May 7, 2018
Chief, School Programs Branch
Policy and Program Development Division
Food and Nutrition Service
3101 Park Center Drive, 12th Floor
Alexandria, Virginia 22302
Re: Hiring Flexibility under Professional Standards (Docket No. FNS-2017-0039)
Dear Ms. Namian:
The Academy of Nutrition and Dietetics (the “Academy”) appreciates the opportunity to submit comments to the Food and Nutrition Service (FNS or the “agency”) at the U.S. Department of Agriculture (USDA) related to the proposed rule “Hiring Flexibility under Professional Standards (Docket No. FNS-2017-0039)” (the “Proposed Rule”) published in the Federal Register on March 6, 2018. Representing over 100,000 registered dietitian nutritionists (RDNs);1 nutrition and dietetic technicians, registered (NDTRs); and advanced-degree nutritionists, the Academy is the largest association of food and nutrition professionals in the United States and is committed to accelerating improvements in global health and well-being through food and nutrition. Academy members demonstrate this commitment through direct, caring work in child nutrition programs at the local, state, and national levels; as researchers and educators; as corporate dietitians supplying products or services to school foodservice operations; and as consultants in school nutrition and wellness.
The Academy opposes the three FNS proposals that would weaken hiring standards for school nutrition program directors responsible for 1/3 of American students. Namely, we have serious concerns that these proposed changes are inconsistent with the purposes of the professional standards, exacerbate inconsistencies between the variously sized LEAs and reverse the agency’s position on the importance of school nutrition program experience without any explanation in the record or with stakeholders as to whether or why the reversal is merited. We do, however, support the proposal to “add flexibility to the hiring standards for State directors of school nutrition programs by considering applicants with either a bachelor’s or a master’s degree in specific, relevant fields.”
The Academy supported the proposed minimum standards finalized in the professional standards final rule issued March 2, 2015 (the “Final Rule”)2 for establishing a significant benchmark of professionalism and qualification. The Academy supported the tiered approach tying more rigorous educational and experiential requirements to larger enrollment sizes of local educational agencies (LEAs), ensuring a flexibility that accounts for variation in the size and associated needs of LEAs.
The FNS summarized the Proposed Rule by stating that it “would add four flexibilities to the hiring standards for new school nutrition program directors3 in small LEAs and new school nutrition program State directors.”4 The three “added flexibilities” related to hiring standards for small LEAs do not add flexibility in the traditional sense, however, as they add no new pathways or options for achieving compliance with the standards. Instead, it appears the new flexibility may reference flexibility in defining the hiring standards themselves, as the proposed rule would fundamentally change—and lower—the hiring standards for the impacted LEAs. And, given the fact that “there are approximately 5,500 LEAs with an enrollment between 500-2,499 students, which represents about 36% of the LEA population nationwide”5 or over one-third of American students, the impact of the Proposed Rule on the school nutrition program would likely be broad and deep.
We are particularly concerned with the impact of and wisdom of weakening hiring standards and qualifying less educated and less experienced school nutrition program directors when FNS is reporting that schools are having trouble meeting the stronger nutrition standards for foods served in schools pursuant to the Healthy Hunger-Free Kids Act of 2010 (Pub.L. 111–296) (HHFKA). Secretary Perdue recognized that many schools “still face challenges incorporating some of the meal pattern requirements,”6 and we believe those challenges would be exacerbated among some of the smaller LEAs that feed over one-third of American students if the proposed rule were to be finalized.
II. Shared Concerns Regarding Needs of Smaller LEAs
The Academy shares the FNS’s and State agencies’7 ongoing concerns regarding the feasibility of implementation of the hiring standards for small LEAs and particularly the ability of very small LEAs (i.e., those with fewer than 500 students) to find qualified candidates meeting the hiring standards. We note with appreciation the FNS’s repeated efforts to add flexibilities to assist these LEAs with implementing and complying with the hiring standards in both the Final Rule8 9 10 and the proposed rule immediately preceding the Final Rule (the Initial Proposed Rule”)11 published on February 4, 2014.
