DHS Guidance on Partnerships with Faith-Based and … and Contract Reviewer ... Model Guidance on Protections for and Obligations of ... to faith-based and other neighborhood organizations

Guidance on Partnerships with Faith-Based and Other Neighborhood Organizations Information and Materials for Intermediary Entities and Faith-Based and Neighborhood Organizations Receiving DHS Financial Assistance

November 2016

DHS Office for Civil Rights & Civil Liberties and DHS Center for Faith-Based & Neighborhood Partnerships

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Information and Materials for Intermediary Entities and Faith-Based and Neighborhood Organizations Receiving DHS Financial Assistance

Guidance on Partnerships with Faith-Based and Other

Neighborhood Organizations

Table of Contents 1. Introduction ......................................................................................................................... 1

2. Nondiscrimination Requirements for Direct and Indirect DHS Financial Assistance ....... 1

3. Prohibited Uses of Direct DHS Financial Assistance......................................................... 2

4. Preserving Faith-Based Organizations’ Religious Identity................................................. 4

5. Separation of Explicitly Religious Activities ..................................................................... 4

6. Guidance for Programs Supported by Direct DHS Financial Assistance........................... 5

A. Separate and Distinct Programs ................................................................................ 5

B. Separate Presentations .............................................................................................. 6

C. Explicitly Religious and Anti-Religious Activities .................................................. 6

D. Eligibility, Outreach, and Recruitment ..................................................................... 7

E. Availability of Separate Religious Programs............................................................ 7

7. Guidance for Intermediaries ............................................................................................... 7

8. Frequently Asked Questions ............................................................................................... 7

A. General ...................................................................................................................... 8

B. Indirect DHS Financial Assistance ........................................................................... 8

C. Explicitly Religious Activities.................................................................................. 9

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D. Program Materials................................................................................................... 10

E. Statements Made by Beneficiaries in Programs and Class Assignments ............... 10

F. Classroom and Similar Discussions........................................................................ 10

G. Prayer ...................................................................................................................... 11

H. Religious Settings or Facilities ............................................................................... 11

I. Availability of Other Programs............................................................................... 12

J. Separate and Distinct Programs .............................................................................. 12

K. Outreach and Recruitment ...................................................................................... 12

L. Beneficiary Protections........................................................................................... 13

9. Grant and Contract Reviewer Training Guide .................................................................. 21

10. Model Training Tools ....................................................................................................... 23

A. Model Slide Presentation ........................................................................................ 23

B. Summary of Principles From Executive Order 13279, as amended by Executive Order 13559, and DHS Implementing Regulations at 6 C.F.R. Part 19 ................ 38

C. Using DHS Funds in Compliance with Constitutional Principles .......................... 40

11. Model Guidance on Protections for and Obligations of Organizations That Administer Social Service Programs Supported by DHS Financial Assistance.............................................. 44

12. Appendices........................................................................................................................ 46

A. Executive Order 13279 ........................................................................................... 46

B. Executive Order 13559 ........................................................................................... 52

C. Title 6, C.F.R. part 19 ............................................................................................. 58

D. Model Notice of Beneficiary Rights and Beneficiary Referral Request................. 64

1. Introduction This guidance provides clear and uniform instructions on fundamental principles that

apply to financial assistance awards or contracts from the Department of Homeland Security (DHS) to faith-based and other neighborhood organizations providing social services. This guidance is also provided for state administering agencies and other intermediary organizations that may receive DHS funding and provide subgrants or subcontracts to those organizations to provide social services. Specifically, this guidance addresses certain nondiscrimination requirements for recipients of direct and indirect DHS financial assistance; prohibited explicitly religious uses of direct DHS financial assistance; protections and separation requirements to ensure that faith-based groups are able to retain their religious identity after receiving an award; and protections for beneficiaries to ensure that they are not discriminated against on the basis of religion, a religious belief, or a refusal to attend or participate in a religious practice.

This guidance is not a substitute for carefully reviewing the terms and conditions of any grant document or contract, or DHS’s regulations on Nondiscrimination in Matters Pertaining to Faith-Based Organizations at 6 C.F.R. part 19, which are included as Appendix A to this guidance (and are referred to throughout this guidance as the DHS regulations). This guidance represents DHS’s authoritative interpretation of 6 C.F.R. part 19 and related authority. It is not intended to and does not create any right or benefit, substantive or procedural, enforceable at law against the United States.

Please note: Throughout this guidance, except where expressly noted or where inapplicable, “financial assistance” includes both grants and contracts, and “beneficiary” includes a prospective beneficiary. See 6 C.F.R. § 19.2.

2. Nondiscrimination Requirements for Direct and Indirect DHS Financial Assistance

Section 2(d) of Executive Order 13279, as amended by Executive Order 13559, recommends Federal entities create beneficiary nondiscrimination obligations to direct and indirect aid programs. A direct financial assistance program is one where DHS, or an intermediary like a local government, selects a provider and purchase services or awards funds to that provider to carry out a service. An indirect financial assistance program is one where DHS or an intermediary provides an individual beneficiary with a voucher, certificate, or similar means of payment, and the beneficiary chooses the service provider. Any organization that participates in a program funded by direct or indirect DHS financial assistance is prohibited, in providing social services or in outreach activities related to such services, from discriminating against a program beneficiary on the basis of religion, a religious belief, or a refusal to attend or participate in a religious practice. See 6 C.F.R. § 19.5.

While organizations that participate in social service programs funded by indirect financial assistance cannot turn away beneficiaries on the basis of religion or religious beliefs or lack thereof, they are not required to modify their program activities to accommodate beneficiaries who choose to expend the indirect financial assistance on the organization’s program. For example, a faith-based organization that offers a Bible study as part of programming that accepts an indirect financial assistance voucher need not remove that study

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from its program activities or create alternative programming for a beneficiary who does not wish to participate in the Bible study. Furthermore, the prohibited uses of direct DHS financial assistance described below do not apply to programs funded by indirect DHS financial assistance.

The remainder of this guidance generally only applies only to programs supported either in whole or in part through direct DHS financial assistance, not to programs receiving indirect DHS financial assistance. There is some discussion of indirect financial assistance in the frequently asked question section below, beginning on page 8.

3. Prohibited Uses of Direct DHS Financial Assistance Section 2(f) of Executive Order 13279, as amended by Executive Order 13559,

recommends that Federal entities prohibit the use of direct Federal financial assistance to support or engage in “explicitly religious activities,” which includes “activities that involve overt religious content such as worship, religious instruction, or proselytization.”1 Other examples of explicitly religious activities and materials include devotional exercises, production or dissemination of devotional guides or other religious materials, or counseling in which counselors introduce religious content. More specifically, in the context of social services, providing devotional booklets during disaster case management programs, leading a group prayer among beneficiaries receiving non-disaster emergency food and shelter assistance, or including overt religious content during citizenship education classes, are examples of social service activities that are explicitly religious. While it is not feasible to develop a comprehensive list of all “explicitly religious activities,” each of these is an example of an activity that is not religiously neutral because it promotes or endorses religion to beneficiaries.

Application of the prohibition against using direct Federal financial assistance to support or engage in explicitly religious activity must be consistent with the First Amendment of the U.S. Constitution, which, broadly speaking, both prevents the government from promoting or sponsoring religion and protects privately initiated religious expression and activities from government interference and discrimination. This means that staff carrying out programs supported by direct DHS financial assistance, and the materials disseminated by staff persons in those programs, must be neutral in their treatment of religion. Neither staff nor materials used in these programs should promote, endorse, or favor religious beliefs over non-religious beliefs, nor should they disparage religious beliefs in any way. Further, they should not express a judgment with regard to religious beliefs or non-belief, or seek to influence the beliefs of participants with respect to religion.

If a local program is directly supported by DHS financial assistance, program administrators should be aware that the bar against use of Federal financial assistance for explicitly religious activities applies to activities, speech, and materials that are generated or controlled by the administrators, instructors, or officials of the DHS-financed program. The requirement generally does not apply to the activities of persons whose speech is not controlled, encouraged, or approved after the fact by program administrators, instructors, or officials, such as spontaneous comments made by individual beneficiaries in the context of a DHS program.

1 See also 6 C.F.R. 19.4(a).

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The Supreme Court has repeatedly held that the First Amendment requires that officials and administrators in publicly-funded programs be neutral in their treatment of religion, showing neither favoritism toward nor hostility against religious expression.

Examples:

A. Disaster survivors attend a group crisis counseling session where they discuss their reactions to their current situation and learn various coping strategies and ways to mitigate stress. The session is led by a trained crisis counselor who asks individuals to describe their current coping strategies. One person states that his faith in God and prayer have helped him through the current situation, and encourages the rest of the group to come to his church next Sunday. This type of spontaneous speech by a program beneficiary is not prohibited under the regulation. In response to this statement, the counselor should neither extol nor disparage the virtues of prayer and faith, and neither encourage nor discourage the group from attending the church services. Rather, the counselor should remain neutral to the expression of religious belief.

B. A group of lawful permanent residents attends a citizenship education course where they learn about United States history and government. During the course, the participants learn about the separation between church and state. One participant raises her hand to state that she does not believe in this principle, and thinks that the United States should have an official state religion. This type of spontaneous speech by a program beneficiary is not prohibited under the regulation and can be part of the program discussion. In response, the instructor should remain neutral in response to the participant’s expression of belief and continue with the lesson.

Direct DHS financial assistance for explicitly religious activities that can be publically funded consistent with the Establishment Clause is constitutionally permissible and necessary under limited circumstances, such as for chaplaincy services. For example, the prohibition against the use of direct DHS financial assistance to support explicitly religious activities may not apply for programs where funds are provided to chaplains to work with detainees in detention facilities, or where funds are provided to religious or other organizations for programs in detention facilities in which such organizations assist chaplains in carrying out their duties.2

If you have questions about whether one of your programs might be exempt from the bar on the use of direct DHS financial assistance for explicitly religious activities, you should consult your DHS program office through the program’s project officer, contracting officer, or

2 See Cruz v. Beto, 405 U.S. 319, 322 n.2 (1972) (per curiam) (explaining that “reasonable opportunities must be afforded to all prisoners to exercise the religious freedom guaranteed by the First and Fourteenth Amendments without fear of penalty”); Sch. Dist. of Abingdon Twp. v. Schempp, 374 U.S. 203, 299 (1963) (Brennan, J., concurring) (observing that “hostility, not neutrality, would characterize the refusal to provide chaplains and places of worship for prisoners and soldiers cut off by the State from all civilian opportunities for public communion”); cf. Katcoff v. Marsh, 755 F.2d 223, 234 (2d Cir. 1985) (finding it “readily apparent” that the Government is obligated by the First Amendment “to make religion available to soldiers who have been moved by the Army to areas of the world where religion of their own denominations is not available to them”).

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other responsible DHS official. Determinations will be made on a case-by-case basis, based on applicable Federal law and DHS’s discretion under that law to determine whether and under what conditions the expenditure is appropriate.

4. Preserving Faith-Based Organizations’ Religious Identity While faith-based organizations need to ensure that programs directly supported by the

government comply with the requirement that these programs are religiously neutral, various protections also exist to ensure that faith-based organizations do not have to change their religious identities after receiving a DHS award. Religious entities may receive Federal financial assistance to support social service programs “without impairing their independence, autonomy, expression outside the programs in question, or religious character.”3 Accordingly, a faith-based organization that applies for, or participates in, a social service program supported with Federal financial assistance may continue to carry out its mission in this way, including the definition, development, practice, and expression of its religious beliefs. At the same time, as explained below, it may not use direct Federal financial assistance to support or engage in any explicitly religious activities and those activities must be both separate in time or location from the Federally-funded program and voluntary for beneficiaries.

A faith-based organization may also use its facilities to provide DHS-financed social services without removing or altering religious art, icons, scriptures, or other symbols from the facility. Additionally, a faith-based organization that applies for, or participates in, a social service program supported with DHS financial assistance may retain religious terms in its name, select its board members on a religious basis, and include religious references in its mission statements and other chartering or governing documents. Faith-based organizations that provide social services retain these rights while observing the separation requirements described further below.

5. Separation of Explicitly Religious Activities Section 2(f) of Executive Order 13279, as amended by Executive Order 13559, provides

that Federal agencies should require organizations that receive Federal funding to separate explicitly religious activities from programs supported with direct financial assistance from the Federal government:

Organizations that engage in explicitly religious activities (including activities that involve overt religious content such as worship, religious instruction, or proselytization) must perform such activities and offer such services outside of programs that are supported with direct Federal financial assistance (including through prime awards or sub-awards), separately in time or location from any such programs or services supported with direct Federal financial assistance, and participation in any such explicitly religious activities must be voluntary for the

3 E.O. 13279, § 2(g), 67 FR 77141 (Dec. 16, 2002), as amended by E.O. 13559, § 1(b), 75 FR 71319, 71320 (Nov. 17, 2010); see also 6 C.F.R. § 19.3.

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beneficiaries of the social service program supported with such Federal financial assistance.4

In addition to the worship and religious services that faith-based organizations conduct separately from their DHS-supported project, faith-based organizations may also carry out separate social service programs with explicitly religious activities or content after receiving a Federal award. In some cases, an organization may elect to carry out a separate social service program that is explicitly religious that is similar to the government-funded project. For example, a faith-based organization may carry out two disaster case management programs, one of which is privately-funded and overtly religious, while the other is DHS-supported directly and free of explicitly religious content. But where such religious activities or programs are undertaken, it is especially important for it to be clear that they are separate and distinct, and that participation in the religious activities is voluntary for participants in the DHS-supported program.

