This section of the FEDERAL REGISTER

contains regulatory documents having general

applicability and legal effect, most of which

are keyed to and codified in the Code of

Federal Regulations, which is published under

50 titles pursuant to 44 U.S.C. 1510.

The Code of Federal Regulations is sold by

the Superintendent of Documents. Prices of

new books are listed in the first FEDERAL

REGISTER issue of each week.

Rules and Regulations Federal Register

10885 

Vol. 72, No. 47 

Monday, March 12, 2007 

DEPARTMENT OF AGRICULTURE 

Food and Nutrition Service 

7 CFR Parts 210, 215, 220, 225, 226, 

and 245 

RIN 0584–AC95 

Disclosure of Children’s Free and 

Reduced Price Meals and Free Milk 

Eligibility Information in the Child 

Nutrition Programs 

AGENCY: Food and Nutrition Service, 

USDA. 

ACTION: Final rule. 

SUMMARY: This final rule establishes 

requirements for the disclosure of 

children’s free and reduced price meals 

or free milk eligibility information 

under the Child Nutrition Programs. 

The Child Nutrition Programs include 

the National School Lunch Program, 

School Breakfast Program, Special Milk 

Program, Summer Food Service 

Program, and Child and Adult Care 

Food Program. Within certain 

limitations, children’s free and reduced 

price meal or free milk eligibility 

information may be disclosed, without 

parental/guardian consent, to persons 

directly connected to certain education 

programs, health programs, meanstested nutrition programs, the 

Comptroller General of the United 

States, and some law enforcement 

officials. Additionally, officials also may 

disclose children’s free and reduced 

price meal or free milk eligibility 

information to persons directly 

connected with State Medicaid 

(Medicaid) and the State Children’s 

Health Insurance Program (SCHIP) 

when parents/guardians do not decline 

to have their information disclosed. 

These regulations affect State agencies 

and local program operators that 

administer the Child Nutrition Programs 

and households which apply for and/or 

are approved for free and reduced price 

meals or free milk. The final rule 

reflects the disclosure provisions of the 

Healthy Meals for Healthy Americans 

Act of 1994 and comments received on 

the proposed rule published in 

anticipation of implementing those 

provisions. Additionally, this final rule 

includes the regulatory disclosure 

provisions implementing the 

Agricultural Risk Protection Act of 2000 

and comments received on the interim 

rule issued to implement those 

provisions. This final rule also 

implements nondiscretionary provisions 

of the Child Nutrition and WIC 

Reauthorization Act of 2004, allowing 

certain third party contractors access to 

children’s eligibility status and will 

allow school officials to communicate 

with Medicaid and SCHIP officials to 

verify that children are eligible for free 

and reduced price school meals or free 

milk. The disclosure provisions are 

intended to reduce paperwork for 

administrators of certain programs that 

target low-income households and for 

low-income households which may 

benefit from those programs by allowing 

some sharing of household’s free and 

reduced price meal eligibility 

information. This rule also includes 

several technical amendments. 

DATES: This rule is effective April 11, 

2007. 

FOR FURTHER INFORMATION CONTACT: 

Address any questions to Robert Eadie, 

Branch Chief, Policy and Program 

Development Branch, Child Nutrition 

Division, Food and Nutrition Service, 

USDA, 3101 Park Center Drive, 

Alexandria, VA 22302 or by telephone 

at 703–305–2590. 

SUPPLEMENTARY INFORMATION: 

Background 

Chronological History of Legislation and 

Regulations Concerning the 

Confidentiality of Children’s Free and 

Reduced Price Eligibility Information 

November 2, 1994—Public Law 103– 

448, the Healthy Meals for Healthy 

Americans Act of 1994, amended 

Section 9 of the Richard B. Russell 

National School Lunch Act (NSLA), 42 

U.S.C. 1758, to statutorily provide for 

the first time, some disclosure of 

children’s eligibility information, 

without parental consent, to specified 

programs, such as Federal and State 

education programs and to certain 

individuals. The provisions of Public 

Law 103–448 specifically exclude 

disclosures of children’s eligibility 

information to Medicaid but did not 

address disclosures to the State 

Children’s Health Insurance Program 

(SCHIP), which was nonexistent at that 

time. 

June 20, 2000—Public Law 106–224, 

the Agricultural Risk Protection Act of 

2000, amended the NSLA to allow 

disclosure of children’s eligibility 

information to Medicaid and SCHIP, 

provided that parents/guardians not 

decline to have their information 

disclosed to those health insurance 

programs. Congress directed the 

Secretary to promulgate regulations 

without regard to the provisions of 

Administrative Procedure Act, the 

Statement of Policy of the Secretary of 

Agriculture, effective July 24, 1971 (36 

FR 13804) and the Paperwork Reduction 

Act. 

July 25, 2000—A proposed rule, with 

a request for comments, was published 

in the Federal Register (65 FR 45725). 

January 11, 2001—An interim rule, 

with a request for comments, amended 

a number of program regulations to 

implement the Medicaid and SCHIP 

disclosure provisions of Public Law 

106–224. The regulatory provisions 

were effective October 1, 2000, in 

accordance with Public Law 106–224. 

June 30, 2004—Public Law 108–265, 

Child Nutrition and WIC 

Reauthorization Act of 2004 (Pub. L. 

108–265) further amended the NSLA to 

specify that Medicaid and SCHIP 

officials may request that determining 

officials for the Child Nutrition 

Programs verify children’s eligibility for 

free and reduced price meal and free 

milk benefits. 

This final rule—Finalizes the current 

regulations codified by the interim rule, 

which only addressed disclosures to 

Medicaid and SCHIP, and amends the 

current regulations to add the 

provisions from the July 25, 2000 

proposed rule and the confidentiality 

provision from Public Law 108–265. 

A detailed discussion of the 

confidentiality provisions of the public 

laws and the actions taken to address 

the provisions follows. 

Public Law 103–448 

The Healthy Meals for Healthy 

Americans Act of 1994, Public Law 

103–448, enacted on November 2, 1994, 

amended section 9(b)(2)(C) of the 

Richard B. Russell National School 


hsrobinson on PROD1PC76 with RULES
10886 Federal Register / Vol. 72, No. 47 / Monday, March 12, 2007 / Rules and Regulations 

Lunch Act (NSLA) (42 U.S.C. 

1758(b)(2)(C)) to allow limited access to 

children’s free and reduced price meal 

information, without parental/guardian 

consent. In general, the statute included 

the following provisions: 

1. Authorized disclosure of children’s 

eligibility status only (whether children 

are eligible for free meals or reduced 

price meals) to: 

• Persons who are directly connected 

with the administration or enforcement 

of programs under the NSLA or the 

Child Nutrition Act of 1966 (CNA) (42 

U.S.C. 1771 et seq.) or a regulation 

issued under either of those Acts; 

• Persons who are directly connected 

with the administration or enforcement 

of a Federal education program; 

• Persons who are directly connected 

with the administration or enforcement 

of a State health or education program 

(other than Medicaid) administered by 

the State or local education agency; and 

• Persons who are directly connected 

with the administration or enforcement 

of a Federal, State or local means-tested 

nutrition program with eligibility 

standards comparable to the National 

School Lunch Program (NSLP). 

2. Authorized disclosure of all 

eligibility information for children that 

is obtained through the free and reduced 

price meal application process or 

through the direct certification process 

(determining children eligible based on 

information obtained from certain other 

agencies) to: 

• The Comptroller General of the 

United States for audit and examination; 

and 

• Certain law enforcement officials 

investigating alleged program violations. 

3. Specified penalties for 

unauthorized disclosure or misuse of 

children’s eligibility information of a 

fine of not more than $1000 or 

imprisonment of not more than 1 year, 

or both. 

Public Law 103–448 specifically 

excluded disclosure of children’s 

eligibility information, without consent, 

to a program under title XIX of the 

Social Security Act, i.e., Medicaid (42 

U.S.C. 1396 et seq.), and did not address 

disclosure of children’s eligibility 

information to SCHIP, which was 

established in later Federal legislation. 

The Department issued a proposed rule, 

which would have extended the 

provisions to all the Child Nutrition 

Programs, (65 FR 45725, July 25, 2000) 

with a 90-day public comment period to 

implement the disclosure provisions of 

Public Law 103–448. 

Public Law 106–224 

The Agricultural Risk Protection Act 

of 2000, Public Law 106–224, enacted 

on June 20, 2000, further amended the 

disclosure provisions in section 

9(b)(2)(C) of the NSLA (42 U.S.C. 

1758(b)(2)(C)). In general, Public Law 

106–224 included the following 

provisions: 

1. Authorized disclosure of children’s 

eligibility information to Medicaid and 

SCHIP provided that the following 

conditions are met: 

• Both the State agency and school 

food authority must elect to disclose 

eligibility information to these health 

insurance programs; 

• School and health insurance 

program officials must have a written 

agreement that requires the health 

insurance program to use the 

information to seek to enroll children in 

Medicaid and SCHIP; and 

• Parents/guardians must be notified 

that their eligibility information may be 

disclosed to Medicaid or SCHIP and 

given an opportunity to decline to have 

their children’s eligibility information 

disclosed. 

2. Directed the Department to 

promptly promulgate regulations to 

implement the disclosure provisions of 

Public Law 106–224 without regard to 

the Administrative Procedure Act’s 

notice and comment provisions, the 

Statement of Policy of the Secretary of 

Agriculture effective July 24, 1971 (36 

FR 13804) or the Paperwork Reduction 

Act facilitated making health insurance 

benefits available to low-income 

children as quickly as possible. 

In implementing the provisions of 

Public Law 106–224, the Department 

issued an interim rule with a request for 

comments (66 FR 2195, January 11, 

2001). The Department sought 

comments on the disclosure of 

eligibility information to Medicaid and 

SCHIP due to the sensitivity of 

household privacy issues and also to 

gain insights on operational experience 

prior to issuing a final regulation. 

Additionally, at the time, the 

Department was reviewing comments 

received on its proposed rule to 

implement the disclosure provisions of 

Public Law 103–448 (discussed above) 

which would allow the disclosure of 

eligibility information to education and 

several other programs and individuals. 

The interim rule became effective on 

October 1, 2000, and amended 7 CFR 

Parts 215, 225, 226, and 245 to allow 

determining agencies (agencies 

responsible for the determination of free 

and reduced price meals or free milk) to 

disclose children’s eligibility 

information to Medicaid and SCHIP 

under the conditions mandated by 

Public Law 106–224, as listed above. 

Issuance of an interim rule allowed the 

Department to comply with the 

Congressional mandate to promulgate 

regulations regarding disclosures to 

Medicaid and SCHIP, and to collect 

public comment on these important 

requirements. As stated in the Preamble 

to the interim rule, it was our clear 

intent to then publish a final rule, 

incorporating the comments received. 

Public Law 108–265 

The Child Nutrition and WIC 

Reauthorization Act of 2004, enacted 

June 30, 2004, (Pub. L. 108–265) 

amended the Richard B. Russell 

National School Lunch Act in a number 

of ways. First, it redesignated section 

9(b)(2)(C)(iii), which contains the 

disclosure provisions, to section 9(b)(6) 

and second, titled the section ‘‘Use or 

Disclosure of Information.’’ Third, 

Public Law 108–265 added a provision 

allowing school officials to provide 

third party contractors access to 

children’s free and reduced price meal 

eligibility status when the contractors 

are assisting school food authorities 

with contacting households which do 

not respond to the school’s verification 

efforts. The amendments were 

nondiscretionary and are codified in 

this final rule at 7 CFR 215.13a(g)(1), 

225.15(g)(1), 226.23(i)(1) and 

245.6(k)(1). Finally, the NSLA now 

allows Medicaid and SCHIP officials to 

use the eligibility information to verify 

children’s eligibility for programs under 

the NSLA or CNA. Previously, 

determining officials could disclose 

children’s eligibility information to 

Medicaid and SCHIP solely for the 

purpose of identifying and enrolling 

eligible children in a health insurance 

program. These statutory provisions 

were also non-discretionary and are 

codified in this final rule at 7 CFR 

215.13a (h)(2), 225.15(h)(2), 226.23(j)(2), 

and 245.6(g)(2). 

Summary of Current Disclosure 

Regulations 

Regulations for the Child Nutrition 

Programs, as amended by the interim 

rule to implement Public Law 106–224, 

in general allow the disclosure of 

children’s free and reduced price meal 

eligibility information to Medicaid and 

SCHIP officials when both the State 

agency and school food authority elect 

to disclose eligibility information to 

these health insurance programs; when 

determining agencies and health 

insurance program officials have a 

written agreement that requires the 

health insurance program agency to use 

the information to seek to enroll eligible 

children in Medicaid and SCHIP; and 

when parents/guardians are given an 

opportunity to decline to have their 

children’s eligibility information 


hsrobinson on PROD1PC76 with RULES
Federal Register / Vol. 72, No. 47 / Monday, March 12, 2007 / Rules and Regulations 10887 

disclosed. Sections 215.2, 225.2, 226.2 

and 245.2 include definitions for the 

terms ‘‘Disclosure,’’ ‘‘Medicaid’’ and 

‘‘SCHIP.’’

Current 7 CFR Part 215, as amended 

by the interim rule, requires that the free 

milk application used in child care 

centers include a Privacy Act notice/ 

statement. Note that schools that 

participate in the SMP follow the 

provisions contained in 7 CFR Part 245, 

which includes requirements for a 

Privacy Act notice/statement. Section 

215.13a provides a prototype Privacy 

Act notice/statement for the milk 

application and the prototype Privacy 

Act notices/statements provided in 7 

CFR Parts 225, 226 and 245 were 

revised to be consistent with the 

simplified notice/statement added to 7 

CFR Part 215. 

Summary of Disclosure Provisions 

Implemented Through Guidance 

Guidance was issued December 1998, 

to explain the disclosure provisions of 

Public Law 103–448 contained in the 

proposed rule. The proposed rule was 

published in 2000. Determining 

agencies are operating under that 

guidance for disclosures to education 

and certain other programs and 

activities specified in Public Law 103–

448. Additionally, the Department 

issued guidance on disclosing eligibility 

information in cases when parents/ 

guardians authorize the disclosure. 

Parents/guardians may provide consent 

for the disclosure of information that 

goes beyond that authorized by the 

statute. 

General Comments on the Proposed and 

Interim Rules 

We received twelve comments on the 

proposed rule and eight comments on 

the interim rule. Commenters generally 

were supportive of the proposed and 

interim rules in that they believe that 

the provisions are in accordance with 

the statute. Several commenters view 

the sharing of free and reduced price 

eligibility information as helpful in 

streamlining the enrollment process for 

other programs that also serve lowincome individuals. Other commenters 

oppose any sharing of households’ free 

and reduced price meal or free milk 

eligibility information. They cite 

privacy concerns, the potential for 

deterring participation in the Child 

Nutrition Programs and additional 

burdens on school food service staff due 

to requests for children’s free and 

reduced price eligibility information. 