The FNS’s process for developing the first professional standards for school nutrition personnel can be characterized for the diligent manner with which it frequently sought input from a wide variety of stakeholders through a transparent process with multiple options to engage in-person or remotely. This collaborative process led to the specific inclusion of additional flexibility for smaller LEAs in the form of five different pathways provided for a candidate to meet the mixed education and experience requirements to be a school nutrition program director in a smaller LEA of under 2500 students. Moreover, the Final Rule was specifically designed to provide added flexibility for LEAs with fewer than 2500 students by offering State agencies the discretion to approve an LEA’s hire of an otherwise qualified applicant who meets the educational requirement but does not have the required experience.12
In short, the FNS has already provided considerable flexibility for LEAs with under 500 students and those with under 2500 students in both the Initial Proposed Rule and the Final Rule without sacrificing the hiring standards necessary to effectively accomplish the intended purposes of the Final Rule. We appreciate these efforts and rather than lowering standards as proposed here, we encourage the FNS to assist school food authorities needing additional flexibility by using the waiver process or providing individualized attention and guidance.
III. Revised Experience Requirement Vitiates Hiring Standards, Violates Purpose
A. Purpose of Hiring Standards Is Effectuated by Balance in Final Rule
Congress passed the HHFKA to improve the nutritional quality of food served in schools to be accomplished largely by making available two necessary resources: (1) enhanced reimbursement to pay for it and (2) the assured professionalism and talent of those responsible for achieving it. To bring about the latter, Congress mandated the identification and implementation of hiring standards that “include . . . minimum educational requirements necessary to successfully manage the school lunch program . . . and the school breakfast program. . . .”13 The FNS detailed the purpose and congressional intent of hiring standards in the final rule with a notable focus on school nutrition professionals managing issues and improving functions unique to school nutrition programs:
As recognized by Congress in establishing hiring standards for these positions, the requirements will help guarantee that those administering and operating the school nutrition programs in the years ahead have a solid foundation to help them undertake new challenges. The hiring standards are expected to create a strong team of school nutrition professionals that will be able to find new ways to improve Program meals, access, and integrity in schools nationwide.14
As finalized, the hiring standards provide that one is qualified to be a school nutrition program director by (1) obtaining a baccalaureate degree or higher with a major course of study that prepares one to work in this field or (2) obtaining a degree or equivalent educational experience with a less direct nexus to the field than that in the preceding pathway in addition to having actual experience working in a school nutrition program such as that which the applicant would be responsible if hired. The amount of experience required is in inverse proportion to the difficulty of the degree obtained and its relative nexus to the school nutrition field. Multiple pathways add flexibility by broadening eligibility for these positions to both highly educated individuals with little experience and highly experienced individuals without significant advanced formal education. The balanced combination of education and experience applies to qualifications in each specified LEA size, but is particularly important for smaller LEAs as it enables them to have the added flexibility of five different pathways for otherwise ineligible individuals to meet hiring standards. The balance ensures that applicants with weaknesses in one area can compensate with additional strengths in another without lowering the hiring standards or vitiating the hiring standards’ purpose of ensuring successful management of the program.
B. Proposed Rule Abandons Relevant Experience and Weakens Hiring Standards
The Proposed Rule would lower the hiring standards for smaller LEAs by removing the requirement that school nutrition program directors have some experience with a school nutrition program similar to that for which they would be responsible. The Academy strongly opposes the proposed change, which would exacerbate inconsistencies among school districts, qualify individuals for positions without any relevant experience, and upend the balance struck in the Final Rule that enables smaller LEAs to provide added flexibilities without weakening the standards themselves.
The FNS proposes to replace the narrowly tailored school nutrition program experience requirement in the Final Rule with an experience option for paid or unpaid work in food service generally, whether that experience is as “a restaurant manager or cook”15 or an unpaid volunteer who brings food to civic association events. To be sure, these jobs require knowledge and training and are certainly important and worthy of respect, but they are different from jobs working with the intricacies of school nutrition program requirements. Although there are commonalities between school nutrition program experience and the proposed food service experience (e.g., food preparation, purchasing, and food safety are aspects of both), they are not relevant to the hiring standards for school nutrition programs. There is simply nothing in the record suggesting that mastery of and experience with those common elements translate to an applicant’s ability to “improve Program meals, access, and integrity in schools nationwide”16 or manage the school nutrition program effectively. Food safety and other issues in common with food service are notably referenced differently in the statute and final rule either as separate requirements or mandated as trainings for all school food service employees.