6. Guidance for Programs Supported by Direct DHS Financial Assistance

A. Separate and Distinct Programs Recipients of DHS financial assistance must ensure that any program that involves

explicitly religious activities (including activities that involve overtly religious content such as worship, religious instruction, or proselytization) is separate and distinct from the program that receives direct DHS financial assistance, and that the distinction is completely clear to the beneficiary. See E.O. 13279, § 2(f), as amended by E.O. 13559, § 1(b), 75 FR at 71320; see also 6 C.F.R. §§ 19.4 and 19.6.

Some of the ways to ensure separate and distinct programs include, but are not limited to, the following examples:

• creating separate and distinct names for the programs;

• creating distinct appearances for the materials used to promote each program;

• establishing separate registrations for the programs; and

• promoting only the DHS-supported program in materials, websites, or commercials purchased with any portion of direct Federal financial assistance.

Websites with explicitly religious content may include a link to the page promoting the DHS-supported program; subject to applicable grant or contract provisions, the page about the DHS supported program may be supported with direct Federal financial assistance, but the explicitly religious page may not. The DHS-supported page may link to pages with explicitly religious content; however, such links should be accompanied by statements noting that the linked content is separate from the DHS supported program, privately funded, and purely voluntary for beneficiaries.

4 E.O. 13279, § 2(f), as amended by E.O. 13559, § 1(b), 75 FR at 71320. This provision is reflected in the DHS regulations at 6 C.F.R. § 19.4.

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B. Separate Presentations Recipients of Federal financial assistance must implement measures to separate the

presentation of any program with religious content from the presentation of the DHS-supported program by time or location in such a way that it is clear that the two programs are separate and distinct. When separating the two programs by time but presenting them in the same location, the service provider must ensure that one program completely ends before the other program begins.

Some of the ways in which separation of presentations may be accomplished include the following examples:

• The programs are held at completely different sites or on different days.

• If the programs are held at the same site at completely different times, the service provider may separate programs through such means as:

o having sufficient time between the two programs to vacate the room, turn down the lights, leave the stage, etc., in order to conclude the first program before beginning the second; and

o completely dismissing the participants of the earlier program.

• If the programs are held in different locations at the same site at the same time, the service provider may separate programs through such means as:

o completely separating registration locations; and

o completely separating areas where programs are held such as by room, hallway, or floor.

Note: If an organization offers a DHS-supported program and a privately funded religious program and both provide the same social service, it is especially important that the organization accentuate the separation between the programs. Furthermore, because the law recognizes that children are particularly susceptible to coercion, if the clients served are children, it is particularly important that the separation between the programs be made clear.

C. Explicitly Religious and Anti-Religious Activities Recipients of DHS financial assistance must ensure that there are no explicitly religious

or anti-religious activities in a program supported by direct Federal financial assistance.5 These include:

• registration procedures that include religious inquiries or references; and

• program activities that include religious outreach or promotion, endorsement, or favoring of religious beliefs, or activities that are intended to dissuade program participants from holding religious beliefs.

5 See E.O. 13279, § 2(g), as amended by E.O. 13559, § 1(b), 75 FR at 71320; see also 6 C.F.R. § 19.4.

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D. Eligibility, Outreach, and Recruitment Recipients of DHS financial assistance must ensure that the Federally-supported program

is open to all qualified beneficiaries, regardless of their religion or religious belief, refusal to hold a religious belief, or refusal to attend or participate in a religious practice.6 DHS award recipients may not establish selection criteria that have the effect of discriminating against beneficiaries based on religion or non-religion. Accordingly, DHS-funded programs may not limit outreach, recruitment efforts, or advertising of the Federal program services exclusively to religious or non-religious target populations.

E. Availability of Separate Religious Programs After the DHS-supported program has ended, a staff person may provide a brief and non-

coercive invitation to program participants to attend a separate religious program. The demarcation between the Federally-supported program and the religious program must at all times be clear. The invitation must emphasize that the religious program is a separate program from, and not a continuation of, or complementary to, the DHS-supported program. It also must be clear that participants are not required to attend the separate religious program, and that participation in Federally-supported programs is not contingent on participation in other programs sponsored by the organization. If the beneficiaries are children, then Federally-supported programs should obtain parental consent before inviting the children to separate religious activities in order to ensure that the invitation is non-coercive and that participation is voluntary.

7. Guidance for Intermediaries Intermediaries that accept DHS financial assistance and distribute that assistance to other

organizations to provide government-funded social services must ensure that recipient organizations comply with DHS regulations, including by monitoring their actions. Intermediaries are required to accept any complaints or reports from beneficiaries regarding violations of beneficiary protections, including denials of services or benefits by the recipient organization. Intermediaries also have responsibilities related to the referral requirement: When a recipient is unable to make a referral despite reasonable efforts, it may report that failure to either DHS or the intermediary. The intermediary in turn will report the need for referral assistance to DHS, and will either help to make the referral itself or seek further assistance from DHS.

Determinations on how an intermediary will ensure sub-grant recipient compliance will be made on a program-by-program basis. Please consult the terms and conditions of your grant or contract, and for further guidance contact your DHS program office through the program’s project officer, contracting officer, or other responsible DHS official.

8. Frequently Asked Questions The following are answers to commonly asked questions that may arise in DHS

programs. Although specific programs are identified, the principles also are intended to be

6 See E.O. 13279, § 2(d), as amended by E.O. 13559, § 1(b), 75 FR at 71320; 6 C.F.R. § 19.5.

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useful in other similar program contexts. If you have questions that are not answered here, please consult your DHS program office through the program’s project officer, contracting officer, or other responsible DHS official, or the intermediary (such as a state, local, or tribal government) through which you receive DHS support.

A. General Q1. When did DHS’s regulation, Nondiscrimination in Matters Pertaining to Faith-

based Organizations, take effect?

A1. Nondiscrimination in Matters Pertaining to Faith-based Organizations went into effect on May 4, 2016.

Q2. By what date did my organization need to comply with these requirements, including the requirements to provide a written notice of beneficiary rights and provide referrals to alternative providers?

A2. Organizations were required to comply with these requirements beginning July 5, 2016.

Q3. Our organization received a new award or renewed a prior award before the effective date on May 4, 2016. Is our award subject to the requirements under these regulations?

A3. In most cases, awards that were made or renewed before the effective date will not be subject to these regulations. Generally, recipients subject to these final regulations include recipients of an award of DHS financial assistance made or renewed on or after May 4, 2016. However, some awards made or renewed before the effective date of the regulation may contain conditions that would make this regulation apply. Recipients that have awards subject to these conditions would therefore have been required to comply with the regulation beginning no later than the compliance date on July 5, 2016. Please consult your DHS program office through the program’s project officer, contracting officer, or other responsible DHS official if you are unsure whether you are required to comply with these regulations.

B. Indirect DHS Financial Assistance Questions Q4-Q7: My organization accepts vouchers (or certificates or other similar means of government-funded payment) from beneficiaries for a social service program that includes explicitly religious content (e.g., worship, religious instruction, religious counseling). A beneficiary recently stated that he objected to the religious content of the program.

Q4. Can I refuse to accept the beneficiary’s voucher?

A4. No. You cannot refuse to accept the beneficiary’s voucher. An organization that participates in programs funded by indirect aid cannot turn away beneficiaries on the basis of religion or religious beliefs or lack thereof.

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Q5. Do I need to modify the content of my program to exclude the religious activities?

A5. No. Because the beneficiary may use the voucher or other means to obtain services from a provider of their choice, you do not need to modify or remove the religious content of your services either.

Q6. Do I need to provide the beneficiary with a written notice of beneficiary protections?

A6. No. Because the beneficiary may use the voucher or other means to obtain services from a provider of their choice, providing a written notice to such a beneficiary to seek referral to another provider is unnecessary.

Q7. Does the referral requirement apply to my program?

A7. No. The referral requirement does not apply to programs funded by indirect aid.

C. Explicitly Religious Activities Q8. In addition to worship, religious instruction, and proselytizing, what are some

other examples of “explicitly religious activities”?

A8. Other examples of explicitly religious activities and materials could include devotional exercises, production or dissemination of devotional guides or other religious materials, and counseling in which counselors introduce religious content. More specifically, in the context of social services, providing a devotional booklet to a disaster survivor as part of disaster case management or including overtly religious content during a citizenship education course for permanent residents, are examples of social service activities that are explicitly religious. While it is not feasible to develop a comprehensive list of all “explicitly religious activities,” each of these is an example of an activity that is not religiously neutral because it promotes or endorses religion to beneficiaries.

Q9. Are there examples of activities in which DHS-funded staff may refer to religion without violating the prohibition against “explicitly religious activities”?

A9. Yes. Any reference to religion should be viewed in its full context to determine whether the activity is neutral to religion, and whether there are instances in which religious references made by program administrators, instructors, or officials are neutral to religion. For example, staff in programs supported by direct DHS financial assistance may not provide devotional religious instruction, but, where consistent with the purposes of the program, they may reference religion in other ways. For example, instructors in citizenship education and naturalization courses may discuss the religious liberty guarantees of the First Amendment. Just as public schools may teach about religion, such as the history of religion, comparative religion, literary and other analysis of the Bible and other scripture, and the role of religion in the history of the United States and other countries, staff in DHS supported programs may discuss religion in these ways. In such cases, the aim is not to encourage faith but to discuss, for instance, our

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country’s tradition of religious freedom or the fact that religion plays important roles in the lives of some individuals and communities.

D. Program Materials Q10. What should I do if I have considered whether materials for my DHS-

supported program are neutral toward religion, but I am still not certain?

A10. If award-recipient staff reviewed the materials to be used in their DHS-supported programs but have remaining concerns as to whether the materials are neutral to religion, they may contact their DHS program office through the program’s project officer, contracting officer, or other responsible DHS official with their concern.

E. Statements Made by Beneficiaries in Programs and Class Assignments

Q11. If a staff person in our DHS-funded program (e.g., a citizenship course for naturalization) provides participants or other program beneficiaries with an assignment to give an oral or written report, should the instructor also prohibit the participants from endorsing any religious or anti-religious views in their response?

A11. No. Participants and other beneficiaries may express their beliefs about religion in homework, artwork, and other written and oral assignments free from religious discrimination. Such home and classroom work should be judged by ordinary standards of substance and relevance and against other legitimate pedagogical concerns identified by the school or service provider. Thus, if a citizenship education instructor gives a written assignment, and the participant references his or her religious beliefs in it, the instructor should judge the assignment on academic standards and neither penalize nor reward the participant on account of the religious content.

F. Classroom and Similar Discussions Q12. May staff lead a discussion in a DHS-supported program in which the

beneficiaries refer to their religious beliefs?

A12. Yes. The basic principle is that beneficiaries may express their religious beliefs, while staff must remain neutral. When social service providers or other DHS-supported programs permit beneficiaries to express their views and staff neither invite nor endorse specifically religious speech, then the speech is not attributable to the government, and its expression is both permissible and protected. For example, if in a group discussion about surviving through a disaster, a beneficiary on his own initiative talked about how religion helped him through the difficult time, then that would be permissible and protected. On the other hand, if a counselor initiated a discussion about the importance of religion in coping and overcoming hardship, deliberately chose individuals to speak because they would speak about religious issues, or deliberately avoided calling on those who would talk about values from a secular perspective, that would be impermissible.

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To take another example, a course instructor is teaching a civics course to permanent residents to prepare them to apply for naturalization. The course syllabus includes a discussion on the ways in which various religious traditions have helped shape American society and government as well as the importance of the religious liberty guarantees of the Constitution. If during one such discussion, a participant comments on his or her Christian beliefs, the instructor may acknowledge that American citizens have the right to religious liberty under the First Amendment. It would be inappropriate for the instructor to say or imply that the participant’s comment is irrelevant to the topic, since such a statement would violate the principles of neutrality with respect to religion.

Q13. If we invite guest speakers to talk to the beneficiaries in our DHS-supported program, do we need to prohibit the guest speakers from referring to religion?

A13. No, however, it is important to remember that the Federal government, and the programs that it supports, must be neutral toward religion. When a program receiving direct DHS financial assistance invites speakers to address program participants, it should neither favor nor disfavor religious speech. To adhere to the neutrality principle, there are a number of factors that a recipient of direct DHS financial assistance might consider in inviting speakers to a forum that it sponsors: whether to establish at the beginning of the program that the recipient does not necessarily endorse the perspectives of each speaker, whether to invite a panel of speakers rather than a single speaker to offer a variety of viewpoints, and whether the recipient is likely to know in advance the content of a speaker’s presentation. In selecting speakers to address program participants who are minors, recipients should be mindful of parental concerns and aware that children may be more vulnerable to persuasion than adults.

G. Prayer Q14. Are there circumstances in which persons attending a DHS-supported

program may choose to pray on their own during the program?

A14. Yes. Attending a DHS-supported program does not affect an individual’s right to pray. As a general matter, program beneficiaries may engage in prayer, subject to the same rules designed to prevent material disruption of the program that are applied to any other privately-initiated speech.

H. Religious Settings or Facilities Q15. May a social service provider that has received a DHS grant to conduct

presentations that are neutral to religion accept an invitation to present at a religious setting such as a church or church-affiliated summer school as a part of that DHS program?

A15. Yes. A social service provider should handle requests for presentations in an evenhanded fashion that neither favors nor disfavors religion, a particular religious institution, or the religious affiliation of those in attendance. Project services should be offered in a religiously neutral way, and decisions about where to offer presentations or provide services should be made on criteria that are relevant to the program, such as efficiency, need, public requests, or geographic balance, rather than on any criteria that are related to religion.

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Q16. May DHS-supported grant recipients provide services in the same facility that houses a religious library?

A16. Yes. The availability of religious texts in a library would present a legal concern only if the administrators, instructors, or other officials also urged beneficiaries of DHS-supported services to read the material.

