Effective April 12, 2018,  Education Law § 908, entitled “Prohibition against meal shaming,” was added as part of the budget to require all public school districts, charter schools and non-public schools in New York state that participate in the national school lunch program or school breakfast program in which there is a school at which not all students are eligible to receive breakfast and lunch under the federal national school lunch act to develop a plan to “ensure” that a student whose parent or guardian has unpaid school meal fees is not shamed or treated differently than a student whose parent or guardian does not have unpaid school meal fees.

Section 908 requires that the plan must be submitted to the commissioner by July 1, 2018, or 60 days from April 12, 2018, after enactment in conformance with regulations of the commissioner.  (We will supplement this Alert once the final regulations are published.)  After submission of its plan, the school or school district must also adopt and post the plan on its website.

Each school and school district’s plan must at a minimum include the following:

1. A statement that the student will be provided with his/her meal of choice for that school day of the available reimbursable meal choices if the student requests one, unless the student’s parent or guardian has specifically provided written permission to the school to withhold a meal. Notably, the school or school district is only required to provide access to reimbursable meals, not a la carte items, adult meals, or other similar items.
2. An explanation of how staff will be trained to ensure that the school or school district’s procedures are carried out correctly and how the affected parents and guardians will be provided with assistance in establishing eligibility for free or reduced-price meals for their children
3. Procedures requiring the school or school district to notify the student’s parent or guardian that the student’s meal card or account balance is exhausted and unpaid meal charges are due. The notification procedures may include a repayment schedule, but the school or school district may not charge any interest or fees in connection with any meals charged. In regard to this, several companies have been approaching school districts on the issue of acceptance of credit cards for meal programs.  This can be a good idea and efficient for schools but we offer caution here.  There are a number of issues related to credit card use. School districts are well-advised to contact their school attorney prior to entering into such agreements.
4. A communication procedure designed to support eligible families enrolling in the national free and reduced price meal program. Such communication procedures must also include a process for determining eligibility when a student owes money for 5 or more meals.  In such case, the school or school district must make every attempt to determine if a student is directly certified to be eligible for free meals; make at least 2  attempts (not including the application  or instructions  included in a school enrollment  packet)  to reach the student’s parent or guardian and have the parent or guardian fill out a meal application; and require a school or school district to contact the parent or guardian to offer assistance with a meal application, determine if there are other issues within the household that have caused the child to have insufficient funds to purchase a school meal and offer any other assistance that is appropriate.
5. A clear explanation of procedures  designed to decrease  student distress  or embarrassment, which makes clear that a school or school district must not publicly identify or stigmatize a student who cannot pay for a meal or  who  owes  a  meal  debt by any means (such as by requiring that a student wear a wristband or hand stamp); require a student who cannot pay for a meal or  who  owes a meal debt to do chores or other work to pay for meals; require that a student throw away a meal after it has been served because  of the student’s inability to pay for the meal or because money is owed for earlier meals; take any action directed at a student to collect unpaid school  meal fees (A school or school district may attempt to collect unpaid school meal fees from a parent or guardian, but is prohibited from using a debt collector to collect unpaid fees.); or discuss  any  outstanding  meal  debt  in  the  presence  of  other students.
6. A clear explanation of the procedure to handle unpaid meal charges. (The law states that it is not intended to allow for the unlimited accrual of debt.)
7. Procedures to enroll in the free and reduced price lunch program. Such procedures must include that, at the beginning of each school year, a school or school district must provide a free, printed meal application in every school enrollment packet, or if the school or school district chooses to use an electronic meal application, provide in school enrollment packets an explanation of the electronic meal application process and instructions for how parents or guardians may request a paper application at no cost.
8. If a school or school district becomes aware that a student who has not submitted a meal application is eligible for free or reduced-fee meals, the school or school district shall complete and file an application for  the  student pursuant to federal regulations.
9. School liaisons required for homeless, foster and migrant students must coordinate with the nutrition department to make sure such students receive free school meals, in accordance with federal law.

