Transcript FNS Instruction 113-1

FNS Instruction 113-1
Civil Rights Compliance and Enforcement
Nutrition Programs and Activities
Issued: November 8, 2005
SERO-Civil Rights Office
1
Prior policy was conveyed through a series of
8 FNS Instructions which designated the:
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113-1, Civil Rights Compliance and
Enforcement (issued May 1982), as the
overarching instruction; and
sequentially numbered instructions were
program-specific.
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The recently issued
FNS Instruction 113-1
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merges all of the previously independent
instructions into 1 document; and
includes 4 appendices that provide
program-specific guidance.
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The Appendices are:
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Appendix
Appendix
Appendix
Appendix
A:
B:
C:
D:
Food Stamp Program
Child Nutrition Programs
Food Distribution Programs
WIC and WIC Farmers’ Market
Nutrition Program (FMNP)
Appendix E: Sample Complaint Forms
Appendix F: Complaint Processing and
Procedures Flowchart
4
What does the recently issued 113
change?
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amends certain procedures;
affords equal opportunity for religious
organizations;
clearly establishes complaint handling
procedures; and
is a single reference for civil rights
compliance and enforcement.
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Common Areas in Former and
Current Versions
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Purpose
Authority
Policy
Applicability
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Common Areas in Former and
Current Versions (continued)
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Definitions
Responsibilities
Public Notification
Assurances
Civil Rights Training
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Common Areas in Former and
Current Versions (continued)
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Data Collection and Reporting
Compliance Reviews
Resolution of Noncompliance
Complaints of Discrimination
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New Sections
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Limited English Proficiency (LEP)
Equal Opportunity for Religious
Organizations
Appendices
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I. PURPOSE
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Establishes and conveys policy
Provides guidance and direction to USDA,
FNS and its recipients and customers
Ensures compliance with and enforcement
of the prohibition against discrimination in
all FNS programs and activities, whether
federally funded in whole or not.
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II. AUTHORITY
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Title VI of the Civil Rights of 1964 – race,
color, and national origin
American with Disabilities Act – disability
Title IX of the Education Amendments of
1972 – sex
Section 504 of the Rehabilitation Act of
1973 – disability
Age Discrimination Act of 1975 – age
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II. AUTHORITY (continued)
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The Personal Responsibility and Work
Opportunity Reconciliation Act of 1996, and DOJ
Memorandum dated 1/28/99, entitled, “Policy
Guidance Document – Enforcement of Title VI of
the Civil Rights Act of 1964 and Related Statutes
in Block Grant Type Programs.”
Civil Rights Restoration Act of 1987 – clarifies
the scope of the Civil Rights Act of 1964.
Food Stamp Act of 1977 – added religious creed
and political beliefs as protected classes in the
Food Stamp Program.
12
II. AUTHORITY (continued)
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Executive Order 13166 – enforces National
Origin discrimination for persons with Limited
English Proficiency.
USDA Departmental Regulation 4330-2 –
prohibits discrimination in programs and
activities funded by USDA.
7 CFR Part 16, Equal Opportunity for Religious
Organizations – religiously affiliated
organizations should be able to compete on an
equal footing with other organizations for USDA
assistance.
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III. POLICY
Protected Bases for FNS Programs
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Race
Color
National Origin
Age
Sex
Disability
Religion (FSP) (FDPIR)
Political Beliefs (FSP) (FDPIR)
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III. POLICY (continued)
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The U.S. Department of Agriculture prohibits
discrimination in all its programs and activities on the
basis of race, color, national origin, age, disability, and
where applicable, sex, marital status, familial status,
parental status, religion, sexual orientation, genetic
information, political beliefs, reprisal or because all or
part of an individual’s income is derived from any public
assistance program. (Not all prohibited bases apply
to all programs.) Persons with disabilities who
require alternative means for communication of
program information (Braille, large print,
audiotape, etc.) should contact USDA’s TARGET
Center at (202) 720-2600 (voice and TTY).
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III. POLICY (continued)
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Although it is the policy of the USDA to provide
fair and equitable treatment to every employee
and customer, there are specific laws and
regulations that provide for the protected bases
for each nutritional assistance program.
For this reason, sexual orientation, marital or
family status, parental status, and protected
genetic information are not protected bases in
FNS federally assistance programs.
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IV. APPLICABILITY
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This Instruction is applicable to all
programs and activities of a recipient of
Federal financial assistance, whether those
programs and activities are federally
funded in whole or not.
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VII. LIMITED ENGLISH
PROFICIENCY (LEP)
Definition:
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Individuals who do not speak English as their primary
language and who have a limited ability to read, speak,
write, or understand English.
Recipients of Federal financial assistance have a
responsibility to take reasonable steps to ensure
meaningful access to their programs and activities by
persons with limited English proficiency.
