(1) "Act" means the Older Americans Act of 1965, as amended.

(2) "Administration on aging" means the agency established in the office of the secretary, department of health and human services, as part of the office of human development services which is responsible for administering the provisions of the act and whose address is North Building, 330 Independence Avenue, Southwest, Washington, D.C. 20201.

(3) "Federal department" means the department of health and human services.

(4) "Department" means the department of public health and human services.

(5) "Division" means the senior long term care division of the department of public health and human services.

(6) "Commissioner" means the commissioner on aging of the administration on aging.

(7) "Area agency" means the agency designated by the division in a planning and service area to develop and administer an area plan for a comprehensive and coordinated system of services for older persons.

(8) "Community focal point" means a place or mobile unit in a community or neighborhood designated by an area agency for the collocation and coordination of services to older persons.

(9) "Comprehensive and coordinated system" means a program of interrelated social and nutrition services designed to meet the needs of older persons in a planning and service area.

(10) "Indian tribal organization" means the recognized governing body of any Indian tribe, or any legally established organization of Indians which is controlled, sanctioned or chartered by the governing body.

(11) "Indian tribe" means any tribe, band, nation or

other organized group or community of Indians which is recognized as eligible for the special programs and services provided by the federal government to Indians because of their status as Indians.

(12) "Manual" means the state manual of policy and procedures for operations of programs under the Older Americans Act for the division.

(13) "Multipurpose senior center" means a community or neighborhood facility for the organization and provision of facilities for recreational and group activities for older persons and services including, but not limited to, health, social, nutritional, and educational services.

(14) "Planning and service area" means the geographic area served by an area agency.

(15) "Nonprofit organization" means a corporation organized under Title 35, chapter 2, MCA, in which no part of its income or profit is distributable to its members, directors, or officers.

(16) "Older person" means any person 60 years old or older.

(17) "Service provider" means an individual, agency, or organization awarded a subgrant or contract from the division or an area agency to provide services under the state plan or an area plan.

(18) "Federal fiscal year" means the period beginning October 1 of one year and ending September 30 of the next year.

(19) "State fiscal year" means the period beginning July 1 of one year and ending June 30 of the next year.

(20) "State plan" means the document submitted by the division to the administration on aging in order to receive grants from the state's allotments under the act.

(21) "Units of general purpose local government" include, but are not limited to, counties and incorporated cities and towns and other government units as may be established by law pursuant to Title 7, chapters 1, 2, and 3, MCA.

(22) "Area plan" means the document submitted by an area agency to the division in order to receive subgrants or contracts from the division's grants under the act.

(23) "Supportive services" means:

(a) access services such as:

(i) transporting older persons to and from community facilities and resources;

(ii) escorting older persons unable to use conventional means of transportation;

(iii) outreach to identify hard-to-reach older persons and assist them in obtaining services; and

(iv) informing older persons of the opportunities and services available and referring them to the proper service provider.

(b) community services such as education, information and referral, health, legal, advocacy, program development, counseling, health screening, residential repair and renovation, recreation and alteration, renovation, acquisition and construction of multipurpose senior centers;

(c) home services such as home health, homemaker, home chore; and

(d) services in care providing facilities such as placement, counseling, complaint and grievance resolution.

(24) "Nutrition services" means congregate and home delivered meals, nutrition education and shopping assistance.

(25) "Entity" means an individual, person or organization.

(26) "MCA" means the Montana Code Annotated.

(27) "District" means one of the multi-county districts established by Executive Order 2-71 and Executive Order 7-73.

(1) The division may designate as a planning and service area:

(a) any unit of general purpose local government;

(b) any district or combination of districts; or

(c) any Indian reservation.

(2) The designation of planning and service areas by the division will be governed by the following criteria:

(a) Planning and service areas will be designated every 4 years beginning October 1, 1987.

(b) There will be no more than 12 planning and service areas designated in each 4 year period.

(c) There will be no less than 7 planning and service areas designated in each 4 year period.

(d) The 11 or 12 planning and service areas that were designated prior to October 1, 1983 will continue to be designated as planning and service areas until October 1, 1987.

(e) The division will accept requests from planning and service areas that the area will be divided into two new planning and service areas.

