Nondiscrimination in Matters Pertaining to Faith-Based Organizations, 47283-47299 [2015-18257]
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Vol. 80
Thursday,
No. 151
August 6, 2015
Part IX
Department of Homeland Security
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Office of the Secretary
6 CFR Part 19
Nondiscrimination in Matters Pertaining to Faith-Based Organizations;
Proposed Rule
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DEPARTMENT OF HOMELAND
SECURITY
Office of the Secretary
6 CFR Part 19
[Docket No. DHS–2006–0065]
RIN 1601–AA40
Nondiscrimination in Matters
Pertaining to Faith-Based
Organizations
Office of the Secretary, DHS.
Supplemental notice of
proposed rulemaking.
AGENCY:
ACTION:
This proposed rule would
implement revised Executive Branch
policy that, consistent with
constitutional church-state parameters,
faith-based organizations compete on an
equal footing with other organizations
for direct Federal financial assistance,
and to fully participate in Federally
supported social service programs,
while beneficiaries under those
programs receive appropriate
protections. This rulemaking is
intended to ensure that the Department
of Homeland Security’s social service
programs are implemented in a manner
consistent with the requirements of the
First Amendment to the Constitution.
DATES: Written comments must be
received on or before October 5, 2015.
ADDRESSES: You may submit comments,
identified by agency name and docket
number DHS–2006–0065, by one of the
following methods:
• Federal eRulemaking Portal: https://
www.regulations.gov. Follow the
instructions for submitting comments.
• Facsimile: Federal eRulemaking
portal at 866–466–5370. Include the
docket number on the cover sheet.
• Mail: Scott Shuchart/Mail Stop No.
0190, Office for Civil Rights and Civil
Liberties, 245 Murray Lane SW., Bldg.
410, Washington, DC 20528–0190. To
ensure proper handling, please
reference DHS Docket No. DHS–2006–
0065 on your correspondence. This
mailing address may also be used for
paper, disk, or CD–ROM submissions.
FOR FURTHER INFORMATION CONTACT:
Scott Shuchart, Department of
Homeland Security Office for Civil
Rights and Civil Liberties, 202–401–
1474 (telephone), 202–357–1196
(facsimile), scott.shuchart@hq.dhs.gov
(email).
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SUMMARY:
SUPPLEMENTARY INFORMATION:
I. Public Participation
Interested persons are invited to
participate in this rulemaking by
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submitting written data, views, or
arguments on all aspects of the
proposed rule. The Department of
Homeland Security (DHS) also invites
comments that relate to the potential
economic, environmental, or federalism
effects of this proposed rule. Comments
that will provide the most assistance to
DHS in developing these procedures
will reference a specific portion of the
proposed rule, explain the reason for
any recommended change, and include
data, information, or authority that
support such recommended change.
All comments received will be posted
without change to https://
www.regulations.gov, including any
personal information provided. See
ADDRESSES above for information on
how to submit comments.
Docket: For access to the docket to
read background documents or
comments received, go to https://
www.regulations.gov.
II. Executive Summary
A. Purpose of the Regulatory Action
On January 14, 2008, the Department
of Homeland Security (DHS) proposed
regulations to ensure that faith-based
organizations be equally eligible to
participate in certain programs, as
directed by Executive Order 13279. 73
FR 2187. While DHS’s final rule was
still pending, additional Executive
Orders bearing on the same subject
matter were signed by President Obama:
Executive Order 13498, Amendments to
Executive Order 13199 and
Establishment of the President’s
Advisory Council for Faith-Based and
Neighborhood Partnerships, 74 FR 6533
(Feb. 9, 2009), and Executive Order
13559, Fundamental Principles and
Policymaking Criteria for Partnerships
with Faith-Based and Other
Neighborhood Organizations, 75 FR
71319 (Nov. 17, 2010). Executive Order
13559 amended Executive Order 13279
in several important respects.
DHS now again proposes to issue a
rule implementing the principles of
Executive Order 13279, as amended by
Executive Order 13559, to ensure that
faith-based and community
organizations are able to participate
fully in social service programs funded
by DHS, consistent with the
Constitution, and with appropriate
protections for the beneficiaries and
potential beneficiaries of those
programs. The proposed rule is largely
similar to the rule proposed in 2008,
with changes to address, inter alia,
public comments and the changes
required by Executive Order 13559.
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B. Summary of Major Provisions
The proposed rule would provide for
full participation by faith-based and
community groups in social service
programs funded by DHS, with suitable
protections for individual beneficiaries,
consistent with the U.S. Constitution:
• Equal treatment,
nondiscrimination, and independence.
Faith-based organizations would be
eligible to seek and receive direct
financial assistance from DHS for social
service programs; the proposal provides
that neither DHS, nor states or local
governments acting as intermediaries
distributing DHS funds, may
discriminate against an organization on
the basis of the organization’s religious
character or affiliation. By the same
token, the proposal provides that
recipients of direct financial assistance
may not discriminate against
beneficiaries on the basis of religion or
religious belief. Those organizations
may maintain their independence,
including practice of their religious
beliefs, selection of board members, and
use of space with religious symbols, so
long as explicitly religious activities are
not supported with direct Federal
financial assistance.
• Explicitly religious activities. The
proposal provides that organizations
receiving direct financial assistance (see
below) to participate in or administer
social service programs may not engage
in explicitly religious activities in
programs supported by or administered
by DHS. Recipients also wishing to offer
non-DHS-supported explicitly religious
activities are free to do so, separately in
time or location from the DHSsupported programs, and only on a
voluntary basis for beneficiaries of DHSsupported social service programs.
• Direct and indirect assistance. Most
provisions of the rule would apply to
direct federal financial assistance,
meaning that the government or an
intermediary (such as a State or local
government) selects the provider of the
social service program, funded through
either a contract or grant. Programs
involving indirect financial assistance,
where government funding is provided
through a voucher, certificate, or similar
means placed in the hands of the
beneficiary, provide greater scope for
explicitly religious content in programs
or activities, so long as the overall
government program is neutral toward
religion, the choice of provider is the
beneficiary’s, and there is an adequate
secular option for use of the funds.
• Notice to beneficiaries. Faith-based
or religious organizations receiving
direct financial assistance for social
service programs would, in most
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circumstances, be required to provide
beneficiaries and prospective individual
beneficiaries written notice of particular
protections afforded to them:
Æ The faith-based organization’s
obligation not to discriminate against
beneficiaries on the basis of religion or
religious belief;
Æ that the beneficiary cannot be
required to attend or participate in any
explicitly religious activities, but may
do so voluntarily;
Æ that privately funded explicitly
religious activities must be separate in
time or place from the program
receiving Federal financial assistance;
Æ that if the beneficiary objects to the
religious character of the organization,
the organization must attempt to refer
the beneficiary to an alternative
provider to which the beneficiary does
not object; and
Æ that beneficiaries may report
violations of these protections to DHS.
• Referral requirement. Where a
beneficiary objects to the religious
character of an organization providing
social service programs supported by
DHS financial assistance, the
organization would be required to
undertake reasonable efforts to identify
and refer the beneficiary to an
alternative provider to which the
beneficiary does not object. Such
organizations must notify DHS when
such a referral is made, or when it is
unable to identify an appropriate
alternative provider to which the
beneficiary can be referred. DHS would
then also attempt to identify an
alternative provider.
• Employment discrimination. The
exemption from the federal prohibition
on employment discrimination based on
religion (under section 702(a) of the
Civil Rights Act of 1964 (42 U.S.C.