This preamble discusses the specific 

provisions and comments received. 

Changes Being Made to Current 

Regulations in This Final Rule 

In general, no major changes are being 

made to the current regulations relating 

to the disclosure of children’s eligibility 

information to Medicaid and SCHIP. 

However, Section 104 (b)(i) of Public 

Law 108–265 amended the disclosure 

provisions contained in the NSLA. As a 

result, Medicaid and SCHIP officials are 

now allowed to verify children’s 

eligibility for a program under the NSLA 

or Child Nutrition Act of 1966. An 

amendment to current regulations to 

accommodate this nondiscretionary 

provision is included in this rule. 

Additionally, because this rule adds 

the disclosure provisions of Public Law 

103–448 and Public Law 108–265 to the 

current disclosure provisions, the 

section numbers for many of the 

provisions are changed from the current 

or proposed designations and obsolete 

references are deleted. Further, several 

commenters did not like the section 

headings in question format. Because of 

their concerns, the section headings are 

revised to a statement format consistent 

with most of the sections headings 

currently in the regulations. For a 

detailed explanation of the provisions, 

the reader may refer to the interim and 

proposed rules published at 65 FR 

45725 and 66 FR 2195, respectively. A 

discussion of the major provisions 

follows. 

Discussion of the Proposed Current 

Regulations and How the Major 

Provisions Are Being Addressed 

1. Applicability to all the Child 

Nutrition Programs—Although the 

NSLA addresses the disclosure of 

children’s free and reduced price school 

lunch eligibility information, the 

interim rule extended the provisions to 

all the Child Nutrition Programs to 

provide consistency among the 

programs. This was consistent with 

Food and Nutrition Service’s (FNS) 

practices and policies as discussed in 

the interim rule. The proposed rule also 

would have extended the disclosure 

provisions to all the Child Nutrition 

Programs. Commenters did not address 

this issue. 

Final rule—The disclosure provisions 

continue to apply to all the Child 

Nutrition Programs. 

2. Definitions—The interim rule 

added the terms, ‘‘disclosure,’’

‘‘Medicaid’’ and ‘‘State Children’s 

Health Insurance Program (SCHIP)’’ to 

current §§ 215.2, 225.2, 226.2, and 245.2 

in the alphabetical lists of definitions. 

One commenter addressed the 

definitions and that commenter 

concurred with the meanings ascribed 

to the terms. The proposed rule did not 

include any definitions. 

Final Rule— In §§ 215.2, 225.2, 226.2, 

and 245.2, the definitions ‘‘Medicaid’’

and ‘‘State Children’s Health Insurance 

Program (SCHIP)’’ are adopted without 

change. The definition ‘‘Disclosure’’ is 

revised in this final rule to improve 

readability. No substantial changes are 

made to the definition. 

3. Prototype Privacy Act Notice/ 

Statement—The interim rule revised the 

programs’ previous regulatory prototype 

Privacy Act notice/statement to make 

the notice/statement more 

understandable by simplifying the 

wording. The Privacy Act notice/ 

statement must inform households 

whether the information being 

requested is mandatory or voluntary; the 

authority for the request; how the 

information may be used; and the 

consequence of not providing the 

information. Sections 215.13a(f), 

225.15(f)(4)(iv), 226.23(e)(1)(ii)(F) and 

245.6(a)(1) currently provide a 

prototype statement. Additionally, 

§§ 215.13a(g)(6), 225.15(g)(6), 

226.23(i)(6), and 245.6(f )(6) require 

schools and institutions intending to 

disclose social security numbers to 

include additional information in their 

Privacy Act notices/statements that 

inform households of the potential 

disclosures and the planned uses of the 

numbers. The NSLA permits the 

disclosure of all eligibility information 

to some entities. This disclosure may 

include the social security number of 

the adult household member who signs 

the application. Social security numbers 

also may be disclosed with prior notice 

and parental/guardian consent. 

One commenter addressed the Privacy 

Act notice/statement and expressed 

agreement with the Department that 

households should be made aware of 

potential uses of the information. The 

Department reminds readers that State 

agencies and school food authorities are 

responsible for ensuring that the Privacy 

Act notice/statement included on their 

applications comply with section 7(b) of 

the Privacy Act. 

Final Rule—Sections 215.13a(f), 

215.13a(i), 225.15(f)(4)(iv), 225.15(i)(1), 

226.23(e)(1)(ii)(F), 226.23(k), and 

245.6(a)(1) and 245.6(h) provide a 

prototype Privacy Act notice/statement 

and require that households be given 

adequate notice regarding the request 

for free and reduced price eligibility 

information and how the information, 

including social security numbers, will 

be used. 

4. Responsibility for deciding whether 

to disclose eligibility information—

Currently, §§ 215.13a(g)(1), 225.15(g)(1), 

226.23(i)(1), and 245.6(f)(1) require that 


hsrobinson on PROD1PC76 with RULES
10888 Federal Register / Vol. 72, No. 47 / Monday, March 12, 2007 / Rules and Regulations 

both the State agency and local agency 

that determines free and reduced price 

meal or free milk eligibility must agree 

on whether to disclose eligibility 

information to Medicaid and SCHIP 

officials. This shared responsibility for 

determining whether to disclose 

information to Medicaid and SCHIP is 

mandated by the NSLA as amended by 

Public Law 106–224 and was included 

in the interim regulations. 

Unlike with disclosures to Medicaid 

and SCHIP, the NSLA does not address 

who has the responsibility for deciding 

whether to disclose eligibility 

information to education and other 

programs authorized to receive 

eligibility information under Public Law 

103–448. The proposed rule and this 

final rule place this responsibility on 

the determining agency. As noted in the 

preamble to the interim rule, the 

determining agency may be the State 

agency, when that agency makes the 

eligibility determination, or it may be a 

school within the school food authority, 

a child care institution, or a Summer 

Food Service Program sponsor who 

makes the free and reduced price meal 

or free milk eligibility determinations. 

No comments were received on this 

provision. 

Two individuals commenting on the 

proposed rule expressed concern that it 

would be difficult to refuse requests for 

eligibility information. We agree that 

there often is pressure to disclose 

eligibility information. Determining 

agencies must evaluate each request for 

information to ensure that, at a 

minimum, the disclosure is in 

accordance with statutory and 

regulatory provisions. Additionally, 

determining agencies should consider, 

along with the agency requesting the 

information, whether aggregate data is 

sufficient. 

Although currently the National 

School Lunch Program (NSLP), School 

Breakfast Program (SBP), Special Milk 

Program (SMP), Child and Adult Care 

Food Program (CACFP), and Summer 

Food Service Program (SFSP) 

regulations do not address the 

disclosure of aggregate information, the 

disclosure of aggregate data is allowed 

because individuals cannot be 

personally identified. This is consistent 

with longstanding FNS policy and 

practices. As proposed at 

§§ 215.13a(g)(2), 225.15(g)(2), 

226.23(i)(2), and 245.6(f)(2), we would 

codify this policy. A commenter stated 

that the disclosure of aggregate 

information could result in the 

disclosure of personal information. The 

Department acknowledges that it might 

be possible for a determining agency to 

improperly disclose information making 

a person’s identity recognizable. 

Determining officials should be aware of 

the possibility of inadvertently 

disclosing personally identifiable 

information when releasing aggregate 

information, carefully reviewing the 

data to ensure that the identities of 

children or their households are masked 

or cannot be identified by the 

combining of information or by 

deduction. This is essential in every 

disclosure. 

Final Rule—Sections 215.13a(g), 

225.15(g), 226.23(i), and 245.6(f) specify 

that determining agencies may release 

aggregate data, without parental/ 

guardian consent, provided children 

cannot be identified through disclosure 

of the data or by deduction and that 

determining agencies are responsible for 

deciding whether to disclose eligibility 

information; and that, for disclosures to 

individuals and programs other than to 

Medicaid and SCHIP, determining 

agencies are responsible for deciding 

whether or not to disclose individual 

children’s eligibility. Readers are 

reminded that State agencies may 

prohibit the disclosure of free and 

reduced price eligibility information in 

schools and institutions under their 

jurisdiction at their discretion. For 

disclosures to Medicaid and SCHIP, 

§§ 215.13a(h), 225.15(h), 226.23(j) and 

245.6(g) of this final rule continue to 

require that both the State agency and 

local determining agency must agree to 

disclose eligibility information to 

Medicaid and SCHIP. 

5. Notice to parents about potential 

disclosures—Currently, once the joint 

decision is made by State agencies and 

local determining agencies to release 

information to Medicaid and SCHIP, the 

regulations at §§ 215.13a(g)(5), 

225.15(g)(5), 226.23(i)(5), and 245.6(f)(5) 

require that parents are notified of the 

upcoming disclosure and given 

opportunity to decline the disclosure, as 

mandated by the NSLA. For disclosures 

to education and other programs and 

individuals permitted access to 

eligibility information by the NSLA 

permits the disclosure without parental/ 

guardian consent and does not include 

a requirement for parental/guardian 

notification prior to the disclosure. The 

proposed rule would not have required 

notification to parents/guardians of 

potential disclosures to education and 

other programs and individuals, as long 

as the disclosure was in accordance 

with the NSLA, i.e., disclosure of names 

and eligibility status. However, the 

preamble to the proposed rule suggested 

that officials notify parents of how their 

information will be used. It was 

suggested that officials include the 

notification in the letter/notice to 

parents that accompanies the free and 

reduced price meal and free milk 

application; on the application; or in the 

case of direct certification, on the 

document informing households of their 

eligibility. One commenter addressed 

this provision. The commenter believes 

that parents should be informed of all 

disclosures. The Department agrees. 

Final Rule—Sections 215.13a(i), 

225.15(i), 226.23(k) and 245.6(h) require 

determining agencies to notify parents/ 

guardians of potential disclosure of their 

eligibility information at the time of 

application or when the household is 

directly certified. 

6. Parental consent/declination to the 

disclosure of the household’s eligibility 

information—As mentioned above, prior 

to any disclosure to Medicaid or SCHIP, 

parents/guardians must be given the 

opportunity to decline to have their 

information disclosed to those health 

insurance agencies; i.e., opt out. This 

opt out provision was mandated by a 

provision in Public Law 106–224 

amending the NSLA and is currently 

codified at §§ 215.13a(g)(5), 225.15(g)(5), 

226.23(i)(5), and 245.6(f)(5). No specific 

timeframe for households to respond 

was specified in the NSLA or the rule. 

Rather the regulations require that 

households be informed that their 

information may be disclosed to 

Medicaid and SCHIP unless they notify 

the determining agency by a date, 

chosen by the determining agency, if 

they do not want their information 

disclosed to those health insurance 

agencies. No response from the parent/ 

guardian by the date specified is 

considered consent, (i.e., passive 

consent) and allows the determining 

agency to disclose children’s eligibility 

information to Medicaid and SCHIP. 

Previously, amendments to the NSLA 

by Public Law 103–448 authorized 

determining agencies to disclose certain 

limited information to educational and 

certain other programs and individuals 

without parental/guardian consent. 

Therefore, §§ 215.13a(g)(8) and (g)(9), 

225.15(g)(8) and(g)(9), 226.23(i)(8) and 

(g)(9), and 245.6(f)(8) and (f)(9) of the 

proposed rule would have, without 

requiring parental/guardian consent, 

permitted determining agencies to make 

disclosure consistent with the NSLA. 

An indication of parental/guardian 

consent, however, would be required 

when the disclosure would go beyond 

the scope of the statute, such as a 

disclosure to a program or individual 

not authorized by the statute to receive 

eligibility information or the disclosure 

of information goes beyond the 

information allowed by the statute to be 

disclosed to a particular entity. For 

example, a Federal education program is 


hsrobinson on PROD1PC76 with RULES
Federal Register / Vol. 72, No. 47 / Monday, March 12, 2007 / Rules and Regulations 10889 

authorized to have information 

regarding a student’s eligibility status 

but no other information on the 

application. If an education program 

wanted names of household members, 

the determining agency must obtain 

parental/guardian consent prior to 

disclosing that information. 

Additionally, some determining 

agencies include on the free and 

reduced price meal application a list of 

other benefits, such as programs or 

services for which a household may be 

eligible; i.e., free or reduced cost bus 

transportation, text books, eye exams, or 

other school related fees. In those cases, 

to obtain a listed benefit, the parent/ 

guardian must take action, (i.e., check a 

box to indicate consent (opt in)), before 

their information may be disclosed. 

One individual commenting on the 

interim rule suggested that the parents 

be given, by regulation, a specified 

length of time to respond before consent 

to disclose information to Medicaid or 

SCHIP is assumed. Currently, 

§§ 215.13a(g)(5), 245.6(f)(5), 225.15(g)(5) 

and 226.23(i)(5) require that parents 

must be given adequate time to respond 

before information is disclosed, but 

leaves it to local agencies to determine 

how much time is adequate. The 

Department has determined that local 

officials are in a better position to assess 

what constitutes adequate time to 

respond. 

Additionally, a commenter took the 

position that requiring the parent to 

actively provide consent is preferable to 

passive consent; i.e., assuming consent 

when the parent/guardian does not 

notify/indicate that they do not want 

their information disclosed. The former 

is the case with disclosures to Medicaid 

and SCHIP. The commenter stated that 

most other disclosures require the 

parents to take action by providing a 

check mark, for example, to indicate 

that their information may be disclosed. 

The commenter believes that 

consistency would be less confusing for 

parents/guardians. Public Law 106–224 

mandates that disclosures to Medicaid 

and SCHIP be allowed to occur unless 

parents/guardians decline to have their 

information disclosed to the health 

insurance programs, (i.e., opt out). Also, 

it has been the Department’s longstanding policy and practice to require 

that determining agencies provide 

parents/guardians the opportunity to 

opt in when the determining agency 

provides parents/guardians a choice on 

whether they want their free and 

reduced price eligibility information 

used for other purposes. Providing 

parents/guardians with the opportunity 

to agree to have their information used 

for purposes other than for the purpose 

for which the information was originally 

provided, (i.e., for determining 

eligibility for free and reduced price 

meals), gives parents/guardians greater 

control over their personal information 

than the opt out approach. 

Final rule—For the reasons cited 

above, §§ 215.13a(i)(2), 225.15(i)(2), 

226.23(k)(2) and 245.6(h)(2) continue to 

require that determining agencies which 

have decided to disclose information to 

Medicaid and SCHIP provide parents/ 

guardians the opportunity to decline to 

have their information disclosed to 

those health insurance agencies (opt 

out). Sections 215.13a(j), 225.15(j), 

226.23(l) and 245.6(i) require that 

determining agencies that want to use 

free and reduced price meal eligibility 

information for other purposes or that 

want to disclose the information to 

programs and individuals who are not 

authorized to have access to household 

information by the statute must provide 

parents/guardians with the opportunity 

to consent to having their information 

disclosed. Additionally, no consent is 

required for disclosure to education and 

other programs permitted access to 

children’s eligibility status as provided 

in the statute. 