I. Availability of Other Programs Q17. May a DHS-supported organization provide applicants and beneficiaries with

a list of other available programs that includes programs with explicitly religious content?

A17. Yes. If the organization has developed a list of “available programs,” rather than recommended programs or referrals, based on religiously neutral criteria such as service providers in the immediate geographic region, then that list may include programs with secular content and programs with explicitly religious content.

J. Separate and Distinct Programs Q18. May a DHS-supported crisis counseling program, for example, make religious

counseling available to teen beneficiaries if they request it?

A18. Yes. As long as the religious counseling is requested voluntarily by the program participants, the counselors are not paid with DHS financial assistance, and their counseling services are separated by time or location from the DHS-supported crisis counseling services, then the service provider may make religious counseling available. The demarcation between the DHS-supported program and religious counseling must at all times be clear. Participants must be aware that they are not required to attend religious counseling. Where the program participants are minors, the provider should obtain parental consent to invite the youth to religious counseling.

K. Outreach and Recruitment Q19. Does the prohibition against using religious criteria to select beneficiaries in

DHS-supported programs mean that DHS-financed service providers must ensure that program participants represent a variety of faith traditions?

A19. No. DHS-supported programs need to be accessible to applicants and participants irrespective of religion, religious belief, a refusal to hold a religious belief, or a refusal to attend or participate in a religious practice. This does not mean that a legal concern necessarily arises where most participants in a target area are of a single religious tradition because, for example, the program is located in a region where the population has a predominant faith tradition. The representation of religious backgrounds among those attending a program may vary for reasons unrelated to the recipient’s eligibility criteria. However, a DHS-financed service provider is prohibited from selecting a target group of participants or tailoring recruitment efforts based on religious affiliation.

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Q20. If my DHS-supported program has a separate and distinct religious component, and the program serves youth, should my program obtain parental consent to invite the youth to the religious activities?

A20. Yes. If a DHS-supported program serves youth, the program should obtain parental consent to invite the youth to any separate and distinct religious activities, because parental consent will help ensure that any participation is voluntary. If a parent fails to provide consent, the program should ensure that those youth are not present when any invitation to a religious activity is extended.

Q21. May a DHS-supported program for youth initiate loudspeaker invitations to attend separate, explicitly religious activities that will be held in another room of the facility?

A21. Yes, so long as the invitations are brief and non-coercive and it is clear that the religious activities are separate, privately funded, and voluntary for beneficiaries. The demarcation between the DHS-supported program and the religious program must at all times be clear. DHS award recipients must make it clear to participants that they are not required to attend the religious program. As participants are minors in this case, the program personnel should obtain parental consent to invite the youth to the religious activities, because parental consent will help ensure that any participation is voluntary. If a parent fails to provide consent, the program personnel should ensure that those youth are not present when an invitation to a religious activity is extended.

The service provider may not pay for the cost of religious services or any invitations to attend those services with DHS financial assistance.

L. Beneficiary Protections Q22. What does it mean for a beneficiary to object to the “religious character” of an

organization?

A22. The protections afforded to prospective beneficiaries arise when a beneficiary objects to the “religious character” of an organization that provides DHS-supported services. If, for example, a beneficiary objects to the fact that citizenship education course is administered by a specific religious group, such objection would relate to the organization’s “religious character.” By contrast, if the beneficiary objects only to the religion of the course instructor, there is no objection to the “religious character” of the organization, and therefore the protections that this rule affords are not implicated.

But, in general, DHS does not intend, and does not expect recipients or intermediaries, to scrutinize the religious nature of a beneficiary’s objection. Rather, recipients should take reasonable steps to identify a suitable referral whenever a beneficiary asserts an objection based on the religious character of an organization.

An objection to “religious character” is wholly separate and distinct from an objection to explicitly religious activities that an organization conducts without separation in either time or

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location from activities that are supported with direct DHS financial assistance. As explained above, the integration of explicitly religious activities into a program supported with direct DHS financial assistance is prohibited.

Q23. If a beneficiary objects to the religious character of an organization, in what form must the objection be made?

A23. Beneficiaries are not required to follow any specific format in making an objection, but it must be reasonably clear under the circumstances that he or she objects to the service provider because of its religious character. While beneficiaries may object orally or in writing, organizations should are encouraged to provide documentation such as DHS’s sample Beneficiary Referral Request Form. The Beneficiary Referral Request Form, which recipients can customize and adapt for their program needs, provides beneficiaries with a way to state their objections clearly and also facilitates the organization’s compliance with the requirement to record any successful or unsuccessful referral attempts. Organizations may also develop another form so long as it meets the requirements of the regulation. The objection may include the individual’s name unless he or she has withheld it or asked that it not be recorded. If a beneficiary withholds his or her name, the organization must inform the beneficiary that it will not be able to follow up with him or her, but should still process the objection. Under no circumstances, however, may an organization violate applicable privacy laws and regulations in following up with beneficiaries. Subject to the organization’s reporting obligations to the funding agency, the organization must keep the personal and identifying information of prospective beneficiaries confidential.

Q24. What content is required for the written notice of beneficiary rights?

A24. DHS developed a model Notice of Beneficiary Rights which includes all of the required information that an organization must inform a beneficiary about. The model Notice is included as Appendix D to this guidance in English, and can be downloaded in electronic format from dhs.gov/crcl in more than ten additional written languages. Organizations may also adapt the model Notice or develop their own form so long as it meets the requirements of the regulations. Please consult your DHS program office through the program’s project officer, contracting officer, or other responsible DHS official if you have a question about using the sample Notice of Beneficiary Rights or about whether your form includes all of the required information. Organizations must provide the written notice generally to the beneficiary prior to the DHS-funded social services being provided.

Q25. What content is required for the beneficiary referral request form?

A25. DHS developed a model Beneficiary Referral Request which provides beneficiaries with a way to state their objections clearly and also facilitates your organization’s compliance with the requirement to record any successful or unsuccessful referral attempts. Organizations may also develop their own version of the form so long as it meets the requirements of the regulation. The beneficiary referral request form must apprise the beneficiary that he or she may object to the organization’s “religious character” and, upon objection, receive a referral to an alternative provider; the form also provides space for the beneficiary to provide his or her name and opt-in or opt-out of any future follow-up.

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http://www.dhs.gov/crcl

A formatted version of the model Request is provided in Appendix D in English. The model Request can also be downloaded in electronic format from dhs.gov/crcl in more than ten additional written languages. Please consult your DHS program office through the program’s project officer, contracting officer, or other responsible DHS official if you encounter a problem using the model Beneficiary Referral Request or if you have questions about information required if you design your own form.

Q26. Does our organization have a responsibility to make the written notice accessible to individuals with limited English proficiency (LEP) or with disabilities?

A26. Organizations that receive DHS financial assistance have a responsibility to take reasonable steps to ensure meaningful access for individuals with LEP to their programs and activities in accordance with Title VI of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000d2000d-7, the Department’s implementing regulations at 6 C.F.R. part 21 and 44 C.F.R. part 7, and Executive Order 13166, Improving Access to Services for Persons with Limited English Proficiency, 65 FR 50121, Aug. 11, 2000, as applicable. Providing meaningful access may entail providing language assistance services, including oral interpretation and written translation. Organizations also have a responsibility to prohibit discrimination against individuals with disabilities and to ensure effective communication with individuals with disabilities, in accordance with section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 and the Department’s implementation regulation at 6 C.F.R. part 15, and the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq., as applicable. Federal laws prohibiting discrimination on the basis of disability require, in pertinent part, provision of program access, necessary auxiliary aids and services, physical access, and reasonable accommodations to policies, practices, and procedures for persons with disabilities.

Please consult your DHS program office through the program’s project officer, contracting officer, or other responsible DHS official for additional guidance on fulfilling your obligations to take reasonable steps to provide meaningful access for persons with LEP and to ensure effective communication with persons with disabilities. You may also consult the Department’s Guidance to Federal Financial Assistance Recipients Regarding Title VI Prohibition Against National Origin Discrimination Affecting Limited English Proficient Persons, 76 FR 21755 (April 18, 2011) (available at https://www.dhs.gov/guidance-publishedhelp-department-supported-organizations-provide-meaningful-access-people-limited). In fulfilling these obligations, you may be required to provide the written notice to beneficiaries in other languages and in accessible formats.

The model Notice and Request are provided at dhs.gov/crcl in more than ten languages for your use, though you may need to provide additional translations depending on the languages in your service area.

Q27. When a beneficiary objects to the religious character of a DHS-supported service provider and requests an alternative, can the service provider simply notify the beneficiary that it is not aware of any alternatives without first trying to identify alternatives?

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https://www.dhs.gov/guidance-published-help-department-supported-organizations-provide-meaningful-access-people-limited

https://www.dhs.gov/guidance-published-help-department-supported-organizations-provide-meaningful-access-people-limited


A27. No. If the provider is not already aware of an alternative, the provider must promptly undertake reasonable, good-faith efforts to identify an alternative for the beneficiary. In order to fulfil the “reasonable effort” requirement, a provider need not spend more than approximately two hours of staff time identify an alternative provider.

In making the referral, the organization must comply with all applicable privacy laws and regulations. Once an objection has been made, the organization must keep a record of any successful or unsuccessful referrals. If the organization successfully refers the beneficiary to an alternative provider, the organization should follow up with the beneficiary, or with the alternative provider, when authorized to do so by the beneficiary, to determine whether the beneficiary contacted the alternative provider or providers. If the provider is unable to identify an alternative, the provider must keep a record and promptly notify DHS or an intermediary awarding entity, which must determine whether there is any other suitable alternative provider to which the beneficiary may be referred. Grant recipients must ensure that all sub-recipient agreements make organizations receiving program funds aware of these requirements.

Q28. Suppose a beneficiary objects to the religious character of a faith-based organization providing a social service, and the organization is unable to identify an alternative provider after making reasonable efforts to do so. Is the faith-based organization still required to refer the beneficiary to an alternative provider?

A28. No. DHS acknowledges that in some cases, such as when services are being provided in a remote location, an alternative provider may not be available. The service provider must, however, undertake reasonable efforts to identify an alternative provider, and notify DHS or the intermediary of the unsuccessful efforts. While the definition of reasonable efforts may depend on the circumstances, at a minimum the service provider should attempt to identify an alternative provider and make a reasonable effort to ascertain the availability and services of that alternative provider. In order to fulfil the “reasonable effort” requirement, a provider need not, however, spend more than approximately two hours of staff time to identify an alternative provider. If a provider is unable to identify an appropriate alternative provider during this time, the provider should keep a record and then promptly notify DHS or the intermediary awarding entity.

Q29. When making a referral, what is an organization’s responsibility to identify providers that offer services that are similar in substance and quality to the services offered by the referring provider?

A29. While DHS acknowledges that there may be instances where an organization is unable to independently determine the relative substance and quality of services offered by an alternative provider, service providers are required to undertake reasonable efforts to do so. The service provide may attempt to ascertain the substance and quality of the service by, for example, reaching out to the alternative provider and inquiring about their services.

Q30. Will DHS be providing organizations with a list of providers within the same geographic area for use in the referral process?

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A30. No. DHS will not be providing a list of organizations to be used in the referral process. While DHS acknowledges that there may be instances where an organization is unable to identify an alternative provider or independently determine the relative substance and quality of services offered by it, service providers are required to undertake reasonable efforts to do so. If an organization is unable to identify an appropriate alternative provider, the organization should keep a record and then promptly notify DHS or the intermediary awarding entity.

Q31. For cases in which services are provided in person, what is an organization’s responsibility to identify appropriate alternative providers to which a referral can be made?

A31. In all cases in which services are provided in person, the organization must undertake reasonable efforts to identify any alternative provider available that is in reasonable geographic proximity to the referring organization. The definition of “reasonable geographic proximity” is not just a measure of distance but will depend on the circumstances, the services provided, and the transportation options available to the beneficiary. For example, a disaster may inhibit a beneficiary from traveling even short distances. The alternative provider also must have the capacity to accept additional clients.

Q32. In the case of a faith-based organization, must the referral to an alternative provider be to a secular or non-religious social service provider?

A32. No. The alternative provider need not be a secular provider. However, if the beneficiary requests a secular provider, and a secular provider is available, then the referral must be made to a secular provider. In attempting to determine an appropriate alternative, a faith-based organization may ask a beneficiary if he or she would prefer or not prefer another faith-based provider and may make a referral based on the beneficiary’s stated preference. However, a faith-based organization may not steer a potential beneficiary to or away from other faith-based organizations because the faith-based organization itself favors or disfavors the religious character of those organizations.

Q33. Is the referring organization responsible for any additional costs that the beneficiary incurs as a consequence of being referred to an alternative provider?

A33. No. The referring organization is not under an obligation to subsidize transportation costs or other increased cost burdens that the beneficiary incurs as a consequence of pursuing a referral to an alternative provider. However, to the extent that various alternative providers are available, referring organizations should take into account the cost to the beneficiary in determining which provider is most appropriate for referral.

Q34. What constitutes an appropriate and timely referral?

A34. Whether a referral is appropriate and timely will depend on the circumstances of each situation. When the nature of the service is urgent, or easily identifiable alternative providers are known to operate in close proximity, the recipient or intermediary must offer a timely referral in a shorter period of time than when the nature of the service is not as urgent, and

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alternative providers are difficult to identify in reasonable geographic proximity. Some of the considerations that affected recipients and intermediaries should take into account when determining the appropriateness of an alternative provider include: distance, available transportation options, cost, and the availability of services comparable to the services offered by the referring organization. Potential long distance telephone fees or internet connectivity costs should also be part of the recipient or intermediary’s consideration.

Q35. Do organizations need to notify DHS or the intermediary awarding entity about an unsuccessful referral attempt within a specific timeframe?

