Legislating Health

Six states and the district of Colombia passed legislation in 2010 that mandated "healthy" reforms in school meals programs. Those bills were in addition to the national Healthy, Hunger-Free Kids Act. All these laws have directors asking, "Is the legislation helping or hurting our child nutrition programs?"

The past year has been a particularly tough one for child nutrition directors in terms of legislation mandating healthy reforms in school meals. The Healthy, Hunger-Free Kids Act was signed into law in December 2010. In addition to the federal legislation, six states and the District of Columbia enacted some type of school nutrition bill that deals with healthful meals, according to the National Conference of State Legislatures. Directors agree that reform is needed in their programs, but directors in some states are being hit with mandates from both the federal and state governments, and in some cases those regulations are not the same. Further complicating things is the fact that many of these mandates are unfunded, putting even further strain on already tight budgets.

The issue of how much legislation is too much and who has the right to mandate reforms in school meals is a complicated one. This month FSD investigates the subject.

The past year has been a particularly tough one for child nutrition directors in terms of legislation mandating healthy reforms in school meals. The Healthy, Hunger-Free Kids Act was signed into law in December 2010. In addition to the federal legislation, six states and the District of Columbia enacted some type of school nutrition bill that deals with healthful meals, according to the National Conference of State Legislatures. Directors agree that reform is needed in their programs, but directors in some states are being hit with mandates from both the federal and state governments, and in some cases those regulations are not the same. Further complicating things is the fact that many of these mandates are unfunded, putting even further strain on already tight budgets.

The issue of how much legislation is too much and who has the right to mandate reforms in school meals is a complicated one. This month FSD investigates the subject.

Issue: How bad are school meals anyway?

I don’t know why all of a sudden K-12 feeding became the focal point of obesity in the United States,” says Brendan Ryan, foodservice director at 8,500-student Framingham (Mass.) School District. “Why are we being charged as the cure-all? The kids go home and they lead a latchkey lifestyle and it’s sedentary. They go home and they eat a bag of potato chips, and all that we’ve done is for naught. You just ask, ‘What are we doing here?’ It can’t all be put on the food.”

Ryan isn’t the only director who feels like school meal programs are being blamed for the increase in childhood obesity.

“Schools are looked at to fix all the problems of families,” says Dianna Krebs, child nutrition director for Pascagoula (Miss.) Schools. “We need to do our part, but we can’t fix what happens when students get home and what they eat when they get home.”

School nutrition programs have been taking a beating in the public arena, being deemed unhealthy and named as a contributing factor to the rise in childhood obesity. Directors don’t agree with the negative opinions, but they readily admit that changes need to be made to their programs.

“If you go back through the history of school nutrition, [the program] started because we wanted to serve meals to kids in our schools,” says Gail Koutroubas, foodservice director at 6,000-

student Andover Public Schools and 2,000-student Greater Lawrence Vocational School in Massachusetts. Koutroubas also is the president of the Massachusetts School Nutrition Association. “[Directors] never sold an à la carte item back in the day, I don’t think. As the program evolved we became more sophisticated and kids became more sophisticated, and with the introduction of processed foods and fast foods in the ’80s and ’90s, school foodservice operations started to jump on that bandwagon. That’s what we thought kids wanted. Then we started à la carte sales.”

Koutroubas says that school nutrition programs became more profitable after starting à la carte sales. As a result, districts began asking child nutrition programs to pay for more of their expenses, like directors’ salaries, which Koutroubas says were paid out of the district’s general fund when she started nearly 30 years ago. “We were able to afford [taking on these added expenses] because we were selling things that we probably shouldn’t have been selling, but kids liked [them]. They were new items, fast food, processed. It decreased the amount of trained labor you had to have because it was quick. It wasn’t the healthiest thing we could have done.

“What happened then was you started to look at the obesity rate in the last 10 years and it has increased significantly,” she adds. “Now is that because of school lunch in itself? No. It is a combination of things. To blame only the school foodservice program is unjust. We’re saying

we all have to do a better job. We have to do a better job at home, at McDonald’s. We’re saying school lunch programs have to change also. We have to get back to doing what is right for kids.”

The School Nutrition Association says that progress has been made in offering healthier options to students. In its School Nutrition Operations Report: The State of School Nutrition 2011, the association found that 98% of school districts offer fresh fruits and vegetables; whole-grain foods are readily accessible in 97%; and 89% of districts offer salad bars or prepackaged salads. The study also found that more districts were making more of their entrées or sides from scratch than in 2009.

Issue: Is legislation needed to reform school meals?