7. Disclosure of information obtained 

through the verification of eligibility 

process—The proposed rule included a 

provision to allow, without parental/ 

guardian consent, the disclosure of 

household information obtained from 

sources other than the free and reduced 

price application or through direct 

certification, such as information 

obtained through the verification 

process. The interim rule did not 

include a similar provision and, 

therefore, it is not included in current 

regulations. Five commenters to the 

proposed rule opposed the disclosure of 

information obtained through the 

verification process stating that this 

went beyond the disclosure provisions 

in the NSLA. The Department agrees 

that the disclosure of eligibility 

information should be limited to 

information provided by households on 

the application or obtained through 

direct certification, as specified in the 

statute and should not include 

information obtained through the 

verification process. 

Final rule: For the reasons cited 

above, this final rule does not include 

authority for determining agencies to 

disclose information obtained through 

the verification of eligibility process. 

8. Persons authorized to receive 

children’s eligibility information and 

how the information must be used—The 

NSLA specifies that individuals 

authorized access to children’s 

eligibility information for health 

insurance purposes must be directly 

connected with the administration of 

the Medicaid Program or SCHIP. 

Additionally, the NSLA requires that, 

for education and the other specified 

programs or activities listed, the 

individuals must be either directly 

connected with administration of the 

specified program or activity or directly 

connected to its enforcement. The 

Department has also specified in 

guidance that these authorized 

individuals also must have a need to 

know children’s eligibility information 

to carry out their duties, since the 

information must be used for program 

purposes. 

As mandated by the statute, current 

regulations specify that persons directly 

connected to the administration of 

Medicaid or SCHIP are permitted access 

to children’s eligibility information to 

identify children eligible for enrollment 

in Medicaid or SCHIP, provided that 

parents/guardians have not declined to 

have their information disclosed to 

those health insurance programs. Public 

Law 108–265 further allows 

determining agencies to communicate 

with Medicaid and SCHIP officials to 

verify children’s eligibility for a Child 

Nutrition Program. This provision is 

nondiscretionary and is being added to 

this final rule. Currently, 

§§ 215.13a(g)(3), 225.15(g)(3), 

226.23(i)(3), and 245.6(f)(3) define a 

person directly connected with 

Medicaid and SCHIP as State employees 

and persons authorized under Federal 

requirements to carry out initial 

processing of Medicaid or SCHIP 

applications or to make eligibility 

determinations. Please refer to the 

interim rule for a detailed discussion. 

Persons directly connected with the 

administration or enforcement of 

Federal and State education programs 

and several of the other programs 

authorized access to children’s 

eligibility information under Public Law 

103–448 are not as clearly defined. Also, 

whereas Public Law 106–224 had 

mandated that children’s free and 

reduced price meal information must be 

used specifically to identify and enroll 

eligible children in Medicaid or SCHIP, 

Public Law 103–448 did not include a 

clear directive that the information must 

be used for a specific purpose. The 

Department has specified the 

information must be used for a 

legitimate program purpose of the 

receiving program. 

In 2002 and 2003, joint memoranda 

were issued by the Department of 

Education and the Department of 

Agriculture (USDA) regarding the use of 

free and reduced price meal eligibility 

in implementing the No Child Left 


hsrobinson on PROD1PC76 with RULES
10890 Federal Register / Vol. 72, No. 47 / Monday, March 12, 2007 / Rules and Regulations 

Behind provisions. The memorandum, 

Guidance on Implementing the No 

Child Left Behind Act (NCLB), 

December 17, 2002, can be found on the 

USDA Food and Nutrition Service Web 

site at http://www.fns.usda.gov/cnd/ 

lunch/ and then click on ‘‘Policy.’’ A 

follow-up memorandum on 

implementing NCLB in Provision 2 and 

3 schools was later issued on February 

20, 2003. However, there remains some 

confusion regarding the Department of 

Education’s requirements under the No 

Child Left Behind Act of 2001 (NCLB) 

and the relationship to children’s free 

and reduced price eligibility 

information. (NCLB reauthorized Title I, 

Part A of the Elementary and Secondary 

Education Act.) 

Title I, Part A, as amended by NCLB, 

requires schools to disaggregate 

information about children, such as by 

limited English proficiency, gender, 

socio-economic status, etc. Certain 

educational services, such as priority in 

school choice and remedial programs, 

are required under NCLB to be provided 

to disadvantaged students. 

Schools tend to use certification for 

free and reduced price school meals to 

determine that children are 

economically disadvantaged. The 

question has arisen whether each 

teacher in a school, because they are 

providing educational services under 

NCLB, is considered directly connected 

to NCLB administration, a Federal 

education program. The disclosure of 

meal eligibility information must be 

limited to as few individuals as possible 

to protect the confidential nature of the 

information. All teachers in the school 

do not need to know the names of all 

children eligible for free and reduced 

price meals. Rather, most teachers only 

need to know which children need the 

additional services. A list of children 

needing services, without identifying 

the children as eligible for free or 

reduced price meals, may be provided 

to the teachers by someone who was 

associated with the free and reduced 

price meal eligibility process, such as a 

determining official. 

Several commenters to the proposed 

rule requested that the final rule clearly 

define who are persons directly 

connected with program administration 

or enforcement. Additionally several 

other commenters believe that the need 

to know criteria are too broad. We 

acknowledge commenters concerns that 

often it is difficult to determine who are 

the persons directly connected with a 

program and whether they have a 

legitimate need to know. With that in 

mind, determining agencies will need to 

make careful and well informed 

judgments. 

Public Law 108–265 added certain 

third party contractors as eligible 

recipients of children’s free or reduced 

price eligibility status only. These 

contractors must be assisting in 

contacting households who have not 

responded to the schools’ verification of 

eligibility efforts. Contracts providing 

for such assistance services must 

include confidentiality assurances, 

binding contractors to follow the 

provisions of the NSLA and program 

regulations. 

Final rule—The description of 

persons directly connected to the 

administration of Medicaid and SCHIP 

remains as stated in current regulations. 

The description and how the 

information may be used are included 

in §§ 215.13a(h), 225.15(h), 226.23(j) 

and 245.6(g). For persons directly 

connected to education and other 

programs and activities authorized by 

Public Law 103–448, the proposed rule 

is adopted in this final rule. These 

descriptions and how children’s 

eligibility information may be used are 

included at §§ 215.13a(g), 225.15(g), 

226.23(i) and 245.6(f). 

9. Agreement/Memorandum of 

Understanding—Sections 215.13a(g)(7), 

225.15(g)(7), 226.23(i)(7), and 245.6(f)(7) 

currently require determining agencies 

that choose to disclose children’s 

eligibility information to Medicaid and 

SCHIP to have an agreement or 

Memorandum of Understanding (MOU) 

with the receiving agency. In the case of 

disclosures to Medicaid or SCHIP, an 

agreement/MOU is mandated by the 

NSLA and is, therefore, 

nondiscretionary. The agreement/MOU 

would include such provisions as who 

will receive the information, how the 

information will be used, how it will be 

protected from unauthorized uses and 

third party disclosures, and 

acknowledgement of the penalties for 

misuse of the information. The NSLA 

does not require or address an 

agreement or MOU between the 

determining agency and other 

individuals or agencies to which 

children’s eligibility status or other 

information is disclosed. However, in 

the preamble to the proposed rule, we 

strongly recommended that determining 

agencies consider using an agreement. 

Two commenters advised that an 

agreement/MOU should be required for 

all disclosures of confidential 

information. The Department agrees and 

expects that the determining agency 

should have a written record of 

individuals and programs that are 

provided children’s eligibility status 

and/or all eligibility information. An 

agreement/MOU or other type of written 

record would serve to advise recipients 

of their responsibilities to maintain the 

confidential nature of the information, 

guard against its misuse, and put the 

recipient on notice of the penalties for 

misuse of the information. The 

Department will let determining 

agencies decide whether a formal or 

other type of agreement is necessary, 

such as a list of persons and programs 

granted access to eligibility information. 

Except for disclosure to Medicaid and 

SCHIP, the regulations will continue to 

recommend, rather than require, that 

determining agencies use an agreement/ 

MOU when disclosing children’s 

eligibility information to other 

individuals or agencies. 

Final rule—Sections 215.13a(k), 

225.15(k), 226.23(m), and 245.6 (j) 

require that determining agencies have 

an agreement/MOU for disclosures to 

Medicaid and SCHIP and recommend 

that the determining agency and other 

recipient agencies enter into an 

agreement/MOU prior to the disclosure 

of children’s free and reduced price 

eligibility information for other 

purposes. 

10. Penalties—The NSLA specifies a 

fine of not more than $1000 and 

imprisonment for up to 1 year for 

unauthorized disclosures and misuse of 

children’s eligibility information. This 

provision is nondiscretionary. The 

provision was included in both the 

proposed and interim rules. 

Final rule—This final rule retains the 

penalties stated above at §§ 215.13a(l), 

225.15(l), 226.23(n) and 245.6(k). 

11. Technical Amendments—This 

rule also makes several technical 

amendments to correct or remove 

obsolete references or provisions. 

Section 210.19(c)(6)(ii) is revised to 

replace the acronym AFDC (Aid to 

Families with Dependent Children) with 

the acronym TANF (Temporary 

Assistance for Needy Families), the 

acronym for the program that replaced 

AFDC, and adding the words ‘‘other 

FDPIR identifier’’ in §§ 210.19(c)(6)(ii) 

and 245.2(a-4)(ii) to clarify that in some 

cases households participating in FDPIR 

do not have a case number, but instead 

are issued another type of identifier. 

Additionally, corrections are made to 

the definitions ‘‘School’’ in § 215.2 and 

‘‘Children’’ in §§ 210.2 and 220.2 to 

remove incorrect citations or references. 

Procedural Matters 

Executive Order 12866 

This rule has been determined to be 

significant and was reviewed by the 

Office of Management and Budget under 

Executive Order 12866. 


hsrobinson on PROD1PC76 with RULES
Federal Register / Vol. 72, No. 47 / Monday, March 12, 2007 / Rules and Regulations 10891 

Regulatory Impact Analysis 

Need for Action 

This final rule provides for the 

statutory limitations under which 

children’s free and reduced price meal 

or free milk eligibility information may 

be disclosed, without parental/guardian 

consent. This final rule provides State 

agencies and local program operators 

that administer the Child Nutrition 

Programs, as well as households which 

apply for and/or are approved for free 

and reduced price meals or free milk the 

specifics on how and when information 

may be disclosed. This final rule reflects 

the disclosure provisions of the Healthy 

Meals for Healthy Americans Act of 

1994 as well as the disclosure 

provisions of the Agricultural Risk 

Protection Act of 2000. Additionally, in 

accordance with the mandates of the 

Child Nutrition and WIC 

Reauthorization Act of 2004, this final 

rule will allow certain third party 

contractors access to children’s 

eligibility status and will allow school 

officials to communicate with Medicaid 

and SCHIP officials to verify that 

children are eligible for free and 

reduced price school meals or free milk. 

Benefits 

Potential benefits from the sharing of 

meal benefit eligibility data include 

reducing redundant means testing, 

increasing the number of needy families 

being reached by assistance programs, 

improving targeting of U.S. Department 

of Education’s programs for needy 

children, and increasing the integrity of 

certain assistance programs. The 

disclosure provisions are intended to 

reduce paperwork for administrators of 

certain programs that target low-income 

households and for low-income 

households who may benefit from those 

programs by allowing some sharing of 

household’s free and reduced price meal 

eligibility information. 

Costs 

Potential costs include an additional 

administrative burden imposed on 

school food authorities, privacy 

infringement on some families, and an 

increase in program costs for programs 

that acquire meal benefit eligibility data 

through this rule. These costs are not 

expected to be significant. Based on the 

regulatory impact analysis as well as 

comments received on the proposed 

rule, the potential benefits of the final 

rule are expected to outweigh the 

potential costs. 

Regulatory Flexibility Act 

This final rule has been reviewed 

with regard to the requirements of the 

Regulatory Flexibility Act (5 U.S.C. 

601–612). Nancy Montanez Johner, 

Under Secretary for Food, Nutrition and 

Consumer Services, has certified that 

this rule will not have a significant 

economic impact on a substantial 

number of small entities. While a 

regulatory impact analysis was 

conducted to determine the costs and 

benefits of the rule, the potential costs 

and benefits are too diverse and too 

uncertain to be quantified. The parents 

and guardians of children applying for 

free or reduced price meal benefits or 

free milk will be impacted by the 

disclosure provisions as well as school 

districts required to maintain 

confidentiality. 

Unfunded Mandates Reform Act 

Title II of the Unfunded Mandates 

Reform Act of 1995 (UMRA), Public 

Law 104–4, establishes a requirement 

for Federal agencies to assess the effects 

of their regulatory actions on State, 

local, and tribal governments and the 

private sector. Under section 202 of the 

UMRA, FNS generally prepares a 

written statement, including a costbenefit analysis. This is done for 

proposed and final rules that have 

‘‘Federal mandates’’ which may result 

in expenditures of $100 million or more 

in any one year by State, local, or tribal 

governments, in the aggregate, or by the 

private sector. When this statement is 

needed for a rule, section 205 of the 

UMRA generally requires FNS to 

identify and consider a reasonable 

number of regulatory alternatives. It 

must then adopt the least costly, most 

cost-effective or least burdensome 

alternative that achieves the objectives 

of the rule. 

This final rule contains no Federal 

mandates of $100 million or more in 

any one year (under regulatory 

provisions of Title II of the UMRA) for 

State, local, and tribal governments or 

the private sector. Thus, this final rule 

is not subject to the requirements of 

sections 202 and 205 of the UMRA. 

Executive Order 12372 

The School Breakfast Program, 

National School Lunch Program, Special 

Milk Program, the Summer Food 

Service Program, and the Child and 

Adult Care Food Program are listed in 

the Catalog of Federal Domestic 

Assistance under Nos. 10.553, 10.555, 

10.556, 10.559, and 10.558 respectively. 

These programs are subject to the 

provisions of Executive Order 12372, 

which requires intergovernmental 

consultation with State and local 

officials (7 CFR Part 3015, Subpart V, 

and final rule related notice at 48 FR 

29115, June 24, 1983). 