A35. When an organization determines that it is unable to identify an alternative provider, the organization must promptly notify DHS or the intermediary awarding entity. Prompt reporting is necessary so that DHS or the intermediary awarding entity is able to begin looking for an alternative provider.

Q36. What obligation does a referring organization have to follow up with the beneficiary?

A36. An organization that refers an objecting beneficiary to an alternative service provider should have a process for determining whether the beneficiary has contacted the alternative provider. Organizations may use DHS’s model beneficiary referral request form to ask objecting beneficiaries whether they would like to opt-in or opt-out of any future follow-up. Alternatively, organizations may develop their own form which includes these questions. Under no circumstances, however, may an organization violate applicable privacy laws and regulations in following up with beneficiaries. When a beneficiary refuses to provide his or her name or his or her approval to follow-up, the organization’s obligation to follow-up is satisfied by informing the beneficiary that the organization will not be able to follow-up on any referral for which it does not have a name or approval to do so. A beneficiary may always opt out of follow-up— which may be particularly important for victims of certain crimes such as domestic violence, dating violence, sexual assault, or stalking. In such cases, the provider should not follow up with the beneficiary.

Q37. Do the obligations of this rule apply to sub-grant recipients (also called sub-grantees or sub-awardees) and sub-contractors?

A37. Yes. Grant recipients must ensure that all sub-grant recipients are aware of the requirements of this regulation. Sub-grant recipients must record any successful or unsuccessful referrals to alternative providers, and report any unsuccessful referral attempts or request assistance in identifying an alternative provider from the intermediary awarding entity. Regardless of how sub-grant recipients record referrals, intermediaries are responsible for the compliance of sub-grant recipients with Federal civil rights laws.

Q38. Must the notice to beneficiaries always be given in writing?

A38. Generally, yes (but see the following question). Providers can provide a written notice electronically, such as on a registration website or by e-mail. When services are provided

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by telephone, the provider may read the beneficiary a brief statement regarding beneficiary protections. For example, the awardee may briefly inform each beneficiary or beneficiary that there are certain protections for beneficiaries due to the fact that the program is funded in whole in or in part by the United States Government and ask whether the beneficiary would like to know those protections. If the beneficiary or beneficiary responds affirmatively, then the service provider must read the full notice, such as DHS’s model notice of beneficiary rights, over the telephone. Service providers may develop their own notice of beneficiary rights as long as it includes the information required under the regulation.

Q39. Must the notice to beneficiaries always be given as an individual written handout?

A39. No. In some situations, an individual written notice will be impracticable during brief, potentially one-time interactions between a provider and a beneficiary, such as at a soup kitchen. In such circumstances, the organization can post a prominent poster or placard in the service area. When the nature of the service provided or exigent circumstances make it impracticable to provide either or both forms of such written notice in advance of the actual service, service providers shall advise beneficiaries of their protections at the earliest available opportunity. But for programs that do not fall into these exceptions, where it would be practicable to do so, it is preferable that the written notice take the form of an individual handout, such as the model Notice to Beneficiaries, that is provided to each beneficiary prior to the time that they enroll in the program or receive services from the program.

Q40. In some cases, the only service a provider offers is to make referrals. For example, a human trafficking hotline may only offer referrals to social service providers. In these cases, must such organizations provide notice to beneficiaries about these protections?

A40. No. In those cases, it suffices for the provider simply to make referrals. If a referral is made to an organization that receives direct DHS financial assistance and offers services beyond referrals, then that organization will be required to provide notice to beneficiaries about beneficiary protections.

Q41. Must the alternative provider be one that receives direct DHS financial assistance?

A41. No, although it is preferable to make a referral to a provider that receives direct DHS financial assistance. If no such alternative provider exists, however, or if such a provider does exist but is also objectionable to the beneficiary due to the alternative provider’s religious character, the original provider may make a referral to another alternate provider that does not receive DHS financial assistance if it is in reasonable geographic proximity to the organization making the referral, offers services that are similar in substance and quality to those offered by the organization, and has the capacity to accept additional clients.

Q42. Must the provider always give notice to beneficiaries immediately?

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A42. Generally, the written notice should be provided to beneficiaries at the earliest available opportunity. In an emergency or exigent circumstance during which providing the notice of beneficiary rights would pose a risk to health or safety then the notice requirements may be met at the first opportunity after immediate health or safety needs are addressed rather than before any service is provided. Thus, in exigent circumstances, the written notice should be provided as soon as reasonably practicable after the services are provided.

Q43. In cases where service providers only have a brief interaction with beneficiaries, and beneficiaries receive what may be a one-time service from a provider, may the provider post the written notice of beneficiary protections in a prominent place rather than provide copies of the written notice to each beneficiary?

A43. Yes. In some situations, an individual written notice will be impracticable during brief, potentially one-time interactions between a provider and a beneficiary, such as at a soup kitchen. In such circumstances, the organization can post a prominent poster or placard in the service area. Of course, awardees must still honor the beneficiary protections if a beneficiary requests an alternative provider.

Q44. If an organization considers itself to be religious or faith-based but does not offer any religious activities, must it provide the written notice to beneficiaries?

A44. Yes. Some beneficiaries may object to receiving services from a faith-based or religious provider, so beneficiaries should be notified about their ability to register such objections.

Q45. Should a provider’s religious affiliation be taken into account in the awards decision-making process in an effort to ensure that beneficiaries do not object to the religious character of a provider? In other words, would it be better for awards decision-makers to make an award to a secular provider over a religious provider in order to avoid such objections?

A45. No. Executive Order 13279, as amended by Executive Order 13559, clearly indicates that a reviewer must not take a provider’s religious affiliation or lack of religious affiliation into account in the awards decision-making process. Decisions about awards (including sub-awards) of DHS financial assistance must be free from political interference or even the appearance of such interference and must be made on the basis of merit, not on the basis of the religious affiliation of a recipient organization or lack thereof.

Q46. Do intermediaries have an obligation to fund a secular alternative if they fund a faith-based organization?

A46. No. Although intermediaries may serve as a resource to identify a comparable alternative service provider when a beneficiary objects to the religious character of a DHS-funded faith-based organization, intermediaries have no obligation to fund a secular alternative when they fund a faith-based organization. In the grant-making process, an intermediary may

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not consider the religious or secular character of an applicant organization in making a grant award.

9. Grant and Contract Reviewer Training Guide The following guidance provides additional information for individuals who review

applications or proposals for awards, including sub-awards, of Federal financial assistance.

Persons who review applications for Federally-financed grants and contracts should be aware that faith-based organizations must be considered for awards in Federally-financed projects to which they are otherwise eligible and should be neither favored not disfavored on the basis of religion or religious belief. Such award decisions must be free from political interference or even the appearance of such interference, and must be made on the basis of merit, not the basis of the religious character or affiliation, or lack thereof. There are restrictions as to how the projects may be carried out, and staff reviewing proposals for DHS financial assistance should identify any application information that indicates that a project has been proposed to undertake activities that violate 6 C.F.R. part 19. If answers to any of the following questions are affirmative, then the application should be flagged by the reviewer so that the awarding agency may resolve the issue prior to funding the proposed project:

1. Does the applicant propose to use direct DHS financial assistance for “explicitly religious activities (including activities that involve overt religious content such as worship, religious instruction, or proselytization)”? For example, does the applicant propose to use direct DHS financial assistance to pay for religious activities like devotional studies of sacred scriptures, worship services, or religious items like prayer books?

2. Does the applicant propose to integrate “explicitly religious activities” (activities that involve overt religious content such as worship, religious instruction, or proselytization) into a program supported with direct DHS financial assistance? For example, does the applicant propose to include religious instruction into the Federally-supported program?

3. Does the applicant propose to discriminate against program beneficiaries or applicants based on religion or religious belief, a refusal to hold a religious belief, or a refusal to attend or participate in a religious practice?

4. Are outreach or recruitment efforts for the DHS-supported programs targeted exclusively or primarily to religious groups or exclusively to non-religious groups? For example, does the application state that the Federally-supported program will be publicized only at a church, or in a synagogue, mosque, or temple newsletter, without identifying other ways that it will also be publicized to inform persons who don’t attend such religious institutions?

5. After receiving the award, does the recipient of direct DHS financial assistance intend to select new project partners based on religious considerations by considering, for example, only organizations that are

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religious or share a similar faith affiliation or by considering only organizations that are non-religious?

6. Does the applicant of direct DHS financial assistance propose to require or encourage beneficiaries to participate in explicitly religious activities?

Reviewing staff also should remain mindful of various activities and measures that are protected and that should not be regarded as a potential violation of the principles in Executive Order 13279, as amended by Executive Order 13559 and as implemented in 6 C.F.R. part 19, as follows:

1. Faith-based organizations may conduct explicitly religious activities and programs with private funds outside of a program supported by direct DHS financial assistance, provided that the explicitly religious activities are not only privately funded but also separate in time or location from the government-supported program and voluntary for participants in the Federally financed programs.

2. Faith-based organizations providing DHS-supported social services are free to maintain their religious character, and therefore do not need to remove religious art, icons, and symbols from the facility in which the proposed project will be held.

If you are unsure as to whether any particular area of concern complies with these principles, please err on the side of raising the concern with DHS staff.

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10. Model Training Tools The following material may be used in presentations for staff of intermediary

organizations and faith-based and neighborhood organizations that receive Federal financial assistance.

A. Model Slide Presentation

The slides in the following presentation are available in electronic format, for printing or display, from www.dhs.gov/crcl.

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Presenter’s Name June 17, 2003

2

Slide 1

Nondiscrimination in Matters Pertaining to Faith-based Organizations Fundamental Principles and Policies for Partnerships with Faith-based and Other Neighborhood Organizations

July 2016

Slide 2

Background On December 12, 2002, President

George W. Bush signed Executive Order 13279, Equal Protection of the Laws for Faith-based and Community Organizations

Executive Order 13279 expanded the opportunities for faith-based organizations to apply for Federal financial assistance to administer social service programs by ensuring that these organizations were treated on the same basis as any other private organization.

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3

Presenter’s Name June 17, 2003 4

Slide 3

Background On November 17, 2010, President

Barack Obama signed Executive Order 13559, Fundamental Principles and Policymaking Criteria for Partnerships with Faith-based and Other Neighborhood Organizations

Executive Order 13559 amended Executive Order 13279 to further clarify that faith-based organizations are eligible to compete for Federal financial assistance for social service programs and strengthen protections for the beneficiaries of those programs.

Slide 4

Executive Orders 13279 and 13559

Executive Order 13279 (Dec. 12,2002), as amended by Executive Order 13559 (Nov. 17, 2010),applies to most Federal agencieswith social service programs,including the U.S. Department ofHomeland Security (DHS).

This Executive order sets forth principles that apply uniformlyacross identified Federal agencies when agenciesformulate and implement policies.

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5


6

Slide 5

Nondiscrimination in Matters Pertaining to Faith-based Organizations On April 4, 2016, DHS issued the final regulation

“Nondiscrimination in Matters Pertaining to Faith-based Organizations” to implement and comply with Executive Order 13279, as amended by Executive Order 13559.

“Nondiscrimination in Matters Pertaining to Faith-based Organizations,” codified at 6 C.F.R. part 19, became effective on May 4, 2016, with a compliance date of July 5, 2016.

Any awards that are new or renewed after the effective date are subject to the requirements of this regulation.

Slide 6

Nondiscrimination in Matters Pertaining to Faith-based Organizations DHS’s final regulation includes ten sections:

19.1, Purpose 19.2, Definitions 19.3, Equal ability for faith-based organizations to seek and receive financial

assistance through DHS social services programs 19.4, Explicitly religious activities 19.5, Nondiscrimination requirements 19.6, Beneficiary protections: Written notice 19.7, Beneficiary protections: Referral Requirements 19.8, Independence of faith-based organizations 19.9, Exemption from Title VII employment discrimination requirements 19.10, Commingling of Federal assistance

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Slide 7

Equal Opportunity for Faith-basedOrganizations

“Nondiscrimination in Matters Pertaining to Faith-based Organizations” affirms that faith-based organizations are eligible to seek and receive DHS financial assistance to administer social service programs on the same basis as other organizations.

See 6 C.F.R. § 19.3, Equal ability for faith-based organizations to seek and receive financial assistance through DHS social service programs Presenter’s Name June 17, 2003 7

Slide 8

Nondiscrimination for Faith-based Organizations Neither DHS nor a state or local government shall discriminate for or against an organization on the basis of the organization’s:

Religious motivation;

Religious character; or

Religious affiliation.

DISCRIMINATION

See 6 C.F.R. § 19.3, Equal ability for faith-based organizations to seek and receive financial assistance through DHS social service programs


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Slide 9

Nondiscrimination for Faith-based Organizations

Decisions about awards of financial assistance must be free from political interference or even the appearance of such interference and must be made on the basis of merit, not on the basis of religious or religious belief or lack thereof, or on the basis of religious or political affiliation.

See 6 C.F.R. § 19.3, Equal ability for faith-based organizations to seek and receive financial assistance through DHS social service programs

Slide 10

Independence of Faith-basedOrganizations Faith-based organizations that receive Federal financial assistance from DHS to administer social service programs may:

Retain their independence;

Continue to carry out their mission, including the expression of religious beliefs;

Use space in their facilities without removing or altering religious art, icons, scriptures or other symbols; and

Retain authority over internal governance, including through the selection of board members and retaining references to religious terms in their names or mission statements.

See 6 C.F.R. § 19.8, Independence of faith-based organizations

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Slide 11

Explicitly Religious Activities Organizations that receive direct Federal financial assistance from DHS may not, however, use this financial assistance to support or conduct explicitly religious activities.

Explicitly religious activities include overt religious content.

