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  • Writer's pictureSamantha Marshall

[SD Proposed Rule Discussion Prompt #2] Is it a Middle Step? Triggering determination would be a serious management problem with path to full correction

We're doing a few blog posts to help you provide your public comment on the proposed rule, Serious Deficiency in the Child and Adult Care Food Program and Summer Food Service Program. We have until May 21st to share with USDA FNS our thoughts about the proposed rule and the serious deficiency process. CACFP Roundtable has heard it would be helpful to have some discussion prompts to talk about this with staff and community. The first one was about the Five Criteria and removal of the lists of serious deficiencies in the regulation.


Is it a middle step?

During previous opportunities for public comment, the CACFP community shared that the serious deficiency process was too punitive, too fast. The serious deficiency language is intimidating and difficult to understand and the consequences are too severe once placed in serious deficiency. Currently, once placed in serious deficiency, if there is a repeat finding, no matter how long it has been or how severe the finding is, the operator is terminated for cause from the program and placed on the National Disqualified List (NDL) for seven years.


In the proposed rule, the first triggering determination that would place someone on the serious deficiency path would be called a "serious management problem" instead of a "serious deficiency." Nothing changes about the process after the determination is made, this by itself, is simply terminology change. IF corrective action is not taken or implemented fully within a certain period of time, at the point of termination for cause and placement on the NDL, the operator would be considered seriously deficient.


A path to full correction is in the proposed rule. If a corrective action plan is made, approved, and implemented within a specified period of time, it is possible to become fully corrected. For Institutions (those contracted with and reviewed by the state) they must have 2 full reviews at minimum 24 months between them without a repeat or new serious management problem. For homes and unaffiliated centers that are sponsors, it would be three consecutive visits by the sponsor without a repeat or new serious management problem.

Because there is a path to full correction prior to being determined seriously deficient, and an operator can, after a certain period of time, no longer be seriously deficient - this could be considered a middle step in the SD process.


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

  • Do you think these two things together create the "middle step" in the serious deficiency process that the community was looking for? Does it make it less "serious" and punitive?

  • Would the 24 month period (possibly longer) be the right amount of time or too long to not have a repeat or new serious management determination?

  • Does three reviews without a repeat or new serious management problem for homes and unaffiliated centers make sense? Is that the right amount of time before being considered fully corrected and removed from the serious deficiency process?

  • Does this, in addition to the 5 criteria for a determination, make the serious deficiency process more clear, equitable, and fair?


 




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