Federalism Summary Impact Statement 

Executive Order 13132 requires 

Federal agencies to consider the impact 

of their regulatory actions on State and 

local governments. Where such actions 

have ‘‘federalism implications,’’

agencies are directed to provide a 

statement for inclusion in the preamble 

to the regulation describing the agency’s 

considerations in terms of the three 

categories called for under section 

(6)(a)(B) of Executive Order 13132: 

Prior Consultation With State Officials 

Prior to drafting this final rule, we 

received input from State and local 

agencies at various times. The Child 

Nutrition Programs (CNP) are State 

administered, federally funded 

programs. Food and Nutrition Service 

headquarters and regional staff have 

informal and formal discussions with 

State and local officials on an ongoing 

basis regarding program implementation 

and performance. This arrangement 

allows State and local agencies to 

provide feedback that forms the basis for 

any discretionary decisions in this and 

other CNP rules. The provisions in this 

rule are primarily non-discretionary in 

response to Public Law 103–448, Public 

Law 106–224 and Public Law 108–265. 

However, we received comments to the 

proposed and interim rules from State 

agencies and school food authorities 

which were taken into consideration in 

developing this final rule. 

Nature of Concerns and the Need To 

Issue This Rule 

State and local agencies are generally 

concerned about protecting the 

confidentiality of children’s eligibility 

information. They are also concerned 

about the paperwork and financial 

burdens placed on food service to 

provide eligibility information to 

Medicaid and SCHIP officials and the 

numerous Federal and State education 

and other programs that request the 

information throughout the year. 

The issuance of this regulation is 

required by amendments made to the 

Richard B. Russell National School 

Lunch Act by Public Law 103–448, 

Public Law 106–224 and Public Law 

108–265. Prior to those amendments, 

program official could only disclose 

children’s eligibility information with 

parental consent. This rule establishes 

and codifies the requirements for any 

disclosure of children’s eligibility 

information. 

Extent to Which We Meet These 

Concerns 

We believe that we adequately 

address the issue of State and local 

flexibility. We clarify (consistent with 


hsrobinson on PROD1PC76 with RULES
10892 Federal Register / Vol. 72, No. 47 / Monday, March 12, 2007 / Rules and Regulations 

the requirements of this rule) that the 

disclosures of children’s eligibility 

information for use other than to 

determine and verify eligibility for free 

and reduced price meals or free milk is 

a State and local decision. Officials are 

not required to disclose children’s 

eligibility information. When an 

exchange of information is agreed upon, 

we encourage State and local agencies to 

work with the receiving agency officials 

to make the exchange of eligibility 

information as streamlined as possible. 

Additionally, we have issued prototype 

materials, such as a prototype agreement 

between program operators and an 

agency receiving eligibility information 

and a prototype notification to parents/ 

guardians a school may use to explain 

to parents that their children’s eligibility 

information may be disclosed. 

Additionally, we have clarified through 

guidance that the school food service 

may require reimbursement for 

administrative costs of providing free 

and reduced price eligibility 

information to other programs. 

Federal and State education programs 

are the most frequent users of children’s 

free and reduced price meal eligibility 

information. We encourage food service 

and the education community to work 

together to minimize the burdens on 

food service to limit requests for free 

and reduced price meal eligibility 

information to the extent possible. In 

this regard, Department of Education 

and Food and Nutrition Service officials 

have issued joint memoranda on the 

issue of disclosure of children’s free and 

reduced price eligibility information. 

These memoranda may be viewed at 

http://www.fns.usda.gov/cnd/lunch/ 

and then click on ‘‘Policy.’’

Executive Order 12988 

This final rule has been reviewed 

under Executive Order 12988, Civil 

Justice Reform. It is intended to have 

preemptive effect with respect to any 

State or local laws, regulations or 

policies which conflict with its 

provisions or which would impede its 

full implementation. This rule is not 

intended to have retroactive effect 

unless that is specified in the Effective 

Date section of the preamble of the final 

rule. Before any judicial challenge to the 

provisions of this rule or the application 

of its provisions, all administrative 

procedures that apply must be followed. 

The only administrative appeal 

procedures relevant to this rule are the 

hearings that FNS must provide for 

decisions relating to eligibility for free 

and reduced price meals and free milk 

(§ 245.7 for the NSLP, SBP, and SMP in 

schools; § 225.13 for the SFSP, and 

§ 226.23(e)(5) for the CACFP). 

Civil Rights Impact Analysis 

FNS has reviewed this final rule in 

accordance with the Department 

Regulation 4300–4, ‘‘Civil Rights Impact 

Analysis,’’ to identify any major civil 

rights impacts the rule might have on 

children on the basis of race, color, 

national origin, sex, age or disability. 

After a careful review of the rule’s intent 

and provisions, FNS has determined 

that it does not affect the participation 

of protected individuals in the Child 

Nutrition Programs. 

Paperwork Reduction Act 

The Paperwork Reduction Act of 1995 

(44 U.S.C. Chap. 35; see 5 CFR 1320) 

requires that the Office of Management 

and Budget (OMB) approve all 

collections of information by a Federal 

agency before they can be implemented. 

Respondents are not required to respond 

to any collection of information unless 

it displays a current valid OMB control 

number. Information collections in this 

final rule have been approved by OMB 

under OMB control numbers 0584–

0005, 0584–0280, 0584–0055, and 0584–

0026. 

E-Government Act Compliance 

FNS is committed to compliance with 

the E-Government Act to promote the 

use of the Internet and other 

information technologies to provide 

increased opportunities for citizen 

access to Government information and 

services and for other purposes. 

List of Subjects 

7 CFR Part 210 

Children, Commodity School 

Program, Food assistance programs, 

Grants programs-social programs, 

National School Lunch Program, 

Nutrition, Reporting and recordkeeping 

requirements, Surplus agricultural 

commodities. 

7 CFR Part 215 

Food assistance programs, Grant 

programs-education, Grant programshealth, Infants and children, Milk, 

Reporting and recordkeeping 

requirements. 

7 CFR Part 220 

Children, Food assistance programs, 

Grants programs-social programs, 

Nutrition, Reporting and recordkeeping 

requirements, School Breakfast Program. 

7 CFR Part 225 

Food assistance programs, Grant 

programs-health, Infants and children, 

Labeling, Reporting and recordkeeping 

requirements. 

7 CFR Part 226 

Accounting, Aged, Day care, Food 

assistance programs, Grant programs, 

Grant programs-health, American 

Indians, Individuals with disabilities, 

Infants and children, Intergovernmental 

relations, Loan programs, Reporting and 

recordkeeping requirements, Surplus 

agricultural commodities. 

7 CFR Part 245 

Civil rights, Food assistance 

programs, Grant programs-education, 

Grant programs-health, Infants and 

children, Milk, Reporting and 

recordkeeping requirements, School 

breakfast and lunch programs. 

■ Accordingly, 7 CFR Parts 210, 215, 

220, 225, 226, and 245 are amended as 

follows: 

PART 210—NATIONAL SCHOOL 

LUNCH PROGRAM 

■ 1. The authority citation for Part 210 

continues to read as follows: 

Authority: 42 U.S.C. 1751—1760, 1779. 

§ 210.2 [Amended] 

■ 2. In § 210.2, remove the phrase ‘‘and 

(d)’’ in paragraph (b) of the definition 

Child in the alphabetical listing. 

■ 3. In § 210.19, revise paragraph 

(c)(6)(ii) to read as follows: 

§ 210.19 Additional responsibilities. 

* * * * * 

(c) * * * 

(6) * * * 

(ii) When any review or audit reveals 

that a school food authority is approving 

applications which indicate that the 

households’ incomes are within the 

Income Eligibility Guidelines issued by 

the Department or the applications 

contain food stamp or TANF case 

numbers or FDPIR case numbers or 

other FDPIR identifiers but the 

applications are missing the 

documentation specified under 

§ 245.2(a–4)(1)(ii); or 

* * * * * 

PART 215—SPECIAL MILK PROGRAM 

FOR CHILDREN 

■ 1. The authority citation for part 215 

continues to read as follows: 

Authority: 42 U.S.C. 1772 and 1779. 

■ 2. In § 215.2, amend paragraph (e–1) 

by removing the phrase ‘‘and 4’’ and 

revise paragraph (i–1) to read as follows: 

§ 215.2 Definitions. 

* * * * * 

(i–1) Disclosure means reveal or use 

individual children’s program eligibility 

information obtained through the free 


hsrobinson on PROD1PC76 with RULES
Federal Register / Vol. 72, No. 47 / Monday, March 12, 2007 / Rules and Regulations 10893 

milk eligibility process for a purpose 

other than for the purpose for which the 

information was obtained. The term 

refers to access, release, or transfer of 

personal data about children by means 

of print, tape, microfilm, microfiche, 

electronic communication or any other 

means. 

* * * * * 

■ 3. In § 215.13a, revise paragraphs (f) 

and (g) and add new paragraphs (h) 

through (l) to read as follows: 

§ 215.13a Determining eligibility for free 

milk in child-care institutions. 

* * * * * 

(f) Privacy Act notice requirements. 

The free milk application provided to 

households must include a Privacy Act 

notice/statement informing households 

of how the social security number and 

other information provided on the 

application will be used. Each free milk 

application must include substantially 

the following statement, ‘‘The Richard 

B. Russell National School Lunch Act 

requires the information on this 

application. You do not have to give the 

information, but if you do not, we 

cannot approve your child for free milk. 

You must include the social security 

number of the adult household member 

who signs the application. The social 

security number is not required when 

you apply on behalf of a foster child or 

you list a Food Stamp, Temporary 

Assistance for Needy Families (TANF) 

Program or Food Distribution Program 

on Indian Reservations (FDPIR) case 

number for your child or other FDPIR 

identifier or when you indicate that the 

adult household member signing the 

application does not have a social 

security number. We will use your 

information to determine if your child is 

eligible for free milk, and for 

administration and enforcement of the 

Program.’’ When the State agency or 

child care institution, as appropriate, 

plans to use or disclose children’s 

eligibility information for non-program 

purposes, additional information, as 

specified in paragraph (i) of this section 

must be added to the Privacy Act 

notice/statement. State agencies and 

child care institutions are responsible 

for drafting the appropriate notice and 

ensuring that the notice complies with 

section 7(b) of the Privacy Act of 1974 

(5 U.S.C. 552a note (Disclosure of Social 

Security Number)). 

(g) Disclosure of children’s free milk 

eligibility information to certain 

programs and individuals without 

parental consent. The State agency or 

child care institution, as appropriate, 

may disclose aggregate information 

about children eligible for free milk to 

any party without parental notification 

and consent when children cannot be 

identified through release of the 

aggregate data or by means of deduction. 

Additionally, the State agency or child 

care institution may disclose 

information that identifies children 

eligible for free milk to the programs 

and the individuals specified in this 

paragraph (g) without parent/guardian 

consent. The State agency or child care 

institution that makes the free milk 

eligibility determination is responsible 

for deciding whether to disclose 

program eligibility information. 

(1) Persons authorized to receive 

eligibility information. Only persons 

directly connected with the 

administration or enforcement of a 

program or activity listed in paragraphs 

(g)(2) or (g)(3) of this section may have 

access to children’s free milk eligibility 

information, without parental consent. 

Persons considered directly connected 

with administration or enforcement of a 

program or activity listed in paragraphs 

(g)(2) or (g)(3) of this section are Federal, 

State, or local program operators 

responsible for the ongoing operation of 

the program or activity or persons 

responsible for program compliance. 

Program operators may include persons 

responsible for carrying out program 

requirements and monitoring, 

reviewing, auditing, or investigating the 

program. Program operators may 

include contractors, to the extent those 

persons have a need to know the 

information for program administration 

or enforcement. Contractors may 

include evaluators, auditors, and others 

with whom Federal or State agencies 

and program operators contract with to 

assist in the administration or 

enforcement of their program on their 

behalf. 

(2) Disclosure of children’s names and 

free milk eligibility status. The State 

agency or child care institution, as 

appropriate, may disclose, without 

parental consent, only children’s names 

and eligibility status (whether they are 

eligible for free milk) to persons directly 

connected with the administration or 

enforcement of: 

(i) A Federal education program; 

(ii) A State health program or State 

education program administered by the 

State or local education agency; 

(iii) A Federal, State, or local meanstested nutrition program with eligibility 

standards comparable to the National 

School Lunch Program (i.e., food 

assistance programs for households with 

incomes at or below 185 percent of the 

Federal poverty level); or 

(iv) A third party contractor assisting 

in verification of eligibility efforts by 

contacting households who fail to 

respond to requests for verification of 

their eligibility. 

(3) Disclosure of all eligibility 

information. In addition to children’s 

names and eligibility status, the State 

agency or child care institution, as 

appropriate, may disclose, without 

parental consent, all eligibility 

information obtained through the free 

milk eligibility process (including all 

information on the application or 

obtained through direct certification) to: 

(i) Persons directly connected with 

the administration or enforcement of 

programs authorized under the Richard 

B. Russell National School Lunch Act or 

the Child Nutrition Act of 1966. This 

means that all eligibility information 

obtained for the Special Milk Program 

may be disclosed to persons directly 

connected with administering or 

enforcing regulations under the National 

School Lunch Program, School 

Breakfast Program, Child and Adult 

Care Food Program, Summer Food 

Service Program and the Special 

Supplemental Nutrition Program for 

Women, Infants and Children (WIC) 

(Parts 210, 220, 226, 225, and 246, 

respectively, of this chapter); 

(ii) The Comptroller General of the 

United States for purposes of audit and 

examination; and 

(iii) Federal, State, and local law 

enforcement officials for the purpose of 

investigating any alleged violation of the 

programs listed in paragraphs (g)(2) and 

(g)(3) of this section. 

(4) Use of free milk eligibility 

information by programs other than 

Medicaid or the State Children’s Health 

Insurance Program (SCHIP). State 

agencies and child care institutions may 

use children’s free milk eligibility 

information for administering or 

enforcing the Special Milk Program. 

Additionally, any other Federal, State, 

or local agency charged with 

administering or enforcing the Special 

Milk Program may use the information 

for that purpose. Individuals and 

programs to which children’s free milk 

eligibility information has been 

disclosed under this section may use the 

information only in the administration 

or enforcement of the receiving 

program. No further disclosure of the 

information may be made. 

(h) Disclosure of children’s free milk 

eligibility information to Medicaid and/ 

or SCHIP, unless parents decline. 

Children’s free milk eligibility 

information only may be disclosed to 

Medicaid or SCHIP when both the State 

agency and the child care institution so 

elect, the parent/guardian does not 

decline to have their eligibility 

information disclosed and the other 

provisions described in paragraph (h)(1) 


hsrobinson on PROD1PC76 with RULES
10894 Federal Register / Vol. 72, No. 47 / Monday, March 12, 2007 / Rules and Regulations 

of this section are met. The State agency 

or child care institution, as appropriate, 

may disclose children’s names, 

eligibility status (whether they are 

eligible for free milk), and any other 

eligibility information obtained through 

the free milk application or obtained 

through direct certification to persons 

directly connected with the 

administration of Medicaid or SCHIP. 

