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Final Rule: Fluid Milk Substitutions


Nutrition Services Division Management Bulletin
Purpose: Policy, Beneficial Information

To: School Nutrition Program Sponsors, Child and Adult Care Food Program, Summer Food Service Program

Number: USDA-CNP-04-2010

Attention: Food Service Directors

Date: April 2010

Subject: Final Rule Regarding Fluid Milk Substitutions in School Nutrition Programs

Reference: Title 7, Code of Federal Regulations, sections 210.10(g) and 220.8(d); United States Department of Agriculture Final Rule (Federal Register Vol. 73, No. 178, September12, 2008, p. 52903)
Supersedes: Management Bulletin: USDA-SNP-15-2009 and USDA-SNP-25-2009 “Final Rule Regarding Fluid Milk Substitutions”

This Management Bulletin (MB) updates and replaces MB USDA-SNP-15-2009 (July 2009) and MB USDA-SNP-25-2009 (November 2009), related to Fluid Milk Substitutions in School Nutrition Programs. After distributing the original policy on this issue, the United States Department of Agriculture (USDA) developed Questions and Answers (Q&A) to clarify various issues concerning the substitution of fluid milk in cases where a student’s special dietary need does not rise to the level of a disability. More recently, three additional questions were added to the Q&A.  These questions pertain to the use of organic milk and preschool or summer programs that claim meals under the Child and Adult Care Food Program (CACFP) or the Summer Food Service Program (SFSP). The Q&A is available, including the recently added questions highlighted in yellow, on the USDA Web site at http://www.fns.usda.gov/sites/default/files/SP_07_CACFP_04_SFSP_05-2010_os.pdf.

Overview of the Final Rule

The final rule:

  • Upholds the current regulations regarding meal substitutions for students with disabilities in the National School Lunch Program (NSLP) and School Breakfast Program (SBP)
  • Allows School Food Authorities (SFAs) the discretion to offer fluid milk substitutes to students with medical or other special dietary needs that do not rise to the level of a disability
  • Requires that nondairy beverages offered as fluid milk substitutes be nutritionally equivalent to fluid milk and provide specific levels of calcium, protein, vitamins A and D, magnesium, phosphorus, potassium, riboflavin, and vitamin B-12
  • Allows SFAs to accept a written statement from a parent/guardian or from a recognized medical authority for a fluid milk substitution
  • Continues to make SFAs responsible for substitution expenses that exceed the federal reimbursement
  • Continues to allow lactose-free milk as part of the reimbursable meal to students who are lactose intolerant without requiring documentation
  • Prohibits the substitution of juice for milk as part of a reimbursable meal to students without a disability
  • Continues to allow the substitution of juice for milk as part of a reimbursable meal for students with a disability
  • Allows schools to offer students organic milk or milk with a label indicating it was produced from cows not treated with hormones
  • Allows preschool or summer programs that claim meals under the CACFP or SFSP to follow this rule
The Role of the SFA

Offering fluid milk substitutions for students with medical or other special dietary needs that do not rise to the level of a disability is discretionary. If your SFA chooses to make this accommodation, then your SFA is responsible for:

  • Offering fluid milk substitutes that meet the nutrient standards outlined in the final rule (see below for the specific nutrient standards)
  • Notifying the Nutrition Services Division (NSD) of your decision to offer a fluid milk substitute (see attached Notification for the California Department of Education [CDE])
  • Obtaining a written statement from the student’s parent or legal guardian or medical authority documenting the request for a fluid milk substitute
  • Paying for substitution expenses that exceed the federal meal reimbursement rate without charging students a higher price to cover the costs
Nutrient Standards for Fluid Milk Substitutes

If SFAs choose to offer a fluid milk substitute for students without disabilities who have a documented medical or special dietary need, the nondairy beverage(s) must provide the nutrients listed in the following table:

Nutrient Per one (1) cup (8 ounces)
Calcium 276 mg.
Protein 8 gm.
Vitamin A 500 IU.
Vitamin D 100 IU.
Magnesium 24 mg.
Phosphorus 222 mg.
Potassium 349 mg.
Riboflavin 0.44 mg.
Vitamin B-12 1.1 mcg.
Questions and Answers
Question 1
  1. Is there a nutrient requirement for fat and/or sugar in fluid milk substitutes?
  2. No. There are currently no regulatory levels established for total fat and sugar; however, in light of the childhood obesity trends, we recommend using low-fat fluid milk as a benchmark for nutrient standards for fat and sugar.
Question 2
  1. How should SFAs notify the NSD of their decision to offer a fluid milk substitute?
  2. If an SFA chooses to offer a fluid milk substitute for students without a disability who have a medical or special dietary need and has found a product that meets the above specified nutrient standards, the NSD requests that the SFA complete and sign the attached Notification to the CDE form, and mail the form to:

Nutrition Services Division/School Nutrition Program Unit
California Department of Education
1430 N Street, Suite 4503
Sacramento, CA 95814

Please note: This form is also available in the Download Forms section of the Child Nutrition Information and Payment System (CNIPS). The form number is SNP-26.

