counts could rise to the level of a serious management problem. 

  2. The degree of responsibility attributable to the program operator. To the extent that evidence is available, can the administering agency determine whether the findings were inadvertent errors of an otherwise responsible institution or facility? Is there evidence of negligence or a conscious indifference to regulatory requirements or is there evidence of deception? 

  3. The program operator’s history of participation and training in CACFP. Is this the first time the institution, day care home or unaffiliated center is having problems or has noncompliance occurred frequently at the same institution or facility? 

  4. The nature of the requirements that relate to the problem. Are the program operator’s actions a clear violation of CACFP requirements? Has the program operator implemented new policies correctly? 

  5. The degree to which the problem impacts program integrity. Is the finding undermining the intent or purpose of the CACFP, such as misuse of program funds, or is it simply an administrative error?


Currently, these criteria are in the USDA handbook Serious Deficiency, Suspension, & Appeals for State Agencies and Sponsoring Organizations as guidance but they do not carry the rule of law. The proposed rule would make considering these five criteria by state agencies and sponsors of homes and unaffiliated centers required by law. 


Some questions we’ve been asking and some questions you can discuss with your colleagues in preparation for commenting

  • Does the requirement for using the five criteria mean that the state agency and sponsoring organization include all five criteria for a serious deficiency determination? In other words, should the state agency/sponsor consider just the program operator’s history and ignore the other four criteria or should they be considered as a whole?

  • Does requiring the usage of the five criteria address the subjectivity, lack of clarity, and lack of consistency in the serious deficiency process?

  • If a state agency or sponsoring organization placed you in serious deficiency and pointed to the five criteria as a reason, would you feel they were justified in their decision? Conversely, if you are making a serious deficiency determination, does the five criteria make you feel justified in the determination? 

  • What would you suggest to add or remove while making a serious deficiency determination? 


Removal of the Lists

Currently there are two “lists of serious deficiencies” in regulation. There is one for homes and there is one for institutions. The currents lists include anything from submission of false claims, conduct that threatens the health and safety of children, to failure to participate in trainings. 


USDA FNS proposes to remove the lists of serious deficiencies for homes and institutions from regulation. If the list is removed, our assumption (it is not clearly written in the proposed rule) any part of the regulation could be cited in the required notification procedure. 


Some questions we’ve been asking and some questions you can discuss with your colleagues in preparation for commenting

  • Do you think removal of the specific lists makes the serious deficiency process more clear and less subjective?

  • Would removal of the lists make you feel more or less justified in your serious deficiency determinations? 

  • Does the combination of the five criteria requirement and the removal of the serious deficiency lists streamline your day to day jobs? Would it make writing the notices harder or easier?

  • Does it feel less punitive and risky with the removal of the lists?

  • If the removal of the lists in their entirety don’t help clarify the serious deficiency process, are there items you would remove from the list or add to it?


What questions would you add? Questions or thoughts you'd like to share with me? Please do! samantha@ccfproundtable.org.

 

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