Persons directly connected to the 

administration of Medicaid and SCHIP 

are State employees and persons 

authorized under Federal and State 

Medicaid and SCHIP requirements to 

carry out initial processing of Medicaid 

or SCHIP applications or to make 

eligibility determinations for Medicaid 

or SCHIP. 

(1) The State agency must ensure that: 

(i) The child care institution and 

health insurance program officials have 

a written agreement that requires the 

health insurance program agency to use 

the eligibility information to seek to 

enroll children in Medicaid and SCHIP; 

and 

(ii) Parents/guardians are notified that 

their eligibility information may be 

disclosed to Medicaid or SCHIP and 

given an opportunity to decline to have 

their children’s eligibility information 

disclosed, prior to any disclosure. 

(2) Use of children’s free milk 

eligibility information by Medicaid/ 

SCHIP. Medicaid and SCHIP agencies 

and health insurance program operators 

receiving children’s free milk eligibility 

information must use the information to 

identify eligible children and enroll 

them in Medicaid or SCHIP. The 

Medicaid and SCHIP enrollment process 

may include targeting and identifying 

children from low-income households 

who are potentially eligible for 

Medicaid or SCHIP for the purpose of 

seeking to enroll them in Medicaid or 

SCHIP. No further disclosure of the 

information may be made. Medicaid and 

SCHIP agencies and health insurance 

program operators also may verify 

children’s eligibility in a program under 

the Child Nutrition Act of 1966 or the 

Richard B. Russell National School 

Lunch Act. 

(i) Notifying households of potential 

uses and disclosures of children’s free 

milk eligibility information. Households 

must be informed that the information 

they provide on the free milk 

application will be used to determine 

eligibility for free milk and that their 

eligibility information may be disclosed 

to other programs. 

(1) For disclosures to programs, other 

than Medicaid or SCHIP, that are 

permitted access to children’s eligibility 

information without parent/guardian 

consent, the State agency or child care 

institution, as appropriate, must notify 

parents/guardians at the time of 

application that their children’s free 

milk eligibility information may be 

disclosed. The State agency or child 

care institution, as appropriate, must 

add substantially the following 

statement to the Privacy Act notice/ 

statement required under paragraph (f) 

of this section, ‘‘We may share your 

eligibility information with education, 

health, and nutrition programs to help 

them evaluate, fund, or determine 

benefits for their programs; auditors for 

program reviews; and law enforcement 

officials to help them look into 

violations of program rules.’’ For 

children determined eligible for free 

milk through direct certification, the 

notice of potential disclosure may be 

included in the document informing 

parents/guardians of their children’s 

eligibility for free milk through direct 

certification process. 

(2) For disclosure to Medicaid or 

SCHIP, the State agency or child care 

institution, as appropriate, must notify 

parents/guardians that their children’s 

free milk eligibility information will be 

disclosed to Medicaid and/or SCHIP 

unless the parent/guardian elects not to 

have their information disclosed and 

notifies the State agency or child care 

institution, as appropriate, by a date 

specified by the State agency or child 

care institution, as appropriate. Only the 

parent or guardian who is a member of 

the household or family for purposes of 

the free milk application may decline 

the disclosure of eligibility information 

to Medicaid or SCHIP. The notification 

must inform parents/guardians that they 

are not required to consent to the 

disclosure, that the information, if 

disclosed, will be used to identify 

eligible children and seek to enroll them 

in Medicaid or SCHIP, and that their 

decision will not affect their children’s 

eligibility for free milk. The notification 

may be included in the letter/notice to 

parents/guardians that accompanies the 

free milk application, on the application 

itself or in a separate notice provided to 

parents/guardians. The notice must give 

parents/guardians adequate time to 

respond if they do not want their 

information disclosed. The State agency 

or child care institution, as appropriate, 

must add substantially the following 

statement to the Privacy Act notice/ 

statement required under paragraph (f) 

of this section, ‘‘We may share your 

information with Medicaid or the State 

Children’s Health Insurance Program, 

unless you tell us not to. The 

information, if disclosed, will be used to 

identify eligible children and seek to 

enroll them in Medicaid or SCHIP.’’ For 

children determined eligible for free 

milk through direct certification, the 

notice of potential disclosure and 

opportunity to decline the disclosure 

may be included in the document 

informing parents/guardians of their 

children’s eligibility for free milk 

through direct certification. 

(j) Other disclosures. State agencies 

and child care institutions that plan to 

use or disclose identifying information 

about children eligible for free milk to 

programs or individuals not specified in 

this section must obtain written consent 

from children’s parents or guardians 

prior to the use or disclosure. 

(1) The consent must identify the 

information that will be shared and how 

the information will be used. 

(2) There must be a statement 

informing parents and guardians that 

failing to sign the consent will not affect 

the child’s eligibility for free milk and 

that the individuals or programs 

receiving the information will not share 

the information with any other entity or 

program. 

(3) Parents/guardians must be 

permitted to limit the consent only to 

those programs with which they wish to 

share information. 

(4) The consent statement must be 

signed and dated by the child’s parent 

or guardian who is a member of the 

household for purposes of the free milk 

application. 

(k) Agreements with programs/ 

individuals receiving children’s free 

milk eligibility information. Agreements 

or Memoranda of Understanding (MOU) 

are recommended or required as 

follows: 

(1) The State agency or child care 

institution, as appropriate, should have 

a written agreement or MOU with 

programs or individuals receiving 

eligibility information, prior to 

disclosing children’s free milk eligibility 

information. The agreement or MOU 

should include information similar to 

that required for disclosures to 

Medicaid and SCHIP specified in 

paragraph (k)(2) of this section. 

(2) For disclosures to Medicaid or 

SCHIP, the State agency or child care 

institution, as appropriate, must have a 

written agreement with the State or 

local agency or agencies administering 

Medicaid or SCHIP prior to disclosing 

children’s free milk eligibility 

information to those agencies. At a 

minimum, the agreement must: 

(i) Identify the health insurance 

program or health agency receiving 

children’s eligibility information; 

(ii) Describe the information that will 

be disclosed; 

(iii) Require that the Medicaid or 

SCHIP agency use the information 


hsrobinson on PROD1PC76 with RULES
Federal Register / Vol. 72, No. 47 / Monday, March 12, 2007 / Rules and Regulations 10895 

obtained and specify that the 

information must be used to seek to 

enroll children in Medicaid or SCHIP; 

(iv) Require that the Medicaid or 

SCHIP agency describe how they will 

use the information obtained; 

(v) Describe how the information will 

be protected from unauthorized uses 

and disclosures; 

(vi) Describe the penalties for 

unauthorized disclosure; and 

(vii) Be signed by both the Medicaid 

or SCHIP program or agency and the 

State agency or child care institution, as 

appropriate. 

(l) Penalties for unauthorized 

disclosure or misuse of children’s free 

milk eligibility information. In 

accordance with section 9(b)(6)(C) of the 

Richard B. Russell National School 

Lunch Act (42 U.S.C. 1758(b)(6)(C)), any 

individual who publishes, divulges, 

discloses or makes known in any 

manner, or to any extent not authorized 

by statute or this section, any 

information obtained under this section 

will be fined not more than $1,000 or 

imprisoned for up to 1 year, or both. 

PART 220—SCHOOL BREAKFAST 

PROGRAM 

■ 1. The authority citation for Part 220 

continues to read as follows: 

Authority: 42 U.S.C. 1773, 1779, unless 

otherwise noted. 

§ 220.2 [Amended] 

■ 2. In § 220.2, amend paragraph (c) by 

removing phrase ‘‘and (4)’’. 

PART 225—SUMMER FOOD SERVICE 

PROGRAM 

■ 1. The authority citation for Part 225 

is amended to read as follows: 

Authority: Secs. 9, 13, and 14, Richard B. 

Russell National School Lunch Act, as 

amended (42 U.S.C. 1758, 1761 and 1762a). 

■ 2. In § 225.2, revise the definition 

Disclosure in the alphabetical list to 

read as follows: 

§ 225.2 Definitions. 

* * * * * 

Disclosure means reveal or use 

individual children’s program eligibility 

information obtained through the free 

and reduced price meal eligibility 

process for a purpose other than for the 

purpose for which the information was 

obtained. The term refers to access, 

release, or transfer of personal data 

about children by means of print, tape, 

microfilm, microfiche, electronic 

communication or any other means. 

* * * * * 

§ 225.6 [Amended] 

■ 3. In § 225.6: 

■ a. Amend paragraph (c)(2)(ii)(C) by 

removing the reference ‘‘§ 225.15(g)’’

and adding the reference ‘‘§ 225.15(h)’’

in its place; 

■ b. Amend paragraph (h)(1) by 

removing the references ‘‘§§ 225.15(g) 

and 225.17’’ and adding the references 

‘‘§§ 225.15(h) and 225.17’’ in their 

place; 

■ c. Amend paragraph (h)(2) (xvi) by 

removing the reference ‘‘§ 225.15(g)(6)—

(8)’’ and adding the reference ‘‘§ 225.15 

(h)(6) through (h)(8)’’ in its place; and 

■ d. Amend paragraph (h)(7) by 

removing the reference ‘‘§ 225.15(g)(1)’’

and adding the reference 

‘‘§ 225.15(h)(1)’’ in its place. 

■ 4. In § 225.15: 

■ a. Revise paragraphs (f)(4)(iv) and (g); 

and 

■ b. Redesignate paragraphs (h) and (i) 

as paragraphs (m) and (n), respectively, 

and add new paragraphs (h) through (l). 

The revisions and additions read as 

follows: 

§ 225.15 Management responsibilities of 

sponsors. 

* * * * * 

(f) * * * 

(4) * * * 

(iv) A Privacy Act notice informing 

households of how the social security 

number and other information provided 

on the application will be used. Each 

free and reduced price meal application 

must include substantially the following 

statement, ‘‘The Richard B. Russell 

National School Lunch Act requires the 

information on this application. You do 

not have to give the information, but if 

you do not, we cannot approve your 

child for free or reduced price meals. 

You must include the social security 

number of the adult household member 

who signs the application. The social 

security number is not required when 

you apply on behalf of a foster child or 

you list a Food Stamp, Temporary 

Assistance for Needy Families (TANF) 

Program or Food Distribution Program 

on Indian Reservations (FDPIR) case 

number for your child or other (FDPIR) 

identifier or when you indicate that the 

adult household member signing the 

application does not have a social 

security number. We will use your 

information to determine if your child is 

eligible for free or reduced price meals, 

and for administration and enforcement 

of the Program.’’ When the State agency 

or sponsor, as appropriate, plans to use 

or disclose children’s eligibility 

information for non-program purposes, 

additional information, as specified in 

paragraph (i) of this section, must be 

added to the Privacy Act notice/ 

statement. State agencies and sponsors 

are responsible for drafting the 

appropriate notice and ensuring that the 

notice complies with section 7(b) of the 

Privacy Act of 1974 (5 U.S.C. 552a note 

(Disclosure of Social Security Number)). 

* * * * * 

(g) Disclosure of children’s free and 

reduced price meal eligibility 

information to certain programs and 

individuals without parental consent. 

The State agency or sponsor, as 

appropriate, may disclose aggregate 

information about children eligible for 

free and reduced price meals to any 

party without parental notification and 

consent when children cannot be 

identified through release of the 

aggregate data or by means of deduction. 

Additionally, the State agency or 

sponsor may disclose information that 

identifies children eligible for free and 

reduced price meals to the programs 

and the individuals specified in this 

paragraph (g) without parent/guardian 

consent. The State agency or sponsor 

that makes the free and reduced price 

meal eligibility determination is 

responsible for deciding whether to 

disclose program eligibility information. 

(1) Persons authorized to receive 

eligibility information. Only persons 

directly connected with the 

administration or enforcement of a 

program or activity listed in paragraphs 

(g)(2) or (g)(3) of this section may have 

access to children’s free and reduced 

price meal eligibility information, 

without parental consent. Persons 

considered directly connected with 

administration or enforcement of a 

program or activity listed in paragraphs 

(g)(2) or (g)(3) of this section are Federal, 

State, or local program operators 

responsible for the ongoing operation of 

the program or activity or persons 

responsible for program compliance. 

Program operators may include persons 

responsible for carrying out program 

requirements and monitoring, 

reviewing, auditing, or investigating the 

program. Program operators may 

include contractors, to the extent those 

persons have a need to know the 

information for program administration 

or enforcement. Contractors may 

include evaluators, auditors, and others 

with whom Federal or State agencies 

and program operators contract with to 

assist in the administration or 

enforcement of their program in their 

behalf. 

(2) Disclosure of children’s names and 

free or reduced price meal eligibility 

status. The State agency or sponsor, as 

appropriate, may disclose, without 

parental consent, only children’s names 


hsrobinson on PROD1PC76 with RULES
10896 Federal Register / Vol. 72, No. 47 / Monday, March 12, 2007 / Rules and Regulations 

and eligibility status (whether they are 

eligible for free meals or reduced price 

meals) to persons directly connected 

with the administration or enforcement 

of: 

(i) A Federal education program; 

(ii) A State health program or State 

education program administered by the 

State or local education agency; 

(iii) A Federal, State, or local meanstested nutrition program with eligibility 

standards comparable to the National 

School Lunch Program (i.e., food 

assistance programs for households with 

incomes at or below 185 percent of the 

Federal poverty level); or 

(3) Disclosure of all eligibility 

information. In addition to children’s 

names and eligibility status, the State 

agency or sponsor, as appropriate, may 

disclose, without parental consent, all 

eligibility information obtained through 

the free and reduced price meal 

eligibility process (including all 

information on the application or 

obtained through direct certification) to: 

(i) Persons directly connected with 

the administration or enforcement of 

programs authorized under the Richard 

B. Russell National School Lunch Act or 

the Child Nutrition Act of 1966. This 

means that all eligibility information 

obtained for the Summer Food Service 

Program may be disclosed to persons 

directly connected with administering 

or enforcing regulations under the 

National School Lunch Program, Special 

Milk Program, School Breakfast 

Program, Child and Adult Care Food 

Program, and the Special Supplemental 

Nutrition Program for Women, Infants 

and Children (WIC) (parts 210, 215, 220, 

226 and 246, respectively, of this 

chapter); 

(ii) The Comptroller General of the 

United States for purposes of audit and 

examination; and 

(iii) Federal, State, and local law 

enforcement officials for the purpose of 

investigating any alleged violation of the 

programs listed in paragraphs (g)(2) and 

(g)(3) of this section. 