(f) Before October 1, 1983, only one request will be approved by the division creating two planning and service areas out of one.

(a) develop and administer an area plan for a comprehensive and coordinated system of services; and

(b) serve as the advocate and focal point for older persons in the planning and service area.

(2) Entity includes but is not limited to:

(a) an established office on aging which operates within the planning and service area;

(b) any office or agency of a unit of general purpose local government;

(c) any combination of offices or units of general purpose local governments; or

(d) any other public or private nonprofit agency, except any regional or local agency of the state.

(1) A designated area agency is entitled to a hearing if it is aggrieved by an adverse department determination which:

(a) disapproves a plan or plan amendment submitted by the agency;

(b) disapproves an area plan for failure to comply substantially with the requirements of the act or manual; or

(c) withdraws the agency's designation.

(2) A unit of general purpose local government, district or combination of districts is entitled to a hearing if it is aggrieved by an adverse department action denying designation as a planning and service area.

(3) The hearing will be conducted according to the applicable provisions of ARM 37.5.304, 37.5.305, 37.5.307, 37.5.310, 37.5.311, 37.5.313, 37.5.316, 37.5.318, 37.5.322, 37.5.325, 37.5.328, 37.5.331, 37.5.334 and 37.5.337.

(1) develop and administer an area plan for a comprehensive and coordinated delivery system in a planning and service area;

(2) assess the kinds and levels of services needed by older persons in the planning and service area;

(3) enter into subgrants or contracts to provide all services under the plan, except as provided under ARM 37.41.121;

(4) provide technical assistance, monitor, and quarterly evaluate the performance of all service providers under the plan;

(5) coordinate the administration of its plan with other federal, state and local resources;

(6) establish an advisory council as required by ARM 37.41.116;

(7) assure that older persons in the planning and service area have access to information and referral services;

(8) divide the entire planning and service area into community service areas and designate community focal points;

(9) provide outreach efforts to identify older persons and inform them of the availability of services under the plan; and

(10) develop and publish a manual of methods it uses to establish priorities for services and provide a copy of the manual to each service provider in the planning and service area.

(a) development and administration of the area plan;

(b) conducting public hearings;

(c) representing the interests of older persons; and

(d) reviewing and commenting on all community policies and programs which affect older persons.

(2) The advisory council shall be made-up of:

(a) interested citizens, more than 50 percent of whom are older persons; and

(b) local elected officials.

(3) The agency may use the advisory council to advise it in carrying out any of its functions.

(4) The area agency shall provide staff and assistance to the advisory council.

(2) An area plan shall demonstrate how the area agency will meet functions required by ARM 37.41.110.

(3) An area plan shall provide that:

(a) services are provided as provided in ARM 37.41.120;

(b) any existing state and local licensure requirements for the provision of services are met.

(4) An area plan shall provide that an adequate amount of the area agency's allotment for supportive services shall be spent for access services, in-home services, and legal services, excluding amounts for administration.

(5) An area plan shall specify:

(a) program objectives to implement all requirements regarding delivery of services;

(b) objectives established by the division;

(c) a resource allocation plan indicating the proposed use of all funds directly administered by the area agency;

(d) an inventory of programs operated by other agencies in the planning and service area for services to older persons;

(e) a description of community services areas and an identification of community focal points; and

(f) methods the area agency uses to set services priorities.

(1) hold a public hearing on the area plan and any amendments to the area plan;

(2) give at least 14 days notice to older persons, public officials and other interested parties of the times, dates, and locations of the public hearings; and

(3) submit the area plan and amendments to:

(a) the area advisory council for review and comment;

(b) the state grant clearinghouse in the governor's office of budget and program planning for review and comment;

(c) the division for approval.

(2) The division shall follow the procedures in ARM 37.41.109 to terminate an area plan or area agency designation if the division:

(a) finds that an area plan is unapprovable;

(b) proposes to terminate the designation of an area agency; or

(c) finds that the provisions or administration of an approved area plan no longer substantially comply with the requirements of the act.