2000e–1)) remains applicable for
religious organizations delivering
Federally supported social services;
independent statutory or regulatory
provisions that impose
nondiscrimination requirements on all
grantees would not be waived or
mitigated by this regulation.
III. Background
On December 12, 2002, President
Bush signed Executive Order 13279,
Equal Protection of the Laws for FaithBased and Community Organizations,
67 FR 77141 (Dec. 16, 2002). Executive
Order 13279 sets forth the principles
and policymaking criteria 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 faithbased and community organizations,
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and to expand opportunities for, and
strengthen the capacity of, faith-based
and other community organizations to
meet social needs in America’s
communities. In addition, Executive
Order 13279 required specified agency
heads to review and evaluate existing
policies relating to Federal financial
assistance for social services programs
and, where appropriate, to implement
new policies that were consistent with
and necessary to further the
fundamental principles and
policymaking criteria that have
implications for faith-based and
community organizations.
On January 14, 2008, following
Executive Order 13403 (which brought
DHS within the scope of Executive
Order 13279), DHS proposed to amend
its regulations to clarify that faith-based
organizations are equally eligible to
participate in any social or community
service programs established,
administered, or supported by DHS
(including any component of DHS), and
would be equally eligible to seek and
receive Federal financial assistance from
DHS service programs where such
assistance is available to other
organizations. 73 FR 2187. DHS
published the proposed rule with a
thirty-day public comment period from
January 14 to February 13, 2008. During
this time, DHS received twenty
comments on the proposed rule; some
expressed support while others
expressed concerns with certain
elements of the proposed rule.
Shortly after taking office, President
Obama signed Executive Order 13498,
Amendments to Executive Order 13199
and Establishment of the President’s
Advisory Council for Faith-Based and
Neighborhood Partnerships, 74 FR 6533
(Feb. 9, 2009). Executive Order 13498
changed the name of the White House
Office of Faith-Based and Community
Initiatives to the White House Office of
Faith-Based and Neighborhood
Partnerships and established the
President’s Advisory Council for FaithBased and Neighborhood Partnerships
(Advisory Council). The President
created the Advisory Council to bring
together experts to, among other things,
make recommendations to the President
for changes in policies, programs, and
practices that affect the delivery of
services by faith-based and other
neighborhood organizations.
The Advisory Council issued its
recommendations in a report entitled A
New Era of Partnerships: Report of
Recommendations to the President in
March 2010 (Advisory Council Report)
(available at https://
www.whitehouse.gov/sites/default/files/
microsites/ofbnp-council-final-
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report.pdf). The Advisory Council
Report included recommendations to
amend Executive Order 13279 in order
to clarify the legal foundation of
partnerships and offered a new set of
fundamental principles to guide agency
decision-making in administering
Federal financial assistance and support
to faith-based and neighborhood
organizations.
President Obama signed Executive
Order 13559, Fundamental Principles
and Policymaking Criteria for
Partnerships with Faith-Based and
Other Neighborhood Organizations, on
November 17, 2010. 75 FR 71319 (Nov.
22, 2010). Executive Order 13559
incorporated the Advisory Council’s
recommendations by amending
Executive Order 13279 to:
• Require agencies that administer or
award Federal financial assistance for
social service programs to implement
protections for the beneficiaries or
prospective beneficiaries of such
programs by providing referrals to
alternative providers if the beneficiary
objects to the religious character of the
organization providing services written
notice of these and other protections to
beneficiaries before enrolling in or
receiving services;
• state that 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,
or lack of affiliation, of the recipient
organization;
• state that the Federal government
has an obligation to monitor and enforce
all standards regarding the relationship
between religion and government in
ways that avoid excessive entanglement
between religious bodies and
governmental entities;
• clarify the principle that
organizations engaging in explicitly
religious activity must separate these
activities in time or location from
programs supported with direct Federal
financial assistance, and that
participation in any explicit religious
activity cannot be subsidized with
direct Federal financial assistance and
that participation in such activities must
be voluntary for the beneficiaries of the
social service program supported with
such Federal financial assistance;
• emphasize that religious providers
are welcome to compete for government
social service funding and maintain a
religious identity as described in the
order;
• require agencies that provide
Federal financial assistance for social
service programs to post online
regulations, guidance documents, and
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policies that have implications for faithbased and neighborhood organizations
and to post online a list of entities
receiving such assistance;
• clarify that church-state standards
and other standards apply to sub-awards
as well as prime awards; and
• distinguish between ‘‘direct’’ and
‘‘indirect’’ Federal financial assistance.
In addition, Executive Order 13559
created the Interagency Working Group
on Faith-Based and Other Neighborhood
Partnerships (Working Group) to review
and evaluate existing regulations,
guidance documents, and policies.
The Executive Order also stated that,
following receipt of the Working
Group’s report, the Office of
Management and Budget (OMB), in
coordination with the Department of
Justice, must issue guidance to agencies
on the implementation of the order. In
August 2013, OMB issued such
guidance (available at https://
www.whitehouse.gov/sites/default/files/
omb/memoranda/2013/m-13-19.pdf). In
this guidance, OMB instructed specified
agency heads to adopt regulations and
guidance that will fulfill the
requirements of the Executive Order and
to amend regulations and guidance to
ensure that they are consistent with
Executive Order 13559.
Building on the rule first proposed in
2008, DHS hereby proposes a rule that
incorporates the language and
recommendations from Executive Order
13559 and the succeeding reports and
guidance just described. The proposed
rule would ensure that DHS social
service programs are implemented in a
manner consistent with the
requirements of the U.S. Constitution
and are open to all qualified
organizations, regardless of their
religious character. To that end, under
this proposed rule, private, nonprofit
faith-based organizations seeking to
participate in Federally supported social
service programs or seeking Federal
financial assistance for social service
programs would be eligible to
participate fully, with appropriate
protections for beneficiaries.
IV. Changes From the Original
Proposed Rule
DHS has made several changes to the
previously proposed regulatory text
from the original notice of proposed
rulemaking.
Definition of Social Service Program
The original proposed rule defined
‘‘social service program’’ differently
than does Executive Order 13279. (The
definition in Executive Order 13279 is
unaffected by the Executive Order
13559 amendments.) This rule proposes
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to use the definition in Executive Order
13279, instead of the definition in the
original proposed rule. This approach
will better ensure uniformity with the
rules of other agencies and consistency
with the relevant Executive Orders. DHS
may also issue guidance at a future time
with respect to the applicability of the
Executive Orders and the rule to
particular programs. At the present
time, DHS believes that it administers
four programs with grantees,
subgrantees, and beneficiaries that
would be covered by this rule.1
Explicitly Religious Activities
The original proposed rule and
Executive Order 13279 prohibit
nongovernmental organizations from
using direct Federal financial assistance
(e.g., government grants, contracts, subgrants, and subcontracts) for ‘‘inherently
religious activities, such as worship,
religious instruction, and
proselytization.’’ The term ‘‘inherently
religious,’’ which was carried over in
several other agencies’ regulations
implementing Executive Order 13279,
has proven confusing. In 2006, for
example, the Government
Accountability Office (GAO) found that
while all 26 of the religious social
service providers it interviewed said
they understood the prohibition on
using direct Federal financial assistance
for ‘‘inherently religious activities,’’ four
of the providers described acting in
ways that appeared to violate that rule.
GAO, Faith-Based and Community
Initiative: Improvements in Monitoring
Grantees and Measuring Performance
Could Enhance Accountability, GAO–
06–616, at 34–35 (June 2006) (available
at https://www.gao.gov/new.items/
d06616.pdf).