(4) Use of free and reduced price 

meals eligibility information by 

programs other than Medicaid or the 

State Children’s Health Insurance 

Program (SCHIP). State agencies and 

sponsors may use children’s free and 

reduced price meal eligibility 

information for administering or 

enforcing the Summer Food Service 

Program. Additionally, any other 

Federal, State, or local agency charged 

with administering or enforcing the 

Summer Food Service Program may use 

the information for that purpose. 

Individuals and programs to which 

children’s free or reduced price meal 

eligibility information has been 

disclosed under this section may use the 

information only in the administration 

or enforcement of the receiving 

program. No further disclosure of the 

information may be made. 

(h) Disclosure of children’s free or 

reduced price meal eligibility 

information to Medicaid and/or SCHIP, 

unless parents decline. Children’s free 

or reduced price meal eligibility 

information only may be disclosed to 

Medicaid or SCHIP when both the State 

agency and the sponsor so elect, the 

parental/guardian does not decline to 

have their eligibility information 

disclosed and the other provisions 

described in paragraph (h)(1) of this 

section are met. The State agency or 

sponsor, as appropriate, may disclose 

children’s names, eligibility status 

(whether they are eligible for free or 

reduced price meals), and any other 

eligibility information obtained through 

the free and reduced price meal 

applications or obtained through direct 

certification to persons directly 

connected with the administration of 

Medicaid or SCHIP. Persons directly 

connected to the administration of 

Medicaid and SCHIP are State 

employees and persons authorized 

under Federal and State Medicaid and 

SCHIP requirements to carry out initial 

processing of Medicaid or SCHIP 

applications or to make eligibility 

determinations for Medicaid or SCHIP. 

(1) The State agency must ensure that: 

(i) The sponsors and health insurance 

program officials have a written 

agreement that requires the health 

insurance program agency to use the 

eligibility information to seek to enroll 

children in Medicaid and SCHIP; and 

(ii) Parents/guardians are notified that 

their eligibility information may be 

disclosed to Medicaid or SCHIP and 

given an opportunity to decline to have 

their children’s eligibility information 

disclosed, prior to any disclosure. 

(2) Use of children’s free and reduced 

price meal eligibility information by 

Medicaid/SCHIP. Medicaid and SCHIP 

agencies and health insurance program 

operators receiving children’s free and 

reduced price meal eligibility 

information must use the information to 

seek to enroll children in Medicaid or 

SCHIP. The Medicaid and SCHIP 

enrollment process may include 

targeting and identifying children from 

low-income households who are 

potentially eligible for Medicaid or 

SCHIP for the purpose of seeking to 

enroll them in Medicaid or SCHIP. No 

further disclosure of the information 

may be made. Medicaid and SCHIP 

agencies and health insurance program 

operators also may verify children’s 

eligibility in a program under the Child 

Nutrition Act of 1966 or the Richard B. 

Russell National School Lunch Act. 

(i) Notifying households of potential 

uses and disclosures of children’s free 

and reduced price meal eligibility 

information. Households must be 

informed that the information they 

provide on the free and reduced price 

meal application will be used to 

determine eligibility for free or reduced 

price meals and that their eligibility 

information may be disclosed to other 

programs. 

(1) For disclosures to programs, other 

than Medicaid or the State Children’s 

Health Insurance Program (SCHIP), that 

are permitted access to children’s 

eligibility information, without 

parental/guardian consent, the State 

agency or sponsor, as appropriate, must 

notify parents/guardians at the time of 

application that their children’s free or 

reduced price meal eligibility 

information may be disclosed. The State 

agency or sponsor, as appropriate, must 

add substantially the following 

statement to the Privacy Act notice/ 

statement required under paragraph 

(f)(4)(iv) of this section, ‘‘We may share 

your eligibility information with 

education, health, and nutrition 

programs to help them evaluate, fund, 

or determine benefits for their programs; 

auditors for program reviews; and law 

enforcement officials to help them look 

into violations of program rules.’’ For 

children determined eligible for free 

meals through the direct certification, 

the notice of potential disclosure may be 

included in the document informing 

parents/guardians of their children’s 

eligibility for free meals through direct 

certification. 

(2) For disclosure to Medicaid or 

SCHIP, the State agency or sponsor, as 

appropriate, must notify parents/ 

guardians that their children’s free or 

reduced price meal eligibility 

information will be disclosed to 

Medicaid and/or SCHIP unless the 

parent/guardian elects not to have their 

information disclosed and notifies the 

State agency or sponsor, as appropriate, 

by a date specified by the State agency 

or sponsor, as appropriate. Only the 

parent or guardian who is a member of 

the household or family for purposes of 

the free and reduced price meal 

application may decline the disclosure 

of eligibility information to Medicaid or 

SCHIP. The notification must inform 

parents/guardians that they are not 

required to consent to the disclosure, 

that the information, if disclosed, will 

be used to identify eligible children and 

seek to enroll them in Medicaid or 

SCHIP, and that their decision will not 

affect their children’s eligibility for free 

or reduced price meals. The notification 


hsrobinson on PROD1PC76 with RULES
Federal Register / Vol. 72, No. 47 / Monday, March 12, 2007 / Rules and Regulations 10897 

may be included in the letter/notice to 

parents/guardians that accompanies the 

free and reduced price meal application, 

on the application itself or in a separate 

notice provided to parents/guardians. 

The notice must give parents/guardians 

adequate time to respond if they do not 

want their information disclosed. The 

State agency or sponsor, as appropriate, 

must add substantially the following 

statement to the Privacy Act notice/ 

statement required under paragraph (f) 

of this section, ‘‘We may share your 

information with Medicaid or the State 

Children’s Health Insurance Program, 

unless you tell us not to. The 

information, if disclosed, will be used to 

identify eligible children and seek to 

enroll them in Medicaid or SCHIP.’’ For 

children determined eligible for free 

meals through direct certification, the 

notice of potential disclosure and 

opportunity to decline the disclosure 

may be included in the document 

informing parents/guardians of their 

children’s eligibility for free meals 

through direct certification process. 

(j) Other disclosures. State agencies 

and sponsors that plan to use or disclose 

information about children eligible for 

free and reduced price meals in ways 

not specified in this section must obtain 

written consent from children’s parents 

or guardians prior to the use or 

disclosure. 

(1) The consent must identify the 

information that will be shared and how 

the information will be used. 

(2) There must be a statement 

informing parents and guardians that 

failing to sign the consent will not affect 

the child’s eligibility for free meals and 

that the individuals or programs 

receiving the information will not share 

the information with any other entity or 

program. 

(3) Parents/guardians must be 

permitted to limit the consent only to 

those programs with which they wish to 

share information. 

(4) The consent statement must be 

signed and dated by the child’s parent 

or guardian who is a member of the 

household for purposes of the free and 

reduced price meal application. 

(k) Agreements with programs/ 

individuals receiving children’s free or 

reduced price meal eligibility 

information. Agreements or Memoranda 

of Understanding (MOU) are 

recommended or required as follows: 

(1) The State agency or sponsor, as 

appropriate, should have a written 

agreement or MOU with programs or 

individuals receiving eligibility 

information, prior to disclosing 

children’s free and reduced price meal 

eligibility information. The agreement 

or MOU should include information 

similar to that required for disclosures 

to Medicaid and SCHIP specified in 

paragraph (k)(2) of this section. 

(2) For disclosures to Medicaid or 

SCHIP, the State agency or sponsor, as 

appropriate, must have a written 

agreement with the State or local agency 

or agencies administering Medicaid or 

SCHIP prior to disclosing children’s free 

or reduced price meal eligibility 

information to those agencies. At a 

minimum, the agreement must: 

(i) Identify the health insurance 

program or health agency receiving 

children’s eligibility information; 

(ii) Describe the information that will 

be disclosed; 

(iii) Require that the Medicaid or 

SCHIP agency use the information 

obtained and specify that the 

information must be used to seek to 

enroll children in Medicaid or SCHIP; 

(iv) Require that the Medicaid or 

SCHIP agency describe how they will 

use the information obtained; 

(v) Describe how the information will 

be protected from unauthorized uses 

and disclosures; 

(vi) Describe the penalties for 

unauthorized disclosure; and 

(vii) Be signed by both the Medicaid 

or SCHIP program or agency and the 

State agency or sponsor, as appropriate. 

(l) Penalties for unauthorized 

disclosure or misuse of children’s free 

and reduced price meal eligibility 

information. In accordance with section 

9(b)(6)(C) of the Richard B. Russell 

National School Lunch Act (42 U.S.C. 

1758(b)(6)(C)), any individual who 

publishes, divulges, discloses or makes 

known in any manner, or to any extent 

not authorized by statute or this section, 

any information obtained under this 

section will be fined not more than 

$1,000 or imprisoned for up to 1 year, 

or both. 

* * * * * 

PART 226—CHILD AND ADULT CARE 

FOOD PROGRAM 

■ 1. The authority citation for part 226 

continues to read as follows: 

Authority: SECS. 9, 11, 14, 16, and 17, 

Richard B. Russell National School Lunch 

Act, as amended (42 U.S.C. 1758, 1759a, 

1762a, 1765 and 1766). 

■ 2. In § 226.2, revise the definition 

Disclosure in the alphabetical list to 

read as follows: 

§ 226.2 Definitions. 

* * * * * 

Disclosure means reveal or use 

individual children’s program eligibility 

information obtained through the free 

and reduced price meal eligibility 

process for a purpose other than for the 

purpose for which the information was 

obtained. The term refers to access, 

release, or transfer of personal data 

about children by means of print, tape, 

microfilm, microfiche, electronic 

communication or any other means. 

* * * * * 

■ 3. In § 226.23, revise paragraphs 

(e)(1)(ii) (F) and (i) and add new 

paragraphs (j) through (n) at the end to 

read as follows: 

§ 226.23 Free and reduced-price meals. 

* * * * * 

(e)(1) * * * 

(ii) * * * 

(F) A statement that includes 

substantially the following information, 

‘‘The Richard B. Russell National 

School Lunch Act requires the 

information on this application. You do 

not have to give the information, but if 

you do not, we cannot approve your 

child for free or reduced price meals. 

You must include the social security 

number of the adult household member 

who signs the application. The social 

security number is not required when 

you apply on behalf of a foster child or 

you list a Food Stamp, Temporary 

Assistance for Needy Families (TANF) 

Program or Food Distribution Program 

on Indian Reservations (FDPIR) case 

number for your child or other (FDPIR) 

identifier or when you indicate that the 

adult household member signing the 

application does not have a social 

security number. We will use your 

information to determine if your child is 

eligible for free or reduced price meals, 

and for administration and enforcement 

of the Program.’’ When the State agency 

or child care institution, as appropriate, 

plans to use or disclose children’s 

eligibility information for non-program 

purposes, additional information, as 

specified in paragraph (k) of this 

section, must be added to the Privacy 

Act notice/statement. State agencies and 

child care institutions are responsible 

for drafting the appropriate notice and 

ensuring that the notice complies with 

section 7(b) of the Privacy Act of 1974 

(5 U.S.C. 552a note (Disclosure of Social 

Security Number)); and 

* * * * * 

(i) Disclosure of children’s free and 

reduced price meal eligibility 

information to certain programs and 

individuals without parental consent. 

The State agency or child care 

institution, as appropriate, may disclose 

aggregate information about children 

eligible for free and reduced price meals 

to any party without parental 

notification and consent when children 

cannot be identified through release of 


hsrobinson on PROD1PC76 with RULES
10898 Federal Register / Vol. 72, No. 47 / Monday, March 12, 2007 / Rules and Regulations 

the aggregate data or by means of 

deduction. Additionally, the State 

agency or institution may disclose 

information that identifies children 

eligible for free and reduced price meals 

to the programs and the individuals 

specified in this paragraph (i) without 

parental/guardian consent. The State 

agency or child care institution that 

makes the free and reduced price meal 

eligibility determination is responsible 

for deciding whether to disclose 

program eligibility information. 

(1) Persons authorized to receive 

eligibility information. Only persons 

directly connected with the 

administration or enforcement of a 

program or activity listed in paragraphs 

(i)(2) or (i)(3) of this section may have 

access to children’s free milk eligibility 

information, without parental consent. 

Persons considered directly connected 

with administration or enforcement of a 

program or activity listed in paragraphs 

(i)(2) or (i)(3) of this section are Federal, 

State, or local program operators 

responsible for the ongoing operation of 

the program or activity or persons 

responsible for program compliance. 

Program operators may include persons 

responsible for carrying out program 

requirements and monitoring, 

reviewing, auditing, or investigating the 

program. Program operators may 

include contractors, to the extent those 

persons have a need to know the 

information for program administration 

or enforcement. Contractors may 

include evaluators, auditors, and others 

with whom Federal or State agencies 

and program operators contract with to 

assist in the administration or 

enforcement of their program in their 

behalf. 

(2) Disclosure of children’s names and 

free or reduced price meal eligibility 

status. The State agency or child care 

institution, as appropriate, may 

disclose, without parental consent, only 

children’s names and eligibility status 

(whether they are eligible for free meals 

or reduced price meals) to persons 

directly connected with the 

administration or enforcement of: 

(i) A Federal education program; 

(ii) A State health program or State 

education program administered by the 

State or local education agency; 

(iii) A Federal, State, or local meanstested nutrition program with eligibility 

standards comparable to the National 

School Lunch Program (i.e., food 

assistance programs for households with 

incomes at or below 185 percent of the 

Federal poverty level); or 

(iv) A third party contractor assisting 

in verification of eligibility efforts by 

contacting households who fail to 

respond to requests for verification of 

their eligibility. 

(3) Disclosure of all eligibility 

information. In addition to children’s 

names and eligibility status, the State 

agency or child care institution, as 

appropriate, may disclose, without 

parental/guardian consent, all eligibility 

information obtained through the free 

and reduced price meal eligibility 

process (including all information on 

the application or obtained through 

direct certification) to: 

(i) Persons directly connected with 

the administration or enforcement of 

programs authorized under the Richard 

B. Russell National School Lunch Act or 

the Child Nutrition Act of 1966. This 

means that all eligibility information 

obtained for the Child and Adult Care 

Food Program may be disclosed to 

persons directly connected with 

administering or enforcing regulations 

under the National School Lunch 

Program, Special Milk Program, School 

Breakfast Program, Summer Food 

Service Program, and the Special 

Supplemental Nutrition Program for 

Women, Infants and Children (WIC) 

(Parts 210, 215, 220, 225 and 246, 

respectively, of this chapter); 

(ii) The Comptroller General of the 

United States for purposes of audit and 

examination; and 

(iii) Federal, State, and local law 

enforcement officials for the purpose of 

investigating any alleged violation of the 

programs listed in paragraphs (i)(2) and 

(i)(3) of this section. 