(1) amend the area plan if:

(a) a new or amended state or federal statute or regulation requires a new provision or conflicts with any existing plan provision;

(b) local law, organization, policy or agency operation changes and is no longer accurately reflected in the area plan;

(c) the area agency proposes to add, change, or delete any area plan provisions; or,

(d) the division requires further annual amendments;

(2) receive subgrants or contracts only under an approved area plan; and

(3) use its subgrants or contracts only for activities under an approved area plan.

(1) The area agency shall use subgrants or contracts with service providers to provide all services under the act unless the division decides that direct provision of a service by the area agency is necessary to assure an adequate supply of the service.

(2) The area agency may directly provide information and referral, outreach, advocacy, program development, coordination, individual needs assessment and case management services if the division decides that the area agency can perform the services more effectively and efficiently than any other agency in the planning and service area.

(3) For all other services funded under the act, the division may allow the area agency to directly provide services in the planning and service area if no other agency can and will provide the service.

(4) The area agency may plan, coordinate and provide services funded under other programs if:

(a) it does not use funds under the act for those services; and

(b) it continues to meet all its area agency responsibilities.

(1) the area agency does not meet the requirements of the act;

(2) the area plan or plan amendment is not approvable; or,

(3) there is failure in the provisions or administration of an approved area plan to comply with any provision of the act.

(a) notify the administration on aging;

(b) provide a plan for the continuity of services in the planning and service area; and

(c) designate a new area agency in the planning and service area.

(2) The division may, for a period up to 180 days after its final notice to withdraw designation of an area agency:

(a) perform the responsibilities of the area agency; and

(b) assign the responsibilities of the area agency to another agency in the planning and service area.

(a) give each older person who receives a service information about the cost of the service;

(b) give each older person an opportunity to contribute to part or all of the cost of the service;

(c) inform each older person that he may decide freely whether or not to contribute and how much;

(d) protect the privacy of each older person with respect to his contribution;

(e) have procedures to safeguard and account for all contributions;

(f) use all contributions to expand the services of the provider under the act; and

(g) use all contributions for nutrition services to increase the number of meals served.

(2) The area agency shall permit each service provider to develop a contribution schedule for services based on:

(a) the income ranges of older persons in the community; and

(b) the provider's other sources of income.

(3) The area agency may not allow any service provider to deny an older person a service because the older person would not contribute for the service.

(a) provides congregate nutrition services;

(b) provides home delivered nutrition services directly or by contract;

(c) agrees to coordinate its activities with, and provide some meals at, the community focal point; and

(d) meets the relevant requirements of ARM 37.41.301 through 37.41.306.

(2) An area agency shall award funds to a nutrition services provider which has carried out its nutrition services activities with demonstrated effectiveness.

(1) The division shall distribute all food, cash or a combination of food and cash received from the United States Department of Agriculture through area agencies to nutrition service providers based on each provider's proportion of the total number of meals served in the state under the Older Americans Act.

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(1) The purpose of this subchapter is to provide a framework under which the department administers the SFMNP enacted under Section 4402 of the Farm Security and Rural Investment Act of 2002, codified at 7 U.S.C. 3007, and operated by the United States Department of Agriculture under the authority granted to it through 7 CFR 249.

Unless otherwise indicated, the following definitions apply throughout this chapter:

(1) "Adverse Action" means an action taken by the department in the administration of the SFMNP having a negative impact on a farmer, participant, or local agency that has an agreement.

(2) "Agreement" means a written legal document or contract binding the farmer, participant, or local agency and the local agency or department to designated terms and conditions.

(3) "Application" means a written request submitted on a form provided by the department or local agencies indicating interest in participating in SFMNP either as a senior as defined in (14) or a farmer as defined in (9).

(4) "Bulk purchase program" means a program model in which bulk quantities of certain produce items are purchased directly from authorized farmers by the local agency and are then equitably divided among and distributed directly to eligible SFMNP participants.

(5) "Coupon" means a voucher or other negotiable financial instrument by which benefits are issued under the SFMNP.

(6) "Department" means the Department of Public Health and Human Services, Aging Services Bureau.

(7) "Disqualification" means the act of terminating the agreement of an authorized farmer, participant, or local agency for noncompliance with program requirements.

(8) "Eligible foods" means fresh, nutritious, unprocessed, unprepared, locally grown fruits, vegetables, honey, and herbs for human consumption.