We note that experience with school nutrition programs is the singularly relevant type of experience identified in the record, and it is the only experience accepted by stakeholders as providing the assurance of effectiveness necessary to compensate for an applicant’s inability to meet certain degree requirements. We oppose weakening the hiring standards by removing requirements for relevant experience and we support the self-evident recognition that one’s experience working in school nutrition programs is the superlative experience qualifying one to work in school nutrition programs.
We appreciate that FNS recognized in the Final Rule that for purposes of effectuating the Professional Standards section of the Healthy Hunger-Free Act of 2010, school nutrition experience is truly valued and relevant.17 18 The FNS also clarified its understanding of “relevant school nutrition program experience” in frequently asked questions that still appears to be currently operative:
Typically, this phrase refers to previous work experience in the NSLP and SBP, as well as experience in other child nutrition programs (the Child and Adult Care Food Program and/or the Summer Food Service Program) if the latter experience is gained from working in a school. The rationale for hiring actions based on an applicant’s work experience must indicate the applicant’s familiarity with USDA’s school nutrition program. The intent of the professional standards regulations is to ensure that new school nutrition program directors have the knowledge and skills to manage the program as required. At the discretion of the State agency, experience gained from working in a school food service operation outside of USDA’s school nutrition program could count. The rationale for hiring decisions must be well supported and documented.19
IV. Lacks Reasoned Justification; Based upon Incomplete Record
The FNS suggests it came to the conclusion that the additional flexibility in the proposed rule was needed as a result of “[i]nformal input received by FNS at State agency meetings and through other State agency contacts.”20 We strongly support FNS attending stakeholder meetings such as these State agency meetings, and support FNS continuing to receive input both formally and informally from all stakeholders. However, FNS did not consult with “professional associations and other constituencies concerned with the school nutrition programs” as they did in advance of the Initial Proposed Rule.21 We respectfully suggest that the lack of collaboration and uneven stakeholder engagement prior to issuance of the Proposed Rule resulted in FNS obtaining an incomplete picture of the scope of the problems or the most efficient and effective ways to ameliorate them.
Moreover, the Proposed Rule contains few relevant facts or data from which we could ascertain a reasoned connection to the policy choice to effectively weaken the hiring standards. Instead, the Proposed Rule offers a series of generalities threaded together but no specificity or evidence of actual relevance [e.g., FNS received input suggesting rural and less populated LEAs struggle to find applicants with school nutrition experience; small LEAs are found in States, including the seven mentioned States, but it is unclear whether those States were the basis of the aforementioned input; one State agency has six SFAs with hiring problems; FNS received multiple inquiries (noting that “multiple” could be any number between two inquiries or 6500 inquiries based upon the number of LEAs with that number of students) largely originating in the Mountain Plains region, which often have rural or Tribal communities (but it is unclear whether any of the multiple inquiries were from rural or Tribal communities)]. Given the lack of clarity as to the scope of the problem and the clear and significant negative consequences of finalizing the Proposed Rule, we strongly encourage FNS to work with all stakeholders to gather relevant data and reopen the comment period before finalizing the Proposed Rule.
The FNS states that the Proposed Rule’s “proposed changes are expected to expand the pool of candidates qualified to serve as leaders in the school nutrition programs while continuing to ensure that school nutrition professionals are able to perform their duties effectively and efficiently.”22 Unfortunately, were the Proposed Rule to be finalized, we question the likelihood that proposed changes would result in either of FNS’s expected outcomes. For the former, the expanded pool of candidates eligible to be hired in smaller LEAs would likely not be perceived as peers of those in larger LEAs, given the imbalance in education and experience requirements, weaker standards, and lack of balance resulting from the Proposed Rule. For the latter, there is simply no evidence to suggest that a pool of less qualified candidates with less education and less school nutrition program experience are likely to manage the school nutrition program effectively or efficiently. We are confident the FNS has not fully considered these unintended ramifications of its overbroad and unnecessary proposals. Similarly, we are confident the FNS did not intend to suggest in the Proposed Rule that current school nutrition professionals in small LEAs are so fungible and their expertise is of so little value, that far lesser qualified candidates could replace the professionals responsible for feeding one-third of American students without a discernable impact on the effective and efficient performance of their duty to manage the school nutrition program.
