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
1
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.
2
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.
3
The Appendices are:






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?




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.
5
New Sections



Limited English Proficiency (LEP)
Equal Opportunity for Religious
Organizations
Appendices
6
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.
7
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
8
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.
9
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.
10
III. POLICY
Protected Classes for FNS Programs








Race
Color
National Origin
Age
Sex
Disability
Religion (FSP & FDPIR only)
Political Beliefs (FSP & FDPIR only)
11
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 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).
12
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.
13
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.
14
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.
15
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
16
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.
17
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;
18
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.
19
VIII. EQUAL OPPORTUNITY FOR
RELIGIOUS ORGANIZATIONS
For further information: www.fbci.gov
20
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.
21
3 Elements of Public Notification
1. Program Availability
2. Complaint Information
3. Nondiscrimination Statement
22
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.
23
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)
24
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.
25
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 (800)
795-3272 or (202) 720-6382 (TTY). USDA is an equal
opportunity provider and employer.”
26
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.”
27
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 (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
28
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.
29
30
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.
31
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.
32
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.
33
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.
34
Race and Ethnic Categories
Two Question Format
1. Ethnicity:


Hispanic or Latino
Not Hispanic or Latino
35
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
36
XIII. COMPLIANCE REVIEWS
A compliance review examines activities to
determine adherence with civil rights
requirements for:



State agencies,
local agencies, and
other subrecipients.
37
Compliance Reviews
3 Types of Compliance Reviews:



Pre-approval or Pre-award (State &
Federal)
Post-award or Routine (State & Federal)
Special (Federal)
38
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.
39
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.
40
Compliance Reviews
Post-Award or Routine Compliance Review Content




Complaint process;
Training;
Non-discrimination statement usage;
Analysis of denied applications.
41
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
42
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
43
Compliance Reviews

State agencies review local agencies.


Local agencies review their sub-recipients.


CRE
Annual site reviews completed by February 1,
each year.
State and local agencies must report
significant findings to the reviewed entity
and FNS.
44
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;
45
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.
46
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.
47
A finding of noncompliance may be
the result of:

a CRE or a Civil Rights Compliance
Review;

a special review; or

an investigation.
48
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).
49
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.
50
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.
51
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.
52
XV. COMPLAINTS OF
DISCRIMINATION
Recognizing a CN Civil Rights Complaint-allegation based on:






Race,
Color,
National Origin,
Age,
Sex, or
Disability.
53
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;
54
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.
55
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 agency’s discrimination
complaint/grievance processing system.
56
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 child’s 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
57
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.
58
Is this a Civil Rights Complaint?




A minority high school football player approaches the cafeteria
manager and says he isn’t 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.
59
Questions?
60