Offering School Breakfast After the Instructional Day Has Begun

Additionally, effective September 1, 2018, all public elementary or secondary schools in New York state (with the exception of charter schools authorized by Article 56 of the education law), with at least 70% or more of its students eligible for free or reduced-price meals under the federal National School Lunch Program  as determined by the State Education Department based upon data submitted by schools through the basic educational  data  system  (BEDS) for  the  prior  school  year, are required to offer all students a school breakfast after the instructional day has begun. Even though the school lunch program is meant to be self-sustaining, this new mandate risks some additional costs for schools particularly where no breakfast program is currently offered.

The law provides that each public school may determine the breakfast service delivery model that best suits its students, such as breakfast in the classroom, grab and go breakfast, and breakfast served in the cafeteria.  Time spent  by  students consuming  breakfast  may be considered instructional time when students consume breakfast in the classrooms and instruction  is  being provided  while  students  are  consuming  breakfast.  The law requires that in determining a service delivery model, schools must consult with teachers, parents, students and members of the community.

Remarkably, schools subject to this requirement must provide notice to students’ parents and guardians that the school will be offering breakfast to all students after the instructional day has begun.

Schools may apply to the commissioner of education for a waiver from establishing a school breakfast program after the instructional day has begun, which may be granted if the school demonstrates a lack of need for a school breakfast program after the instructional day has begun because of a successful existing breakfast program or that providing a school breakfast program after the instructional day has begun would cause economic hardship for the school. The basis for a waiver will be reviewed annually by the commissioner.

On or before May 1, 2018, and on or before May 1 of each year thereafter, the State Education Department must publish on its website a list of the public schools that meet the requirements for operating such programs, and provide notification to such schools; develop and distribute guidelines for the implementation of such programs, which must be in the compliance with all applicable federal and state laws governing the School Breakfast Program; provide technical assistance relating to the implementation of such program and submission of claims for reimbursement under the School Breakfast Program; and annually publish by December 2019, and each December thereafter, on its website information relating  to  each  school  subject  to  this requirement,  as  well as any other schools operating such program which are not subject to this requirement, in the prior  school  year.  This information must include at a minimum the school name, service delivery models implemented, student enrollment, the free and reduced-price lunch percentage, and the average daily breakfast participation rate.

Lunch Meal Subsidy

For school lunch meals served in the school year commencing July 1, 2019 and each July 1 thereafter, a school shall be eligible for a lunch meal state subsidy of $.25, which includes any annual state subsidy received by such school under any other provision of state law, for any school lunch meal served.  To be eligible, the school must certify to the State Education Department that it has purchased at least 30% of its total cost of food products for its school lunch service program from New York state farmers, growers, producers or processors in the preceding school year.

The State Education Department, in cooperation with the Department of Agriculture and Markets, must also develop an application for schools to seek an additional state subsidy in a timeline and format prescribed by the commissioner of education.  The application shall include at a minimum documentation demonstrating the school’s total food purchases for its school lunch service program, and documentation demonstrating its total food purchases and percentages for such program from New York State farmers, growers, producers or processors in the preceding school year.  The application must also include an attestation from the school’s chief operating officer that it purchased at least 30% of its total cost of food products for its school lunch service program from New York state farmers, growers, producers or processors in the preceding school year in order to meet the requirements for the additional state subsidy. Application for the subsidy is required on an annual basis.

The State Education Department is required to annually publish information on its website  commencing  on  September 1, 2019 and each September 1 thereafter, relating to each school that applied for and received the additional state subsidy, and include the school’s name, student enrollment, average daily  lunch participation, total food costs for its school lunch service program, total cost of food products for its school lunch service program purchased from New York state farmers, growers, producers or processors, and the percentage of total food costs that were purchased from New York state farmers, growers, producers or processors for its school lunch service program.

Schools should commence review of applicable policies and procedures and take initial steps toward developing the requisite plan and training programs as we await additional guidance and regulations from the commissioner of education.