Question 3
  1. If an SFA chooses not to offer a fluid milk substitute for students without a disability, does it have to notify the NSD?
  2. No. SFAs are not required to notify the NSD if they choose not to offer a fluid milk substitute for students without a disability.
Question 4
  1. What documentation do SFAs need to keep on file from parents requesting a fluid milk-substitute?
  2. If an SFA chooses to offer a fluid milk substitute for students without a disability who have a medical or special dietary need, it may accept a written statement from a recognized medical authority or from the student’s parent or legal guardian. The written substitution request must identify the student’s medical or other special dietary need (see attached Parental Request for a Fluid Milk Substitution for School-Age Children form). The written statement will remain in effect and on file with the SFA until the parent or legal guardian revokes such statement or until the SFA discontinues the fluid milk substitution option.
Question 5
  1. Is juice an acceptable fluid milk substitution?
  2. Juice is only an acceptable fluid milk substitute if the student has a medical statement from a licensed physician documenting a disability, and the licensed physician requires juice to be substituted for milk. If the child does not have a documented disability, juice cannot be substituted for milk.
Question 6
  1. Is an SFA required to provide a fluid milk substitute?
  2. When the student has a written medical statement from a licensed physician requesting a fluid milk substitute for a disability, the SFA must provide a fluid milk substitute. If the student has a written medical statement from a licensed physician, recognized medical authority, or parent/legal guardian requesting a fluid milk substitute for a student without a disability, the SFA has the option to offer a fluid milk substitute.
Question 7
  1. What are the current requirements for food substitutions for children with disabilities?
  2. The current regulations outlined in Title 7, Code of Federal Regulations (7 CFR) sections 210.10(g) and 220.8(d) require that SFAs make food and beverage substitutions for students whose disabilities restrict their diet. Under current requirements, before a meal substitution is made by SFAs for a student with a disability, the SFA must have documentation signed by a licensed physician that includes the following items:
    • Description of the student’s disability
    • Description of the student’s major life activity affected
    • Description of how the disability restricts the student’s diet
    • Foods to be omitted from the student’s diet
    • Foods to be substituted for omitted foods in the student’s diet
    To assist SFAs to meet the current requirements, the CDE’s NSD developed a medical statement form for licensed physicians to complete and sign, which is available on the CDE Web site at http://www.cde.ca.gov/ls/nu/cr/documents/medstat.doc.

    SFAs must make menu substitutions for students with properly documented disabilities.
Question 8
  1. What are the current requirements for a food substitution for children without a disability who have medical or other special dietary needs?
  2. 7 CFR, sections 210.10(g) and 220.8(d) state that SFAs have the discretion to offer food substitutions for students with medical or other special dietary needs, which do not rise to the level of a disability. Menu substitution requests for students who do not have a recognized disability must be supported by written documentation by a recognized medical authority that includes licensed physicians, nurse practitioners, and physician assistants. A parent or guardian’s written statement is only acceptable when the menu substitution is fluid milk. The final rule simplifies the process of requesting fluid milk substitutions for students without disabilities if the SFA opts to offer a substitution to those students.
Question 9
  1. Does the final milk substitution rule apply to the Child and Adult Care Food Program and Summer Food Service Program?
  2. No. Section 9(a)(2)(B) of the National School Lunch Act only addresses the substitution of milk in the school meals programs.
Question 10
  1. If a school is operating a preschool or summer program and claiming meals under CACFP or SFSP, may the school follow the milk substitution rule?
  2. Yes. Schools that participate in CACFP or SFSP may follow the milk substitution rule.

If you have any questions regarding this MB, please contact Lori Porter, Child Nutrition Consultant, Southern School Nutrition Program Unit, by phone at 916-322-1454 or by e-mail at lporter@cde.ca.gov or Ashley Osterman, Child Nutrition Consultant, Northern School Nutrition Program Unit, by phone at 916-445-1261 or by e-mail at aosterman@cde.ca.gov.

Attachments

Notification of Decision to Offer Fluid Milk Substitutes at http://www.cde.ca.gov/ls/nu/sn/documents/mbusdacnp042010att1.doc
Parental Request for a Fluid Milk Substitution at http://www.cde.ca.gov/ls/nu/sn/documents/mbusdacnp042010att2.doc

Questions:   Nutrition Services Division | 800-952-5609
Last Reviewed: Monday, August 3, 2015

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