Current through Register Vol. 46, No. 12, March 20, 2024
(a)
Definitions. As used in this section:
(1)
School breakfast program shall mean a breakfast designed to improve the
learning potentialities of children and meeting minimum nutritional standards
as prescribed in subdivision (b) of this section.
(2) Severe need school shall mean a school
where 40 percent or more of the lunches served to students at the school in the
second preceding school year were served free or at a reduced price.
(3) Elementary school shall mean a public
school district facility offering instruction to students in one or more of the
grades kindergarten through six or to students in a comparable age range in an
ungraded school.
(4) Participating
elementary school facility means a public elementary school that participated
in the National School Lunch Program on or after January 1, 1993.
(5) Participating school facility means any
public elementary or secondary school that participated in the National School
Lunch Program on or after January 1, 1993.
(6) Breakfast after the Bell shall mean
providing students access to school breakfast after the instructional school
day begins.
(b)
Nutritional standards. A breakfast shall meet the minimum meal pattern
requirements contained in
7 CFR
220.8 and 7 CFR 220.23 (Code of Federal
Regulations, 2018 edition, Superintendent of Documents, U.S. Government
Printing Office, Washington, DC 20402-0001: 2018-available at Office for
Counsel, New York State Education Building, Room 148, 89 Washington Avenue,
Albany, NY 12234 and such breakfast shall be served in conformance with the
offer versus serve requirements contained in
7 CFR
220.8(e) (Code of Federal
Regulations, 2018 edition, Superintendent of Documents, U.S. Government
Printing Office, Washington, DC 20402-0001: 2018-available at Office for
Counsel, New York State Education Building, Room 148, 89 Washington Avenue,
Albany, NY 12234).
(c) Free and/or
reduced-price breakfasts. Children to whom free and/or reduced price breakfasts
will be served are to be determined by local agencies in conformity with their
existing written policy statements on file in the official records of every
sponsoring agency in conformance with 7 CFR Part 245 (Code of Federal
Regulations, 2018 edition, Superintendent of Documents, U.S. Government
Printing Office, Washington, DC 20402-0001: 2018-available at Office for
Counsel, New York State Education Building, Room 148, 89 Washington Avenue,
Albany, NY 12231).
(d)
Reimbursement. Reimbursement will be made monthly, upon receipt of a claim for
reimbursement in a form prescribed by the commissioner. In no event will
reimbursement to any sponsor exceed the applicable maximum as established by
Federal law,
7 CFR
220.9 (Code of Federal Regulations, 1993
edition, Superintendent of Documents, U.S. Government Printing Office,
Washington, DC 20402: 1993--available at Office for Regional Field Services,
Room 775, Education Building Annex, Albany, NY 12234), State law and/or this
section. Federal funds, to the extent available, will be used first to meet
this reimbursement.
(e) Requirement
for participation in school breakfast programs by city school districts in
cities with 125,000 inhabitants or more. Pursuant to subdivision h of section 1
of chapter 537 of the Laws of 1976, as added by section 4 of chapter 798 of the
Laws of 1980, the board of education of a city school district in a city with
125,000 inhabitants or more must participate in the school breakfast program.
The board of education may apply to the commissioner, at any time during the
school year, to suspend the participation of a school in the school breakfast
program. The application for suspension shall be filed with the commissioner,
on forms prescribed by the commissioner, no later than 90 days prior to the
date when the applicant requests the suspension of the program to take effect.
The board of education shall certify that it has complied with all requirements
of chapter 798 of the Laws of 1980 and shall submit copies of all information
submitted by the public relative to the proposed suspension.
(f) Requirement for participation in school
breakfast programs.
(1) Not later than
September 1, 1994, school districts shall establish a school breakfast program
in which each pupil attending any participating school facility under the
district's jurisdiction which is a severe need school shall be afforded the
opportunity to receive a free, reduced and full paid breakfast.
(2) Not later than September 1, 1995 school
districts shall establish a school breakfast program in which each pupil
attending any participating elementary school, whether or not it is a severe
need school, shall be afforded the opportunity to receive a free, reduced and
full paid breakfast.
(3) Any school
not offering a breakfast program on the dates specified in paragraph (1) or (2)
of this subdivision, may apply to the Commissioner of Education for a one-year
exemption from the requirement of subdivision c of section 1 of chapter 537 of
the Laws of 1976 and this subdivision that a school breakfast program be
implemented. An application for an exemption shall be submitted annually prior
to July 1st of each school year. A demonstrated effort to overcome the stated
obstacles must be provided.
(4) An
exemption pursuant to paragraph (3) of this subdivision may be granted for good
cause, upon a showing of one or more of the following:
(i) a lack of need for such breakfast program
because of low enrollment or documented projections of low
participation;
(ii) economic
hardship; or
(iii) other good cause
that makes the establishment of a school breakfast program
impractical.
(5) To be
granted an exemption based on lack of need for a breakfast program, a school
district must submit one or more of the following:
(i) documentation of a survey conducted of
all parents in the affected building(s) that indicates that 80 percent of the
children of those parents responding would not use the program. A copy of the
cover letter, survey and survey results indicating a response rate of 33
percent or greater must accompany the exemption request;
(ii) documentation of a survey of all
students attending the affected building(s) that indicates that fewer than 10
percent come to school without a morning meal and they would not consume a
breakfast in school if it were available;
(iii) a demonstration that a morning meal of
equal nutritional value that accommodates students regardless of ability to pay
is available and accessible to all the students attending the affected
building(s) through another program; and
(iv) lack of participation over six months in
an existing program as evidenced by an average daily participation of fewer
than 20 students, fewer than 10 percent of the students enrolled or fewer than
five percent of the children eligible for free and reduced price meals,
whichever is less. The district must investigate the reasons for low
participation and substantiate its efforts to increase participation levels
before an exemption will be granted.
