The Community Eligibility Provision (CEP)—part of the Healthy, Hunger-Free Kids Act of 2010—makes it possible for students, regardless of family income, to receive free school meals.[REF] This provision thus turns welfare on its head by expanding free school meals to students who are not low-income[REF] and who could very well come from wealthy families.[REF] It began as a pilot program in a handful of states but expanded nationwide during the 2014–2015 school year.[REF] Essentially, the Community Eligibility Provision is a backdoor approach to a universal school meal program.

Congress should eliminate the Community Eligibility Provision in the next child nutrition reauthorization bill; however, it should not wait until a reauthorization bill is passed to block implementation of the provision. Instead, it could use the appropriations process to withhold funds from the U.S. Department of Agriculture (USDA) for implementation of the Community Eligibility Provision. Under the Congressional Review Act (CRA), Congress might also be able to effectively eliminate the Community Eligibility Provision by passing a resolution of disapproval that would repeal the July 29, 2016, USDA rule that implements the provision.

Expanding Welfare to the Middle-Class and Wealthy

The school meals programs (national school lunch and school breakfast programs) are designed to provide free and reduced-price meals to students from low-income households. However, under the Community Eligibility Provision, a student no longer needs to be low-income to receive free meals. If 40 percent of students in a school, school district, or group of schools within a district are identified as eligible for free meals (because they receive benefits from another means-tested welfare program like food stamps or are in another disadvantaged category, such as being in the foster care system),[REF] then all students in that school, school district, or group of schools are eligible for free meals. Moreover, because schools can be grouped together for purposes of determining eligibility for the Community Eligibility Provision, it is possible that a school could to provide free meals to all students without having a single low-income student enrolled.[REF]

While proponents argue that the Community Eligibility Provision is designed to help high-poverty schools, the reality is that it extends free meals to middle-class and wealthy schools. This focus on high-poverty schools is misleading. School meals are supposed to serve needy students (not schools), and getting rid of the Community Eligibility Provision would not change the eligibility of low-income students to receive free and reduced-price meals.[REF]

Proponents of the Community Eligibility Provision also claim that it is needed to reduce administrative burden by, among other actions, eliminating the school meals application process. However, the application process is necessary to ensure that benefits are going to those who are truly in need. After all, to operate a means-tested welfare program, the means of recipients have to be ascertained. Congress and the USDA should examine ways to reduce the administrative burden, but not by ignoring the very purpose of a welfare program: to help those in need.

How to Address the Community Eligibility Provision Immediately

In 2016, both the House and the Senate introduced child nutrition reauthorization bills, but the reauthorization process stalled. Both bills would have left the Community Eligibility Provision intact. The House bill tweaked the provision slightly to help increase the likelihood that only children who are truly in need would receive free meals.[REF] However, it still legitimized the notion of universal free school meals.

Congress should stop tinkering with bad policy and instead eliminate the Community Eligibility Provision in its next child nutrition reauthorization bill. Before that takes place, however, Congress should take immediate action to stop the implementation of this provision. Two ways that this could be accomplished include:

• The Appropriations Process. Congress can stop implementation of the Community Eligibility Provision through the appropriations process by adding a policy rider that would withhold any funds for its implementation from the USDA. This would be a temporary solution since any rider would apply only for the fiscal year.
• The Congressional Review Act (CRA). The CRA provides Congress with an easier process to repeal recent final rules when compared to the usual legislative process. For example, under the CRA, Congress does not have to worry about the threat of a filibuster if certain conditions are met.[REF] The CRA also prohibits an agency from issuing a rule that is “substantially the same” as the rule that was disapproved.[REF]

Congress can use the Congressional Review Act to pass a disapproval resolution on the final rule implementing the Community Eligibility Provision to stop this provision in its tracks. While there are timing requirements regarding which rules are recent enough to be CRA-eligible, the latest Congressional Research Service analysis states that final rules reported to Congress as of June 13, 2016, are eligible for review under the CRA.[REF] The Community Eligibility Provision final rule would meet this time requirement; it was not even issued until July 2016.[REF]

If Congress passed a disapproval resolution on the rule, it would prohibit the USDA from issuing another rule that is “substantially the same.” Whether the USDA could issue a rule to implement the Community Eligibility Provision that would not be considered “substantially the same” remains in question. However, it is difficult to imagine a future rule that would implement the Community Eligibility Provision that would not be “substantially the same” as the existing final rule. If there is some question as to the scope of the disapproval resolution, Congress could consider using preamble language to help clarify its intent.[REF]

Conclusion

The Community Eligibility Provision undermines the original purpose of the school meal programs and seeks to turn a means-tested welfare program into a universal free school meals program. Congress should not wait to pass a new child nutrition reauthorization bill to address the Community Eligibility Provision when it could stop its implementation immediately through the appropriations process or the Congressional Review Act. Legislators should take a step back and develop sound child nutrition policy that is not merely an excuse to create more government and greater dependence.

—Rachel Sheffield is a Policy Analyst in the Richard and Helen DeVos Center for Religion and Civil Society, of the Institute for Family, Community, and Opportunity, at The Heritage Foundation. Daren Bakst is a Research Fellow for Agricultural Policy in the Center for Free Markets and Regulatory Reform, of the Institute for Economic Freedom, at The Heritage Foundation.