Koutroubas says laws mandating healthy changes in schools “is a good thing. It keeps everybody on track and makes sure that we’re doing the right things for kids. I think that anybody who is in this business has the best intentions of the kids at heart.

“I don’t take [the legislation] as a negative,” she adds. “I take it as constructive criticism. They are the Department of Health. They are the nutritionists. They know what the statistics say, and if they say we shouldn’t be serving these items, then we shouldn’t be serving those items. Who am I to say, ‘No, I think you’re wrong?’ I have to believe what they say is accurate.”

Gail Kavanaugh, child nutrition director at the 8,800-student Vicksburg Warren (Miss.) School District, has worked with the state to create legislation in her role as chairman for the public policy and legislation committee for the Mississippi School Nutrition Association. “We probably have some of the most positive legislation that has come out as far as changing items on the menu and the [meal] requirement,” she says.

That law is the 2007 Mississippi Healthy Students Act, which directed the state Board of Education to adopt regulations addressing healthy food and beverage choices and healthy food preparation. Kavanaugh says she made several changes to her program after the bill was adopted, including offering fresh fruits and vegetables every day, serving 1% or skim milk and offering green, leafy vegetables. Because of this law, Kavanaugh says that Mississippi child nutrition programs are ahead of the curve in making their programs healthier.

“Clearly I think there’s this legislative intent to make things better,” says David Binkle, deputy director of foodservice at the 672,000-student Los Angeles Unified School District. “Everybody is on this bandwagon about trying to improve things. When they improve things, unless it has some funding mechanism with [the legislation] then it becomes another unfunded mandate.”

Issue: Is the current legislation helping or hurting school nutrition programs?

Binkle works in a state that is in the throes of a serious fiscal crisis. “Everybody is already complaining about the lack of resources,” he says. “Over the past couple of years we have cut $1.2 billion in this school district alone. So when you start adding all these good intentions [from the state lawmakers]…we want to make things better, but there are a lack of resources to do it.”

California was one of the six states that enacted “healthy” school nutrition legislation in 2010. That state’s law “requires school districts to provide access to free, fresh drinking water during meal times in school food service areas by July 1, 2011.” So how could a mandate that requires providing free water to students be controversial? The issue arises in how that water is to be dispensed to students and where the money will come from to carry out the order.

A similar mandate is found in the Healthy, Hunger-Free Kids Act. It also does not provide funding for the regulation. Because the USDA says there is no nutritional value in water, Binkle says, water is not considered part of a reimbursable meal. As a result, the cost of providing water falls solely on the shoulders of foodservice directors.

Another issue is how the water must be distributed: water fountains, bubblers, pitchers of water in cafeterias? Yet another factor is how that water is given to students to drink: cups provided by foodservice programs, cups or containers brought from home?

Like California, Massachusetts also passed a bill requiring districts to provide water to students. Andover’s Koutroubas says she thinks the requirement is a good one. Before the legislation she offered water for 50 cents, but she had never thought about giving the water away for free. “[The requirement] is really simple to implement. You have to offer the water for free. You have to provide the cup. We use a container and we keep it in an area where we can monitor it.”

Koutroubas adds that because the water requirement is unfunded it’s important for directors to make sure district administrators know the budgetary constraints the child nutrition program are being put under. “We have to educate our superintendents so that they understand what we’re up against, so they see us more as a part of the school budget versus contributing to the school budget,” she says. “The small amount of money that we receive should be going into the lunch, not the lights or the custodians.”

“The water mandate is a challenge,” agrees Eric Goldstein, chief executive of the Office of School Support Services for New York City’s 1,700 public schools. “We are working with the health department to put in water bubblers to see if that’s the best way. It’s a little expensive. Alternatively we can put in more water coolers. It’s a less attractive way to do it, but it does work. [Offering free water] is a good idea. If money weren’t an issue, if it were funded, we would put in water bubblers. We give [students] cups for free. [Buying cups] does add up quick, but what allows us to do it is we buy in bulk and it drives the cost down.”

Another hot topic in the Healthy, Hunger-Free Kids Act is the proposed meal pattern changes. The new meal pattern requires one cup per day of fruit for breakfast, an increase of one-half cup. There also are increases in the amount of fruits and vegetables that must be served at lunch. In addition, the law mandates a weekly requirement for dark green and orange vegetables and legumes, and limits the amount of starchy vegetables that can be served.