Examples of explicitly religious activities include:

Worship

Religious Instruction

Proselytization

See 6 C.F.R. § 19.4, Explicitly religious activities

Slide 12

Explicitly Religious Activities An activity is not, however, explicitly religious merely because it is motivated by religious faith.

EXAMPLE:

John Doe decides to volunteer at a soup kitchen because he is motivated by his faith to help people in need. While the decision to volunteer is motivated by his religious faith, the act of volunteering is NOT an explicitly religious activity.

See 6 C.F.R. § 19.2, Definitions

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Slide 13

Separation of Explicitly Religious,Privately Funded Activity Organizations receiving direct financial assistance from DHS for social service programs are free to engage in explicitly religious activities, but such activities must be:

Clearly distinct;

Separate in time or location; and

Voluntary for beneficiaries

from programs, activities, or services specifically supported by direct DHS financial assistance.

See 6 C.F.R. § 19.4, Explicitly religious activities

Slide 14

Direct vs. Indirect Federal Financial Assistance The aforementioned restrictions on engaging in explicitly religious activities (must be clearly distinct, separate in time and location, and voluntary for beneficiaries) only apply to direct Federal financial assistance, not to indirect Federal financial assistance.

Direct Indirect Vs.

See 6 C.F.R. § P19.resent4, erE’sx Nplamice itl y r elJune igious17, 2003 activities 14

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Means that the government or an intermediary (e.g., State, local or Tribal government, or nongovernmental organizations) selects the provider and either purchases services from that provider (e.g., via a contract) or awards funds to that provider to carry out a service (e.g., via grant or cooperative agreement).

Means that the choice of the service provider is placed in the hands of the beneficiary, and the cost of that service is paid through a voucher, certificate, or other similar means of government-funded payment.

Subgrant recipients that receive Federal financial assistance through State-administered programs are not considered recipients of indirect Federal financial assistance.

Slide 15

Direct vs. Indirect Federal Financial Assistance

Indirect Federal financial assistance or Federal financial assistance provided indirectly:

Direct Federal financial assistance or Federal financial assistance provided directly:


Slide 16

Indirect Federal Financial Assistance Federal financial assistance provided to an organization is considered “indirect” within the meaning of the Establishment Clause of the First Amendment to the U.S. Constitution when:

The government program through which the beneficiary receives the voucher, certificate, or other similar means of government-funded payment is neutral toward religion;

The organization receives the assistance as a result of a decision of the beneficiary, not a decision of the government; and

The beneficiary has at least one adequate secular option for the use of the voucher, certificate, or other similar means of government-funded payment.


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Slide 17

Nondiscrimination RegardingBeneficiaries Organizations that receive direct or indirect financial assistance from DHS are prohibited from discriminating against beneficiaries based on:

Religion; Religious belief; Refusal to hold a religious belief; and Refusal to attend or participate in a

religious practice.

DISCRIMINATION

These nondiscrimination requirements apply to any services the organization may provide as well as any outreach activities.

See 6 C.F.R. § 19.5, Nondiscrimination requirements

Slide 18

Indirect Aid and Nondiscrimination An organization that receives indirect DHS financial assistance does not, however, need to modify any explicitly religious program activities to accommodate a beneficiary who chooses to expend the indirect aid on that program.

EXAMPLE:

Jane Doe signs up for a 12-step substance abuse recovery program using a voucher (indirect Federal financial assistance). The substance abuse program includes religious content that is integral to the program and is administered by a faith-based organization. Jane doesn’t ascribe to any particular religion, however, and asks that the program instructor remove all religious references from the program’s content. In this instance, the faith-based organization is not required to alter its program to accommodate Jane Doe because the program is being funded through indirect aid.

See 6 C.F.R. § 19.5, Nondiscrimination requirements

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Slide 19

Written Notice Faith-based or religious organizations generally must provide beneficiaries with an individual written notice of certain protections prior to the time they enroll in programs supported by Federal financial assistance.

See 6 C.F.R. § 19.6, Beneficiary protections: Written notice

Slide 20

Written Notice There may, however, be some situations, when the nature ofthe service provided or exigent circumstance make itimpracticable to provide the individual written notice.

In these situations, the organization must advise beneficiaries ofthese protections at the earliest available opportunity.

EXAMPLE:

A faith-based organization receivesdirect Federal financial assistance to run a soup kitchen. Since the nature ofthis service is brief and potentially onetime, the organization can satisfy the written notice requirement by posting a large notice in a visible location.


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Slide 21

Written Notice The written notice informs the beneficiary that: Organizations may not discriminate against beneficiaries on the basis of

religion or religious belief, or refusal to attend or participate in a religiouspractice;

Organizations may not require beneficiaries to attend or participate inany privately-funded explicitly religious activities offered by the organization (participation must be voluntary);

Organizations must separate in time or location any privately funded explicitly religious activities from activities supported by direct DHS financialassistance;

If a beneficiary objects to the religious character of an organization, the organization must undertake reasonable efforts to identify and refer the beneficiary to an alternative provider; and

Beneficiaries may report any violations of these protections or denials of services to DHS or an intermediary awarding entity.


Slide 22

Referrals to Alternative Providers

I object to this organization due to its religious

affiliation. I would like to be referred to a different

organization to receive these services.

Thank you. We will begin the

referral process right now!

If a beneficiary of a social service program objects to the religious character of an organization that provides services under that program, that organization must promptly undertake reasonable efforts to identifyand refer the beneficiary to an alternative provider to which the prospective beneficiary has no objection.

See 6 C.F.R. § 19.7, Beneficiary protections: referral requirements

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Slide 23

Referrals to Alternative Providers Referrals to alternative provides must meet certain requirements: Referrals to other religiously affiliated providers are allowed as long as

the beneficiary does not object to the new provider.

If, however, the beneficiary requests a secular provider, and a secular provider is available, the organization must make a referral to the secular provider.

Referrals for in-person services must be to an alternative provider that is in reasonable geographic proximity to the organization making the referral.

Referrals must be to alternative providers that offer services that are similar in substance and quality to those offered by the organization making the referral.

Referrals must be to alternative providers that have the capacity to accept new clients.


Slide 24

Referrals to Alternative Providers Organizations are also required to keep a record of any referrals they make to alternative providers.

If an organization determines that it is unable to identify an alternative provider, it is required to:

Keep a record; and

Promptly notify either DHS or an intermediary awarding entity.

DHS or the intermediary will then determine whether there is any other suitable alternative provider to refer the beneficiary to.

Intermediaries that receive requests for assistance must notify, and may request assistance from, DHS.


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Slide 25

Monitoring and Enforcement All organizations that participate in DHS social service programs, including religious organizations, must carry out eligible activities in accordance with all program requirements and other applicable requirements governing the conduct of DHS-supported activities, including those prohibiting the use of direct financial assistance from DHS to engage in explicitly religious activities.

Organizations that favor or discriminate against a beneficiary will be subject to applicable sanctions and penalties, as established by the requirements of the particular DHS social service program or activity.

See 6 C.F.R. §19.3, Equal ability for faith-based organizations to seek and receive financial assistance through DHS social service programs, and § 19.5, Nondiscrimination requirements

Slide 26

Monitoring and Enforcement Organizations must not be subjected to regulation or monitoring that would create excessive entanglement between the government and religious entities.

In order to ensure compliance without creating excessive entanglement, DHS and any intermediaries will provide internal monitoring and oversight, including through ongoing compliance monitoring of grantees and investigation of complaints directed to the DHS Office of Civil Rights and Civil Liberties.

See 6 C.F.R. Part 19, Nondiscrimination in Matters Pertaining to Faith-based Organizations

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Slide 27

Slide 28

Further Information Please refer to the following:

Executive Order 13279, as amended by Executive Order 13559

Title 6, Code of Federal Regulations, part 19 (6 C.F.R. 19)

DHS Guidance on Nondiscrimination in Matters Pertaining to Faith-Based Organizations

Please consult your project officer, contract officer, or other responsible DHS official or intermediary representative with any questions.

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B. Summary of Principles From Executive Order 13279, as amended by Executive Order 13559, and DHS Implementing Regulations at 6 C.F.R. Part 19

The following material may be used in presentations for staff of intermediary organizations and faith-based and neighborhood organizations that receive Federal financial assistance.

When competing for Federal financial assistance for which they are otherwise eligible, faith-based organizations are to be treated the same as non-faith-based organizations.

The government and any grant recipient or intermediary may not refuse to review an award application or make an award based on the organization’s religious character, religious affiliation, or lack thereof.

Direct Federal financial assistance may not be used to support explicitly religious activities (including activities involving overt religious content such as worship, religious instruction, or proselytizing).

Do not use direct Federal financial assistance for activities such as religious worship, religious instruction, or proselytizing. Do not use direct Federal financial assistance for materials that endorse, promote or denigrate religion.

Do not integrate privately-funded explicitly religious activities into activities supported by direct Federal financial assistance.

Note: The use of Federal financial assistance in circumstances where the courts have allowed such funding under the Establishment Clause, such as for chaplaincy services, is not subject to this restriction.

Faith-based organizations may conduct privately funded explicitly religious activities (including activities involving overt religious content such as worship, religious instruction, or proselytizing) separate from activities supported by direct Federal financial assistance.

Any explicitly religious activities must be privately funded.

Privately funded explicitly religious activities must be separate in time or location from programs supported by direct Federal financial assistance and must be voluntary for program participants.

Direct Federal financial assistance must be separately and carefully accounted for.

Faith-based organizations are free to maintain their religious character.

There is no need to remove religious art, icons, or symbols from facilities.

Faith-based organizations may retain authority over their internal governance.

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Organizations that are awarded Federal financial assistance may not discriminate against program beneficiaries based on religion, religious belief, refusal to hold a religious belief, or refusal to attend or participate in a religious practice.

Do not discriminate against beneficiaries based on religion or religious belief. Do not discriminate against beneficiaries who do not hold a particular religious belief, or any religious belief, or who refuse to attend or participate in any religious practice, or in all religious practices.

Make it clear to beneficiaries that they are not required to attend or participate in any privately funded explicitly religious activities that are offered by the organization.

Ensure that any privately funded explicitly religious activities that are offered by the provider are separated in time or location from activities funded by direct Federal financial assistance.

These non-discrimination requirements apply to any services funded in whole or in part with Federal financial assistance.

If a beneficiary or prospective beneficiary of a social service program supported by direct Federal financial assistance objects to the religious character of an organization that provides services under the Federal program, that organization shall promptly undertake reasonable efforts to identify and refer the beneficiary to an alternative provider to which the prospective beneficiary has no objection.

The referral should be to an alternative provider that is in reasonable geographic proximity to the organization making the referral and that offers services that are similar in substance and quality to those offered by the organization making the referral. The alternative provider also must have the capacity to accept additional clients. If a Federally-supported alternative provider meets these requirements and is acceptable to the beneficiary, a referral should be made to that provider. If, however, there is no Federally-supported alternative provider that meets these requirements and is acceptable to the beneficiary, a referral should be made to an alternative provider that does not receive Federal support but does meet these requirements and is acceptable to the beneficiary.

When the organization makes a referral to an alternative provider, it must keep a record. When the organization determines that it is unable to identify an alternative provider after making reasonable efforts, it shall both keep a record and promptly notify DHS or an intermediary.

After a referral has been made, the organization should follow up with the beneficiary or prospective beneficiary, or with the alternative provider, when authorized to do so by the beneficiary or prospective beneficiary, to determine whether the beneficiary or the prospective beneficiary contacted the alternative provider or providers.

Grant recipients must ensure that all sub-recipient agreements make organizations receiving program assistance aware of these requirements.

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C. Using DHS Funds in Compliance with Constitutional Principles The following material may be used in presentations for staff of intermediary entities and

faith-based and neighborhood organizations that receive DHS financial assistance by grant or contract.

Directions: Select the correct answer for each of the following questions.

This questionnaire is intended as a learning exercise rather than as legal advice. In practice, the answers may vary depending on the facts in any particular instance. If these questions provoke further questions, please make a note so that you may follow up during the group discussion time.

1. Faith-based organizations that receive DHS financial assistance must serve all eligible participants regardless of those persons’ religious beliefs. True or False?

2. Recipients of DHS financial assistance, including State and local governments, may not discriminate in the provision of program services on the basis of religion. True or False?

3. Faith-based organizations receiving DHS financial assistance may require that beneficiaries profess a certain faith or participate in religious activities in order to receive the Federally-supported services. True or False?

4. Grant recipients and their project partners that administer DHS-supported programs have many of the same responsibilities as the government in that they cannot favor or disfavor faith-based organizations on the basis of their ____________________. (Fill in the blank.)

5. An intermediary organization that awards sub-grants can prefer faith-based charities in its selection process. True or False?

6. An intermediary organization that awards sub-grants can prefer non-religious charities in its selection process. True or False?

7. There is no money set aside by DHS for faith-based organizations to receive a designated portion of awards in DHS social services. True or False?

8. Federal grant funds may be used to buy religious materials as long as the materials are used in a social service program serving the needy. True or False?

9. A rabbi may teach a relationship skills seminar to ex-offenders as part of a DHS grant program when worship services or other explicitly religious activities are separated by time or location, are voluntary for participants in the Federal program, and are privately funded. True or False?

10. A grant recipient or contractor can integrate religious instruction into a program supported with direct DHS financial assistance so long as that assistance is not used to pay for the religious instruction. True or False?

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11. A grant recipient or contractor may limit outreach regarding its DHS-supported program to churches sharing its denomination/affiliation. True or False?

12. Beneficiaries of a social service program supported with direct DHS financial assistance can be actively encouraged to attend a religious class that is privately funded, so long as they aren’t required to attend. True or False?

