FNS Instruction 113-1 Civil Rights Compliance and Enforcement Nutrition Programs and Activities Issued: November 8, 2005 SERO-Civil Rights Office

sequentially 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; and sequentially numbered instructions were program-specific.

The recently issued FNS Instruction 113-1 merges all of the previously independent instructions into 1 document; and includes 4 appendices that provide program-specific guidance.

The Appendices are: Appendix A: Food Stamp Program Appendix B: Child Nutrition Programs Appendix C: Food Distribution Programs Appendix D: WIC and WIC Farmers’ Market Nutrition Program (FMNP) Appendix E: Sample Complaint Forms Appendix F: Complaint Processing and Procedures Flowchart

What does the recently issued 113 change? 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.

Common Areas in Former and Current Versions Purpose Authority Policy Applicability

Common Areas in Former and Current Versions (continued) Definitions Responsibilities Public Notification Assurances Civil Rights Training

Common Areas in Former and Current Versions (continued) Data Collection and Reporting Compliance Reviews Resolution of Noncompliance Complaints of Discrimination

New Sections Limited English Proficiency (LEP) Equal Opportunity for Religious Organizations Appendices

I. PURPOSE 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.

II. AUTHORITY 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

II. 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.

II. AUTHORITY (continued) 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.

III. POLICY Protected Bases for FNS Programs Race Color National Origin Age Sex Disability Religion (FSP) (FDPIR) Political Beliefs (FSP) (FDPIR)

III. 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) 720-2600 (voice and TTY).

III. 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.

IV. APPLICABILITY 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.

VII. 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.

VII. 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.

VII. LEP (continued) For further information: www.LEP.gov

VIII. EQUAL OPPORTUNITY FOR RELIGIOUS ORGANIZATIONS Ensures a level playing field for the participation of faith-based organizations and other community organizations in USDA programs.

VIII. 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;

VIII. 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; 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.

For further information: www.fbci.gov

IX. 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 and the procedure for filing a complaint.

3 Elements of Public Notification 1. Program Availability 2. Complaint Information 3. Nondiscrimination Statement

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.

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.

Nondiscrimination 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. 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 FSP/HHS—see Instruction for approved language

Nondiscrimination 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. 20250-9410 or call (800) 795-3272 or (202) 720-6382 (TTY). USDA is an equal opportunity provider and employer.”

Methods 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.

X. ASSURANCES 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;

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.

XI. 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.

XI. 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, and Customer service.

XII. 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, and complete reports, as required.

Collecting 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.

Collecting 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.

Race and Ethnic Categories Two Question Format 1. Ethnicity: Hispanic or Latino Not Hispanic or Latino

Race and Ethnic Categories Two Question Format American Indian or Alaskan Native Asian Black or African American Native Hawaiian or Other Pacific Islander White

Race 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.

XIII. COMPLIANCE REVIEWS Examines activities to determine adherence with civil rights requirements for: State agencies, local agencies, and other subrecipients.

Compliance Reviews State agencies review local agencies. Local agencies review their subrecipients. State agency must report significant findings to the reviewed entity and FNS.

Compliance Reviews Pre-approval or Pre-award Post-award or Routine 3 Types of Compliance Reviews: Pre-approval or Pre-award Post-award or Routine Special

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.

Pre-approval or Pre-award 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

Pre-approval or Pre-award Data and Information Required 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

Pre-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 locale Makeup of planning or advisory board A civil rights impact analysis where relocation is involved

Post-Award or Routine Compliance Review Frequency -- defined in the Appendices FNS: Part of Management Evaluation (ME) Process State Agencies: In accordance with Program Regulations WIC State agency reviews include vendors FMNP State agency reviews include farmers, farmers’ markets and roadside stands

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.

Post-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;

Post-Award or Routine Compliance Review Content Complaint process; Training; Non-discrimination statement usage; State agency is training local agencies; Analysis of denied applications; and Vendor compliance.

Post-Award or Routine Compliance Review Content Scope of State agency or FNS reviews of local agencies: 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;

Post-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; and training.

Special 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;

Special Compliance Reviews 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.

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.

A finding of noncompliance may be the result of: a Management Evaluation or a Civil Rights Compliance Review; a special review; or an investigation.

What 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).

What 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.

What 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.

To achieve voluntary compliance, the State agency must: Provide immediate written notice to the local agency or other subrecipient indicating: 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.

SERO 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.

If 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.

XV. COMPLAINTS OF DISCRIMINATION Recognizing a Civil Rights Complaint-- allegation based on: Race, Color, National Origin, Age, Sex, or Disability.

In FSP and FDPIR, also may be based on: Religion and Political Belief.

XV. 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;

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.

XVI. GUIDELINES FOR PROCESSING CIVIL RIGHTS COMPLAINTS 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

XVII. PROCEDURES FOR PROCESSING AND RESOLVING COMPLAINTS OF DISCRIMINATION 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