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VII. LEP (continued):
Factors to consider in addressing LEP:
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Number or proportion of LEP persons served or
encountered in the eligible population.
Frequency with which LEP individuals come in
contact with the program.
Nature and importance of the program, activity,
or service provided by the program.
Resources available to the recipient and costs.
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VII. LEP (continued)
For further information:
www.LEP.gov
20
VIII. EQUAL OPPORTUNITY FOR
RELIGIOUS ORGANIZATIONS
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Ensures a level playing field for the
participation of faith-based
organizations and other community
organizations in USDA programs.
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VIII. EQUAL OPPORTUNITY FOR
RELIGIOUS ORGANIZATIONS (continued)
This is accomplished by:
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prohibiting discrimination on the basis of
religion, religious belief, or religious character in
the administration of Federal funds;
allowing a religious organization that participates
in USDA programs to retain its independence
and continue to carryout its mission, provided
that direct USDA funds do not support any
inherently religious activities such as worship,
religious instruction, or proselytization;
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VIII. EQUAL OPPORTUNITY FOR
RELIGIOUS ORGANIZATIONS (continued)
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clarifying that faith-based organizations can use
space in their facilities to provide USDA-funded
service without removing religious art, icons,
scriptures, or other religious symbols; and
ensuring that no organization that receives
direct financial assistance from the USDA can
discriminate against a program beneficiary, on
the basis of religion or religious belief.
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For further information: www.fbci.gov
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IX. PUBLIC NOTIFICATION
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All FNS assistance programs must include a
public notification system.
The purpose of this system is to inform
applicants, participants, and potentially eligible
persons of:
 program availability,
 program rights and responsibilities,
 the policy of nondiscrimination and
 the procedure for filing a complaint.
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3 Elements of Public Notification
1. Program Availability
2. Complaint Information
3. Nondiscrimination Statement
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3 Elements of Public Notification
1. Program Availability
Inform applicants, participants, and potentially eligible
persons of their program rights and responsibilities and
the steps necessary for participation.
2. Complaint Information
Advise applicants and participants at the service delivery
point of their right to file a complaint, how to file a
complaint, and the complaint procedures.
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3. Nondiscrimination Statement
All information materials and sources, including Web
sites, used by FNS, State agencies, local agencies, or
other subrecipients to inform the public about FNS
programs must contain a nondiscrimination statement.
The statement is not required to be included on every
page of the program Web site. At a minimum the
nondiscrimination statement or a link to it must be
included on the home page of the program information.
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Nondiscrimination Statement
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FSP and FDPIR State or local agencies and their
subrecipients must use the following statement*:
“In accordance with Federal law and U.S. Department of
Agriculture policy, this institution is prohibited from
discriminating on the basis of race, color, national origin,
sex, age, religion, political beliefs, or disability.
To file a complaint of discrimination, write USDA,
Director, Office of Civil Rights, 1400 Independence
Avenue, S.W., Washington, D.C. 20250-9410 or call
(800) 795-3272 (voice) or (202) 720-6382 (TTY). USDA
is an equal opportunity provider and employer.”
* Exception provided for the use of a joint application for
29
FSP/HHS—see Instruction for approved language
Nondiscrimination Statement
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All other FNS Programs, State or local agencies, and
their subrecipients, must use the following statement:
“In accordance with Federal law and U.S. Department of
Agriculture policy, this institution is prohibited from
discriminating on the basis of race, color, national origin,
sex, age or disability.
To file a complaint of discrimination, write USDA,
Director, Office of Civil Rights, 1400 Independence
Avenue, SW, Washington, D.C. 20250-9410 or call (800)
795-3272 or (202) 720-6382 (TTY). USDA is an equal
opportunity provider and employer.”
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Methods of Public Notification
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Prominently display the “And Justice for All” poster.
Inform potentially eligible persons, applicants,
participants and grassroots organizations of programs or
changes in programs.
Provide appropriate information in alternative formats for
persons with disabilities.
Include the required nondiscrimination statement on all
appropriate FNS and agency publications, Web sites,
posters and informational materials.
Convey the message of equal opportunity in all photos
and other graphics that are used to provide program or
program-related information.
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X. ASSURANCES
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To qualify for Federal financial assistance,
an application must be accompanied by a
written assurance that the entity to
receive financial assistance will be
operated in compliance with all
nondiscrimination laws, regulations,
instructions, policies, and guidelines;
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FNS will obtain a written assurance from
each State agency and will ensure that
State agencies obtain assurance from local
agencies; and
a civil rights assurance must be
incorporated in all agreements between
State agencies and local agencies.
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XI. CIVIL RIGHTS TRAINING
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State agencies are responsible for training
local agencies on an annual basis.