13. A church receiving direct DHS financial assistance may not invite a client to attend a separate Bible study even if it is optional and her choice to attend, and doesn’t affect the services she will receive in the Federally-supported program. True or False?

14. Organizations that receive a DHS grant or contract must hold explicitly religious activities at a different _______ or________ than Federally-supported services. (Fill in the blanks.)

15. For each item, check the appropriate column, indicating whether the activity is explicitly religious (and therefore not an allowable expense) or an allowable expense for direct DHS financial assistance. The answers may vary depending on the facts in any particular instance:

Explicitly Religious Allowable Expense for Direct DHS Funds

a. Worship expenses

b. Secular marriage education curriculum purchased by a faith-based or neighborhood organization

c. Religious instructional materials

d. Bible study

e. Prayer newsletter

f. Staff training for direct service program delivery

g. Church staff hours spent on religious activities

h. Church staff hours spent on delivering government-funded program services

i. Printing a devotional booklet for a social service program

j. Printing a training booklet for a government-funded program that does not include language that endorses religion or proselytizes

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16. If a charity receives direct DHS financial assistance for providing a public service, then DHS requires that the charity abandon its religious character. True or False?

17. Facility space used to provide a DHS-funded service may not ever be used for religious purposes and must not display any religious symbols. True or False?

18. An organization may receive direct DHS financial assistance and maintain a religious name and religious references in its chartering documents. True or False?

19. A church that operates a social service program supported by direct DHS financial assistance can purchase explicitly religious curricula if the provider pays for the materials with its own funds and the materials will be used only in programs that are privately funded, are optional for beneficiaries, and are separate from the Federally-supported program. True or False?

20. The government violates the Constitution if it requires a faith-based organization that receives direct Federal financial assistance to demonstrate that such funding has only been used for non-religious activities. True or False?

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Answer Key:

1. True 11. False 2. True 12. False 3. False 13. False 4. Fill in the blank: “religious character or affiliation.”

14. Fill in the blanks: “time” or “location”

5. False 15. See chart below 6. False 16. False 7. True 17. False 8. False 18. True 9. True 19. True 10. False 20. False

Explicitly Religious Allowable Expense for Direct DHS Funds

a. Worship expenses Yes

b. Secular marriage education curriculum purchased by a faith-based or neighborhood organization

Yes

c. Religious instructional materials Yes

d. Bible study Yes

e. Prayer newsletter Yes

f. Staff training for direct service program delivery

Yes

g. Church staff hours spent on religious activities

Yes

h. Church staff hours spent on delivering government-funded program services

Yes

i. Printing a devotional booklet for a social service program

Yes

j. Printing a training booklet for a government-funded program that does not include language that endorses religion or proselytizes

Yes

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11. Model Guidance on Protections for and Obligations of Organizations That Administer Social Service Programs Supported by DHS Financial Assistance

The following material may be used in presentations for staff of intermediary entities and faith-based and neighborhood organizations that receive Federal financial assistance.

Protections

• In the administration or distribution of DHS financial assistance under social service programs, governmental officials and bodies must not discriminate against organizations based on their religious character or affiliation, or lack thereof.

• Organizations must be permitted to compete for DHS financial assistance used to support social service programs and to participate fully in the social service programs supported with Federal financial assistance without impairing their independence, autonomy, expression outside the programs in question or religious character.

• Organizations may retain their independence and ability to carry out their missions, including the definition, development, practice, and expression of their religious beliefs, provided that organizations do not use direct Federal financial assistance to support any explicitly religious activities (including activities involving overt religious content such as worship, religious instruction, or proselytizing) or in any other manner prohibited by law.

• Organizations may conduct privately funded religious activities that are separated in time or location from activities funded by direct DHS financial assistance and are purely voluntary for beneficiaries of such assistance.

• Organizations may use their facilities to provide social services supported with DHS financial assistance, without removing or altering religious art, icons, scriptures, or other symbols from these facilities.

• Organizations may retain religious terms in organizational names, select board members on a religious basis, and include religious references in organizational mission statements and other chartering or governing documents.

• Organizations must not be subjected to regulation or monitoring that would create excessive entanglement between the government and religious entities.

Obligations

• Organizations must not discriminate against beneficiaries on the basis of religion or religious belief or a refusal to attend or participate in a religious practice.

• Organizations must conduct their outreach activities in ways that do not favor or disfavor beneficiaries based on their religious beliefs or lack thereof.

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• Organizations must provide beneficiaries with written notice of certain protections prior to the time they enroll in programs supported by direct Federal financial assistance.

• Organizations that offer activities that are supported by direct DHS financial assistance as well as privately funded explicitly religious activities (activities involving overt religious content such as worship, religious instruction or proselytization) must separate, in time or location, these privately funded explicitly religious activities from any programs or services supported with direct DHS financial assistance and ensure that beneficiaries’ participation in such programs is voluntary.

• If a beneficiary objects to the religious character of an organization that provides services under the program, the organization must promptly undertake reasonable efforts to refer the beneficiary to an alternative provider. If the organization is unable to identify an alternative provider, the organization must notify DHS or an intermediary entity.

• Organizations that receive DHS financial assistance must comply with applicable laws and regulation. By virtue of their acceptance of such assistance, organizations also agree to appropriate monitoring and enforcement of these standards.

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12. Appendices

A. Executive Order 13279 (Dec. 12, 2002) Equal Protection of the Laws for Faith-Based and Community Organizations

By the authority vested in me as President by the Constitution and the laws of the United States of America, including section 121(a) of title 40, United States Code, and section 301 of title 3, United States Code, and in order to guide Federal agencies in formulating and developing policies with implications for faith-based organizations and other community organizations, to ensure equal protection of the laws for faith-based and community organizations, to further the national effort to expand opportunities for, and strengthen the capacity of, faith-based and other community organizations so that they may better meet social needs in America’s communities, and to ensure the economical and efficient administration and completion of Government contracts, it is hereby ordered as follows:

Section 1. Definitions. For purposes of this order:

(a) “Federal financial assistance” means assistance that non-Federal entities receive or administer in the form of grants, contracts, loans, loan guarantees, property, cooperative agreements, food commodities, direct appropriations, or other assistance, but does not include a tax credit, deduction, or exemption.

(b) “Social service program” means a program that is administered by the Federal Government, or by a State or local government using Federal financial assistance, and that provides services directed at reducing poverty, improving opportunities for low-income children, revitalizing low-income communities, empowering low-income families and low-income individuals to become self-sufficient, or otherwise helping people in need. Such programs include, but are not limited to, the following:

(i) child care services, protective services for children and adults, services for children and adults in foster care, adoption services, services related to the management and maintenance of the home, day care services for adults, and services to meet the special needs of children, older individuals, and individuals with disabilities (including physical, mental, or emotional disabilities);

(ii) transportation services;

(iii) job training and related services, and employment services;

(iv) information, referral, and counseling services;

(v) the preparation and delivery of meals and services related to soup kitchens or food banks;

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(vi) health support services;

(vii) literacy and mentoring programs;

(viii) services for the prevention and treatment of juvenile delinquency and substance abuse, services for the prevention of crime and the provision of assistance to the victims and the families of criminal offenders, and services related to intervention in, and prevention of, domestic violence; and

(ix) services related to the provision of assistance for housing under Federal law.

(c) “Policies that have implications for faith-based and community organizations” refers to all policies, programs, and regulations, including official guidance and internal agency procedures, that have significant effects on faith-based organizations participating in or seeking to participate in social service programs supported with Federal financial assistance.

(d) “Agency” means a department or agency in the executive branch.

(e) “Specified agency heads” mean the Attorney General, the Secretaries of Agriculture, Education, Health and Human Services, Housing and Urban Development, and Labor, and the Administrator of the Agency for Inter- national Development.

Sec. 2. Fundamental Principles and Policymaking Criteria.

In formulating and implementing policies that have implications for faith- based and community organizations, agencies that administer social service programs supported with Federal financial assistance shall, to the extent permitted by law, be guided by the following fundamental principles:

(a) Federal financial assistance for social service programs should be distributed in the most effective and efficient manner possible;

(b) The Nation’s social service capacity will benefit if all eligible organizations, including faith-based and other community organizations, are able to compete on an equal footing for Federal financial assistance used to support social service programs;

(c) No organization should be discriminated against on the basis of religion or religious belief in the administration or distribution of Federal financial assistance under social service programs;

(d) All organizations that receive Federal financial assistance under social services programs should be prohibited from discriminating against beneficiaries or potential beneficiaries of the social services programs on the basis of religion or religious belief. Accordingly, organizations, in providing services supported in whole or in part with

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Federal financial assistance, and in their outreach activities related to such services, should not be allowed to discriminate against current or prospective program beneficiaries on the basis of religion, a religious belief, a refusal to hold a religious belief, or a refusal to actively participate in a religious practice;

(e) The Federal Government must implement Federal programs in accordance with the Establishment Clause and the Free Exercise Clause of the First Amendment to the Constitution. Therefore, organizations that engage in inherently religious activities, such as worship, religious instruction, and proselytization, must offer those services separately in time or location from any programs or services supported with direct Federal financial assistance, and participation in any such inherently religious activities must be voluntary for the beneficiaries of the social service program supported with such Federal financial assistance; and

(f) Consistent with the Free Exercise Clause and the Free Speech Clause of the Constitution, faith-based organizations should be eligible to compete for Federal financial assistance used to support social service programs and to participate fully in the social service programs supported with Federal financial assistance without impairing their independence, autonomy, expression, or religious character. Accordingly, a faith-based organization that applies for or participates in a social service program supported with Federal financial assistance may retain its independence and may continue to carry out its mission, including the definition, development, practice, and expression of its religious beliefs, provided that it does not use direct Federal financial assistance to support any inherently religious activities, such as worship, religious instruction, or proselytization. Among other things, faith- based organizations that receive Federal financial assistance may use their facilities to provide social services supported with Federal financial assistance, without removing or altering religious art, icons, scriptures, or other symbols from these facilities. In addition, a faith-based organization that applies for or participates in a social service program supported with Federal financial assistance may retain religious terms in its organization’s name, select its board members on a religious basis, and include religious references in its organization’s mission statements and other chartering or governing documents.

Sec. 3. Agency Implementation.

(a) Specified agency heads shall, in coordination with the White House Office of Faith-Based and Community Initiatives (White House OFBCI), review and evaluate existing policies that have implications for faith-based and community organizations in order to assess the consistency of such policies with the fundamental principles and policymaking criteria articulated in section 2 of this order.

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(b) Specified agency heads shall ensure that all policies that have implications for faith-based and community organizations are consistent with the fundamental principles and policymaking criteria articulated in section 2 of this order. Therefore, specified agency heads shall, to the extent permitted by law:

(i) amend all such existing policies of their respective agencies to ensure that they are consistent with the fundamental principles and policymaking criteria articulated in section 2 of this order;

(ii) where appropriate, implement new policies for their respective agencies that are consistent with and necessary to further the fundamental principles and policymaking criteria set forth in section 2 of this order; and

(iii) implement new policies that are necessary to ensure that their respective agencies collect data regarding the participation of faith-based and community organizations in social service programs that receive Federal financial assistance.

(c) Within 90 days after the date of this order, each specified agency head shall report to the President, through the Director of the White House OFBCI, the actions it proposes to undertake to accomplish the activities set forth in sections 3(a) and (b) of this order.

Sec. 4. Amendment of Executive Order 11246.

Pursuant to section 121(a) of title 40, United States Code, and section 301 of title 3, United States Code, and in order to further the strong Federal interest in ensuring that the cost and progress of Federal procurement contracts are not adversely affected by an artificial restriction of the labor pool caused by the unwarranted exclusion of faith-based organizations from such contracts, section 204 of Executive Order 11246 of September 24, 1965, as amended, is hereby further amended to read as follows:

“SEC. 204 (a) The Secretary of Labor may, when the Secretary deems that special circumstances in the national interest so require, exempt a contracting agency from the requirement of including any or all of the provisions of Section 202 of this Order in any specific contract, subcontract, or purchase order.

(b) The Secretary of Labor may, by rule or regulation, exempt certain classes of contracts, subcontracts, or purchase orders (1) whenever work is to be or has been performed outside the United States and no recruitment of workers within the limits of the United States is involved; (2) for standard commercial supplies or raw materials; (3) involving less than specified amounts of money or specified numbers of workers; or (4) to the extent that they involve subcontracts below a specified tier.

(c) Section 202 of this Order shall not apply to a Government contractor or subcontractor that is a religious corporation, association, educational institution, or

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society, with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution, or society of its activities. Such contractors and subcontractors are not exempted or excused from complying with the other requirements contained in this Order.

(d) The Secretary of Labor may also provide, by rule, regulation, or order, for the exemption of facilities of a contractor that are in all respects separate and distinct from activities of the contractor related to the performance of the contract: provided, that such an exemption will not interfere with or impede the effectuation of the purposes of this Order: and provided further, that in the absence of such an exemption all facilities shall be covered by the provisions of this Order.”

Sec. 5. General Provisions.

(a) This order supplements but does not supersede the requirements contained in Executive Orders 13198 and 13199 of January 29, 2001.

(b) The agencies shall coordinate with the White House OFBCI concerning the implementation of this order.

(c) Nothing in this order shall be construed to require an agency to take any action that would impair the conduct of foreign affairs or the national security.

Sec. 6. Responsibilities of Executive Departments and Agencies. All executive departments and agencies (agencies) shall:

(a) designate an agency employee to serve as the liaison and point of contact with the White House OFBCI; and

(b) cooperate with the White House OFBCI and provide such information, support, and assistance to the White House OFBCI as it may request, to the extent permitted by law.

Sec. 7. Judicial Review.

This order is intended only to improve the internal management of the executive branch, and it is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by a party against the United States, its agencies, or entities, its officers, employees or agents, or any person.