“I think the biggest impact [of the Healthy, Hunger-Free Kids Act] is going to be on breakfast and increasing the amount of fruit,” says Vicksburg’s Kavanaugh. “Right now we see a lot of waste just because of the time constraints to eat breakfast. And little children, particularly K-3, it’s hard for them to consume that much at a sitting. I foresee a lot of waste. And when you have waste you get negative comments coming back from educational professionals. Teachers do not like to see the garbage can fed. They pay attention to that. They want to see their children consuming.

“Some of the things on paper look great,” Kavanaugh adds. “But as we say when you actually get to the front lines of implementing things that have been legislated, sometimes that’s where the great divide happens.”

Pascagoula’s Krebs says the new meal pattern is what worries her the most about the new federal legislation. “Before we had to try to keep the fat low and meet the calorie requirement,” she says. “And now you have to figure in the salt and the extra fruits and vegetables that [students] are required to pick up. Plus, you can’t have ‘white’ vegetables except once a week. Some of the vegetables that they are limiting us to once a week are the vegetables that we can get [students] to eat. It seems like we are going to be rotating the same vegetables all the time because otherwise it will go into the garbage. They are limiting the salt so that limits most of our [spice blends]. Three years ago we made our own spice [blends] and we might have to go back to that.”

Framingham’s Ryan is concerned that the new meal pattern is not teaching students the correct way to eat. “We’re teaching dietary intake through exclusion,” he says. “Instead of saying, ‘Yes, you should offer potatoes, but it should not be offered more than twice a month,’ or something along that line, so that we’re teaching kids how to eat for the future that diet is based on variety. Instead it’s being mandated that it’s diet based on exclusion, and I don’t think that’s the right message to be getting across to kids.”

Ryan is not only dealing with the new meal patterns for the Healthy, Hunger-Free Kids Act but also with new state legislation that specifies what can be sold in à la carte lines. The state regulations, which go into effect next school year, restrict the amount of sugar that can be contained in frozen “treat” items. “I’m not saying I want to serve ice cream every day,” Ryan says. “I removed all ice cream three years ago. I only serve fruit-based frozen treats. Now [the state] is putting a restriction on the percentage of sugar, even though the sugar content in that item is strictly from juice.”

Koutroubas also is dealing with the new Massachusetts laws, including a proposal to reduce the size of milk from 10 ounces to 8 ounces. She says the reduction in milk sizes is designed to help reduce sodium, which is part of the federal mandates.

“Personally I don’t agree with [the reduction],” Koutroubas says. “I think that the kids need more calcium. I don’t think those are empty calories. [Lawmakers] are pushing the envelope there. Juice at all levels is going to go to 4 ounces. I think that pushes the extreme also.”

Paula Montgomery, child nutrition supervisor at Fairborn City Schools in Ohio, also is dealing with a new state bill that mandates nutritional standards in her program. Montgomery was a member of the task force that consulted on the creation of the bill, of which setting beverage standards was a major component. All beverages were affected by the legislation, and now all beverages that are sold à la carte must be the same portion size as what is offered in the reimbursable meal. For grades K-8, milk must be 8 ounces of low-fat or fat-free milk, with no more than 170 calories per 8 ounces. For grades 9-12, the requirement is 16 ounces of low-fat or fat-free milk, with no more than 170 calories per 8 ounces. After Jan. 1, 2014, milk cannot contain more than 150 calories per 8 ounces for any group. There are similar age requirements for juice, and water must be available for all age groups.

Foods sold on à la carte lines also were addressed. If a food item is a component of a reimbursable meal it is exempt from the à la carte nutrition standards as long as that item is sold à la carte in the same serving size as in the reimbursable meal. The bill requires à la carte foods to meet guidelines of either the Alliance for a Healthier Generation or Nutrient Density Format (NDF), a set of requirements set forth by the Ohio Department of Education. The department is providing directors with software to help them determine what they can and cannot sell under the NDF. If directors follow the NDF, 40% of à la carte food items available must come from the highest rated category by July 1, 2012, which is double the percentage that is required for this school year. If directors choose to follow the Alliance for a Healthier Generation guidelines, all food items must meet those requirements.

Montgomery says when the state law was crafted the goal was to have it be similar to federal regulations. “I see great similarities between the [state law and the federal proposed meal patterns], she says. “I don’t think that it really will cause a lot of grief on our part. We thought it was important to have the school foodservice side on the task force [so we were] able to voice where we thought we would see some major restrictions. Of course, we are wondering when the completion of the [federal] standards will be done.”

The USDA, which has received more than 130,000 comments on the Healthy, Hunger-Free Kids Act, says the final regulations will be released this winter or spring 2012.