Further, while the Supreme Court has
sometimes used the term ‘‘inherently
religious,’’ it has not used it to indicate
the boundary of what the Federal
government may subsidize with direct
Federal financial assistance. If the term
is interpreted narrowly, it could permit
actions that the Constitution prohibits.
On the other hand, one could also argue
that the term ‘‘inherently religious’’ is
too broad rather than too narrow. For
example, some might consider their
provision of a hot meal to a needy
person to be an ‘‘inherently religious’’
act when it is undertaken from a sense
of religious motivation or obligation,
even though it has no overt religious
content.
1 Within FEMA, the covered programs would be
the Emergency Food and Shelter Program, the Crisis
Counseling Program, and the Disaster Case
Management Program. The USCIS Citizenship and
Integration Grant Program would also covered by
this rule.
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The Court has determined that the
government cannot subsidize ‘‘a
specifically religious activity in an
otherwise substantially secular setting.’’
Hunt v. McNair, 413 U.S. 734, 743
(1973). It has also said a direct aid
program impermissibly advances
religion when the aid results in
governmental indoctrination of religion.
See Mitchell v. Helms, 530 U.S. 793, 808
(2000) (plurality opinion); id. at 845
(O’Connor, J., concurring in judgment);
Agostini v. Felton, 521 U.S. 203, 223
(1997). This terminology is fairly
interpreted to prohibit the government
from directly subsidizing any
‘‘explicitly religious activity,’’ including
activities that involve overt religious
content. Thus, direct Federal financial
assistance should not be used to pay for
activities such as religious instruction,
devotional exercises, worship,
proselytizing or evangelism; production
or dissemination of devotional guides or
other religious materials; or counseling
in which counselors introduce religious
content. Similarly, direct Federal
financial assistance may not be used to
pay for equipment or supplies to the
extent they are allocated to such
activities. Activities that are secular in
content, such as serving meals to the
needy or using a nonreligious text to
teach someone to read, are not
considered ‘‘explicitly religious
activities’’ merely because the provider
is religiously motivated to provide those
services. The study or acknowledgement
of religion as a historical or cultural
reality also would not be considered an
explicitly religious activity.
Notwithstanding the general
prohibition on the use of direct Federal
financial assistance to support explicitly
religious activities, there are times when
religious activities may be Federally
financed under the Establishment
Clause and not subject to the direct
Federal financial assistance restrictions:
For instance, where Federal financial
assistance is provided to chaplains to
work with inmates in prisons, detention
facilities, or community correction
centers through social service programs.
This is because where there is extensive
government control over the
environment of the Federally financed
social service program, program officials
may sometimes need to take affirmative
steps to provide an opportunity for
beneficiaries of the social service
program to exercise their religion. See
Cruz v. Beto, 405 U.S. 319, 322 n.2
(1972) (per curiam) (‘‘[R]easonable
opportunities must be afforded to all
prisoners to exercise the religious
freedom guaranteed by the First and
Fourteenth Amendment without fear of
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penalty.’’); 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’’). Without such efforts, religious
freedom might not exist for these
beneficiaries. Accordingly, services
such as chaplaincy services would not
be considered explicitly religious
activities that are subject to direct
financial aid restrictions.
Likewise, it is important to emphasize
that the restrictions on explicit religious
content apply to content generated by
the administrators of the program
receiving direct Federal financial
assistance, not to spontaneous
comments made by individual
beneficiaries about their personal lives
in the context of these programs. For
example, if a person administering a
Federally supported job skills program
asks beneficiaries to describe how they
gain the motivation necessary for their
job searches and some beneficiaries
refer to their faith or membership in a
faith community, these kinds of
comments do not violate the restrictions
and should not be censored. In this
context, it is clear that the
administrators of the government
program did not orchestrate or
encourage such comments.
DHS, therefore, now proposes that
§ 19.4 employ the term ‘‘explicitly
religious activities’’ (in lieu of
‘‘inherently religious activities’’ in the
initially proposed rule) and define the
term as ‘‘including activities that
involve overt religious content such as
worship, religious instruction, or
proselytization.’’ This language will
provide greater clarity and more closely
match constitutional standards as they
have been developed in case law.
These restrictions would not diminish
previously proposed regulatory
protections for the religious identity of
faith-based providers. The proposed
rule would not affect, for example,
organizations’ ability to use religious
terms in their organizational names,
select board members on a religious
basis, include religious references in
mission statements and other
organizational documents, and post
religious art, messages, scriptures and
symbols in buildings where Federal
financial assistance is delivered.
Direct and Indirect Federal Financial
Assistance
Executive Order 13559 noted that new
regulations should distinguish between
‘‘direct’’ and ‘‘indirect’’ Federal
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financial assistance because the
limitation on explicitly religious
activities applies to programs that are
supported with ‘‘direct’’ Federal
financial assistance but does not apply
to programs supported with ‘‘indirect’’
Federal financial assistance. DHS
proposes to define these terms in § 19.2.
Programs are supported with direct
Federal financial assistance when either
the Federal government or an
intermediary, as identified in these
proposed rules, selects a service
provider and either purchases services
from that provider (e.g., through a
contract) or awards funds to that
provider to carry out a social service
(e.g., through a grant or cooperative
agreement). Under these circumstances,
there are no intervening steps in which
the beneficiary’s choice determines the
provider’s identity.
Indirect Federal financial assistance is
distinguishable because it places the
choice of service provider in the hands
of a beneficiary before the Federal
government pays for the cost of that
service through a voucher, certificate, or
other similar means. For example, the
government could choose to allow the
beneficiary to secure the needed service
on his or her own. Alternatively, a
governmental agency, operating under a
neutral program of aid, could present
each beneficiary or prospective
beneficiary with a list of all qualified
providers from which the beneficiary
could obtain services using a
government-provided certificate. Either
way, the government empowers the
beneficiary to choose for himself or
herself whether to receive the needed
services, including those that contain
explicitly religious activities, through a
faith-based or other neighborhood
organization. The government could
then pay for the beneficiary’s choice of
provider by giving the beneficiary a
voucher or similar document.
Alternatively, the government could
choose to pay the provider directly after
asking the beneficiary to indicate his or
her choice. See Freedom From Religion
Found. v. McCallum, 324 F.3d 880, 882
(7th Cir. 2003).
The Supreme Court has held that if a
program meets certain criteria, the
government may fund the programs if,
among other things, it places the benefit
in the hands of individuals, who in turn
have the freedom to choose the provider
to which they take their benefit and
‘‘spend’’ it, whether that provider is
public or private, non-religious or
religious. See Zelman v. SimmonsHarris, 536 U.S. 639, 652–53 (2002). In
these instances, the government does
not encourage or promote any explicitly
religious programs that may be among
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the options available to beneficiaries.
Notably, the voucher scheme at issue in
the Zelman decision, which was
described by the Court as one of ‘‘true
private choice,’’ id. at 653, was also
neutral toward religion and offered
beneficiaries adequate secular options.
Accordingly, these criteria also are
included in the text of the proposed
definition of ‘‘indirect financial
assistance.’’
Intermediaries
The Department also proposes
regulatory language in § 19.2 that will
clarify the responsibilities of
intermediaries.2 An intermediary is 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 such
assistance to other organizations that, in
turn, provide government-funded social
services. Each intermediary must abide
by all statutory and regulatory
requirements by, for example, providing
any services supported with direct
Federal financial assistance in a
religiously neutral manner that does not
include explicitly religious activities.
The intermediary also has the same
duties as the government to comply
with these rules by, for example,
selecting any providers to receive
Federal financial assistance in a manner
that does not favor or disfavor
organizations on the basis of religion or
religious belief. While intermediaries
may be used to distribute Federal
financial assistance to other
organizations in some programs,
intermediaries remain accountable for
the Federal financial assistance they
disburse. Accordingly, intermediaries
must ensure that any providers to which
they disburse Federal financial
assistance also comply with these rules.