V. Strategies to Improve Implementation
The Academy remains committed to working with FNS to fulfill its mission “to increase food security and reduce hunger by providing children and low-income people access to food, a healthful diet and nutrition education in a way that supports American agriculture and inspires public confidence,” and we offer these comments in that spirit. We applaud FNS for its commitment to “work with the State agencies to address unique hiring situations as they come up during implementation[ . . . and to] continue existing regular conversations with Tribal Nations to clarify any issues pertaining to implementation of the hiring requirements in school meal programs operated on Indian reservations.”23
Although we oppose the overly broad solutions in the proposed rule and are concerned about their significant unintended consequences, we recognize there are ongoing implementation issues needing attention. Not every school food authority will easily and quickly find a highly qualified and effective school nutrition program director. The planned FNS certificate program or other training currently offered or envisioned for the future by FNS and its partners could be utilized to provide remedial or preparatory coursework to enhance the candidacy of individuals with the academic qualifications but not the experience qualifications outlined in the Final Rule. Combined with a candidate’s completion of certain trainings in advance and others concurrently, we suggest that FNS should consider whether a provisional certification could be developed to allow that candidate to work on a provisional or probationary basis for school food authorities FNS determines are experiencing unique or intransigent difficulties implementing the hiring standards from the final rule.
We note that FNS’s frequently asked questions offers options for flexibility that FNS should encourage as appropriate. For example, a “State agency has the flexibility to determine if other substantial education, such as an extensive training program in school nutrition topics from a professional association with a credentialing and certification program, would count toward ‘equivalent educational experience.’”24 In addition, and noting that the Proposed Rule indicates at least one State was having particular trouble with six school food authorities unable to find a qualified candidate for the position, we seek clarification whether that State sought and received one of the competitive grants USDA could award to State agencies to assist with implementation, and we seek more details about the grant program, its effectiveness, and what resources remain.
Finally, we note that FNS referenced the option to have individuals oversee more than one school food authority, which we note has worked well in multiple similar regulated facilities.25 Consultant registered dietitian nutritionists, for example, often are ultimately responsible for dietetics services at multiple long term care facilities, but are not present on a daily basis at every site they oversee. We would welcome the opportunity to work with FNS to identify additional strategies for implementation and ways in which we can work with FNS to assist school food authorities having systemic problems.
The Academy appreciates the opportunity to comment on the Proposed Rule, “Hiring Flexibility under Professional Standards,” and we appreciate your efforts on behalf of State agencies with struggling school food authorities. We look forward to working with you on this issue in the future, and please do not hesitate to contact either Jeanne Blankenship at 312/899-1730 or by email at firstname.lastname@example.org or Pepin Tuma at 202/775-8277, ext. 6001 or by email at email@example.com with any questions or requests for additional information.
Jeanne Blankenship, MS, RDN
Policy Initiatives and Advocacy
Academy of Nutrition and Dietetics
|Pepin Andrew Tuma, Esq.
Government & Regulatory Affairs
Academy of Nutrition and Dietetics
1The Academy approved the optional use of the credential “registered dietitian nutritionist (RDN)” by “registered dietitians (RDs)” to more accurately convey who they are and what they do as the nation’s food and nutrition experts. The RD and RDN credentials have identical meanings and legal trademark definitions.
2Professional Standards for State and Local School Nutrition Programs Personnel as Required by the Healthy, Hunger-Free Kids Act of 2010, 80 Fed. Reg. 11077, March 2, 2015 (The “Final Rule”).
3The FNS recognizes school nutrition program directors are “directly responsible for the management of the day-to-day operations of school nutrition programs for all participating schools under the jurisdiction of the school food authority.” 7 C.F.R. § 210.2 2015.
4Hiring Flexibility under Professional Standards, 83 Fed. Reg. 9447, March 6, 2018 (The “Proposed Rule”).
5Proposed Rule at 9448.
6Wheeler, L. USDA delays healthy school lunch requirements. November 29, 2017. Accessed April 20, 2018.
7See, e.g., Final Rule at 11090 (“The key concern raised by State agencies and local educational agencies [at the outset of the process] was the feasibility of the hiring standards for local educational agencies, especially those with than [sic] 500 students.”).
