FNS Instruction 113-1

1
FNS Instruction 113-1

• Civil Rights Compliance and Enforcement
• Nutrition Programs and Activities
• Issued November 8, 2005
• SERO-Civil Rights Office

2
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.

3
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.

4
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

5
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.

6
Common Areas in Former and Current Versions

• Purpose
• Authority
• Policy
• Applicability

7
Common Areas in Former and Current Versions
(continued)

• Definitions
• Responsibilities
• Public Notification
• Assurances
• Civil Rights Training

8
Common Areas in Former and Current Versions
(continued)

• Data Collection and Reporting
• Compliance Reviews
• Resolution of Noncompliance
• Complaints of Discrimination

9
New Sections

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

10
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.

11
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

12
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.

13
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.

14
III. POLICYProtected Bases for FNS Programs

• Race
• Color
• National Origin
• Age
• Sex
• Disability
• Religion (FSP) (FDPIR)
• Political Beliefs (FSP) (FDPIR)

15
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 individuals 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 USDAs TARGET Center at [phone]
  (voice and TTY).

16
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.

17
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.

18
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.

19
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.

20
VII. LEP (continued)

• For further information
• www.LEP.gov

21
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.

22
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

23
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.

24

• For further information www.fbci.gov

25
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.

26
3 Elements of Public Notification

• 1. Program Availability
• 2. Complaint Information
• 3. Nondiscrimination Statement

27
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.

28

• 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.

29
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 [phone] (voice) or
  [phone] (TTY). USDA is an equal
  opportunity provider and employer.
• Exception provided for the use of a joint
  application for FSP/HHSsee Instruction for
  approved language

30
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 [phone] or (202)
  720-6382 (TTY). USDA is an equal opportunity
  provider and employer.

31
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.

32
(No Transcript)
33
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

34

• 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.

35
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.

36
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.

37
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.

38
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.

39
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.

40
Race and Ethnic Categories Two Question Format

• 1. Ethnicity
• Hispanic or Latino
• Not Hispanic or Latino

41
Race and Ethnic Categories Two Question Format

• 2. Race
• American Indian or Alaskan Native
• Asian
• Black or African American
• Native Hawaiian or Other Pacific Islander
• White

42
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.

43
XIII. COMPLIANCE REVIEWS

• Examines activities to determine adherence
• with civil rights requirements for
• State agencies,
• local agencies, and
• other subrecipients.

44
Compliance Reviews

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

45
Compliance Reviews

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

46
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.

47
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

48
Pre-approval or Pre-awardData 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

49
Pre-approval or Pre-awardData 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

50
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

51
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.

52
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

53
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.

54
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

55
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.

56
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

57
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.

58
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.

59
A finding of noncompliance may be the result of

• a Management Evaluation or a Civil Rights
  Compliance Review
• a special review or
• an investigation.

60
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).

61
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.

62
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.

63
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.

64
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.

65
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.

66
XV. COMPLAINTS OF DISCRIMINATION

• Recognizing a Civil Rights Complaint--
• allegation based on
• Race,
• Color,
• National Origin,
• Age,
• Sex, or
• Disability.

67

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

68
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

69

• 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.

70
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

71
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 agencys discrimination complaint/grievance
  processing system