If the intermediary is a nongovernmental organization, it retains all
other rights of a non-governmental
organization under the statutory and
regulatory provisions governing the
program.
A State’s use of intermediaries does
not relieve the State of its traditional
responsibility to effectively monitor the
actions of such organizations. States are
obligated to manage the day-to-day
operations of grant- and sub-grantsupported activities to ensure
compliance with applicable Federal
requirements and performance goals.
Moreover, a State’s use of intermediaries
2 In this document, the terms ‘‘intermediary’’ and
‘‘pass-through entity’’ may be used interchangeably.
See 2 CFR 200.74.
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does not relieve the State of its
responsibility to ensure that providers
are selected, and deliver services, in a
manner consistent with the First
Amendment’s Establishment Clause.
Protections for Beneficiaries
Executive Order 13559 indicates a
variety of valuable protections for the
religious liberty rights of social service
beneficiaries.3 These protections are
aimed at ensuring that Federal financial
assistance is not used to coerce or
pressure beneficiaries along religious
lines, and to make beneficiaries aware of
their rights, through appropriate notice,
when potentially obtaining services
from providers with a religious
affiliation.
The executive order makes it clear
that all organizations that receive
Federal financial assistance for the
purpose of delivering social welfare
services are prohibited from
discriminating against beneficiaries or
potential beneficiaries of those programs
on the basis of religion, a religious
belief, refusal to hold a religious belief,
or a refusal to attend or participate in a
religious practice. It also states that
organizations offering explicitly
religious activities (including activities
that involve overt religious content such
as worship, religious instruction or
proselytization) must not use direct
Federal financial assistance to subsidize
or support those activities, and that any
explicitly religious activities must be
offered outside of programs that are
supported with direct Federal financial
assistance (including through prime
awards or sub-awards). In other words,
to the extent that an organization
provides explicitly religious activities,
those activities must be offered
separately in time or location from
programs or services supported with
direct Federal financial assistance. And,
as noted above, participation in those
religious activities must be completely
voluntary for beneficiaries of programs
supported by Federal financial
assistance.
Executive Order 13559 also states that
organizations administering a program
that is supported by Federal financial
assistance must provide written notice
in a manner prescribed by the agency to
beneficiaries and prospective
beneficiaries of their right to be referred
to an alternative provider when
3 DHS proposes to define ‘‘beneficiary’’ in § 19.2
to mean 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.
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available. 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. Where the recipient and
beneficiary have only a brief, potentially
one-time interaction, such as at a soup
kitchen, individual notice may be
impracticable; in those cases, DHS
anticipates that a conspicuous posted
notice would satisfy this requirement.
These requirements are set forth in
§§ 19.6 and 19.7 of the proposed rule.
Section 19.7 states that 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, the beneficiary shall be
referred to an alternative provider. More
specifically, the proposed rule provides
that, 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 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.
Model language for the notice to
beneficiaries is provided in the
proposed Appendix A to the rule.
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 that offers the needed services
is available, then a referral must be
made to that provider.
The proposed rule would specify that,
except for services provided by
telephone, internet, or similar means,
the referral would be to an alternate
provider that is in 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 would need to 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
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financial assistance but does meet these
requirements and is acceptable to the
beneficiary.
If an organization is unable to identify
an alternative provider, the organization
is required under the proposed rule to
notify the awarding entity and that
entity would determine whether there is
any other suitable alternative provider
to which the beneficiary may be
referred. Further, the executive order
and the proposed rule require the
relevant government agency to ensure
that appropriate and timely referrals are
made to an appropriate provider, and
that referrals are made in a manner
consistent with applicable privacy laws
and regulations. It must be noted,
however, that in some instances, the
awarding entity may also be unable to
identify a suitable alternative provider.
Political or Religious Affiliation
DHS proposes to add proposed
§ 19.3(c) to clarify that decisions about
awards of Federal financial assistance
must be free from political interference
or even the appearance of such
interference. The awarding entity
should instruct participants in the
awarding process to refrain from taking
religious affiliations or non-religious
affiliations into account in this process;
i.e., an organization should not receive
favorable or unfavorable marks merely
because it is affiliated or unaffiliated
with a religious body, or related or
unrelated to a specific religion. When
selecting peer reviewers, the awarding
entity should never ask about religious
affiliation or take such matters into
account. But it should encourage
religious, political, and professional
diversity among peer reviewers by
advertising for these positions in a wide
variety of venues.
Additional Changes Based on
Comments on the Notice of Proposed
Rulemaking
In addition to the aforementioned
changes regarding the scope of the rule
or based on the new policy guidance in
Executive Order 13559, this proposed
rule includes further revisions to
address comments made on the initial
notice of proposed rulemaking. DHS
revised proposed § 19.1 to reflect that
the purpose of these regulations is to
ensure equal treatment of faith-based
organizations, not to establish equal
participation rates for faith-based
organizations. The term ‘‘sectarian’’ was
removed from proposed § 19.2 as a
response to a comment that suggested
the term may be perceived pejoratively.
To address comments on new reporting
and monitoring requirements, a new
paragraph (c) was added to proposed
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§ 19.4 to clarify that all DHS programs
apply the same standards to faith-based
and secular organizations, and that all
organizations carry out eligible activities
in accordance with all program
requirements and requirements
governing the conduct of DHSsupported activities. A new paragraph
(d) was also added to proposed § 19.4 to
clarify that restrictions regarding the use
of direct DHS financial assistance apply
only to direct financial assistance; they
do not apply to social service programs
where DHS financial assistance is
provided to a religious or other nongovernmental organization indirectly.
The proposed changes to FEMA-specific
regulations have been removed as
unnecessary because those changes
amended regulations for programs that
DHS has not presently identified as
being covered by this rule.
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V. Discussion of the Public Comments
Received on the January 14, 2008,
Proposed Rule
DHS received 20 comments on the
notice of proposed rulemaking from
civil rights organizations, religious
organizations, and interested members
of the public. Some of the comments
were generally supportive of the
proposed rule; others were critical.
A. Participation by Faith-Based
Organizations in DHS Programs
Some commenters supported the
participation of religious organizations,
noting the widespread contributions of
religious organizations to civil society,
connections to their communities, and
concern for those in need. Other
commenters suggested that DHS should
prohibit either all faith-based
organizations, or a subset of
‘‘pervasively sectarian’’ organizations,
from participating in DHS programs, to
avoid violating the First Amendment’s
Establishment Clause. U.S. Const. Amdt
I (1791).
The Establishment Clause does not
bar direct Federal grants to
organizations that are controlled and
operated exclusively by members of a
single faith. See Bradfield v. Roberts,
175 U.S. 291 (1899); see also Bowen v.
Kendrick, 487 U.S. 589, 609 (1988). The
Constitution does require the
application of certain safeguards,
however, when government financial
assistance flows to religious
organizations, and the proposed rule
articulated here respects those
safeguards. See § 19.2, definitions of
‘‘direct’’ and ‘‘indirect Federal financial
assistance,’’ and § 19.4(a)–(b). For the
reasons described above, DHS believes
that the proposed rule provides the
appropriate approach to this matter.
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B. Inherently (Explicitly) Religious
Activities
One commenter suggested DHS clarify
the definition of inherently religious
activities, and suggested that DHS
provide additional examples. As
discussed, DHS agrees that the term
‘‘inherently religious’’ is confusing, and
has revised its proposal to remove the
term and replace it with ‘‘explicitly
religious.’’
