Presentation on theme: "FNS Instruction Civil Rights Compliance and Enforcement"— Presentation transcript:
1FNS Instruction 113-1 Civil Rights Compliance and Enforcement Nutrition Programs and ActivitiesIssued: November 8, 2005SERO-Civil Rights Office
2sequentially numbered instructions were program-specific. Prior policy was conveyed through a series of 8 FNS Instructions which designated the:113-1, Civil Rights Compliance and Enforcement (issued May 1982), as the overarching instruction; andsequentially numbered instructions were program-specific.
3The recently issued FNS Instruction 113-1 merges all of the previously independent instructions into 1 document; andincludes 4 appendices that provide program-specific guidance.
4The Appendices are: Appendix A: Food Stamp Program Appendix B: Child Nutrition ProgramsAppendix C: Food Distribution ProgramsAppendix D: WIC and WIC Farmers’ MarketNutrition Program (FMNP)Appendix E: Sample Complaint FormsAppendix F: Complaint Processing andProcedures Flowchart
5What does the recently issued 113 change? amends certain procedures;affords equal opportunity for religious organizations;clearly establishes complaint handling procedures; andis a single reference for civil rights compliance and enforcement.
6Common Areas in Former and Current Versions PurposeAuthorityPolicyApplicability
7Common Areas in Former and Current Versions (continued) DefinitionsResponsibilitiesPublic NotificationAssurancesCivil Rights Training
8Common Areas in Former and Current Versions (continued) Data Collection and ReportingCompliance ReviewsResolution of NoncomplianceComplaints of Discrimination
9New Sections Limited English Proficiency (LEP) Equal Opportunity for Religious OrganizationsAppendices
10I. PURPOSE Establishes and conveys policy Provides guidance and direction to USDA, FNS and its recipients and customersEnsures compliance with and enforcement of the prohibition against discrimination in all FNS programs and activities, whether federally funded in whole or not.
11II. AUTHORITYTitle VI of the Civil Rights of 1964 – race, color, and national originAmerican with Disabilities Act – disabilityTitle IX of the Education Amendments of 1972 – sexSection 504 of the Rehabilitation Act of 1973 – disabilityAge Discrimination Act of 1975 – age
12II. AUTHORITY (continued) 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.
13II. AUTHORITY (continued) Executive Order – enforces National Origin discrimination for persons with Limited English Proficiency.USDA Departmental Regulation – 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.
15III. POLICY (continued) 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) (voice and TTY).
16III. POLICY (continued) 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.
17IV. APPLICABILITYThis 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.
18VII. LIMITED ENGLISH PROFICIENCY (LEP) Definition: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.
19VII. LEP (continued): Factors to consider in addressing LEP: 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.
21VIII. EQUAL OPPORTUNITY FOR RELIGIOUS ORGANIZATIONS Ensures a level playing field for the participation of faith-based organizations and other community organizations in USDA programs.
22VIII. EQUAL OPPORTUNITY FOR RELIGIOUS ORGANIZATIONS (continued) This is accomplished by: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;
23VIII. EQUAL OPPORTUNITY FOR RELIGIOUS ORGANIZATIONS (continued) 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; andensuring 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.
25IX. PUBLIC NOTIFICATION 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 andthe procedure for filing a complaint.
263 Elements of Public Notification 1. Program Availability2. Complaint Information3. Nondiscrimination Statement
273 Elements of Public Notification 1. Program AvailabilityInform applicants, participants, and potentially eligible persons of their program rights and responsibilities and the steps necessary for participation.2. Complaint InformationAdvise applicants and participants at the service delivery point of their right to file a complaint, how to file a complaint, and the complaint procedures.
283. 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.
29Nondiscrimination Statement 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 or call (800) (voice) or (202) (TTY). USDA is an equal opportunity provider and employer.”* Exception provided for the use of a joint application for FSP/HHS—see Instruction for approved language
30Nondiscrimination Statement 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 or call (800) or (202) (TTY). USDA is an equal opportunity provider and employer.”
31Methods of Public Notification 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.
33X. ASSURANCESTo 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;
34FNS will obtain a written assurance from each State agency and will ensure that State agencies obtain assurance from local agencies; anda civil rights assurance must be incorporated in all agreements between State agencies and local agencies.
35XI. CIVIL RIGHTS TRAINING 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.
36XI. CIVIL RIGHTS TRAINING (continued) Specific subject matter required, but not limited to: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, andCustomer service.
37XII. DATA COLLECTION AND REPORTING The purpose is to: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, andcomplete reports, as required.
38Collecting and Reporting Participation Data 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.Ask all program applicants and participants to identify all racial categories that apply (per OMB guidance).Self-identification or self-reporting is the preferred method of obtaining data.