(9) "Farmer" means an individual residing within Montana authorized by the department to sell eligible fruit and vegetables at a participating farmers' market to a participant at a farmers' market.

(10) "Local agency" means any nonprofit or local government agency that is contracted to certify an eligible participant, issue coupons, or arrange for distribution of eligible foods through a Bulk Purchase Program.

(11) "Locally grown" means grown in the state of Montana.

(12) "Participant" means a person or household who meets the eligibility requirements of the SFMNP and to whom coupons or bulk purchase have been issued.

(13) "Proxy" means an individual authorized by an eligible senior to act on the senior's behalf, including application for certification, receipt of SFMNP coupons, and use of SFMNP coupons at authorized outlets as long as the benefits are ultimately received by the eligible senior.

(14) "Senior" means an individual 60 years of age or older.

(15) "Senior Farmers' Market Nutrition Program (SFMNP)" means the Senior Farmers' Market Nutrition Program authorized by 7 U.S.C. 3007, and provided in 7 CFR 249.

(16) "SFMNP state plan" means the annual state plan for SFMNP that describes the manner in which the department intends to implement all aspects of program administration within its jurisdiction in accordance with 7 CFR 249.

(17) "Summer farmers' market" means an association of local farmers who assemble at a defined location for the purpose of selling their produce directly to consumers during the summer market season.

(18) "Violation" means an activity that is prohibited by participant, farmer, or local agency SFMNP agreement and 7 CFR 249.

(1) A participant will be considered eligible for the SFMNP if the following criteria are met:

(a) the participant is a senior defined in ARM 37.41.202;

(b) the participant income is at or below 185% of the annual federal poverty level;

(c) the participant resides within the local agency area contracted to service the SFMNP;

(d) the participant submits a completed current year's application through the contracted local agency in their area; and

(e) the participant agrees to follow the terms and conditions of the signed participant application which then becomes the agreement.

(2) Acceptance into the SFMNP is based on meeting the eligibility criteria in (1)(a) through (e) and available funding.

(3) Eligible participants may designate a proxy to submit the application, shop at the farmers' market, or pick up their eligible foods from the contracted Bulk Purchase Program on their behalf, if the senior is unable to perform these actions. Eligible participants must submit a signed statement designating the individual as their authorized representative.

(4) The eligible participant may designate a proxy at any point during the program's period of operation.

(5) SFMNP funds are limited and benefits will be distributed on a first come first served basis. SFMNP coupons are subject to the following:

(a) SFMNP coupons are only valid from June 1 through the first week in November of each year;

(b) lost or stolen SFMNP coupons will not be replaced; and

(c) an eligible participant who does not receive SFMNP coupons due to lack of available funding is not entitled to an appeal or fair hearing.

(6) The participant who is denied or deemed ineligible for reasons other than those stated in (1)(a) through (c) and (5) has the right to appeal this action.

(1) Only authorized farmers may accept SFMNP coupons in exchange for eligible foods.

(2) In order to be eligible for participation in the SFMNP, a farmer applicant must:

(a) complete or renew the farmer agreement provided by the

department;

(b) agree to follow the terms and conditions in the farmer agreement; and

(c) complete the initial and annual SFMNP training provided by the department in accordance with 7 CFR 249.10.

(3) Approved farmer agreements are valid for three consecutive summer farmers' market seasons.

(1) An authorized farmer must comply with SFMNP requirements contained in the terms and conditions of the farmer agreement and 7 CFR 249.

(2) A farmer is in violation of the SFMNP if the farmer fails to:

(a) comply with the SFMNP and terms and conditions of the farmer agreement as required in ARM 37.41.206; and

(b) accept the initial and annual training on SFMNP requirements provided by the department.

(1) The department will conduct monitoring reviews of the operations of randomly selected authorized farmers at the designated summer farmers' market locations. The annual monitoring review is conducted to determine:

(a) whether the farmer demonstrates ability to meet Montana SFMNP requirements, as evidenced by the on-site observations, interviews, and third party information during the current agreement; and

(b) whether patterns of participant use demonstrate compliance with the SFMNP.