DHS believes that it would be difficult
at best to establish an acceptable list of
all explicitly religious activities.
Inevitably, the regulatory definition
would fail to include some explicitly
religious activities or include certain
activities that are not explicitly
religious. Rather than attempt to
establish an exhaustive regulatory
definition, the proposed definition of
‘‘explicitly religious activities’’ both
provides examples of the general types
of activities that are prohibited by the
regulations, and establishes that
providing services does not become
explicitly religious merely because
providers are religiously motivated to
undertake them. This approach is
consistent with judicial decisions that
likewise have not comprehensively
defined explicitly religious activities.
DHS also anticipates providing
additional guidance to assist recipients
in identifying explicitly religious
activities.
The commenter also urged DHS to
revise the definition of inherently
religious activities to remove the term
‘‘sectarian,’’ noting that the term is often
used pejoratively and does not add any
significant clarification. DHS agrees that
the term ‘‘sectarian’’ may be perceived
pejoratively, which is not the intent of
the rule, and has revised proposed
§ 19.2 accordingly. While, with these
revisions, DHS believes the definition of
explicitly religious activities is
sufficiently clear, comments on the
revised definition are welcome.
C. Separation and Monitoring of
Explicitly Religious Activities
Some commenters asserted that
religious organizations are incapable of
distributing aid without regard to
religion or other prohibited factors, or
incapable of separating their inherently
(explicitly) religious activities from
Federally supported, secular activities.
One commenter suggested DHS amend
the proposed rule to prohibit all
organizations participating in DHS
programs from engaging in inherently
(explicitly) religious activities,
regardless of whether the activities are
separated from the activities supported
with direct Federal financial assistance
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and voluntary for DHS program
beneficiaries. The commenter asserted
that the proposed rule advances religion
by giving faith-based organizations
access to disaster victims who may be
persuaded to religion when they
otherwise may not have been inclined.
Similarly, one commenter suggested
that religious organizations should only
be permitted to participate in the
immediate aftermath of a disaster, in
order to minimize the role of religious
organizations and avoid ‘‘entanglement
with religion.’’ DHS believes such a
change would be unnecessarily
restrictive and not consistent with either
the law or good government.
Other commenters suggested that the
proposed rule did not specify a
sufficient means of monitoring the
separation of organizations’ inherently
(explicitly) religious activities from
activities supported with direct Federal
financial assistance. One of these
commenters recommended sanctions for
violating this provision. Others
suggested that an effort to monitor for
such separation would require improper
‘‘excessive entanglement’’ between
government and religion in violation of
the Constitution. One commenter
recommended DHS revise the proposed
rule to include ‘‘specific language
forbidding officials from applying more
stringent reporting, certification, or
other requirements to faith-based
organizations than their secular
counterparts.’’
DHS proposes substantial revisions to
proposed § 19.4, which would address
concerns over separation requirements
for faith-based or religious organizations
that receive direct Federal financial
assistance for social service programs.
Under § 19.4(b), any explicitly religious
activities must be separate, distinct, and
voluntary for beneficiaries or potential
beneficiaries of DHS-supported social
service programs. Faith-based or
religious organizations need to make
this distinction completely clear to
beneficiaries or prospective
beneficiaries. In addition to this
notification requirement, faith-based or
religious organizations must also
uphold further beneficiary protections,
as discussed above. DHS also
anticipates providing additional
guidance to assist recipients in abiding
by, among other things, the separation
requirement.
With regard to monitoring and
compliance concerns,4 any organization
4 DHS has considered, in connection with the
monitoring question, both the 2006 GAO report
discussed above and a 2005 Urban Institute report
noted by commentators. Fredrica D. Kramer et al.,
Urban Institute, Federal Policy on the Ground:
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could violate DHS rules on
inappropriate use of direct DHS
financial assistance or fail to comply
with DHS requirements, not just
religious or faith-based organizations.
All organizations therefore must be
monitored for compliance with program
requirements, and no organization may
use direct DHS financial assistance for
any ineligible activity. Moreover, the
First Amendment requires the Federal
government to monitor the activities
and programs it funds to ensure that
they comply with church-state
requirements, including prohibition
against the use of direct Federal
financial assistance in a manner that
results in governmental indoctrination
on religious matters. See Bowen v.
Kendrick, 487 U.S. 589, 615 (1988); see
also Comm. for Pub. Educ. & Religious
Liberty v. Nyquist, 413 U.S. 756, 780
(1973).
Executive Order 13559 amended
Executive Order 13279 to describe the
Federal government’s obligation to
monitor and enforce constitutional,
statutory, and regulatory requirements
relating to the use of Federal financial
assistance, including the constitutional
obligation to monitor and enforce
church-state standards in ways that
avoid excessive entanglement between
religion and government. To address
this issue and the comments received on
it, DHS has added proposed § 19.4(c) to
clarify that all DHS programs must
apply the same standards to faith-based
and secular organizations, and that all
organizations that participate in DHS
programs, including religious ones,
must carry out eligible activities in
accordance with all program
requirements and other applicable
requirements governing the conduct of
DHS-supported activities.
Any organization receiving direct
DHS financial assistance that uses the
DHS portion of their funding for
prohibited purposes will be subject to
the imposition of sanctions or penalties
to the extent authorized by the
program’s statutory authority.
Recipients of Federal financial
assistance must therefore demonstrate,
through proper accounting principles,
that direct DHS financial assistance is
only being used for the Federally
supported program. Applicable policies,
guidelines, and regulations prescribe the
cost accounting procedures that are to
be followed in using direct DHS
financial assistance. For example, a
faith-based or religious organization
Faith-Based Organizations Delivering Local
Services (July 2005) (available at https://
www.urban.org/UploadedPDF/311197_DP0501.pdf).
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may fulfill this requirement by keeping
separate track of all staff hours charged
to the Federally supported program or
showing cost allocations for all items
and activities that involve both
Federally supported and non-Federally
supported funded programs, such as
staff, time, equipment, and other
expenses, such as travel to event sites.
At the same time, the Federal
government must respect the
constitutional command against
excessive entanglement between
government and religion. Lemon v.
Kurtzman, 403 U.S. 602, 613 (1971).
Three commenters suggested that the
Federal government’s efforts to monitor
or enforce compliance with the
proposed rule would create excessive
government entanglement with religion.
One commenter suggested that the
proposed rule satisfied Lemon since the
protection provisions in proposed § 19.6
(now § 19.8) and § 19.7 (now § 19.9)
‘‘prevent[] the government from
interfering with the day to day
operations of the religious
organization.’’
The Supreme Court has said that
excessive entanglement includes
‘‘comprehensive, discriminating, and
continuing state surveillance.’’ Id. at
619. So, for example, the Federal
government need not and should not
engage in ‘‘pervasive monitoring’’ of
religious bodies. Id. at 627. DHS
believes that the monitoring of Federal
financial assistance provided for in the
proposed rule falls far short of the
‘‘pervasive monitoring’’ of religious
bodies that would be prohibited under
the Constitution. Nonetheless, DHS is
interested in further comment regarding
oversight and entanglement concerns,
and anticipates providing further
guidance regarding appropriate
compliance monitoring.
D. Beneficiary Protections
Several commenters suggested that
the proposed rule did not sufficiently
require faith-based organizations to
explain to beneficiaries that all
inherently (explicitly) religious
activities are voluntary and not required
for participation in the Federally
supported program. Some commenters
expressed a concern that beneficiaries
would be unwilling to seek services
from a religious organization because of
the perception that they would be
forced into participating in inherently
(explicitly) religious activities, or that
an individual receiving an invitation to
attend an inherently religious activity
would feel obligated to attend.
