Applying the FNS Instruction 113-1 in School Food Authorities

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Applying the FNS Instruction 113-1 in School
Food Authorities

• FNS Instruction 113-1 Civil Rights Compliance
  and Enforcement - Nutrition Programs and
  Activities
• Issued November 8, 2005
• USDA, FNS, SERO
• Special Nutrition Programs
• Presented at the Alabama DOE Fall CNP Directors
  Workshop
• Orange Beach, AL
• November 2 and 3, 2006

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Prior policy was conveyed through a series of 8
FNS Instructions

• 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

• Merges all of the previously independent
  instructions into 1 document
• 4 appendices that provide program-specific
  guidance and
• 2 appendices that provide sample documents and a
  chart demonstrating information and time
  requirements.

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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

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What does the recently issued 113 change?

• amends certain required 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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New Sections

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

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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.

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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

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II. AUTHORITY

• 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.

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II. AUTHORITY

• 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. POLICYProtected Classes for FNS Programs

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

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III. POLICY

• 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).

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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.

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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.

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VII. LEP

• 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
  services provided.
• Resources available to the recipient and costs.

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VII. LEP

• NSLP Household applications in foreign languages
  can be found at
• www.fns.usda.gov/cnd/FRP/frp.process.htm
• For further information on LEP
• www.LEP.gov

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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.

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VIII. EQUAL OPPORTUNITY FOR RELIGIOUS
ORGANIZATIONS

• 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

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VIII. EQUAL OPPORTUNITY FOR RELIGIOUS
ORGANIZATIONS

• 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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VIII. EQUAL OPPORTUNITY FOR RELIGIOUS
ORGANIZATIONS

• For further information www.fbci.gov

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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.

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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.

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3 Elements of Public Notification

• 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. (example And Justice for
  All poster)

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3 Elements of Public Notification

• 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 school food service program information.

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3 Elements of Public Notification

• 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.

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3 Elements of Public Notification

• If the material is too small to permit the full
  Nondiscrimination Statement in the material, at a
  minimum the following must be included This
  institution is an equal opportunity provider.

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3 Elements of Public Notification

• Nondiscrimination Statement for 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

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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.

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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.

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XI. CIVIL RIGHTS TRAINING

• 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.

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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.

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What are the Collecting and Reporting
Expectations for SFAs?

• At this time SFAs are not required to collect or
  report data.
• Data collection is done by the local education
  agency (LEA) at the time students enroll and the
  LEA reports this information to the State DOE
  through appropriate reporting mechanisms.

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Race and Ethnic Categories Two Question Format

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

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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

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XIII. COMPLIANCE REVIEWS

• A compliance review examines activities to
  determine adherence with civil rights
  requirements for
• State agencies,
• local agencies, and
• other subrecipients.

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Compliance Reviews

• 3 Types of Compliance Reviews
• Pre-approval or Pre-award (State Federal)
• Post-award or Routine (State Federal)
• Special (Federal)

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Compliance Reviews

• 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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Compliance Reviews

• Post-Award or Routine Compliance Review
• Selection based on an indication of possible
• concerns such as
• scheduled CRE
• 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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Compliance Reviews

• Post-Award or Routine Compliance Review Content
• Complaint process
• Training
• Non-discrimination statement usage
• Analysis of denied applications.

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Compliance Reviews

• Post-Award or Routine Compliance Review Content
• When a review of a local agency or other
  subrecipient is performed, by either the FNS
  Region, the State agency or your office, the
  following items should be determined
• Whether potentially eligible persons and
  households have an equal opportunity to
  participate in the program
• Whether case records are coded by race or ethnic
  origin
• Whether offices and cafeterias are displaying the
  And Justice for All poster in a prominent
  location
• Whether the nondiscrimination statement is
  included on all printed materials distributed to
  the public and on web sites and whether graphic
  materials reflect inclusiveness based on race,
  color, national origin, age, sex, and
  disability Rev. 10/06

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Compliance Reviews

• Post-Award or Routine Compliance Review Content
• Whether program information is made available to
  potentially eligible persons, program applicants
  and participants
• Whether the local agency is providing program
  information to organizations within the
  community
• Whether civil rights complaint processing is
  handled in accordance with the FNS Instruction
  113-1 or other applicable authorities and
• Whether the local agency has conducted civil
  rights training for its staff.
• Rev. 10/06

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Compliance Reviews

• State agencies review local agencies.
• CRE
• Local agencies review their sub-recipients.
• Annual site reviews completed by February 1, each
  year.
• State and local agencies must report significant
  findings to the reviewed entity and FNS.

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Compliance Reviews

• 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

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Compliance Reviews

• Special Compliance Review
• reports of alleged noncompliance made by other
  agencies, such as US Dept. of Ed. and HHS, need
  to be resolved or
• patterns of complaints of discrimination have
  been documented or
• a complaint is received by a participant through
  the complaint procedures.

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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

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

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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).

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What are some examples of noncompliance?

• 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?

• 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, FNS will

• 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
  FNS Regional Administrator with attachments.

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XV. COMPLAINTS OF DISCRIMINATION

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

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XV. COMPLAINTS OF DISCRIMINATION

• timeframes for processing must be adhered to
  (complaints must be submitted to FNS within 3
  business days)
• 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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XV. COMPLAINTS OF DISCRIMINATION

• certain key information should be requested
• a letter of acknowledgement is sent to the
  complainant
• age discrimination complaints are referred to
  Federal Mediation Conciliation Service 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

• Appendix F Review of FNS 113 Complaint
  Processing Procedures and Timelines
• Complaints may be received by USDA, FNS-HQ,
  FNS-SERO, other Executive Recipients, SAs or
  SFAs
• All complaints must be resolved within 90 days of
  receipt and
• the State Operations Plan must contain a
  description of the agencys discrimination
  complaint/grievance processing system.

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Is this a Civil Rights Complaint?

• An autistic middle school student forgets her
  lunch money for the fourth time. The
  paraprofessional tells the cashier to give the
  child two packages of saltine crackers and tells
  the child that This will teach you not have your
  lunch money again. The childs mother writes a
  letter to the Secretary of Agriculture alleging
  discrimination based on the childs autism.
• Is this a civil rights complaint and should it be
  reported?
• Yes. It should be considered a complaint even if
  it appears to be a program related issue.
• The results of the investigation determined that
  it was a program complaint. Improper application
  of the SFA charge policy and a potential
  violation of the FNS Instruction 791.1
  Prohibition Against Denying Meals and Milk to
  Children as a Disciplinary Act

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Is this a Civil Rights Complaint?

• A parent contacts the School Food Service
  Director and says their child is being denied
  their religious right to be able to eat only
  vegetarian meals.
• Is this a civil rights complaint and should it be
  reported?
• No. Religion is not a protected class in Child
  Nutrition Programs under FNS Instruction 113-1
  Civil Rights Compliance and Enforcement
  Nutrition Programs and Activities .
• It would be suggested that the SFA try to work
  with the complainant and try to accommodate there
  religious needs.

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Is this a Civil Rights Complaint?

• A minority high school football player approaches
  the cafeteria manager and says he isnt getting
  enough food when he selects a reimbursable meal
  and would like larger servings.
• Is this a civil rights complaint and should it be
  reported?
• No. Just because the student is a minority
  student does not mean he automatically is
  considered to be alleging discrimination. He did
  not state that he was not getting adequate
  servings because of his minority status. He only
  wants a larger serving.
• If he had said that he was not getting a large
  enough serving because of his racial/ethnic
  background, then, Yes, it would be a complaint
  and you would need to report it.

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Questions?