1. (1) School breakfast program shall mean a breakfast designed to improve the learning potentialities of children and meeting minimum nutritional standards as prescribed in subdivision (b) of this section.
2. (2) Severe need school shall mean a school where 40 percent or more of the lunches served to students at the school in the second preceding school year were served free or at a reduced price.
3. (3) Elementary school shall mean a public school district facility offering instruction to students in one or more of the grades kindergarten through six or to students in a comparable age range in an ungraded school.
4. (4) Participating elementary school facility means a public elementary school that participated in the National School Lunch Program on or after January 1, 1993.
5. (5) Participating school facility means any public elementary or secondary school that participated in the National School Lunch Program on or after January 1, 1993.

6. (6) Breakfast after the bell shall mean providing students access to school breakfast after the instructional school day begins.

   (b) Nutritional standards.

   A breakfast shall meet the minimum meal pattern requirements contained in 7 CFR 220.8 and 7 CFR 220.23 (Code of Federal Regulations, 2018 edition, Superintendent of Documents, U.S. Government Printing Office, Washington, DC 20402-0001: 2018—available at Office for Counsel, New York State Education Building, Room 148, 89 Washington Avenue, Albany, NY 12234 and such breakfast shall be served in conformance with the offer versus serve requirements contained in 7 CFR 220.8(e) (Code of Federal Regulations, 2018 edition, Superintendent of Documents, U.S. Government Printing Office, Washington, DC 20402-0001: 2018—available at Office for Counsel, New York State Education Building, Room 148, 89 Washington Avenue, Albany, NY 12234).

   (c) Free and/or reduced-price breakfasts.

   Children to whom free and/or reduced price breakfasts will be served are to be determined by local agencies in conformity with their existing written policy statements on file in the official records of every sponsoring agency in conformance with 7 CFR Part 245 (Code of Federal Regulations, 2018 edition, Superintendent of Documents, U.S. Government Printing Office, Washington, DC 20402-0001: 2018—available at Office for Counsel, New York State Education Building, Room 148, 89 Washington Avenue, Albany, NY 12231).

   (d) Reimbursement.

   Reimbursement will be made monthly, upon receipt of a claim for reimbursement in a form prescribed by the commissioner. In no event will reimbursement to any sponsor exceed the applicable maximum as established by Federal law, 7 CFR 220.9 (Code of Federal Regulations, 1993 edition, Superintendent of Documents, U.S. Government Printing Office, Washington, DC 20402: 1993—available at Office for Regional Field Services, Room 775, Education Building Annex, Albany, NY 12234), State law and/or this section. Federal funds, to the extent available, will be used first to meet this reimbursement.

   (e) Requirement for participation in school breakfast programs by city school districts in cities with 125,000 inhabitants or more.

   Pursuant to subdivision h of section 1 of chapter 537 of the Laws of 1976, as added by section 4 of chapter 798 of the Laws of 1980, the board of education of a city school district in a city with 125,000 inhabitants or more must participate in the school breakfast program. The board of education may apply to the commissioner, at any time during the school year, to suspend the participation of a school in the school breakfast program. The application for suspension shall be filed with the commissioner, on forms prescribed by the commissioner, no later than 90 days prior to the date when the applicant requests the suspension of the program to take effect. The board of education shall certify that it has complied with all requirements of chapter 798 of the Laws of 1980 and shall submit copies of all information submitted by the public relative to the proposed suspension.

   (f) Requirement for participation in school breakfast programs.

7. (1) Not later than September 1, 1994, school districts shall establish a school breakfast program in which each pupil attending any participating school facility under the district's jurisdiction which is a severe need school shall be afforded the opportunity to receive a free, reduced and full paid breakfast.
8. (2) Not later than September 1, 1995 school districts shall establish a school breakfast program in which each pupil attending any participating elementary school, whether or not it is a severe need school, shall be afforded the opportunity to receive a free, reduced and full paid breakfast.
9. (3) Any school not offering a breakfast program on the dates specified in paragraph (1) or (2) of this subdivision, may apply to the Commissioner of Education for a one-year exemption from the requirement of subdivision c of section 1 of chapter 537 of the Laws of 1976 and this subdivision that a school breakfast program be implemented. An application for an exemption shall be submitted annually prior to July 1st of each school year. A demonstrated effort to overcome the stated obstacles must be provided.

10. (4) An exemption pursuant to paragraph (3) of this subdivision may be granted for good cause, upon a showing of one or more of the following:

    1. (i) a lack of need for such breakfast program because of low enrollment or documented projections of low participation;
    2. (ii) economic hardship; or
    3. (iii) other good cause that makes the establishment of a school breakfast program impractical.

11. (5) To be granted an exemption based on lack of need for a breakfast program, a school district must submit one or more of the following:

    1. (i) documentation of a survey conducted of all parents in the affected building(s) that indicates that 80 percent of the children of those parents responding would not use the program. A copy of the cover letter, survey and survey results indicating a response rate of 33 percent or greater must accompany the exemption request;
    2. (ii) documentation of a survey of all students attending the affected building(s) that indicates that fewer than 10 percent come to school without a morning meal and they would not consume a breakfast in school if it were available;
    3. (iii) a demonstration that a morning meal of equal nutritional value that accommodates students regardless of ability to pay is available and accessible to all the students attending the affected building(s) through another program; and
    4. (iv) lack of participation over six months in an existing program as evidenced by an average daily participation of fewer than 20 students, fewer than 10 percent of the students enrolled or fewer than five percent of the children eligible for free and reduced price meals, whichever is less. The district must investigate the reasons for low participation and substantiate its efforts to increase participation levels before an exemption will be granted.
12. (6) To be granted an exemption based on economic hardship, a school district must be eligible for an apportionment of tax effort aid during the prior school year pursuant to paragraph c of subdivision 16 of section 3602 of the Education Law, as determined by the commissioner based on the best data available on July 1st of the current school year, and must demonstrate that, after exhausting all other available sources of revenue, administering the breakfast program will result in an increase in local real property taxes.
13. (7) To be granted an exemption based on other good cause that makes the establishment of such a program impractical, a school district shall submit documentation of an investigation of the perceived barrier and documentation that the district has attempted to resolve the problem and is unable to do so.