Another commenter suggested that
the proposed rule be revised to include
a right for beneficiaries to receive
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services from an alternate or nonreligious provider, and that beneficiaries
be informed of this right by the faithbased provider. The commenter
suggested that without an equivalent
secular alternative, beneficiaries might
be forced to participate in programs
provided by faith-based organizations
where they may be required to
participate in religious activity in order
to receive essential Federally supported
benefits.
In accordance with Executive Order
13559, DHS added §§ 19.6 and 19.7 to
this proposal, which address these
concerns. As discussed above, new
proposed § 19.6 includes a written
notice requirement. New proposed
§ 19.7 describes the requirements that a
faith-based organization must follow
when referring a beneficiary or
prospective beneficiary to an alternative
provider. DHS is interested in public
comment on whether new and revised
§§ 19.5, 19.6, and 19.7 provide sufficient
protection for the interests of program
beneficiaries with respect to their
individual decisions regarding religion.
E. The ‘‘Separate in Time or Location’’
Requirement
Three commenters suggested that the
proposed rule’s requirement that
inherently (explicitly) religious
activities be separate in time or location
from the Federally supported activities
is unclear or does not provide
constitutionally mandated separation,
and should be changed to require that
inherently (explicitly) religious
activities be separate by both time and
location.
Under § 19.4 of this proposal, where
a religious organization receives direct
government assistance, any religious
activities that the organization offers
must be offered separately—in time or
place—from the activities supported by
direct Federal financial assistance. This
separation by time or place must be
done in such a way that it is clear that
the two programs are separate and
distinct. For example, 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. DHS believes that
requiring separation by both time and
place is not legally necessary and could
impose an unnecessary burden on small
faith-based organizations. DHS
welcomes additional input on the
matter. DHS also anticipates providing
additional guidance to assist recipients
in abiding by, among other things, the
separation requirement.
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F. Faith-based Organizations’ Display of
Religious Art or Symbols
Several commenters objected to the
proposed rule’s clarification that faithbased organizations may use space in
their facilities to provide DHSsupported services ‘‘without removing
or concealing religious articles, texts,
art, or symbols.’’
A number of Federal statutes affirm
the principle embodied in this rule. See,
e.g., 42 U.S.C. 290kk–1(d)(2)(B).
Moreover, no other DHS regulations
prescribe the types of artwork, statues,
or icons that must be removed by
program participants from within the
structures or rooms in which DHSsupported services are provided. A
prohibition on the use of religious icons
could make it more difficult for many
faith-based organizations to participate
in DHS programs than other
organizations. It might require them to
procure additional space, for example.
Such a requirement would thus be
typical of the types of barriers that the
proposed rule seeks to eliminate.
Furthermore, this prohibition would
also threaten excessive government
entanglement. Accordingly, the
proposed rule would continue to permit
faith-based organizations to use space in
their facilities to provide DHSsupported services, without removing
religious art, icons, scriptures, or other
religious symbols. At the same time, the
proposed rule also contains added
protections for beneficiaries, including
the requirement that written notice be
provided to beneficiaries informing
them of their ability to request an
alternative provider if the religious
character of their existing provider is
objectionable to them. These provisions
attempt to strike a sensible balance
between protecting beneficiaries and
faith-based institutions.
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G. Nondiscrimination in Providing
Assistance
One commenter suggested that the
proposed rule’s prohibition on
discrimination against beneficiaries on
the basis of ‘‘religion, belief or religious
practice’’ should specifically include
‘‘refusing to engage in any religion,
belief, or religious practice.’’ Federal
award recipients may not establish
selection criteria that have the effect of
discriminating against beneficiaries
based on religion or non-religion.
Accordingly, Federally supported
programs should not limit outreach,
recruitment efforts, or advertising of the
Federal program services exclusively to
religious or non-religious target
populations. The new language on
nondiscrimination requirements in
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§ 19.5, and on beneficiary protections in
§§ 19.6 and 19.7, is meant to prevent
discrimination against beneficiaries who
do not engage in any religion, belief, or
religious practice.
in similar roles, as provision of
explicitly religious activities is part of
their duties and necessary to
accommodate detainees’ exercise of
religion.
H. The Exemption of Chaplains From
the Restriction on Direct Financial
Assistance for Inherently (Explicitly)
Religious Activities
The proposed rule provided an
exemption from the restrictions on
inherently (explicitly) religious
activities for chaplains serving inmates
in detention facilities and organizations
assisting those chaplains. One
commenter noted that chaplains also
often provide non-religious activities
such as secular counseling. The
commenter proposed that DHS revise
the rule to limit the exemption for
inherently (explicitly) religious activity
conducted by chaplains and the
organizations providing assistance to
chaplains to ‘‘inherently religious
activity conducted by chaplains and the
organizations providing assistance to
chaplains in such religious activity,’’
and urged DHS to set up a monitoring
system to ensure chaplains and
organizations assisting chaplains do not
engage in inherently (explicitly)
religious activities during their secular
duties.
As noted above, the legal restrictions
that apply to religious programs within
detention facilities will sometimes be
different from legal restrictions that are
applied to other DHS programs. This
difference is because detention facilities
are heavily regulated, and this extensive
government control over the facility
environment means that officials must
sometimes take affirmative steps, in the
form of chaplaincies and similar
programs, to provide an opportunity for
detainees to exercise their religion.
Sometimes the activities of chaplains
and those assisting them will be
explicitly religious. For example, a
chaplain might provide religious
counseling, conduct worship services,
or administer sacraments. Religious
activities must be purely voluntary for
all detainees. The proposed rule would
not make any change in the professional
or legal responsibilities of chaplains or
those persons or organizations assisting
them in detention facilities. Neither
would the proposed rule diminish the
fact that chaplains’ duties often include
the provision of secular counseling.
Rather, the chaplaincy exemption is
intended to clarify that the proposed
rule’s otherwise-applicable restrictions
on the use of direct DHS financial
assistance for explicitly religious
activities do not apply to chaplains in
detention facilities or those functioning
I. Definition of Financial Assistance
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One commenter expressed the view
that the proposed rule did not
sufficiently distinguish between direct
and indirect financial assistance. The
commenter suggested that passages of
the rule referring to ‘‘direct financial
assistance’’ may suggest that the
freedoms secured by the rule do not
apply where DHS ‘‘direct financial
assistance’’ is administered by a State or
local agency (as opposed to ‘‘direct
financial assistance’’ administered by a
component of DHS). The commenter
also urged DHS to revise the proposed
rule to make clear that the restrictions
on inherently (explicitly) religious
activities do not apply to DHSsupported programs where individual
beneficiaries are provided a choice
among a range of qualified service
providers, and DHS financial assistance
reach the private organization by
independent choice.
As discussed above, in light of
Executive Order 13559, DHS has
clarified the distinction between direct
and indirect assistance in proposed
§ 19.2 and revised the proposed rule to
recognize that, where DHS financial
assistance reaches an organization
indirectly, through the genuine and
independent choice of the beneficiary
(e.g., voucher, certificate, or other
‘‘indirect’’ financial assistance
mechanism), the restrictions on
explicitly religious activities outlined in
the proposed rule are not applicable.
DHS proposes to add a definition of
‘‘intermediary’’ to proposed § 19.2 to
clarify that the restrictions on explicitly
religious activities would apply to
intermediaries that are 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
direct Federal financial assistance.