(6) To be granted an exemption based on
economic hardship, a school district must be eligible for an apportionment of
tax effort aid during the prior school year pursuant to paragraph c of
subdivision 16 of section
3602 of the Education Law, as determined by
the commissioner based on the best data available on July 1st of the current
school year, and must demonstrate that, after exhausting all other available
sources of revenue, administering the breakfast program will result in an
increase in local real property taxes.
(7) To be granted an exemption based on other
good cause that makes the establishment of such a program impractical, a school
district shall submit documentation of an investigation of the perceived
barrier and documentation that the district has attempted to resolve the
problem and is unable to do so.
(8)
Parents and taxpayers must be made aware of the district's intent to request an
exemption by May 1st of each year and be offered an opportunity to share their
concerns with school officials. For the 1994-95 school year parents and
taxpayers must be notified by July 1, 1994. A copy of this public release must
accompany the exemption request. Requests for an exemption must be signed by an
officer of the board of education. A waiver may be granted for a limited period
of time during the 1994-95 school year, not to exceed one year, for those
schools that would have difficulty meeting the September 1, 1994 deadline and
during the 1995-96 school year for those participating elementary schools that
would have difficulty meeting the September 1, 1995 deadline and do not qualify
for an exemption, to allow adequate time for planning and implementation of a
breakfast program. Requests for a waiver shall be signed by an officer of the
board of education, shall indicate a starting date for implementing the
breakfast program and shall demonstrate the need for additional time to:
(i) plan for the implementation, including,
but not limited to, staffing, storage and outreach to parents and
students;
(ii) observe other
programs and consider options for implementing the program;
(iii) promote the advantages of the program
to the community to ensure significant participation levels;
(iv) renegotiate existing contracts so as to
implement the program; or
(v)
purchase and install necessary equipment.
(g) State full cost reimbursement.
(1) Pursuant to subdivision i of section 1 of
chapter 537 of the Laws of 1976, as added by section 4 of chapter 798 of the
Laws of 1980, a school district commencing operation of a breakfast program in
any of its schools after September 1, 1980 may seek full cost reimbursement for
the first year of operation of such program by submission of a plan of
operation for each new school program. This plan shall include, but need not be
limited to:
(i) estimated average daily
participation;
(ii) proposed
staffing;
(iii) estimated labor
costs;
(iv) four-week cycle
menu;
(v) estimated food
costs;
(vi) estimated other
costs--supplies, materials, etc.;
(vii) other program responsibilities of
proposed staff;
(viii) type of food
service (onsite, satellite, etc.);
(ix) proposed service starting and closing
time, and school normal opening time; and
(x) additional information as requested by
the department to evaluate the administration of the proposed
program.
(2) For
programs commencing after January 1, 1981 to be eligible for State full cost
reimbursement, written approval of the program plan shall be obtained from the
department prior to commencing operation of the new program.
(3) Costs eligible for full cost
reimbursement shall be the approved actual direct and indirect costs incurred
in the operation of the reimbursable breakfast program, but shall not include
costs incurred for:
(i) bad debts;
(ii) fines and penalties;
(iii) interest and financial costs;
(iv) legislative expense or executive
direction (salaries and expenses of city councils, school boards,
etc.);
(v) contingency reserve
contributions;
(vi) depreciation or
use allowance for publicly owned buildings and improvements;
(vii) direct labor costs for administrative
personnel above the school food service employee level, other than those with
direct program responsibility;
(viii) USDA-donated foods or cash received in
lieu of foods;
(ix) other donations
of cash, services and goods;
(x)
equipment depreciation costs for:
(a)
nonexpendable equipment items which have become fully depreciated;
(b) nonexpendable equipment in storage for
future use or disposal; and
(c)
that portion of equipment which has been purchased with Federal
funds;
(xi) capital
expenditures for:
(a) land or
construction;
(b)
facilities;
(c) repairs which
materially increase the value or useful life of capital assets; and
(d) other capital assets and
purchases;
(xii)
occupancy by contractual agreements which are classified as rental-purchase or
leased with an option to purchase; or
(xiii) cost associated with sales or service
to adults and a la carte sales.
(h) Breakfast after the Bell program.
(1) All participating public elementary or
secondary schools in this state, not including a charter school authorized by
article 56 of the education law, with at least seventy percent or more of its
students eligible for free or reduced-price meals under the federal National
School Lunch Program as determined by the Commissioner based upon data
submitted by schools through the basic educational data system (BEDS) for the
prior school year, shall be required to offer all students a school breakfast
after the instructional day has begun.
(2) Each public school may determine the
breakfast service delivery model that best suits its students. Service delivery
models may include, but are not limited to, breakfast in the classroom, grab
and go breakfast, and breakfast served in the cafeteria. Time spent by students
consuming breakfast may be considered instructional time when students consume
breakfast in the students' classrooms and instruction is being provided while
students are consuming breakfast. In determining a service delivery model,
schools shall consult with teachers, parents, students and members of the
community.
(3) Schools subject to
this requirement shall provide annual notice to students' parents and guardians
that the school will be offering breakfast to all students after the
instructional day has begun.
(4)
Any school identified pursuant to this section may apply to the Commissioner
for a waiver from establishing a school breakfast program after the
instructional day has begun. Such waivers shall be annually submitted to the
Commissioner in a format and manner prescribed by the Commissioner prior to
July 1st of each school year. Such waiver may be granted by the Commissioner
upon the school demonstrating:
(i) a lack of
need for a School Breakfast Program after the instructional day has begun
because of a successful existing breakfast program; or
(ii) that providing a school breakfast
program after the instructional day has begun would cause economic hardship for
the school.