[signed] George W. Bush

THE WHITE HOUSE,

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December 12, 2002.

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B. Executive Order 13559 Executive Order 13559 of November 17, 2010

Fundamental Principles and Policymaking Criteria for Partnerships With Faith-Based and Other Neighborhood Organizations

By the authority vested in me as President by the Constitution and the laws of the United States of America, and in order to guide Federal agencies in formulating and developing policies with implications for faith-based and other neighborhood organizations, to promote compliance with constitutional and other applicable legal principles, and to strengthen the capacity of faith-based and other neighborhood organizations to deliver services effectively to those in need, it is hereby ordered:

Section 1. Amendments to Executive Order 13279. Executive Order 13279 of December 12, 2002 (Equal Protection of the Laws for Faith-Based and Community Organizations), as amended, is hereby further amended:

(a) in section 1, by striking subsection (e), and inserting in lieu thereof the following:

“(e) ‘Specified agency heads’ means:

(i) the Attorney General;

(ii) the Secretary of Agriculture;

(iii) the Secretary of Commerce;

(iv) the Secretary of Labor;

(v) the Secretary of Health and Human Services;

(vi) the Secretary of Housing and Urban Development;

(vii) the Secretary of Education;

(viii) the Secretary of Veterans Affairs;

(ix) the Secretary of Homeland Security;

(x) the Administrator of the Environmental Protection Agency;

(xi) the Administrator of the Small Business Administration;

(xii) the Administrator of the United States Agency for International Devel- opment; and

(xiii) the Chief Executive Officer of the Corporation for National and Community Service.”;

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(b) by striking section 2, and inserting in lieu thereof the following: “Sec. 2. Fundamental Principles. In formulating and implementing policies that have implications for faith-based and other neighborhood organizations, agencies that administer social service programs or that support (including through prime awards or sub-awards) social service programs with Federal financial assistance shall, to the extent permitted by law, be guided by the following fundamental principles:

(a) Federal financial assistance for social service programs should be distributed in the most effective and efficient manner possible.

(b) The Nation’s social service capacity will benefit if all eligible organizations, including faith-based and other neighborhood organizations, are able to compete on an equal footing for Federal financial assistance used to support social service programs.

(c) No organization should be discriminated against on the basis of religion or religious belief in the administration or distribution of Federal financial assistance under social service programs.

(d) All organizations that receive Federal financial assistance under social service programs should be prohibited from discriminating against beneficiaries or prospective beneficiaries of the social service programs on the basis of religion or religious belief. Accordingly, organizations, in providing services supported in whole or in part with Federal financial assistance, and in their outreach activities related to such services, should not be allowed to discriminate against current or prospective program beneficiaries on the basis of religion, a religious belief, a refusal to hold a religious belief, or a refusal to attend or participate in a religious practice.

(e) The Federal Government must implement Federal programs in accordance with the Establishment Clause and the Free Exercise Clause of the First Amendment to the United States Constitution, as well as other applicable law, and must monitor and enforce standards regarding the relationship between religion and government in ways that avoid excessive entanglement between religious bodies and governmental entities.

(f) Organizations that engage in explicitly religious activities (including activities that involve overt religious content such as worship, religious instruction, or proselytization) must perform such activities and offer such services outside of programs that are supported with direct Federal financial assistance (including through prime awards or sub-awards), separately in time or location from any such programs or services supported with direct Federal financial assistance, and participation in any such explicitly religious activities must be voluntary for the

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beneficiaries of the social service program supported with such Federal financial assistance.

(g) Faith-based organizations should be eligible to compete for Federal financial assistance used to support social service programs and to participate fully in the social service programs supported with Federal financial assistance without impairing their independence, autonomy, expression outside the programs in question, or religious character. Accordingly, a faith-based organization that applies for, or participates in, a social service program supported with Federal financial assistance may retain its independence and may continue to carry out its mission, including the definition, development, practice, and expression of its religious beliefs, provided that it does not use direct Federal financial assistance that it receives (including through a prime award or sub-award) to support or engage in any explicitly religious activities (including activities that involve overt religious content such as worship, religious instruction, or proselytization), or in any other manner prohibited by law. Among other things, faith-based organizations that receive Federal financial assistance may use their facilities to provide social services supported with Federal financial assistance, without removing or altering religious art, icons, scriptures, or other symbols from these facilities. In addition, a faith-based organization that applies for, or participates in, a social service program supported with Federal financial assistance may retain religious terms in its name, select its board members on a religious basis, and include religious references in its organization’s mission statements and other chartering or governing documents.

(h) Each agency responsible for administering or awarding Federal financial assistance for social service programs shall offer protections for beneficiaries of such programs pursuant to the following principles:

(i) Referral to an Alternative Provider. If a beneficiary or prospective beneficiary of a social service program supported by Federal financial assistance objects to the religious character of an organization that provides services under the program, that organization shall, within a reasonable time after the date of the objection, refer the beneficiary to an alternative provider.

(ii) Agency Responsibilities. Each agency responsible for administering a social service program or supporting a social service program with Federal financial assistance shall establish policies and procedures designed to ensure that (1) appropriate and timely referrals are made to an alternative provider; (2) all referrals are made in a manner consistent with all applicable privacy laws and regulations; (3) the organization subject to subsection (h)(i) notifies the agency of any referral; (4) such organization has established a process for determining whether the beneficiary has contacted the alternative provider; and (5) each

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beneficiary of a social service program receives written notice of the protections set forth in this subsection prior to enrolling in or receiving services from such program.

(i) To promote transparency and accountability, agencies that provide Federal financial assistance for social service programs shall post online, in an easily accessible manner, regulations, guidance documents, and policies that reflect or elaborate upon the fundamental principles described in this section. Agencies shall also post online a list of entities that receive Federal financial assistance for provision of social service programs, consistent with law and pursuant to guidance set forth in paragraph (c) of section 3 of this order.

(j) Decisions about awards of Federal financial assistance must be free from political interference or even the appearance of such interference and must be made on the basis of merit, not on the basis of the religious affiliation of a recipient organization or lack thereof.”;

(c) by striking section 3, and inserting in lieu thereof the following:

“Sec. 3. Ensuring Uniform Implementation Across the Federal Government.

In order to promote uniformity in agencies’ policies that have implications for faith-based and other neighborhood organizations and in related guidance, and to ensure that those policies and guidance are consistent with the fundamental principles set forth in section 2 of this order, there is established an Interagency Working Group on Faith-Based and Other Neighborhood Partnerships (Working Group).

(a) Mission and Function of the Working Group. The Working Group shall meet periodically to review and evaluate existing agency regulations, guidance documents, and policies that have implications for faith-based and other neighborhood organizations. Where appropriate, specified agency heads shall, to the extent permitted by law, amend all such existing policies of their respective agencies to ensure that they are consistent with the fundamental principles set forth in section 2 of this order.

(b) Uniform Agency Implementation. Within 120 days of the date of this order, the Working Group shall submit a report to the President on amendments, changes, or additions that are necessary to ensure that regulations and guidance documents associated with the distribution of Federal financial assistance for social service programs are consistent with the fundamental principles set forth in section 2 of this order. The Working Group’s report should include, but not be limited to, a model set of regulations and guidance documents for agencies to adopt in the following areas:

(i) prohibited uses of direct Federal financial assistance and separation requirements; (ii) protections for religious identity; (iii) the distinction between “direct” and

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“indirect” Federal financial assistance; (iv) protections for beneficiaries of social service programs; (v) transparency requirements, consistent with and in furtherance of existing open government initiatives; (vi) obligations of nongovernmental and governmental intermediaries; (vii) instructions for peer reviewers and those who recruit peer reviewers; and (viii) training on these matters for government employees and for Federal, State, and local governmental and nongovernmental organizations that receive Federal financial assistance under social service programs. In developing this report and in reviewing agency regulations and guidance for consistency with section 2 of this order, the Working Group shall consult the March 2010 report and recommendations prepared by the President’s Advisory Council on Faith-Based and Neighborhood Partnerships on the topic of reforming the Office of Faith-Based and Neighborhood Partnerships.

(c) Guidance. The Director of the Office of Management and Budget (OMB), following receipt of a copy of the report of the Working Group, and in coordination with the Department of Justice, shall issue guidance to agencies on the implementation of this order, including in particular subsections 2(h)–(j).

(d) Membership of the Working Group. The Director of the Office of Faith-Based and Neighborhood Partnerships and a senior official from the OMB designated by the Director of the OMB shall serve as the Co-Chairs of the Working Group. The Co-Chairs shall convene regular meetings of the Working Group, determine its agenda, and direct its work. In addition to the Co-Chairs, the Working Group shall consist of a senior official with knowledge of policies that have implications for faith-based and other neighborhood organizations from the following agencies and offices:

(i) the Department of State;

(ii) the Department of Justice;

(iii) the Department of the Interior;

(iv) the Department of Agriculture;

(v) the Department of Commerce;

(vi) the Department of Labor;

(vii) the Department of Health and Human Services;

(viii) the Department of Housing and Urban Development;

(ix) the Department of Education;

(x) the Department of Veterans Affairs;

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(xi) the Department of Homeland Security;

(xii) the Environmental Protection Agency;

(xiii) the Small Business Administration;

(xiv) the United States Agency for International Development;

(xv) the Corporation for National and Community Service; and

(xvi) other agencies and offices as the President, from time to time, may designate.

(e) Administration of the Initiative. The Department of Health and Human Services shall provide funding and administrative support for the Working Group to the extent permitted by law and within existing appropriations; and

(f) by striking in the title, preamble, and section 1(c), “community” and inserting in lieu thereof “other neighborhood”.

Sec. 2. General Provisions.

(a) This order amends the requirements contained in Executive Order 13279. This order supplements, but does not supersede, the requirements contained in Executive Orders 13198 and 13199 of January 29, 2001, and Executive Order 13498 of February 5, 2009.

(b) Nothing in this order shall be construed to impair or otherwise affect:

(i) authority granted by law to an executive department, agency, or the head thereof; or

(ii) functions of the Director of the OMB relating to budgetary, administrative, or legislative proposals.

(c) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.

(d) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

[signed] Barack Obama

THE WHITE HOUSE,

November 17, 2010.

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C. Title 6, C.F.R. part 19

Nondiscrimination in Matters Pertaining to Faith-Based Organizations

Sec. 19.1 Purpose. 19.2 Definitions. 19.3 Equal ability for faith-based organizations to seek and receive financial assistance

through DHS social service programs. 19.4 Explicitly religious activities. 19.5 Nondiscrimination requirements. 19.6 Beneficiary protections: Written notice. 19.7 Beneficiary protections: Referral requirements. 19.8 Independence of faith-based organizations. 19.9 Exemption from Title VII employment discrimination requirements. 19.10 Commingling of Federal assistance.

Appendix A to Part 19 — Model Written Notice to Beneficiaries

Authority: 5 U.S.C. 301; Pub. L. 107–296; E.O. 13279, 67 FR 77141; E.O. 13403, 71 FR 28543; E.O. 13498, 74 FR 6533; and E.O. 13559, 75 FR 71319.

§ 19.1 Purpose.

It is the policy of the Department of Homeland Security (DHS) to ensure the equal treatment of faith-based organizations in social service programs administered or supported by DHS or its component agencies, enabling those organizations to participate in providing important social services to beneficiaries. The equal treatment policies and requirements contained in this part are generally applicable to faith-based organizations participating or seeking to participate in any such programs. More specific policies and requirements regarding the participation of faith-based organizations in individual programs may be provided in the statutes, regulations, or guidance governing those programs, such as regulations in title 44 of the Code of Federal Regulations. DHS or its components may issue policy guidance and reference materials at a future time with respect to the applicability of this policy and this part to particular programs.

§ 19.2 Definitions.

For purposes of this part: Beneficiary means an individual recipient of goods or services provided as part of a

social service program specifically supported by Federal financial assistance. “Beneficiary” does not mean an individual who may incidentally benefit from Federal financial assistance provided to a State, local, or Tribal government, or a private nonprofit organization. Except where expressly noted or where inapplicable, “beneficiary” includes a prospective beneficiary.

Direct Federal financial assistance or Federal financial assistance provided directly means that the government or an intermediary (e.g., State, local, or Tribal government, or nongovernmental organization) selects the provider and either purchases services from that

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provider (e.g., via a contract) or awards funds to that provider to carry out a service (e.g., through a grant or cooperative agreement). In general, Federal financial assistance shall be treated as direct, unless it meets the definition of “indirect Federal financial assistance” or “Federal financial assistance provided indirectly”.

Explicitly religious activities include activities that involve overt religious content such as worship, religious instruction, or proselytization. An activity is not explicitly religious merely because it is motivated by religious faith.

Financial assistance means assistance that non-Federal entities receive or administer in the form of grants, sub-grants, contracts, subcontracts, prime awards, loans, loan guarantees, property, cooperative agreements, food, direct appropriations, or other assistance, including materiel for emergency response and incident management. Financial assistance includes assistance provided by DHS, its component organizations, regional offices, and DHS financial assistance administered by intermediaries such as State, local, and Tribal governments, such as formula or block grants.

Indirect Federal financial assistance or Federal financial assistance provided indirectly means that the choice of the service provider is placed in the hands of the beneficiary, and the cost of that service is paid through a voucher, certificate, or other similar means of government-funded payment. For purposes of this part, sub-grant recipients that receive Federal financial assistance through State-administered programs are not considered recipients of “indirect Federal financial assistance.” Federal financial assistance provided to an organization is considered “indirect” within the meaning of the Establishment Clause of the First Amendment to the U.S. Constitution when:

(1) The government program through which the beneficiary receives the voucher, certificate, or other similar means of government-funded payment is neutral toward religion;

(2) The organization receives the assistance as a result of a decision of the beneficiary, not a decision of the government; and

(3) The beneficiary has at least one adequate secular option for the use of the voucher, certificate, or other similar means of government-funded payment.