Thus, direct DHS financial assistance
would include DHS funds administered
by States and local governments as well
as funds administered by DHS’s
component organizations and regional
offices. For example, direct DHS
financial assistance includes subawards
of DHS financial assistance made by a
State to nonprofit organizations to
provide social services to beneficiaries;
in this example, DHS, the State, and the
nonprofit organizations would be
required to administer DHS financial
assistance and the services provided by
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that assistance in accordance with this
proposed rule.
J. Recognition of Faith-Based
Organizations’ Title VII Exemption
A number of commenters expressed
views on the proposed rule’s provision
that faith-based organizations do not
forfeit their exemption under Title VII of
the Civil Rights Act of 1964, Public Law
88–352, as amended, codified at 42
U.S.C. 2000e–1, to consider religion in
hiring decisions, if they receive DHS
financial assistance, absent statutory
authority to the contrary. Some
commenters supported the rule as
drafted, noting that a religious
organization will retain its
independence in this regard, while
others disagreed with the provision
retaining the Title VII exemption. Some
asserted that it is unconstitutional for
the government to provide financial
assistance for the provision of social
services to an organization that
considers religion in its employment
decisions.
With respect to the Title VII
exemption, in 1972, Congress broadened
section 702(a) of the Civil Rights Act to
exempt religious organizations from the
religious nondiscrimination provisions
of Title VII, regardless of the nature of
the job at issue. The broader, amended
provision was upheld. See Corp. of
Presiding Bishop v. Amos, 483 U.S. 327
(1987). This Title VII exemption is
applicable when religious organizations
are delivering Federally supported
social services. As the proposed rule
also notes, however, 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 regulation.
Accordingly, grantees should consult
with the appropriate DHS program
office to determine the scope of any
applicable requirements.
One commenter stated that this
provision likely violates the ‘‘no
religious tests’’ clause in Article VI,
clause 3 of the Constitution, under
which ‘‘no religious Test shall ever be
required as a Qualification to any Office
or public Trust under the United
States.’’ This provision has no
application in the current regulation.
The receipt of government financial
assistance does not convert the
employment decisions of private
institutions into ‘‘state action’’ that is
subject to the constitutional restrictions
such as the ‘‘no religious tests’’ clause.
One commenter suggested religious
organizations participating in DHS
programs should be required to hire or
deploy staff on a religious basis, so that
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the religious beliefs of the staff reflect
the religious demographics of the
service area. DHS does not believe it
would be appropriate to direct hiring
decisions of recipients in this manner.
Finally, two commenters sought a
statement that where a specific statute
or regulation contains general
prohibitions against a recipient
considering religion when hiring staff,
they may seek, and if they meet the
qualifications, be granted relief under
the Religious Freedom Restoration Act
(RFRA), Public Law 103–141, sec. 3, 107
Stat. 1488 (Nov. 16, 1993), found at 42
U.S.C. 2000bb–1 et seq. RFRA applies to
all Federal law, regardless of whether it
is specifically mentioned in these
regulations. See 42 U.S.C. 2000bb–3.
Thus, organizations that believe RFRA
affords them an exemption from any
legal obligation should raise that claim
with appropriate DHS program offices.
K. Interaction With State and Local
Laws
Several commenters expressed views
on the proposed rule’s interaction with
State and local laws. One commenter
supported proposed § 19.8 (now § 19.10)
as supporting the principle ‘‘that federal
funds should be governed by federal
policies and that DHS funded programs
should be governed by all of its
provisions, even when state or local
funds are commingled with federal
funds.’’ One commenter also expressed
support for this section but urged DHS
to revise the rule to clarify that its
provisions override any contrary state or
local laws. Another commenter
suggested that the proposed rule be
revised to explicitly state that nothing in
the rule is intended to modify or affect
any state law or regulation that relates
to discrimination in employment.
The requirements that govern direct
Federal financial assistance under the
DHS programs at issue in these
regulations do not directly address
preemption of State or local laws.
Federal funds, or direct Federal
financial assistance, however, carry
Federal requirements. Federal
requirements continue to be applicable
even when Federal financial assistance
is first awarded to States and localities
that are then responsible for
administering the Federal financial
assistance. No organization is required
to apply for direct Federal financial
assistance from or to participate in DHS
programs, but organizations that apply
and are selected must comply with the
requirements applicable to the program
funds. As noted in proposed § 19.10, if
a State or local government voluntarily
contributes its own funds to supplement
Federally supported activities, the State
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or local government has the option to
segregate the Federal assistance or
commingle it. If the Federal assistance
is commingled, this regulation would
apply to all the commingled finances.
L. Tax-Exempt 501(c)(3) Status or Other
Separate Corporate Structure
Two commenters expressed concerns
regarding the type of corporate structure
that should be required of organizations
applying to participate in DHS
programs. One commenter urged DHS to
revise the rule to require religious
organizations to establish a ‘‘separate
corporate structure’’ for its governmentsupported social welfare activities in
order to prevent diversion of direct
Federal financial assistance to ‘‘religious
activities.’’
An organization may create a separate
account for its direct DHS financial
assistance. All program participants
receiving financial assistance from
various sources and carrying out a wide
range of activities must ensure through
proper accounting principles that each
set of funds is applied only to the
activities for which the funding was
provided. Applicable policies,
guidelines, and regulations prescribe the
cost accounting procedures that are to
be followed by all recipients of DHS
financial assistance, including but not
limited to the methods described above
and the regulation on commingling of
Federal assistance in § 19.10. This
system of monitoring is expected to
adequately protect against the diversion
of direct Federal financial assistance for
religious activities.
One commenter suggested DHS clarify
whether nonprofit organizations,
religious or secular, are required to
obtain tax-exempt status under section
501(c)(3) of the Internal Revenue Code
of 1986, 26 U.S.C. 501(c)(3), to receive
DHS financial assistance, particularly
where the pertinent statute requires
only ‘‘nonprofit’’ status. This
commenter noted that requiring
nonprofit organizations to obtain taxexempt status can pose a barrier to
participation in Federally supported
programs. Requirements for tax exempt
status under the Internal Revenue Code
are unique to each DHS financial
assistance program and are established
in each program’s regulations and
program guidance. Where not otherwise
required by statute or regulation, this
rule does not impose a requirement that
an eligible nonprofit organization have
tax-exempt status.
M. Participation by ‘‘Anti-Semitic,
Racist, or Bigoted Organizations’’
One commenter wrote that the
proposed rule fails ‘‘to take any steps to
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prevent government money from
flowing to anti-Semitic, racist, or
bigoted organizations.’’ Another
commenter asked how DHS will stop a
faith-based organization from
discriminating against a beneficiary
based on his or her sexual orientation.
Other Federal law prohibits
beneficiaries from being excluded from
participation in DHS-supported services
or subject to discrimination based on
race, color, national origin, sex, age, or
disability, and this proposed rule does
not in any way alter those existing
prohibitions. See, e.g., Rehabilitation
Act of 1973, 29 U.S.C. 794 (prohibiting
discrimination on the basis of disability
in federal programs and by recipients of
financial assistance); title VI of the Civil
Rights Act of 1964, 42 U.S.C. 2000d et
seq. (prohibiting discrimination on the
basis of race, color, or national origin by
recipients of financial assistance).
While Federal law does not expressly
prohibit recipients of direct Federal
financial assistance from discriminating
against beneficiaries because of their
sexual orientation or gender identity,
Federal law does prohibit Federal
contractors and subcontractors from
discriminating against employees and
applicants for employment on these
bases, see Executive Order 13627,
Further Amendments to Executive
Order 11478, Equal Employment
Opportunity in the Federal Government,
and Executive Order 11246, Equal
Employment Opportunity (July 21,
2014) (prohibiting employment
discrimination on the bases of sexual
orientation and gender identity in the
Federal government and its contracting
workforce); Directive 2014–02, Gender
Identity and Sex Discrimination (Aug.