(2) The on-site monitoring and reviews will include no less than one-tenth of the total currently authorized farmers to include farmers that are considered high-risk in accordance with 7 CFR 249.10. High risk is defined as:

(a) newly authorized farmers;

(b) farmers about whom the department has received participant or local agency complaints; and

(c) farmers who receive a proportionately high volume of coupons as compared to other farmers at the same summer market location.

(3) On-site or follow-up contact by means other than (2)(a) through (c) may

occur when warranted by incomplete information or complaint.

(4) The department may conduct unannounced on-site monitoring visits.

(1) Based upon outcome of the monitoring as defined in ARM 37.41.208, the department may take an adverse action against the farmer, including disqualification of the farmer from participation in the program.

(2) A written warning may be issued for a first violation of the following:

(a) noncompliance with SFMNP rules and procedures as outlined in the farmer agreement not specifically listed as a violation;

(b) refusal to accept valid coupons for eligible produce;

(c) failure to permit or comply with procedures regarding on-site monitoring visits;

(d) charging participants a price for an item that is greater than that charged to nonparticipants;

(e) charging for items not received; or

(f) accepting coupons after the end of the summer market season.

(3) A second violation of (2)(a) through (f) may result in a 15-day suspension during the current market season.

(4) Suspension from the SFMNP for the remainder of the current market season may occur as a result of the following:

(a) subsequent or continued violations described in (2)(a) through (f);

(b) accepting SFMNP coupons for nonlocally grown produce;

(c) exchanging ineligible products for coupons;

(d) accepting coupons in exchange for cash;

(e) cashing coupons for a nonauthorized farmer;

(f) issuing cash change for purchases less than value of coupon; or

(g) participating in discriminatory practices as defined in the terms and conditions of the farmer agreement and in accordance with 7 CFR 249.7.

(5) A farmer will face immediate disqualification without reinstatement and liable to prosecution under applicable federal, state, or local laws if the farmer engages in illegal activity.

(6) When taking an adverse action involving a suspension against or disqualification of a farmer from the SFMNP, the department will provide the affected farmer with written notice not less than 15 days in advance of the pending action. The notice must include the reasons for the adverse action, the date of adverse action, and, except in cases of the expiration of the farmers' SFMNP agreement, the farmers' right to appeal as set forth in ARM 37.41.213.

(1) The department will conduct on-site monitoring reviews of the qualifications of authorized local agencies. In conducting such reviews, the department will consider the program's history of prior program compliance. On-site review will be conducted to determine program compliance and may include:

(a) a file review of ten percent or more of completed participant applications;

(b) review of procedures for secure storage of coupons, participant agreements, and other documents with identifying information;

(c) review of procedures and documentation of coupon distribution, accountability, and redemption.

(2) When disqualifying a local agency under the SFMNP, the department will provide the local agency with written notice not less than 30 days in advance of the pending action. The notice must include an explanation of the reasons for disqualification, the date of disqualification, and, except in cases of the expiration of a local agency's agreement, the local agency's right to appeal as set forth in 7 CFR 249.16. The notice will ensure that the action is not in conflict with any existing written agreements between the department and the local agency.

(1) A participant who is denied participation or been disqualified from the program by the local agency may request a fair hearing before the department in accordance with ARM 37.41.214 and 7 CFR 249.16.

(2) Expiration of the participant application or disqualification of the application due to ineligibility as the result of age, income, or insufficient program funds as established by 7 CFR 249.6 is not subject to appeal.

(3) A local agency or farmer may request a fair hearing before the department if:

(a) they are denied participation;

(b) they are disqualified during the current valid written agreement; or

(c) their participation is otherwise adversely affected.

(4) Expiration of the agreement with a farmer or local agency is not subject to appeal.

(5) The issuance of notice of adverse action, the processing of fair hearing requests, and the conduct of such hearings will be in accordance with provisions set forth in ARM 37.41.214.

(1) A designated local agency, farmer, or participant is entitled to a hearing if they are aggrieved by an adverse department determination which:

(a) results in a denial of an application or agreement by the local or state agency; or

(b) results in a revocation or correction plan for failure to comply substantially with the requirements of the application or agreement.

(2) The hearing will be conducted according to the applicable provisions of ARM 37.5.304, 37.5.305, 37.5.307, 37.5.311, 37.5.313, 37.5.316, 37.5.322, 37.5.325, 37.5.328, 37.5.331, 37.5.334 and 37.5.337.