14. (8) Parents and taxpayers must be made aware of the district's intent to request an exemption by May 1st of each year and be offered an opportunity to share their concerns with school officials. For the 1994-95 school year parents and taxpayers must be notified by July 1, 1994. A copy of this public release must accompany the exemption request. Requests for an exemption must be signed by an officer of the board of education. A waiver may be granted for a limited period of time during the 1994-95 school year, not to exceed one year, for those schools that would have difficulty meeting the September 1, 1994 deadline and during the 1995-96 school year for those participating elementary schools that would have difficulty meeting the September 1, 1995 deadline and do not qualify for an exemption, to allow adequate time for planning and implementation of a breakfast program. Requests for a waiver shall be signed by an officer of the board of education, shall indicate a starting date for implementing the breakfast program and shall demonstrate the need for additional time to:

    1. (i) plan for the implementation, including, but not limited to, staffing, storage and outreach to parents and students;
    2. (ii) observe other programs and consider options for implementing the program;
    3. (iii) promote the advantages of the program to the community to ensure significant participation levels;
    4. (iv) renegotiate existing contracts so as to implement the program; or

    5. (v) purchase and install necessary equipment.

       (g) State full cost reimbursement.

15. (1) Pursuant to subdivision i of section 1 of chapter 537 of the Laws of 1976, as added by section 4 of chapter 798 of the Laws of 1980, a school district commencing operation of a breakfast program in any of its schools after September 1, 1980 may seek full cost reimbursement for the first year of operation of such program by submission of a plan of operation for each new school program. This plan shall include, but need not be limited to:

    1. (i) estimated average daily participation;
    2. (ii) proposed staffing;
    3. (iii) estimated labor costs;
    4. (iv) four-week cycle menu;
    5. (v) estimated food costs;
    6. (vi) estimated other costs—supplies, materials, etc.;
    7. (vii) other program responsibilities of proposed staff;
    8. (viii) type of food service (onsite, satellite, etc.);
    9. (ix) proposed service starting and closing time, and school normal opening time; and
    10. (x) additional information as requested by the department to evaluate the administration of the proposed program.
16. (2) For programs commencing after January 1, 1981 to be eligible for State full cost reimbursement, written approval of the program plan shall be obtained from the department prior to commencing operation of the new program.

17. (3) Costs eligible for full cost reimbursement shall be the approved actual direct and indirect costs incurred in the operation of the reimbursable breakfast program, but shall not include costs incurred for:

    1. (i) bad debts;
    2. (ii) fines and penalties;
    3. (iii) interest and financial costs;
    4. (iv) legislative expense or executive direction (salaries and expenses of city councils, school boards, etc.);
    5. (v) contingency reserve contributions;
    6. (vi) depreciation or use allowance for publicly owned buildings and improvements;
    7. (vii) direct labor costs for administrative personnel above the school food service employee level, other than those with direct program responsibility;
    8. (viii) USDA-donated foods or cash received in lieu of foods;
    9. (ix) other donations of cash, services and goods;

    10. (x) equipment depreciation costs for:

        1. (a) nonexpendable equipment items which have become fully depreciated;
        2. (b) nonexpendable equipment in storage for future use or disposal; and
        3. (c) that portion of equipment which has been purchased with Federal funds;

    11. (xi) capital expenditures for:

        1. (a) land or construction;
        2. (b) facilities;
        3. (c) repairs which materially increase the value or useful life of capital assets; and
        4. (d) other capital assets and purchases;
    12. (xii) occupancy by contractual agreements which are classified as rental-purchase or leased with an option to purchase; or

    13. (xiii) cost associated with sales or service to adults and a la carte sales.

        (h) Breakfast after the Bell Program.

18. (1) All participating public elementary or secondary schools in this State, not including a charter school authorized by article 56 of the Education Law, with at least 70 percent or more of its students eligible for free or reduced-price meals under the Federal National School Lunch Program as determined by the commissioner based upon data submitted by schools through the basic educational data system (BEDS) for the prior school year, shall be required to offer all students a school breakfast after the instructional day has begun.
19. (2) Each public school may determine the breakfast service delivery model that best suits its students. Service delivery models may include, but are not limited to, 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 students' classrooms and instruction is being provided while students are consuming breakfast. In determining a service delivery model, schools shall consult with teachers, parents, students and members of the community.
20. (3) Schools subject to this requirement shall provide annual notice to students' parents and guardians that the school will be offering breakfast to all students after the instructional day has begun.

21. (4) Any school identified pursuant to this section may apply to the commissioner for a waiver from establishing a school breakfast program after the instructional day has begun. Such waivers shall be annually submitted to the commissioner in a format and manner prescribed by the commissioner prior to July 1st of each school year. Such waiver may be granted by the commissioner upon the school demonstrating:

    1. (i) a lack of need for a school breakfast program after the instructional day has begun because of a successful existing breakfast program; or
    2. (ii) that providing a school breakfast program after the instructional day has begun would cause economic hardship for the school.

(a) Definitions.

As used in this section: