Written Notice and Referral Requirements for Beneficiaries Receiving TEFAP and CSFP Benefits from Religious Organizations
The purpose of this memorandum is to clarify the written notice and referral requirements for religious organizations that receive USDA Foods or administrative funding as part of The Emergency Food Assistance Program (TEFAP) or the Commodity Supplemental Food Program (CSFP). The U.S. Department of Agriculture’s (USDA) overarching regulation on equal opportunity for religious organizations to participate in USDA assistance programs can be found at 7 CFR Part 16. The final rule entitled Federal Agency Final Regulations Implementing Executive Order 13559: Fundamental Principles and Policymaking Criteria for Partnerships With Faith-Based and Other Neighborhood Organizations (Final Rule) amended 7 CFR Part 16 and directed agencies to provide policy guidance or reference materials on a number of program-specific topics. Religious organizations participating in TEFAP or CSFP must comply with these final regulations by July 5, 2016. Please note, Child Nutrition (CN) Programs, including USDA Foods in CN Programs, are treated in the same manner as an indirect assistance program under 7 CFR Part 16 and are therefore not subject to the notice and referral requirements contained within this memorandum.
Beneficiary Protections: Written Notice
In accordance with 7 CFR Part 16.4(f), faith-based or religious organizations that receive USDA Foods or administrative funds for TEFAP or CSFP must give written notice in the manner prescribed by this policy memorandum to all beneficiaries and prospective beneficiaries of the right to be referred to an alternate provider when available. The written notice must state that:
(i) The organization may not discriminate against beneficiaries on the basis of religion or religious belief, a refusal to hold a religious belief, or a refusal to attend or participate in a religious practice;
(ii) The organization may not require beneficiaries to attend or participate in any explicitly religious activities that are offered by the organization, and any participation by beneficiaries in such activities must be purely voluntary;
(iii) The organization must separate in time or location any privately funded explicitly religious activities from activities supported by direct Federal financial assistance;
(iv) If a beneficiary objects to the religious character of the organization, the organization will undertake reasonable efforts to identify and refer the beneficiary to an alternate provider to which the prospective beneficiary has no objection; the organization may not be able to guarantee, however, that in every instance, an alternate provider will be available; and
(v) Beneficiaries may report violations of these protections (including denials of services or benefits) by an organization to the state agency (http://www.fns.usda.gov/fdd/fooddistribution-contacts). The state agency will respond to the complaint and report the alleged violations to their respective USDA FNS Regional Office (http://www.fns.usda.gov/fns-regional-offices).
Organizations, inclusive of all recipient agencies and local agencies certifying potential beneficiaries and providing TEFAP and CSFP benefits to participants, must provide the written notice, per the program specific requirements described below, to applicants prior to the time they enroll in the program or receive services from such programs.
TEFAP
Preamble language to the final rule amending 7 CFR Part 16 provided for an exception to the individual written notice of beneficiary protections requirement. When the service provided to the beneficiary involves only a brief interaction between the provider and the beneficiary, and the beneficiary is receiving what may be a one-time service from the provider (such as a meal at an emergency kitchen or food for home consumption at a food pantry), the service provider may post the written notice of beneficiary protections in a prominent place, in lieu of providing individual written notice to each beneficiary.
This exception is applicable only to TEFAP. Accordingly, religious organizations providing TEFAP services can comply with the federal regulations and meet the requirements of this guidance memorandum by posting a written notice, which includes the complete list of beneficiary protections described above, at service locations. The posted written notice must be visible to all TEFAP beneficiaries and prospective beneficiaries upon entrance into the distribution site. A sample poster for posting written notice of beneficiary protections is included as an attachment to this memorandum.
CSFP
For religious organizations operating CSFP, individual written notice of beneficiary protections provided under 7 CFR Part 16, including the right to be referred to another organization, must be given to all applicants at the time that they apply for CSFP benefits. For beneficiaries already enrolled in the program as of the implementation date of this requirement, written notice must be provided no later than July 5, 2016.
A sample form for providing individual written notice of beneficiary protections is included as an attachment to this memorandum. Religious organizations can comply with federal regulations and meet the requirements of this guidance by providing CSFP applicants with this sample form at the time of application or by incorporating the required notification language at 7 CFR Part 16.4(f) into their existing CSFP applications or another format of their choice, provided that each individual beneficiary or prospective beneficiary receives an individual written notice, which includes the complete list of beneficiary protections described above.
Beneficiary Protections: Referral Requirements
In accordance with 7 CFR Part 16.4(g), if a beneficiary or prospective beneficiary of TEFAP or CSFP objects to the religious character of an organization that provides services under the program, that organization must promptly undertake reasonable efforts to identify and refer the beneficiary to an alternate provider, if available, to which the prospective beneficiary has no objection. A sample form for recording a beneficiary referral request is included as an attachment to this memorandum.
In some cases, a referral option may not be available. What constitutes “reasonable efforts” will depend on the situation. Organizations should at a minimum attempt to identify an alternative provider, determine what services the alternative provider offers, and determine whether the alternative provider is accepting new referrals. Below are the standards that must be followed:
- In making the referral, the organization must comply with all applicable state and local privacy laws and regulations.
- A referral may be made to another faith-based organization, if the beneficiary has no objection to that provider. But if the beneficiary requests a secular provider, and a secular provider is available, then a referral must be made to that provider.
- The referral must be to an alternate provider that is in reasonable geographic proximity to the organization making the referral and offers services that are similar in substance and quality to those offered by the organization, if one is available. The alternate provider also should have the capacity to accept additional clients, if one with capacity to accept additional clients is available. A referral may be made to non-USDA funded organizations, including non-TEFAP and non-CSFP providers, if necessary and available.
- If the organization determines that it is unable to identify an alternate provider, the organization must promptly notify the state agency, or local or eligible recipient agency with which it has an agreement. That agency must determine whether there is any other suitable alternate provider to which the beneficiary may be referred. A local or eligible recipient agency that receives a request for assistance in identifying an alternate provider may request assistance from the state agency. The state agency is ultimately responsible for ensuring an alternate provider is identified, if available.
- State agencies may assist recipient or local agencies or organizations by providing such entities with information regarding alternate providers. Such information regarding alternative providers should include providers (including secular and non-USDA funded organizations) within a reasonable geographic proximity that offer services that are similar in substance and quality and that would reasonably be expected to have the capacity to accept additional clients, provided any such organizations exist. Examples of alternate methods of referral the state agency could provide organizations may include but is not limited to referral to websites, hotlines, or other service providers funded by the state agency. An organization which relies on such information provided by the state agency will be considered to have undertaken reasonable efforts to identify an alternate provider for the purposes of 7 CFR Part 16.
Record Keeping
State and local agencies must continue to follow record keeping requirements in accordance with current program regulations for both TEFAP and CSFP and 7 CFR 250.19. Such requirements extend to the maintenance of records of beneficiary referrals by religious organizations to other entities in accordance with the beneficiary protections at 7 CFR Part 16. All records must be maintained for a period of three years from the close of the fiscal year to which they pertain.
Monitoring
In accordance with USDA regulations at 7 CFR Part 16.6, FNS will monitor compliance with these new provisions during the course of regular program review and oversight. State agencies should continue to follow existing regulatory requirements and program mechanisms in regards to monitoring and enforcement of these requirements, including coverage of the minimum notice and referral requirements provided in this memorandum and maintenance of records related to referrals. FNS will use Management Evaluation Reviews to monitor compliance with this, and all, statutory and regulatory provisions in TEFAP and CSFP.