“I think a lot of us [directors] are sitting back and going, ‘What are you guys doing?’” Ryan asks. “[The federal and state governments] are mandating this stuff and it’s the difference of a theorist sitting in an office and we’re the operators sitting on the front lines. It’s one thing to mandate some of this stuff down to us, but does everybody have a clear understanding on what the impact is on us? We’re the ones who have to make the program work. Of course [the Healthy, Hunger-Free Kids Act] is a positive. We’re all in the business of feeding kids, so any time we can ensure that, it’s good.”

LAUSD isn’t waiting on the final regulations to redraft its menus. The district implemented new menus this year, at a cost of 43 cents more per meal. The new menus meet all of the proposed meal patterns, with the exception of increasing the portion size of fruits and vegetables, because Binkle says that regulation will increase waste and costs.

“We don’t have any pizza, chicken nuggets, peanut butter and jelly sandwiches or cheese sandwiches,” Binkle says. “We don’t have any of that stuff because of the sodium content. We’ve completely revamped the menu and changed the way the items are prepared.” He adds that the reaction to the new menus is mixed and that it’s too soon to tell what will happen with participation.

NYC’s Goldstein says the federal law is needed, but the lack of funding worries him. “The fact of the matter is, funding matters. The fundamental problem with the bill was it became an unfunded mandate. That’s where people have problems with it. But a funded mandate is a very powerful way to make change. And change is needed, there is no doubt about it.”

Not all legislation is unfunded. The District of Columbia’s 2010 Healthy School Act, which mandated nutritional standards for school meals and the percentage of local items that schools serve, included funding.

According to Jeff Mills, executive director of food and nutrition services for the District of Columbia Public Schools, the Healthy School Act’s nutritional standards are similar to the HealthierUS School Challenge’s Gold requirements. The foodservice department receives 10 cents for every reimbursable

meal that meets the requirements. The department also receives 5 cents for meeting the local requirement, which can either be claimed for the lunch or breakfast meal, but not both. Milk can no longer be claimed as a local product. In addition, the Healthy School Act gave a one-time $7 reimbursement for every student enrolled in a school where an alternative breakfast program, such as breakfast in the classroom, was started.

“The act actually supported us because it gave us additional funding to do something that we were already doing,” Mills says. “That’s the same thing with the alternative breakfast programs. The year before [the law was enacted] we started breakfast in the classroom in about 40 schools. The act couldn’t have come at a better time for us because it supported what we had planned to do, with additional funding.”

Mississippi’s HB 1078 also provided a financial incentive to make meals healthier. For each school that was awarded a HealthierUS Challenge honor, additional state funding was provided. The USDA also pays for each school that achieves the honor. For each Mississippi school that qualified in the Bronze category, the director received $1,500 on top of the $500 given by the USDA, up to Gold with Distinction, for which schools receive $6,000 from the state on top of the $2,000 from the USDA. More than 15 school districts have earned recognition in the HealthierUS Challenge since 2009 when the state began providing monetary rewards.

Issue: Should the mandates for healthy changes in school meal programs come from the federal level, state level or a combination of both?

There are conflicting opinions over who should mandate reforms for school meal programs.

“The School Nutrition Association supports consistent, national nutrition standards, based on the Dietary Guidelines for Americans, for all foods and beverages sold in school,” says Diane Pratt-Heavner, director of media relations for SNA. “Children’s basic nutritional needs are the same whether they live in Florida or California, and whether they are sitting down for snack time or lunchtime. When individual states and school districts pass their own regulations for school food, the result is a patchwork of standards that vary wildly from one locality to another, and some may not be based on sound nutrition science. Multiple standards increase the cost of the program by requiring [manufacturers] to prepare multiple versions of the same products to meet various nutrition standards.”

Vicksburg’s Kavanaugh has lobbied at the federal level for child nutrition legislation. She also has helped formulate some of her state’s legislation on the topic. “Since [the school meal program] is a federally funded program, the regulations that govern this program should be coming from the federal government, with the USDA as the driving force,” she says. “If states want to include or pass stricter regulations for schools, they should come up with the reimbursement to offset the cost of those regulations. It’s not excluding states’ rights to do that. If it is a state regulation then states should come up with offsetting money to pay for that. We all think that’s fair. To [require it and not pay anything] is really making a burden on us.”

For its part, a USDA spokesman says: “USDA has set a minimum standard for school meals that must be followed. State agencies may impose stricter requirements as long as those limits are not inconsistent with the national standards.”