Local agencies are responsible for training
their subrecipients, including “frontline
staff” who interact with applicants or
participants on an annual basis.
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XI. CIVIL RIGHTS TRAINING
(continued)
Specific subject matter required, but not limited to:
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Collection and use of data;
Effective public notification systems,
Complaint procedures,
Compliance review techniques,
Resolution of noncompliance,
Requirements for reasonable accommodation of persons
with disabilities,
Requirements for language assistance,
Conflict resolution, and
Customer service.
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XII. DATA COLLECTION AND
REPORTING
The purpose is to:
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determine how effectively FNS programs are
reaching potential eligible persons and
beneficiaries,
identify areas where additional outreach is
needed,
assist in the selection of locations for compliance
reviews, and
complete reports, as required.
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Collecting and Reporting
Participation Data
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State agencies, local agencies and other subrecipients
are required to obtain data by race and ethnic category
on potentially eligible populations, applicants, and
participants in their program service area.
Systems for collecting actual racial and ethnic data must
be established and maintained for FNS programs with
the exception of certain Food Distribution Programs
listed in Appendix C.
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Ask all program applicants and participants to identify all
racial categories that apply (per OMB guidance).
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Self-identification or self-reporting is the preferred
method of obtaining data.
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Collecting and Reporting
Participation Data (continued)
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In instances were racial/ethnic data is collected via
online, provisions must be made for applicants/
participants to self-identify. The ability to verify this data
by some manner of signing a printout, etc., must be
available.
Data must be collected/retained by the service delivery
point for each program as specified in the program
regulations, instructions, policies and guidelines.
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Records must be maintained for 3 years.
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Access restricted only to authorized personnel.
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Submitted, as requested to FNS.
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Race and Ethnic Categories
Two Question Format
1. Ethnicity:
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Hispanic or Latino
Not Hispanic or Latino
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Race and Ethnic Categories
Two Question Format
2. Race
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American Indian or Alaskan Native
Asian
Black or African American
Native Hawaiian or Other Pacific Islander
White
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Race and Ethnic Categories
Two Question Format
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State agency may have categories for race in
addition to the ones required by FNS; however,
the additional categories must be mapped and
extracted to the required categories.
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Program applicants may not be required to
furnish race or ethnicity.
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Visual observation will be used when the
applicant does not self-identify.
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XIII. COMPLIANCE REVIEWS
Examines activities to determine adherence
with civil rights requirements for:
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State agencies,
local agencies, and
other subrecipients.
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Compliance Reviews
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State agencies review local agencies.
Local agencies review their subrecipients.
State agency must report significant
findings to the reviewed entity and FNS.
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Compliance Reviews
3 Types of Compliance Reviews:
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Pre-approval or Pre-award
Post-award or Routine
Special
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Pre-approval or Pre-award
Compliance Reviews
No federal funds shall be made available
to a State agency or local agency until a
Pre-award Compliance Review has been
conducted and the applicant is determined
to be in compliance with civil rights
requirements.
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Pre-approval or Pre-award
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May be a desk or onsite review
Used to identify issues such as lawsuits on
the basis of race, color or national origin,
or civil rights complaints
An onsite review must be conducted, if
warranted
Written report is required
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Pre-approval or Pre-award
Data and Information Required
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Manner in which services will be provided
Demographics of population to evaluate
program access
Data regarding covered employment,
including use of bilingual public-contact
employees serving LEP beneficiaries of the
program
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Pre-approval or Pre-award
Data and Information Required
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The location of existing or proposed
facilities connected with the program and
whether access would be unnecessarily
denied because of their locale
Makeup of planning or advisory board
A civil rights impact analysis where
relocation is involved
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Post-Award or Routine
Compliance Review
Frequency -- defined in the Appendices
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FNS: Part of Management Evaluation (ME) Process
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State Agencies: In accordance with Program Regulations
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WIC State agency reviews include vendors
FMNP State agency reviews include farmers, farmers’
markets and roadside stands
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Post-Award or Routine
Compliance Review
Selection based on an indication of possible
concerns such as:
 an unusual fluctuation in participation of racial or
ethnic groups in a service area,
 the number of discrimination complaints filed,
 information from grassroots and advocacy
groups, individuals and State officials, and
 unresolved findings from previous civil rights
reviews.
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Post-Award or Routine
Compliance Review
Content
FNS reviews State agency for:
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Review of lower-level agencies;
Data collection counts are valid;
Data collection program records have
restricted access;
Program requirements are applied
uniformly;
Public notification;
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Post-Award or Routine
Compliance Review
Content
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Complaint process;
Training;
Non-discrimination statement usage;
State agency is training local agencies;
Analysis of denied applications; and
Vendor compliance.