39Collecting and Reporting Participation Data (continued) 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.Records must be maintained for 3 years.Access restricted only to authorized personnel.Submitted, as requested to FNS.
40Race and Ethnic Categories Two Question Format 1. Ethnicity:Hispanic or LatinoNot Hispanic or Latino
41Race and Ethnic Categories Two Question Format American Indian or Alaskan NativeAsianBlack or African AmericanNative Hawaiian or Other Pacific IslanderWhite
42Race and Ethnic Categories Two Question Format 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.Program applicants may not be required to furnish race or ethnicity.Visual observation will be used when the applicant does not self-identify.
43XIII. COMPLIANCE REVIEWS Examines activities to determine adherencewith civil rights requirements for:State agencies,local agencies, andother subrecipients.
44Compliance Reviews State agencies review local agencies. Local agencies review their subrecipients.State agency must report significant findings to the reviewed entity and FNS.
45Compliance Reviews Pre-approval or Pre-award Post-award or Routine 3 Types of Compliance Reviews:Pre-approval or Pre-awardPost-award or RoutineSpecial
46Pre-approval or Pre-award Compliance Reviews No federal funds shall be made available to a State agency or local agency until aPre-award Compliance Review has been conducted and the applicant is determined to be in compliance with civil rights requirements.
47Pre-approval or Pre-award May be a desk or onsite reviewUsed to identify issues such as lawsuits on the basis of race, color or national origin, or civil rights complaintsAn onsite review must be conducted, if warrantedWritten report is required
48Pre-approval or Pre-award Data and Information Required Manner in which services will be providedDemographics of population to evaluate program accessData regarding covered employment, including use of bilingual public-contact employees serving LEP beneficiaries of the program
49Pre-approval or Pre-award Data and Information Required The location of existing or proposed facilities connected with the program and whether access would be unnecessarily denied because of their localeMakeup of planning or advisory boardA civil rights impact analysis where relocation is involved
50Post-Award or Routine Compliance Review Frequency -- defined in the AppendicesFNS: Part of Management Evaluation (ME) ProcessState Agencies: In accordance with Program RegulationsWIC State agency reviews include vendorsFMNP State agency reviews include farmers, farmers’ markets and roadside stands
51Post-Award or Routine Compliance Review Selection based on an indication of possibleconcerns 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, andunresolved findings from previous civil rights reviews.
52Post-Award or Routine Compliance Review Content FNS reviews State agency for:Review of lower-level agencies;Data collection counts are valid;Data collection program records have restricted access;Program requirements are applied uniformly;Public notification;
53Post-Award or Routine Compliance Review Content Complaint process;Training;Non-discrimination statement usage;State agency is training local agencies;Analysis of denied applications; andVendor compliance.
54Post-Award or Routine Compliance Review Content Scope of State agency or FNS reviews of localagencies: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;
55Post-Award or Routine Compliance Review Content availability of program information to eligible persons, program applicants and participants;racial and ethnic data collection, and maintenance for 3 years;complaint processing; andtraining.
56Special Compliance Reviews Conducted by FNS when: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;
57Special Compliance Reviews reports of alleged noncompliance made by other agencies, such as DOE and HHS, need to be resolved; orpatterns of complaints of discrimination have been documented.
58XIV. 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.
59A finding of noncompliance may be the result of: a Management Evaluation or a Civil Rights Compliance Review;a special review; oran investigation.
60What are some examples of noncompliance? 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).
61What are some examples of noncompliance? (continued) 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.
62What happens once noncompliance is determined? 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.
63To achieve voluntary compliance, the State agency must: Provide immediate written notice to the local agency or other subrecipient indicating:the areas of noncompliance, andthe 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.
64SERO determines if further voluntary compliance efforts should be pursued. 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.
65If voluntary corrective action cannot be achieved within 60 days 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.
66XV. COMPLAINTS OF DISCRIMINATION Recognizing a Civil Rights Complaint--allegation based on:Race,Color,National Origin,Age,Sex, orDisability.
67In FSP and FDPIR, also may be based on: Religion andPolitical Belief.
68XV. COMPLAINTS OF DISCRIMINATION 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;
69certain 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; andif finding(s), corrective action required.
70XVI. GUIDELINES FOR PROCESSING CIVIL RIGHTS COMPLAINTS Appendix F: Review of FNS 113 Complaint Processing Procedures and TimelinesFSP SAs must submit a report to CRO of each complaint processed, prior to issuing a decision letter to the complainant for CRO concurrence
71XVII. PROCEDURES FOR PROCESSING AND RESOLVING COMPLAINTS OF DISCRIMINATION Complaints may be received by USDA, FNS-HQ, FNS-SERO, other Executive Recipients or SAsAll complaints must be processed within 90 days of receiptState Operations Plan must contain a description of the agency’s discrimination complaint/grievance processing system