(1) Eligibility for congregate nutrition services will be determined as follows:

(a) a person will be considered for eligibility if a member of one of the following categories:

(i) a person aged 60 years or older;

(ii) the spouse of a person aged 60 years or older regardless of that spouse's age;

(iii) a handicapped or disabled non-elderly person residing in a housing facility occupied primarily by elderly persons and at which congregate nutrition services are provided; or

(iv) a person providing volunteer services to a congregate nutrition service provider during meal hours.

(b) a nutrition provider, in accordance with the criteria in (a) and standard procedures adopted by the provider to govern enrollment in the services, will determine who will be recipients of that provider's services.

(1) "Congregate meals" means those meals served in a group setting at a selected site that has the seating and dining furniture necessary for service of meals family style, restaurant style or cafeteria style.

(2) "Home delivered meals" means those meals transported from a preparation site to persons in their residences and is inclusive of those programs commonly known as meals on wheels.

(3) "Nutrition service provider" means a non-profit corporation or public agency providing, on a regular basis, congregate or home delivered meals to elderly or other adult persons who, due to age, handicaps, etc., are unable to provide themselves with regular meals.

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(1) The nutrition service provider shall ensure that:

(a) procedures are used which preserve nutritional value and food safety in the purchase and preparation of food and delivery of meals;

(b) appropriate food containers and necessary utensils are used for blind and handicapped persons;

(c) no food prepared or canned in the home way may be used in meals provided by providers. Only commercially processed, canned food may be used;

(d) hot transported food be at 140�F or above from time of final food preparation to completion of serving;

(e) cold food be maintained at 45� F or below from time of initial service to completion of service; and

(f) all food transported to sites is considered "leftover", except unopened pre-packaged food, and food remaining at the meal site or main food preparation center be thrown away.

(2) Vitamins and/or mineral supplements shall not be provided by the nutrition service provider.

(3) Each meal served by the service provider shall contain at least one-third of the current recommended dietary allowance as established by the food and nutrition board of the national academy of sciences, national research council.

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(a) accept and use any United States department of agriculture food made available to it;

(b) assure arrangement for the appropriate transportation, storage and use of the food;

(c) assist older persons to take advantage of benefits available to them under the food stamp program;

(d) coordinate its activities with agencies responsible for administering the food stamp program;

(e) comply with all state and local sanitation and safety regulations applicable to food preparation, delivery, and serving; and

(f) provide persons with nutrition education information that promotes improved food selection, better eating habits and other health and nutrition related practices.

(2) If a nutrition service provider receives United States department of agriculture cash, the cash shall be spent only for buying food.

(3) Special meals for any persons who have health, religious or ethnic dietary needs shall be provided by the nutrition service provider unless the department exempts the provider from this requirement. Such exemption may be granted only when the foods and skills to provide a special diet are unavailable to the provider.

(a) a hot or other appropriate meal in a congregate setting at least once a day, 5 or more days a week;

(b) services as close as possible to the majority of eligible older persons;

(c) preference to community facilities when locating a congregate site;

(d) to all staff working in the preparation of food, supervision by a person who will ensure the application of hygiene techniques and practices in food handling preparation and service;

(e) training by qualified personnel in sanitation, food preparation, and portion control for all paid and volunteer staff who prepare, handle and serve food;

(f) at least semi-annual review of the menus used and when the menus are completely changed by a registered dietician, to assure that compliance with ARM 37.41.306(3) is met. It is recommended that a cycle menu be used to assure such compliance;

(g) that development and analysis of menus be the responsibility of a qualified dietician/nutritionist; and

(h) that menus and menu analyses be maintained for audit purposes on file for 3 years.

(a) provide for home delivered meals at least once a day, 5 or more days a week;

(b) provide meals with a satisfactory storage life;

(c) with the consent of the older person, or his representative, bring to the attention of appropriate officials for follow-up, conditions or circumstances which place the older person or the household in imminent danger;

(d) where feasible and appropriate, make arrangements for the availability of meals to older persons in weather-related emergencies; and

(e) make at least an annual written evaluation of each recipient in order to re-evaluate the need for the continuation of home delivered meals.