(4) Use of free and reduced price 

meals eligibility information by 

programs other than Medicaid or the 

State Children’s Health Insurance 

Program (SCHIP). State agencies and 

child care institutions may use 

children’s free milk eligibility 

information for administering or 

enforcing the Child and Adult Care 

Food Program. Additionally, any other 

Federal, State, or local agency charged 

with administering or enforcing the 

Child and Adult Care Food Program 

may use the information for that 

purpose. Individuals and programs to 

which children’s free or reduced price 

meal eligibility information has been 

disclosed under this section may use the 

information only in the administration 

or enforcement of the receiving 

program. No further disclosure of the 

information may be made. 

(j) Disclosure of children’s free or 

reduced price meal eligibility 

information to Medicaid and/or SCHIP, 

unless parents decline. Children’s free 

or reduced price meal eligibility 

information only may be disclosed to 

Medicaid or SCHIP when both the State 

agency and the child care institution so 

elect, the parent/guardian does not 

decline to have their eligibility 

information disclosed and the other 

provisions described in paragraph (j)(1) 

of this section are met. The State agency 

or child care institution, as appropriate, 

may disclose children’s names, 

eligibility status (whether they are 

eligible for free or reduced price meals), 

and any other eligibility information 

obtained through the free and reduced 

price meal application or obtained 

through direct certification to persons 

directly connected with the 

administration of Medicaid or SCHIP. 

Persons directly connected to the 

administration of Medicaid and SCHIP 

are State employees and persons 

authorized under Federal and State 

Medicaid and SCHIP requirements to 

carry out initial processing of Medicaid 

or SCHIP applications or to make 

eligibility determinations for Medicaid 

or SCHIP. 

(1) The State agency must ensure that: 

(i) The child care institution and 

health insurance program officials have 

a written agreement that requires the 

health insurance program agency to use 

the eligibility information to seek to 

enroll children in Medicaid and SCHIP; 

and 

(ii) Parents/guardians are notified that 

their eligibility information may be 

disclosed to Medicaid or SCHIP and 

given an opportunity to decline to have 

their children’s eligibility information 

disclosed, prior to any disclosure. 

(2) Use of children’s free and reduced 

price meal eligibility information by 

Medicaid/SCHIP. Medicaid and SCHIP 

agencies and health insurance program 

operators receiving children’s free and 

reduced price meal eligibility 

information must use the information to 

seek to enroll children in Medicaid or 

SCHIP. The Medicaid and SCHIP 

enrollment process may include 

targeting and identifying children from 

low-income households who are 

potentially eligible for Medicaid or 

SCHIP for the purpose of seeking to 

enroll them in Medicaid or SCHIP. No 

further disclosure of the information 

may be made. Medicaid and SCHIP 

agencies and health insurance program 

operators also may verify children’s 

eligibility in a program under the Child 

Nutrition Act of 1966 or the Richard B. 

Russell National School Lunch Act. 

(k) Notifying households of potential 

uses and disclosures of children’s free 

and reduced price meal eligibility 

information. Households must be 

informed that the information they 

provide on the free and reduced price 

meal application will be used to 

determine eligibility for free or reduced 

price meals and that their eligibility 


hsrobinson on PROD1PC76 with RULES
Federal Register / Vol. 72, No. 47 / Monday, March 12, 2007 / Rules and Regulations 10899 

information may be disclosed to other 

programs. 

(1) For disclosures to programs, other 

than Medicaid or SCHIP, that are 

permitted access to children’s eligibility 

information, without parent/guardian 

consent, the State agency or child care 

institution, as appropriate, must notify 

parents/guardians at the time of 

application that their children’s free or 

reduced price meal eligibility 

information may be disclosed. The State 

agency or child care institution, as 

appropriate, must add substantially the 

following statement to the Privacy Act 

notice/statement required under 

paragraph (e)(1)(ii)(F) of this section, 

‘‘We may share your eligibility 

information with education, health, and 

nutrition programs to help them 

evaluate, fund, or determine benefits for 

their programs; auditors for program 

reviews; and law enforcement officials 

to help them look into violations of 

program rules.’’ For children 

determined eligible for free meals 

through direct certification, the notice of 

potential disclosure may be included in 

the document informing parents/ 

guardians of their children’s eligibility 

for free meals through direct 

certification. 

(2) For disclosure to Medicaid or 

SCHIP, the State agency or child care 

institution, as appropriate, must notify 

parents/guardians that their children’s 

free or reduced price meal eligibility 

information will be disclosed to 

Medicaid and/or SCHIP unless the 

parent/guardian elects not to have their 

information disclosed and notifies the 

State agency or child care institution, as 

appropriate, by a date specified by the 

State agency or child care institution, as 

appropriate. Only the parent or guardian 

who is a member of the household or 

family for purposes of the free and 

reduced price meal application may 

decline the disclosure of eligibility 

information to Medicaid or SCHIP. The 

notification must inform parents/ 

guardians that they are not required to 

consent to the disclosure, that the 

information, if disclosed, will be used to 

identify eligible children and seek to 

enroll them in Medicaid or SCHIP, and 

that their decision will not affect their 

children’s eligibility for free or reduced 

price meals. The notification may be 

included in the letter/notice to parents/ 

guardians that accompanies the free and 

reduced price meal application, on the 

application itself or in a separate notice 

provided to parents/guardians. The 

notice must give parents/guardians 

adequate time to respond if they do not 

want their information disclosed. The 

State agency or child care institution, as 

appropriate, must add substantially the 

following statement to the Privacy Act 

notice/statement required under 

paragraph (e)(1)(ii)(F) of this section, 

‘‘We may share your information with 

Medicaid or the State Children’s Health 

Insurance Program, unless you tell us 

not to. The information, if disclosed, 

will be used to identify eligible children 

and seek to enroll them in Medicaid or 

SCHIP.’’ For children determined 

eligible for free meals through direct 

certification, the notice of potential 

disclosure and opportunity to decline 

the disclosure may be included in the 

document informing parents/guardians 

of their children’s eligibility for free 

meals through direct certification 

process. 

(l) Other disclosures. State agencies 

and child care institutions that plan to 

use or disclose information about 

children eligible for free and reduced 

price meals in ways not specified in this 

section must obtain written consent 

from children’s parents or guardians 

prior to the use or disclosure. 

(1) The consent must identify the 

information that will be shared and how 

the information will be used. 

(2) There must be a statement 

informing parents and guardians that 

failing to sign the consent will not affect 

the child’s eligibility for free or reduced 

price meals and that the individuals or 

programs receiving the information will 

not share the information with any other 

entity or program. 

(3) Parents/guardians must be 

permitted to limit the consent only to 

those programs with which they wish to 

share information. 

(4) The consent statement must be 

signed and dated by the child’s parent 

or guardian who is a member of the 

household for purposes of the free and 

reduced price meal application. 

(m) Agreements with programs/ 

individuals receiving children’s free or 

reduced price meal eligibility 

information. Agreements or Memoranda 

of Understanding (MOU) are 

recommended or required as follows: 

(1) The State agency or child care 

institution, as appropriate, should have 

a written agreement or MOU with 

programs or individuals receiving 

eligibility information, prior to 

disclosing children’s free and reduced 

price meal eligibility information. The 

agreement or MOU should include 

information similar to that required for 

disclosures to Medicaid and SCHIP 

specified in paragraph (m)(2) of this 

section. 

(2) For disclosures to Medicaid or 

SCHIP, the State agency or child care 

institution, as appropriate, must have a 

written agreement with the State or 

local agency or agencies administering 

Medicaid or SCHIP prior to disclosing 

children’s free or reduced price meal 

eligibility information to those agencies. 

At a minimum, the agreement must: 

(i) Identify the health insurance 

program or health agency receiving 

children’s eligibility information; 

(ii) Describe the information that will 

be disclosed; 

(iii) Require that the Medicaid or 

SCHIP agency use the information 

obtained and specify that the 

information must be used to seek to 

enroll children in Medicaid or SCHIP; 

(iv) Require that the Medicaid or 

SCHIP agency describe how they will 

use the information obtained; 

(v) Describe how the information will 

be protected from unauthorized uses 

and disclosures; 

(vi) Describe the penalties for 

unauthorized disclosure; and 

(vii) Be signed by both the Medicaid 

or SCHIP program or agency and the 

State agency or child care institution, as 

appropriate. 

(n) Penalties for unauthorized 

disclosure or misuse of children’s free 

and reduced price meal eligibility 

information. In accordance with section 

9(b)(6)(C) of the Richard B. Russell 

National School Lunch Act (42 U.S.C. 

1758(b)(6)(C)), any individual who 

publishes, divulges, discloses or makes 

known in any manner, or to any extent 

not authorized by statute or this section, 

any information obtained under this 

section will be fined not more than 

$1,000 or imprisoned for up to 1 year, 

or both. 

PART 245—DETERMINING 

ELIGIBILITY FOR FREE AND 

REDUCED PRICE MEALS AND FREE 

MILK IN SCHOOLS 

■ 1. The authority citation for Part 245 

continues to read as follows: 

Authority: 42 U.S.C. 1752, 1758, 1759a, 

1772, 1773 and 1779. 

■ 2. In § 245.2, revise paragraph (a–3) to 

read as follows and amend paragraph 

(a–4)(1)(ii) by adding the word ‘‘FDPIR’’

between the word ‘‘other’’ and the word 

‘‘identifier’’: 

§ 245.2 Definitions. 

* * * * * 

(a-3) Disclosure means reveal or use 

individual children’s program eligibility 

information obtained through the free 

and reduced price meal or free milk 

eligibility process for a purpose other 

than for the purpose for which the 

information was obtained. The term 

refers to access, release, or transfer of 

personal data about children by means 

of print, tape, microfilm, microfiche, 


hsrobinson on PROD1PC76 with RULES
10900 Federal Register / Vol. 72, No. 47 / Monday, March 12, 2007 / Rules and Regulations 

electronic communication or any other 

means. 

* * * * * 

§ 245.5 [Amended] 

■ 3. In § 245.5, amend paragraphs 

(a)(1)(iii) and (a)(1)(iv) by removing the 

references ‘‘§ 245.2(a-4)(1)(i)’’ and 

‘‘§ 245.2(a-4)(1)(ii)’’, respectively, and 

by adding in their place the reference 

‘‘§ 245.2(a-4)’’. 

■ 4. In § 245.6: 

■ a. Revise paragraph (a)(1); 

■ b. Revise paragraph (f) and add new 

paragraphs (g) through (k) at the end. 

The revisions and additions read as 

follows: 

§ 245.6 Certification of children for free 

and reduced price meals and free milk. 

(a) * * * 

(1) ‘‘The Richard B. Russell National 

School Lunch Act requires the 

information on this application. You do 

not have to give the information, but if 

you do not, we cannot approve your 

child for free or reduced price meals. 

You must include the social security 

number of the adult household member 

who signs the application. The social 

security number is not required when 

you apply on behalf of a foster child or 

you list a Food Stamp, Temporary 

Assistance for Needy Families (TANF) 

Program or Food Distribution Program 

on Indian Reservations (FDPIR) case 

number for your child or other FDPIR 

identifier or when you indicate that the 

adult household member signing the 

application does not have a social 

security number. We will use your 

information to determine if your child is 

eligible for free or reduced price meals, 

and for administration and enforcement 

of the lunch and breakfast programs.’’

When the State agency or school food 

authority, as appropriate, plans to use or 

disclose children’s eligibility 

information for non-program purposes, 

additional information, as specified in 

paragraph (h) of this section, must be 

added to the Privacy Act notice/ 

statement. State agencies and school 

food authorities are responsible for 

drafting the appropriate notice and 

ensuring that the notice complies with 

section 7(b) of the Privacy Act of 1974 

(5 U.S.C. 552a note (Disclosure of Social 

Security Number)). 

* * * * * 

(f) Disclosure of children’s free and 

reduced price meal or free milk 

eligibility information to education and 

certain other programs and individuals 

without parental consent. The State 

agency or school food authority, as 

appropriate, may disclose aggregate 

information about children eligible for 

free and reduced price meals or free 

milk to any party without parental 

notification and consent when children 

cannot be identified through release of 

the aggregate data or by means of 

deduction. Additionally, the State 

agency or school food authority also 

may disclose information that identifies 

children eligible for free and reduced 

price meals or free milk to persons 

directly connected with the 

administration or enforcement of the 

programs and the individuals specified 

in this paragraph (f) without parent/ 

guardian consent. The State agency or 

school food authority that makes the 

free and reduced price meal or free milk 

eligibility determination is responsible 

for deciding whether to disclose 

children’s free and reduced price meal 

or free milk eligibility information. 

(1) Persons authorized to receive 

eligibility information. Only persons 

directly connected with the 

administration or enforcement of a 

program or activity listed in paragraphs 

(f)(2) or (f)(3) of this section may have 

access to children’s eligibility 

information, without parental consent. 

Persons considered directly connected 

with administration or enforcement of a 

program or activity listed in paragraphs 

(f)(2) or (f)(3) of this section are Federal, 

State, or local program operators 

responsible for the ongoing operation of 

the program or activity or responsible 

for program compliance. Program 

operators may include persons 

responsible for carrying out program 

requirements and monitoring, 

reviewing, auditing, or investigating the 

program. Program operators may 

include contractors, to the extent those 

persons have a need to know the 

information for program administration 

or enforcement. Contractors may 

include evaluators, auditors, and others 

with whom Federal or State agencies 

and program operators contract with to 

assist in the administration or 

enforcement of their program in their 

behalf. 

(2) Disclosure of children’s names and 

eligibility status only. The State agency 

or school food authority, as appropriate, 

may disclose, without parental consent, 

children’s names and eligibility status 

(whether they are eligible for free or 

reduced price meals or free milk) to 

persons directly connected with the 

administration or enforcement of: 

(i) A Federal education program; 

(ii) A State health program or State 

education program administered by the 

State or local education agency; 

(iii) A Federal, State, or local meanstested nutrition program with eligibility 

standards comparable to the National 

School Lunch Program (i.e., food 

assistance programs for households with 

incomes at or below 185 percent of the 

Federal poverty level); or 

(iv) A third party contractor assisting 

in verification of eligibility efforts by 

contacting households who fail to 

respond to requests for verification of 

their eligibility. 