8See, e.g., Final Rule at 11081 (“In response to commenters’ concerns over the ability to hire SFA directors for very small LEAs, such as those in rural areas or with less than 500 students, this final rule allows the State agency discretion to approve an LEA’s hiring of a school nutrition program director that has a high school diploma (or GED) but less than the required three years of relevant program experience. The LEA interested in hiring an applicant with less than the required three years of relevant program experience must demonstrate to the State agency that the applicant meets the minimum educational standard and, therefore, is otherwise qualified for the position and the best available candidate. This hiring flexibility, set forth in § 210.30(b)(1)(i)(D) of the final rule, is expected to benefit Residential Child Care Institutions and Tribal schools that may face unique challenges in finding experienced candidates.”) (Emphasis added.).
9See, e.g., Final Rule at 11091 (“FNS has considered the impact of this final rule on State and local operators, and has developed a rule that will implement the professional standards requirements in the most effective and least burdensome manner. The final rule includes several changes to facilitate implementation at all local educational agencies. For example, the final rule modifies some of the hiring standards to be more accepting of relevant work experience.”) (Emphasis added.)
10See, e.g., Final Rule at 11090 (“The final rule simplifies implementation of the hiring standards in small local educational agencies by reducing required years of experience for individuals with a high school diploma.”)
11Professional Standards for State and Local School Nutrition Programs Personnel as Required by the Healthy, Hunger-Free Kids Act of 2010, 79 Fed. Reg. 6488, February 4, 2014 (The “Initial Proposed Rule”). (“While the intent of this proposed regulation is to set a minimum level of expertise in key school nutrition program positions, we recognize that expectations must be reasonable and achievable, particularly in rural or small LEAs. This concern was expressed repeatedly by stakeholders who provided input at the public forums described earlier in this preamble. Accordingly, this rule proposes several different pathways for a candidate to meet the educational requirement for all LEAs and seeks comments on these proposed approaches as well as appropriate alternatives.”) (Emphasis added.).
12Final Rule at 11081 (“This final rule also responds to the concerns of commenters regarding the feasibility of the proposed hiring standards for small LEAs. . . . As stated earlier, to facilitate implementation of the professional standards, this final rule reduces the required years of experience for candidates with a high school diploma from five years to three years of relevant program experience.”) (Emphasis added.)
1342 U.S.C. 1776(g)(1)(A)(ii)(I).
14Final Rule at 11081. See, also, Final Rule at 11077 (“This provision is intended to ensure that school nutrition professionals that manage and operate the NSLP and SBP have adequate knowledge and training to meet Program requirements. Requiring proper qualifications to serve in the Child Nutrition Programs is expected to improve the quality of school meals, reduce errors, and enhance Program integrity.” The final rule later reiterates, “This final rule establishes minimum hiring standards and training requirements that are expected to increase the ability of the State and local operators to properly manage the meal programs.”) (Emphasis added.).
15Proposed Rule at 9448.
16Final Rule at 11081.
17See, e.g., Final Rule (“Commenters stressed the importance of school nutrition experience, and noted that an appropriate combination of education and experience is important to avoid excluding otherwise qualified applicants. . . . [A] few commenters expressed concern that candidates with a degree but no valuable school nutrition experience will apply for these positions.” Emphasis added.).
18See also, Final Rule (“This final rule does not require prior program experience if a new school nutrition program director has attained a bachelor’s degree or higher with a specific academic major in [a specified relevant field]. . . . Prior experience is required for other hiring pathways established by this rule.” Emphasis added.).
19Questions & Answers (Q&As) on the Final Rule “Professional Standards for State and Local School Nutrition Programs Personnel as Required by the Healthy, Hunger-Free Kids Act of 2010.” May 26, 2016. Accessed April 20, 2018. (Emphasis added.)
20Final Rule at 9448.
21Initial Proposed Rule at 6488.
22Proposed Rule at 9447.
23Final Rule at 11082.
24Questions & Answers (Q&As) on the Final Rule “Professional Standards for State and Local School Nutrition Programs Personnel as Required by the Healthy, Hunger-Free Kids Act of 2010.” May 26, 2016. Accessed April 20, 2018.
25Initial Proposed Rule at 6490.