Intermediary means an entity, including a non-governmental organization, acting under a contract, grant, or other agreement with the Federal government or with a State or local government, that accepts Federal financial assistance and distributes that assistance to other organizations that, in turn, provide government-funded social services. If an intermediary, acting under a contract, grant, or other agreement with the Federal government or with a State or local government that is administering a program supported by Federal financial assistance, is given the authority under the contract, grant, or agreement to select non-governmental organizations to provide services supported by the Federal government, the intermediary must ensure compliance with the provisions of Executive Order 13559 and any implementing rules or guidance by the recipient of a contract, grant or agreement. If the intermediary is a nongovernmental organization, it retains all other rights of a non-governmental organization under the program’s statutory and regulatory provisions.

Social service program means a program that is administered by the Federal government, or by a State or local government using Federal financial assistance, and that provides services directed at reducing poverty, improving opportunities for low-income children, revitalizing low- income communities, empowering low-income families and low-income individuals to become self-sufficient, or otherwise helping people in need. Such

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programs include, but are not limited to, the following: (1) Child care services, protective services for children and adults, services for children

and adults in foster care, adoption services, services related to the management and maintenance of the home, day care services for adults, and services to meet the special needs of children, older individuals, and individuals with disabilities (including physical, mental, or emotional disabilities);

(2) Transportation services; (3) Job training and related services, and employment services; (4) Information, referral, and counseling services; (5) The preparation and delivery of meals and services related to soup kitchens or food

banks; (6) Health support services; (7) Literacy and mentoring programs; (8) Services for the prevention and treatment of juvenile delinquency and substance

abuse, services for the prevention of crime and the provision of assistance to the victims and the families of criminal offenders, and services related to intervention in, and prevention of, domestic violence; and

(9) Services related to the provision of assistance for housing under Federal law.

§ 19.3 Equal ability for faith-based organizations to seek and receive financial assistance through DHS social service programs.

(a) Faith-based organizations are eligible, on the same basis as any other organization, to seek and receive direct financial assistance from DHS for social service programs or to participate in social service programs administered or financed by DHS.

(b) Neither DHS, nor a State or local government, nor any other entity that administers any social service program supported by direct financial assistance from DHS, shall discriminate for or against an organization on the basis of the organization’s religious motivation, character, or affiliation.

(c) Decisions about awards of Federal financial assistance must be free from political interference or even the appearance of such interference and must be made on the basis of merit, not on the basis of religion or religious belief or lack thereof, or on the basis of religious or political affiliation.

(d) Nothing in this part shall be construed to preclude DHS or any of its components from accommodating religious organizations and persons to the fullest extent consistent with the Constitution and laws of the United States.

(e) All organizations that participate in DHS social service programs, including religious organizations, must carry out eligible activities in accordance with all program requirements and other applicable requirements governing the conduct of DHS-supported activities, including those prohibiting the use of direct financial assistance from DHS to engage in explicitly religious activities. No grant document, agreement, covenant, memorandum of understanding, or policy issued by DHS or an intermediary in administering financial assistance from DHS shall disqualify a religious organization from participating in DHS’s social service programs because such organization is motivated or influenced by religious faith to provide social services or because of its religious character or affiliation.

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§ 19.4 Explicitly religious activities.

(a) Organizations that receive direct financial assistance from DHS to participate in or administer any social service program may not use direct Federal financial assistance that it receives (including through a prime or sub-award) to support or engage in any explicitly religious activities (including activities that involve overt religious content such as worship, religious instruction, or proselytization) or in any other manner prohibited by law.

(b) Organizations receiving direct financial assistance from DHS for social service programs are free to engage in explicitly religious activities, but such activities must be

(1) Clearly distinct from programs specifically supported by direct federal assistance; (2) Offered separately, in time or location, from the programs, activities, or

services specifically supported by direct DHS financial assistance pursuant to DHS social service programs; and

(3) Voluntary for the beneficiaries of the programs, activities, or services specifically supported by direct DHS financial assistance pursuant to DHS social service programs.

(c) All organizations that participate in DHS social service programs, including religious organizations, must carry out eligible activities in accordance with all program requirements and other applicable requirements governing the conduct of DHS-supported activities, including those prohibiting the use of direct financial assistance from DHS to engage in explicitly religious activities. No grant document, agreement, covenant, memorandum of understanding, or policy issued by DHS or a State or local government in administering financial assistance from DHS shall disqualify a religious organization from participating in DHS’s social service programs because such organization is motivated or influenced by religious faith to provide social services or because of its religious character or affiliation.

(d) The use of indirect Federal financial assistance is not subject to the restriction in paragraphs (a), (b), and (c) of this section.

(e) Nothing in this part restricts DHS’s authority under applicable federal law to fund activities, such as the provision of chaplaincy services, that can be directly funded by the Government consistent with the Establishment Clause.

§ 19.5 Nondiscrimination requirements.

An organization that receives financial assistance from DHS for a social service program shall not, in providing services or in outreach activities related to such services, favor or discriminate against a beneficiary of said program or activity 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. Organizations that favor or discriminate against a beneficiary will be subject to applicable sanctions and penalties, as established by the requirements of the particular DHS social service program or activity. However, an organization that participates in a program funded by indirect financial assistance need not modify its program activities to accommodate a beneficiary who chooses to expend the indirect aid on the organization’s program.

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§ 19.6 Beneficiary protections: Written notice.

(a) Faith-based or religious organizations providing social services to beneficiaries under a DHS program supported by direct Federal financial assistance must give written notice to beneficiaries of certain protections. Such notice may be given in the form set forth in appendix A of this part. This notice must state that:

(1) 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;

(2) 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;

(3) The organization must separate in time or location any privately funded explicitly religious activities from activities supported by direct Federal financial assistance;

(4) 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 alternative provider to which the beneficiary has no objection; and

(5) Beneficiaries may report an organization’s violations of these protections, including any denials of services or benefits by an organization, by contacting or filing a complaint with the DHS Office for Civil Rights and Civil Liberties, or to any intermediary awarding entity.

(b) This written notice must be given to beneficiaries prior to the time they enroll in the program or receive services from such programs. When the nature of the service provided or exigent circumstances make it impracticable to provide such written notice in advance of the actual service, service providers must advise beneficiaries of their protections at the earliest available opportunity.

§ 19.7 Beneficiary protections: Referral requirements.

(a) If a beneficiary of a social service program covered under § 19.6 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 alternative provider to which the beneficiary has no objection.

(b) A referral may be made to another religiously affiliated provider, 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.

(c) Except for services provided by telephone, internet, or similar means, the referral must be to an alternative provider that is in reasonable geographic proximity to the organization making the referral and that offers services that are similar in substance and quality to those offered by the organization. The alternative provider also must have the capacity to accept additional clients.

(d) When the organization makes a referral to an alternative provider, it shall keep a record of that referral. If the organization determines that it is unable to identify an alternative provider, the organization shall both keep a record and promptly notify either DHS or an intermediary awarding entity. If the organization is unable to identify an

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alternative provider, DHS or the intermediary shall determine whether there is any other suitable alternative provider to which the beneficiary may be referred. An intermediary that receives a request for assistance in identifying an alternative provider shall notify, and may request assistance from, DHS.

§ 19.8 Independence of faith-based organizations.

(a) A faith-based organization that applies for, or participates in, a social service program supported with Federal financial assistance may retain its independence and may continue to carry out its mission, including the definition, development, practice, and expression of its religious beliefs, provided that it does not use direct Federal financial assistance contrary to § 19.4.

(b) Faith-based organizations may use space in their facilities to provide social services using financial assistance from DHS without removing or concealing religious articles, texts, art, or symbols.

(c) A faith-based organization using financial assistance from DHS for social service programs retains its authority over internal governance, and may also retain religious terms in its organization’s name, select its board members on a religious basis, and include religious references in its organization’s mission statements and other governing documents.

§ 19.9 Exemption from Title VII employment discrimination requirements.

(a) ) A faith-based organization’s exemption, set forth in section 702(a) of the Civil Rights Act of 1964 (42 U.S.C. 2000e-1), from the Federal prohibition on employment discrimination on the basis of religion is not forfeited when the organization seeks or receives financial assistance from DHS for a social service program or otherwise participates in a DHS program.

(b) Where a DHS program contains independent statutory or regulatory provisions that impose nondiscrimination requirements on all grantees, those provisions are not waived or mitigated by this part. Accordingly, grantees should consult with the appropriate DHS program office to determine the scope of any applicable requirements.

§ 19.10 Commingling of Federal assistance.

(a) If a State, local, or Tribal government voluntarily contributes its own funds to supplement Federally supported activities, the State, local, or Tribal government has the option to segregate the Federal assistance or commingle it.

(b) If the State, local, or Tribal government chooses to commingle its own and Federal funds, the requirements of this part apply to all of the commingled funds.

(c) If a State, local, or Tribal government is required to contribute matching funds to supplement a Federally supported activity, the matching funds are considered commingled with the Federal assistance and therefore subject to the requirements of this part.

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D. Model Notice of Beneficiary Rights and Beneficiary Referral Request

The model Notice of Beneficiary Rights and model Beneficiary Referral Request, as set forth in an appendix to the DHS regulations, is provided here in a format that can be readily adapted and reproduced by covered faith-based organizations. The model Notice is provided in two versions. The first version is for recipients who receive their federal financial assistance via an intermediary, such as a state administering agency, whose information should be included in the form. The second version is for recipients who do not have an intermediary.

Electronic copies of these documents can be downloaded from dhs.gov/crcl, including translations into Arabic, Chinese (traditional and simplified), French, Haitian Creole, Korean, Portuguese, Russian, Spanish, Tagalog, and Vietnamese.

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___________________________________ ___________________________________

Notice of Beneficiary Rights Name of Organization Contact Information for Program Staff

(name, phone number, and e-mail address, if appropriate)

Name of Program

Because this program is supported in whole or in part by direct financial assistance from the Federal Government, we are required to let you know that—

We may not discriminate against you on the basis of religion or religious belief, your refusal to hold a religious belief, or your refusal to attend or participate in a religious practice;

We may not require you to attend or participate in any explicitly religious activities that are offered by us, and any participation by you in these activities must be purely voluntary;

We must separate in time or location any privately funded explicitly religious activities from activities supported with direct Federal financial assistance under this program;

If you object to the religious character of our organization, we must make reasonable efforts to identify and refer you to an alternative provider to which you have no objection; however, we cannot guarantee that in every instance, an alternative provider will be available; and

You may report violations of these protections, including any denials of services or benefits, by contacting or filing a written complaint with the Department of Homeland Security, Office for Civil Rights and Civil Liberties:

E-mail: [email protected] Fax: 202-401-4708 U.S. Mail: U.S. Department of Homeland Security

Office for Civil Rights and Civil Liberties Compliance Branch 245 Murray Lane, SW Building 410, Mail Stop #0190 Washington, DC 20528

You may also report violations of these protections, including any denials of services or benefits, to:

We must give you this written notice before you enroll in our program or receive services from the program.

Beneficiary Referral Request If you object to receiving services from us based on the religious character of our organization, please complete this form and return it to the program contact identified above. If you object, we will make reasonable efforts to refer you to another service provider. With your consent, we will follow up with you or the organization to which you were referred to determine whether you contacted that organization.

Please check if applicable:

I want to be referred to another service provider.

If you checked above that you wish to be referred to another service provider, please check one of the following:

Please follow up with me.

Name: _____________________________ Best way to reach me:

(phone/address/email)

Please follow up with the service provider to which I was referred.

Please do not follow up.

Model Form – With Intermediary

_________________________________ _________________________________

Notice of Beneficiary Rights Name of Organization Contact Information for Program Staff

(name, phone number, and e-mail address, if appropriate)

Name of Program

Because this program is supported in whole or in part by direct financial assistance from the Federal Government, we are required to let you know that—

We may not discriminate against you on the basis of religion or religious belief, your refusal to hold a religious belief, or your refusal to attend or participate in a religious practice;

We may not require you to attend or participate in any explicitly religious activities that are offered by us, and any participation by you in these activities must be purely voluntary;

We must separate in time or location any privately funded explicitly religious activities from activities supported with direct Federal financial assistance under this program;

If you object to the religious character of our organization, we must make reasonable efforts to identify and refer you to an alternative provider to which you have no objection; however, we cannot

guarantee that in every instance, an alternative provider will be available; and

You may report violations of these protections, including any denials of services or benefits, by contacting or filing a written complaint with the Department of Homeland Security, Office for Civil Rights and Civil Liberties:

E-mail: [email protected] Fax: 202-401-4708 U.S. Mail: U.S. Department of Homeland Security

Office for Civil Rights and Civil Liberties

Compliance Branch 245 Murray Lane, SW Building 410, Mail Stop #0190 Washington, DC 20528

We must give you this written notice before you enroll in our program or receive services from the program.

Beneficiary Referral Request If you object to receiving services from us based on the religious character of our organization, please complete this form and return it to the program contact identified above. If you object, we will make reasonable efforts to refer you to another service provider. With your consent, we will follow up with you or the organization to which you were referred to determine whether you contacted that organization.

Please check if applicable:

I want to be referred to another service provider.

If you checked above that you wish to be referred to another service provider, please check one of the following:

Please follow up with me.

Name: _____________________________

Best way to reach me:

(phone/address/email)

Please follow up with the service provider to which I was referred.

Please do not follow up.

Model form – Without Intermediary

Documents

DHS Guidance on Partnerships with Faith-Based and … and Contract Reviewer ... Model Guidance on Protections for and Obligations of ... to faith-based and other neighborhood organizations