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Post-Award or Routine
Compliance Review
Content
Scope of State agency or FNS reviews of local
agencies:
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eligible persons and households have an equal
opportunity to participate;
case records are coded by race or ethnic origin;
offices are displaying the “And Justice for All”
poster in a prominent location;
nondiscrimination statement;
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Post-Award or Routine
Compliance Review
Content
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availability of program information to eligible
persons, program applicants and participants;
racial and ethnic data collection, and
maintenance for 3 years;
complaint processing; and
training.
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Special Compliance Reviews
Conducted by FNS when:
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Program participation data indicates that a
particular group in a specific area is not
benefiting from an FNS program;
reports of alleged noncompliance made by
the media, grassroots organizations, or
advocacy groups need to be resolved;
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Special Compliance Reviews
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reports of alleged noncompliance made by
other agencies, such as DOE and HHS,
need to be resolved; or
patterns of complaints of discrimination
have been documented.
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XIV. RESOLUTION OF
NONCOMPLIANCE
Definition of “Noncompliance”
A factual finding that any civil rights
requirement, as provided by law,
regulation, policy, instruction, or
guidelines, is not being adhered to by a
State agency, local agency, or other
subrecipient.
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A finding of noncompliance may be
the result of:
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a Management Evaluation or a Civil Rights
Compliance Review;
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a special review; or
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an investigation.
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What are some examples of
noncompliance?
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Denying an individual or household the
opportunity to apply for program benefits
or services on the basis of a protected
class.
Providing FNS program services or
benefits in a disparate matter on the basis
of a protected class (except as a disability
accommodation).
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What are some examples of
noncompliance? (continued)
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Selecting members for planning and
advisory bodies in such a way as to
exclude persons from membership on the
basis of a protected class.
Selecting FNS program sites or facilities in
a manner that denies an individual access
to FNS program benefits, assistance, or
services on the basis of a protected class.
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What happens once noncompliance
is determined?
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Steps must be taken immediately to
obtain voluntary compliance.
Effective date of the finding of
noncompliance is the date of notice to the
State agency, local agency, or other
subrecipient.
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To achieve voluntary compliance,
the State agency must:
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Provide immediate written notice to the local
agency or other subrecipient indicating:
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the areas of noncompliance, and
the action required to correct the situation.
Negotiate with the local agency or other
subrecipient to achieve compliance.
If corrective action has not been completed
within 60 days of the finding, submit Report of
Findings of Noncompliance in letter format to
the Regional Administrator with attachments.
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SERO determines if further voluntary
compliance efforts should be pursued.
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If so, case is referred back to State agency
with suggestions for further actions.
In cases where all efforts have been
exhausted or initial determination was
made by SERO-CRO, SERO sends letter to
the State agency, local agency or other
subrecipient.
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If voluntary corrective action
cannot be achieved within 60 days
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FNS-HQ must be advised and provided
with pertinent documentation.
FNS-HQ will decide on appropriate action.
Once voluntary compliance efforts are
exhausted 30 day notification is provided.
If still unresolved, forwarded to USDA OCR
for formal enforcement action.
As a last resort, FNS assistance is
terminated or suspended.
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XV. COMPLAINTS OF
DISCRIMINATION
Recognizing a Civil Rights Complaint-allegation based on:
 Race,
 Color,
 National Origin,
 Age,
 Sex, or
 Disability.
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In FSP and FDPIR, also may be based on:
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Religion and
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Political Belief.
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XV. COMPLAINTS OF
DISCRIMINATION
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timeframes for processing must be
adhered to;
Right to File: complaint must be filed in
180 days;
complaints may be written or verbal as
well as anonymous;
the use of a form is not required though
provided as a prototype in the Instruction;
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certain key information should be requested;
FSP SAs may be given the authority to process
complaints -- complaints to WIC SAs and CNP SAs are
forwarded to CRO for processing;
a letter of acknowledgement is sent to the complainant;
age discrimination complaints are referred to FMCS
within 10 days;
the parties are encouraged to resolve the issue at the
lowest possible level, as expeditiously as possible; and
if finding(s), corrective action required.
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XVI. GUIDELINES FOR
PROCESSING CIVIL RIGHTS
COMPLAINTS
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Appendix F: Review of FNS 113 Complaint
Processing Procedures and Timelines
FSP SAs must submit a report to CRO of each
complaint processed, prior to issuing a decision
letter to the complainant for CRO concurrence
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XVII. PROCEDURES FOR PROCESSING
AND RESOLVING COMPLAINTS OF
DISCRIMINATION
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Complaints may be received by USDA,
FNS-HQ, FNS-SERO, other Executive
Recipients or SAs
All complaints must be processed within
90 days of receipt
State Operations Plan must contain a
description of the agency’s discrimination
complaint/grievance processing system
71