But some foodservice directors say the state and federal regulations are not always the same. Take the aforementioned water requirement. LAUSD’s Binkle says while the regulations are similar, how that requirement is to be implemented is different between the state and federal laws. “[The water mandate] was written as though it’s a district issue and a district mandate in the [state] law as opposed to a child nutrition mandate, which is what’s in the Healthy, Hunger-Free Kids Act,” Binkle says. The question between the two bills regarding the water issue is who is responsible for implementing the regulation.

Binkle says the main problem is that the USDA and the Department of Education don’t communicate, which leads to confusion. The USDA funds the program through a block grant to the state’s Department of Education. States are required under the National School Lunch Act to provide state revenue matching funds to the individual districts’ child nutrition department. Because there are different levels of government and different governmental departments overseeing the school meals program, ownership over mandates can become convoluted.

“The synergy and alignment begin at the federal level in our programs,” Binkle says. “No. 1, the two different departments at the federal level don’t speak to each other, so there is a lack of clarity. If [mandates] don’t start at the federal level then it becomes an interpretation based upon 50 ideas. From our perspective if it’s not in a federal law to start with, then it becomes an isolated, individual state-by-state decision.”

But Andover’s Koutroubas says states should have a say in mandating school meal programs. “I think it’s good that we have the local control,” she says. “I understand that the federal government gives us a substantial amount of money and that they should have a say also. Every region of the country is a little bit different, so I think that yes, the state should have a role. I think [state legislators] need to include all of the stakeholders when they make these decisions. I don’t think they should make them in a box somewhere.”

Once again, funding comes into play. DC’s Mills says he thinks states should have a right to mandate nutritional guidelines for school meals, but he adds, “there needs to be funding attached to it. If you’re asking someone to completely upgrade their menus, then there needs to be funding there to be able to follow through.”

In Mississippi, Kavanaugh says that until two years ago she didn’t receive the full amount of the state’s revenue match, 1% of the department budget, which equaled $40,000. “We’ve always received some [of the state match], but we didn’t up until two years ago receive our full state match,” she says. “It was being diverted and being used in other ways.” Kavanaugh says after the issue was addressed with state legislators, the state started to pay up. She says she normally spends the state matching funds to purchase or repair equipment.

Like Kavanaugh, LAUSD’s Binkle says that his district is not receiving all of its state-promised funds. When Binkle started in the district four years ago, California provided a per meal reimbursement of 23 cents. That reimbursement is now around 10 cents. “Of course, that 10 cents per meal we aren’t even getting now,” Binkle says, adding that the state owes his department $6 million.

Framingham’s Ryan says it’s important for state and federal agencies to work together when mandating school meal reforms. “You look at the two of them [the state and the federal regulations] and you say, ‘What are we doing here? Who is doing what? Are we working in concert together or is the federal government and the USDA mandating one thing and the states mandating another?’ he asks. “It’s different from state to state. No one is consistent right now.”

Fairborn’s Montgomery says she thinks the new state regulations make things difficult for manufacturers as well. “If our manufacturers have to change their products to meet our specifications and what our children will eat, can you imagine having five states with different specs?” she asks. “I think we should really concentrate on a common goal. We all want that. We need to think long and hard on this before we make these drastic decisions. That will drive the cost up. What is good in Ohio will not be good for West Virginia or Texas. When I go to lobby on a national level I want to say, ‘look at what we can provide for our children.’ That’s the message that we want to share. It’s so negative anymore. This is the first year that I’ve felt, ‘oh, my gosh, the challenges are neverending.’ It’s like making everyone who has a newborn go to this class and requiring them to feed the baby this. It’s nuts. They are all the right things, but…it’s so challenging. We just want [the students] to eat.

“Being a small part of that team and talking with our legislators on the state side of it, they want that state ownership,” she adds. “I believe in feeding kids and if I can do anything on the hunger issue, I’m there. I think we all have a little part in making this work and I just think the political things sometimes overshadow the importance of it all.”

In the end directors are asking, and waiting, for guidance and clarity on regulations from both the state and federal levels.

“There should still be some oversight, but it should be a unified message coming from both the state and the federal government,” Ryan adds.

“You can get multiple viewpoints of the same issue. Here in Massachusetts I’ve got the John Stalker Institute of Food and Nutrition, and they put out a thing called the A list [a list of items that meet the Massachusetts à la carte food and beverage standards]. I look at the A list very heavily as a proponent of what I should offer. But now the A list contradicts what the new regulations are. So there is a bunch of back and forth.

“We want a clear understanding of what’s right and what’s the impact to us for doing right,” Ryan adds. “It’s all balance. I don’t have the answer.”