(3) Disclosure of all eligibility 

information in addition to eligibility 

status. In addition to children’s names 

and eligibility status, the State agency or 

school food authority, as appropriate, 

may disclose, without parental consent, 

all eligibility information obtained 

through the free and reduced price 

meals or free milk eligibility process 

(including all information on the 

application or obtained through direct 

certification) to: 

(i) Persons directly connected with 

the administration or enforcement of 

programs authorized under the Richard 

B. Russell National School Lunch Act or 

the Child Nutrition Act of 1966. This 

means that all eligibility information 

obtained for the National School Lunch 

Program, School Breakfast Program or 

Special Milk Program may be disclosed 

to persons directly connected with 

administering or enforcing regulations 

under the National School Lunch or 

School Breakfast Programs (Parts 210 

and 220, respectively, of this chapter), 

Child and Adult Care Food Program 

(Part 226 of this chapter), Summer Food 

Service Program (Part 225 of this 

chapter) and the Special Supplemental 

Nutrition Program for Women, Infants 

and Children (WIC) (Part 246 of this 

chapter); 

(ii) The Comptroller General of the 

United States for purposes of audit and 

examination; and 

(iii) Federal, State, and local law 

enforcement officials for the purpose of 

investigating any alleged violation of the 

programs listed in paragraphs (g)(3) and 

(g)(4) of this section. 

(4) Use of free and reduced price meal 

or free milk eligibility information by 

other programs other than Medicaid or 

the State Children’s Health Insurance 

Program (SCHIP). State agencies and 

school food authorities may use free and 

reduced price meal or free milk 

eligibility information for administering 

or enforcing the National School Lunch, 

Special Milk or School Breakfast 

Programs (Parts 210, 215 and 220, 

respectively, of this chapter). 

Additionally, any other Federal, State, 

or local agency charged with 

administering or enforcing these 

programs may use the information for 

that purpose. Individuals and programs 

to which children’s free and reduced 

price meal eligibility information has 

been disclosed under this section may 


hsrobinson on PROD1PC76 with RULES
Federal Register / Vol. 72, No. 47 / Monday, March 12, 2007 / Rules and Regulations 10901 

use the information only in the 

administration or enforcement of the 

receiving program. No further disclosure 

of the information may be made. 

(g) Disclosure of children’s eligibility 

information to Medicaid and/or SCHIP, 

unless parents decline. Children’s free 

or reduced price meal or free milk 

eligibility information only may be 

disclosed to Medicaid or SCHIP when 

both the State agency and the school 

food authority so elect, the parent/ 

guardian does not decline to have their 

eligibility information disclosed and the 

other provisions described in paragraph 

(i) of this section are met. Provided that 

both the State agency and school food 

authority opt to allow the disclosure of 

eligibility information to Medicaid and/ 

or SCHIP, the State agency or school 

food authority, as appropriate, may 

disclose children’s names, eligibility 

status (whether they are eligible for free 

or reduced price meals or free milk), 

and any other eligibility information 

obtained through the free and reduced 

price meal or free milk application or 

obtained through direct certification to 

persons directly connected with the 

administration of Medicaid or SCHIP. 

Persons directly connected to the 

administration of Medicaid and SCHIP 

are State employees and persons 

authorized under Federal and State 

Medicaid and SCHIP requirements to 

carry out initial processing of Medicaid 

or SCHIP applications or to make 

eligibility determinations for Medicaid 

or SCHIP. 

(1) The State agency must ensure that: 

(i) The child care institution and 

health insurance program officials have 

a written agreement that requires the 

health insurance program agency to use 

the eligibility information to seek to 

enroll children in Medicaid and SCHIP; 

and 

(ii) Parents/guardians are notified that 

their eligibility information may be 

disclosed to Medicaid or SCHIP and 

given an opportunity to decline to have 

their children’s eligibility information 

disclosed, prior to any disclosure. 

(2) Use of children’s free and reduced 

price meal eligibility information by 

Medicaid/SCHIP. Medicaid and SCHIP 

agencies and health insurance program 

operators receiving children’s free and 

reduced price meal or free milk 

eligibility information may use the 

information to seek to enroll children in 

Medicaid or SCHIP. The Medicaid and 

SCHIP enrollment process may include 

targeting and identifying children from 

low-income households who are 

potentially eligible for Medicaid or 

SCHIP for the purpose of seeking to 

enroll them in Medicaid or SCHIP. No 

further disclosure of the information 

may be made. Medicaid and SCHIP 

agencies and health insurance program 

operators also may verify children’s 

eligibility in a program under the Child 

Nutrition Act of 1966 or the Richard B. 

Russell National School Lunch Act. 

(h) Notifying households of potential 

uses and disclosures of children’s 

eligibility information. Households must 

be informed that the information they 

provide on the free and reduced price 

meal or free milk application will be 

used to determine eligibility for free and 

reduced price meals or free milk and 

that eligibility information may be 

disclosed to other programs. 

(1) For disclosures to programs, other 

than Medicaid or SCHIP, that are 

permitted access to children’s eligibility 

information, without parent/guardian 

consent, the State agency or school food 

authority, as appropriate, must notify 

parents/guardians at the time of 

application that their children’s free and 

reduced price meal or free milk 

eligibility information may be disclosed. 

The State agency or school food 

authority, as appropriate, must add 

substantially the following statement to 

the Privacy Act notice/statement 

required under paragraph (a)(1) of this 

section, ‘‘We may share your eligibility 

information with education, health, and 

nutrition programs to help them 

evaluate, fund, or determine benefits for 

their programs; auditors for program 

reviews; and law enforcement officials 

to help them look into violations of 

program rules.’’ For children 

determined eligible through direct 

certification, the notice of potential 

disclosure may be included in the 

document informing parents/guardians 

of their children’s eligibility for free 

meals or free milk through direct 

certification. 

(2) For disclosure to Medicaid or 

SCHIP, the State agency or school food 

authority, as appropriate, must notify 

parents/guardians that their children’s 

free and reduced price meal or free milk 

eligibility information will be disclosed 

to Medicaid and/or SCHIP unless the 

parent/guardian elects not to have their 

information disclosed. Additionally, the 

State agency or school food authority, as 

appropriate, must give parents/ 

guardians an opportunity to elect not to 

have their information disclosed to 

Medicaid or SCHIP. Only the parent or 

guardian who is a member of the 

household or family for purposes of the 

free and reduced price meal or free milk 

application may decline the disclosure 

of eligibility information to Medicaid or 

SCHIP. The notification must inform 

parents/guardians that they are not 

required to consent to the disclosure, 

that the information, if disclosed, will 

be used to identify children eligible for 

and to seek to enroll children in a health 

insurance program, and that their 

decision will not affect their children’s 

eligibility for free and reduced price 

meals or free milk. The notification may 

be included in the letter/notice to 

parents/guardians that accompanies the 

free and reduced price meal or free milk 

application, on the application itself or 

in a separate notice provided to parents/ 

guardians. The notice must give 

parents/guardians adequate time to 

respond. The State agency or school 

food authority, as appropriate, must add 

substantially the following statement to 

the Privacy Act notice/statement 

required under paragraph (a)(1) of this 

section, ‘‘We may share your 

information with Medicaid or the State 

Children’s Health Insurance Program, 

unless you tell us not to. The 

information, if disclosed, will be used to 

identify eligible children and seek to 

enroll them in Medicaid or SCHIP.’’ For 

children determined eligible through 

direct certification, the notice of 

potential disclosure and opportunity to 

decline the disclosure may be included 

in the document informing parents/ 

guardians of their children’s eligibility 

for free meal or free milk through direct 

certification. 

(i) Other disclosures. State agencies 

and school food authorities that plan to 

use or disclose information about 

children eligible for free or reduced 

price meals or free milk in ways not 

specified in this section must obtain 

written consent from the child’s parent 

or guardian prior to the use or 

disclosure. Only a parent or guardian 

who is a member of the child’s 

household for purposes of the free and 

reduced price meal or free milk 

application may give consent to the 

disclosure of free and reduced price 

meal eligibility information. 

(1) The consent must identify the 

information that will be shared and how 

the information will be used. 

(2) The consent statement must be 

signed and dated by the child’s parent 

or guardian who is a member of the 

household for purposes of the free and 

reduced price meal or free milk 

application. 

(3) There must be a statement 

informing parents and guardians that 

failing to sign the consent will not affect 

the child’s eligibility for free or reduced 

price meals or free milk and that the 

individuals or programs receiving the 

information will not share the 

information with any other entity or 

program. 

(4) Parents/guardians must be 

permitted to limit the consent only to 


hsrobinson on PROD1PC76 with RULES
10902 Federal Register / Vol. 72, No. 47 / Monday, March 12, 2007 / Rules and Regulations 

1To view the proposed rule and the comments 

we received, go to http://www.regulations.gov, click 

on the ‘‘Advanced Search’’ tab, and select ‘‘Docket 

Search.’’ In the Docket ID field, enter APHIS–2006–

0121, then click ‘‘Submit.’’ Clicking on the Docket 

ID link in the search results page will produce a list 

of all documents in the docket. 

those programs with which they wish to 

share information. 

(j) Agreements with programs/ 

individuals receiving children’s free and 

reduced price meal or free milk 

eligibility information. 

(1) An agreement with programs or 

individuals receiving free and reduced 

price meal or free milk eligibility 

information is recommended for 

programs other than Medicaid or SCHIP. 

The agreement or MOU should include 

information similar to that required for 

disclosures to Medicaid and SCHIP 

specified in paragraph (j)(2) of this 

section. 

(2) The State agency or school food 

authorities, as appropriate, must have a 

written agreement with the State or 

local agency or agencies administering 

Medicaid or SCHIP prior to disclosing 

children’s free and reduced price meal 

or free milk eligibility information. At a 

minimum, the agreement must: 

(i) Identify the health insurance 

program or health agency receiving 

children’s eligibility information; 

(ii) Describe the information that will 

be disclosed; 

(iii) Require that the Medicaid or 

SCHIP agency use the information 

obtained and specify that the 

information must be used to seek to 

enroll children in Medicaid or SCHIP; 

(iv) Require that the Medicaid or 

SCHIP agency describe how they will 

use the information obtained; 

(v) Describe how the information will 

be protected from unauthorized uses 

and disclosures; 

(vi) Describe the penalties for 

unauthorized disclosure; and 

(vii) Be signed by both the Medicaid 

or SCHIP program or agency and the 

State agency or child care institution, as 

appropriate. 

(k) Penalties for unauthorized 

disclosure or misuse of information. In 

accordance with section 9(b)(6)(C) of the 

Richard B. Russell National School 

Lunch Act (42 U.S.C. 1758(b)(6)(C)), any 

individual who publishes, divulges, 

discloses or makes known in any 

manner, or to any extent not authorized 

by statute or this section, any 

information obtained under this section 

will be fined not more than $1,000 or 

imprisoned for up to 1 year, or both. 

Dated: March 1, 2007. 

Nancy Montanez Johner, 

Under Secretary, Food, Nutrition and 

Consumer Services. 

[FR Doc. E7–4268 Filed 3–9–07; 8:45 am] 

BILLING CODE 3410–30–P 

DEPARTMENT OF AGRICULTURE 

Animal and Plant Health Inspection 

Service 

7 CFR Parts 305 and 319 

[Docket No. APHIS–2006–0121] 

RIN 0579–AC19 

Importation of Mangoes From India 

AGENCY: Animal and Plant Health 

Inspection Service, USDA. 

ACTION: Final rule. 

SUMMARY: We are amending the fruits 

and vegetables regulations to allow the 

importation into the continental United 

States of mangoes from India under 

certain conditions. As a condition of 

entry, the mangoes must undergo 

irradiation treatment and be 

accompanied by a phytosanitary 

certificate with additional declarations 

providing specific information regarding 

the treatment and inspection of the 

mangoes and the orchards in which they 

were grown. In addition, the mangoes 

will be subject to inspection at the port 

of first arrival. This action allows for the 

importation of mangoes from India into 

the continental United States while 

continuing to provide protection against 

the introduction of quarantine pests. 

EFFECTIVE DATE: March 12, 2007. 

FOR FURTHER INFORMATION CONTACT: Ms. 

Donna L. West, Senior Import 

Specialist, Commodity Import Analysis 

and Operations, PPQ, APHIS, 4700 

River Road Unit 133, Riverdale, MD 

20737–1231; (301) 734–8758. 

SUPPLEMENTARY INFORMATION: 

Background 

The regulations in ‘‘Subpart-Fruits 

and Vegetables’’ (7 CFR 319.56 through 

319.56–8, referred to below as the 

regulations) prohibit or restrict the 

importation of fruits and vegetables into 

the United States from certain parts of 

the world to prevent the introduction 

and dissemination of plant pests that are 

new to or not widely distributed within 

the United States. 

On November 17, 2006, we published 

in the Federal Register (71 FR 66881–

66888, Docket No. APHIS–2006–0121) a 

proposal 1 to allow the importation into 

the continental United States of 

mangoes from India under certain 

conditions. As a condition of entry, we 

proposed that the mangoes would have 

to be treated with a minimum absorbed 

dose of 400 gray of irradiation and be 

accompanied by a phytosanitary 

certificate certifying that the fruit 

received the required irradiation 

treatment. In addition, because the 

required irradiation treatment would 

not mitigate the risks posed by the fungi 

Cytosphaera mangiferae and 

Macrophoma mangiferae or the 

bacterium Xanthomonas campestris pv. 

mangiferaeindicae, which we consider 

to be of medium risk of introduction 

and dissemination within the 

continental United States, we proposed 

additional safeguarding measures. For 

the two fungi; we proposed three 

options: (1) The mangoes be treated 

with a broad-spectrum post-harvest 

fungicidal dip, (2) the orchard of origin 

be inspected at a time prior to the 

beginning of harvest as determined by 

the mutual agreement between the 

Animal and Plant Health Inspection 

Service (APHIS) and the national plant 

protection organization (NPPO) of India 

and be found free of Cytosphaera 

mangiferae and Macrophoma 

mangiferae, or (3) the orchard of origin 

be treated with a broad-spectrum 

fungicidal application during the 

growing season, be inspected at a time 

prior to the beginning of harvest as 

determined by the mutual agreement 

between APHIS and the NPPO of India, 

and the fruit found free of Cytosphaera 

mangiferae and Macrophoma 

mangiferae. For the bacterium X. 

campestris pv. mangiferaeindicae, we 

proposed that the shipment be 

inspected during preclearance activities 

and found free of X. campestris pv. 

mangiferaeindicae. The required 

phytosanitary certificate would have to 

confirm that one of the three measures 

described above for the fungi and the 

inspection for the bacterium had been 

carried out. 

We solicited comments concerning 

our proposal for 60 days, ending January 

16, 2007. We received three comments 

by that date. The first comment was 

from a private citizen who requested 

that American businesses be allowed to 

import fruit from wherever they like 

without being subject to regulations. 

Such an approach would present an 

unacceptable level of risk. As The Plant 

Protection Act (PPA, 7 U.S.C. 7701 et 

seq.) states, the unregulated movement 

of plant pests, noxious weeds, plants, 

certain biological control organisms, 

plant products, and articles capable of 

harboring plant pests or noxious weeds 

could present an unacceptable risk of 

introducing or spreading plant pests or 

noxious weeds, which is contrary to 


hsrobinson on PROD1PC76 with RULES