*******You will be able to find all of the guidance from KSB School Law, and it will be updated, at this site: https://www.ksbschoollaw.com/covid19*******
Over the last several years, schools have been asked to fulfill more and more of their student’s needs beyond educational instruction. Not only are schools a primary provider of mental health services for school-age children, but they also offer several programs to address the nutritional needs of students at risk of hunger. It’s no surprise, then, that many are concerned that epidemic-related closures will disrupt the flow of food to children in need. As your school prepares to respond to a possible outbreak, here’s what you should know, and what questions you should be asking, about the effects school closures could have on your food programs and students.
Guidance and Flexibility from the USDA
Over the last several years, the USDA has shown flexibility in assisting state and local educational agencies in providing food to students in need during emergency closures. In 2019, for example, the USDA waived various meal program requirements for several Nebraska schools in light of widespread flooding.
The USDA also provides regularly-updated guidance, which can be found here, advising school food authorities (SFAs) participating in the National School Lunch Program (NSLP), School Breakfast Program, Child and Adult Care Food Program (CACFP), and the Summer Food Service Program (SFSP) of their ability to operate the SFSP and NSLP Seamless Summer Option (SSO) to maintain consistent food security to children in need during times of emergency closure.
The Nebraska Department of Education (NDE) has submitted an application to the USDA for a waiver that would allow Nebraska SFAs to continue serving meals during an emergency closure through the SFSP. The USDA granted such waivers to other states, such as Washington and California, and it is fair to assume that the Department will take similar action with respect to Nebraska. SFAs must notify NDE of their intent to provide meals during an emergency closure by completing the SFSP application, accessible via this web portal.
Additionally, the USDA will waive the 60-day requirement related to the submission of claims when emergency closures impede submission.
Waiver of Congregate Feeding Site Requirements
Generally, the USDA requires SFSP meals to be distributed at “congregate feedings sites.” This is based on the theory that students should eat meals together in safe, interactive environments. However, upon request by NDE, the USDA will waive this requirement on a case-by-case basis where exceptional circumstances impose a barrier to congregate feeding. According to recent press releases regarding emergency programs in California and Washington, the USDA has already provided such a waiver to these states affected by the novel coronavirus, allowing SFSP meals to be sent home with students. That means Nebraska schools could anticipate being allowed to provide “grab and go” meals to students in the case of a school closure.
Considerations Related to Food Service Providers
An emergency closure disrupting school food programs may also affect a district’s rights and obligations under agreements with their food service providers. For example, the pricing structure underlying many agreements relies upon “assumptions” related to a minimum number of full-service days and anticipated demand. Emergencies necessitating closures or stoppages of service are treated differently depending upon the specific contractual language used in your agreement. As your school considers the implications of an emergency closure, we strongly recommend you consult with your school’s attorney to review the terms of your food service agreement.
Reassurance From Lunchtime Solutions Inc.
We know that many schools in Nebraska contract with Lunchtime Solutions Inc. as their food services provider. Fortunately, Lunchtime Solutions has already reached out to reassure schools that it is prepared to plan for and provide meals during periods of emergency closures as deemed appropriate by the school. We expect other food service providers would do the same, and are confident that any emergency food services program will be successful with the buy-in of these key partners.
Conclusion
While some expect more detailed guidance from the USDA to be forthcoming, we believe the currently available information gives schools valuable insight as they consider their response to an outbreak of novel coronavirus. The USDA is flexible in working with schools responding to emergencies, and NDE is already working with the USDA to ensure Nebraska schools have the option to continue their food programs in some capacity. If you have any questions about the status and availability of the SFSP for your school, or how emergency closures would affect your rights and obligations under your contract with your food services provider, we recommend you call your school attorney, or call Karen, Steve, Bobby, Coady, or Jordan.