19, 2014) (clarifying that all Federal
contractors and subcontractors are
protected from gender identity
discrimination as a form of sex
discrimination under Executive Order
11246, as amended); and
Implementation of Executive Order
13672 Prohibiting Discrimination Based
on Sexual Orientation and Gender
Identity by Contractors and
Subcontractors, 41 CFR parts 60–1, 60–
2, 60–4, and 60–50, (Dec. 9, 2014)
(implementing these principles for
contracts entered into on or after April
8, 2015).
Regardless of the organization’s own
beliefs, it would be required under the
proposed rule not to discriminate
against or among beneficiaries on the
basis of religion, belief, religious
practice, or lack thereof, and any
beneficiary objecting to the religious
character of the organization could seek
a referral to a different service provider
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pursuant to the beneficiary protections
provided by the rule.
N. Participation of Faith-Based
Organizations in Disaster Programs
Several commenters expressed their
views on the proposed rule’s
clarification that faith-based nonprofit
organizations that are otherwise eligible
to receive direct Federal financial
assistance for the repair, restoration, or
replacement of damaged facilities,
should not have the organization’s
religious status considered in
determining whether to authorize a
grant. Two commenters expressed
support for the rule; one of these
commenters stated that the initial
proposal would remedy a previous
disparity of treatment. Two commenters
objected to the proposal as
unconstitutional; one commenter
specified a concern that Stafford Act
funds might be used to replace religious
items such as sacred texts.
Although FEMA’s program that
provides Federal financial assistance for
the repair, restoration, or replacement of
damaged facilities has not been
identified by DHS as being covered by
this rule, section 406 of the Robert T.
Stafford Disaster Relief and Emergency
Assistance Act provides disaster
assistance on the basis of neutral criteria
to an unusually broad class of
beneficiaries defined without reference
to religion. Eligible private nonprofit
facilities under the Stafford Act’s Public
Assistance program are educational,
utility, emergency, medical, or custodial
care facilities (including a facility for
the aged or disabled) or other facilities
that provide essential governmental
type services to the general public, and
such facilities on Indian reservations. 44
CFR 206.221(e). An eligible private
nonprofit organization is a
nongovernmental agency or entity that
has an IRS tax exemption ruling letter
under sections 501(c), (d), or (e) of the
Internal Revenue Code or satisfactory
evidence from the State that it is a
nonprofit organized or doing business
under State law. 44 CFR 206.221(f).
Religious organizations are able to
receive these generally available
government benefits and services, just
as other organizations that meet the
eligibility criteria.
O. Effect of Receipt of Disaster Grant
With Regard to Other Federal Laws
One commenter urged DHS to include
a specific statement that ‘‘a faith-based
school receiving a federal grant for the
restoration or repair of facilities
damaged in a disaster is not deemed to
be a ‘recipient of federal funds’ for the
purposes of other statutes.’’ DHS does
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not have the legal authority to exempt
its programs from such statutory
requirements, if any. Statutes that
restrict Federal grant recipients’ actions
or limit their eligibility to receive
additional Federal financial assistance,
as well as any exemptions from those
limitations, are established by Congress.
The statutes authorizing the financial
assistance do not contain such an
exemption. DHS does not have the legal
authority to unilaterally create the
exemption requested by the commenter.
P. Purpose and Applicability of the
Regulation
One commenter noted that proposed
§ 19.1 uses the term ‘‘equal
participation’’ to characterize the intent
of the proposed rule, suggested that the
term ‘‘wrongly implies that faith-based
organizations should take part in DHS
programs to the same extent as secular
organizations,’’ and recommended DHS
consider revising that section to better
express the intent of the rule. In
response to this comment, DHS has
revised proposed § 19.1 to reference the
regulation’s purpose as ensuring the
‘‘equal ability for faith-based
organizations to seek and receive
financial assistance through DHS social
service programs’’. DHS did not intend
to suggest that it would establish
participation rates for religious
organizations in DHS programs. As
described in the preamble of this
proposed rule, the purpose of the rule
is to ensure all qualified organizations
may compete for funds offered under
DHS social service programs, regardless
of their religious character.
One commenter suggested DHS revise
the title of the proposed rule because
several aspects of the proposed rule
apply to secular as well as faith-based
organizations. Although several aspects
of the rule apply to all organizations
seeking to participate in DHS social
service programs, secular or religious,
the title conveys the principal intent of
the rule and poses little risk of
confusion.
VI. Statutory and Regulatory Review
A. Executive Order 12866 and 13563
Executive Orders 13563 and 12866
direct agencies to assess the costs and
benefits of available regulatory
alternatives and, if regulation is
necessary, to select regulatory
approaches that maximize net benefits
(including potential economic,
environmental, public health and safety
effects, distributive impacts, and
equity). Executive Order 13563
emphasizes the importance of
quantifying both costs and benefits, of
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reducing costs, of harmonizing rules,
and of promoting flexibility. This rule
has not been designated a ‘‘significant
regulatory action,’’ under section 3(f) of
Executive Order 12866. Accordingly,
the rule has not been reviewed by the
Office of Management and Budget.
The Department believes that the only
provisions of this proposed rule likely
to impose costs on the regulated
community are the requirements that:
(1) Faith-based organizations that
receive direct financial assistance from
DHS to participate in or administer any
social service program must give
beneficiaries a written notice informing
them of particular protections afforded
to them including their ability to request
an alternative provider if the religious
character of their existing provider is
objectionable to them; and
(2) where a beneficiary objects to the
religious character of an organization
providing social service programs
supported by DHS financial assistance,
the social service provider make
reasonable efforts to identify and refer
the beneficiary to an alternative
provider to which the beneficiary does
not object.
The Department considered and
adopted alternatives that minimized
compliance costs on social service
providers given the requirements of
Executive Orders 13279 and 13559.
Specifically, the proposed rule includes
model language for the notice to
beneficiaries and for the beneficiary
referral request form, in Appendix A.
Individual advance notice forms are not
required where it is impracticable to
provide them. Where individual,
advance written notice is impracticable
because the recipient and beneficiary
have only a brief, potentially one-time
interaction, such as at a soup kitchen,
DHS believes a conspicuous posted
notice would suffice.
In addition, to minimize compliance
costs and allow maximum flexibility in
implementation, the Department has
elected not to establish a specific format
for the referrals required when
beneficiaries request an alternative
provider. Furthermore, if the social
service provider is unable to identify an
appropriate alternative provider after
undertaking reasonable efforts, DHS
would then attempt to identify an
alternative provider.
The Department estimates this rule
would impose a maximum cost of
approximately $500,000 annually. A
more detailed estimate of the cost of
providing these notices to beneficiaries
and, if requested, the beneficiary referral
request form is discussed below in the
Regulatory Flexibility Act section of this
proposed rule. An estimate of the cost
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of the referral provision is also
discussed in Regulatory Flexibility Act
section. In addition, an estimate of the
annual total burden hours of the referral
provision is discussed in the Paperwork
Reduction Act section of this proposed
rule.
B. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA)
at 5 U.S.C. 603(a) requires agencies to
consider the impacts of their rules on
small entities. The RFA defines small
entities as small business concerns,
small not-for-profit enterprises, or small
governmental jurisdictions.
Given the lack of specific small entity
data, the Department has prepared an
initial regulatory flexibility analysis
even though the Department does not
believe this rule will impose a
significant economic impact on a
substantial number of small entities. As
described above, the Department has
made every effort to ensure that the
disclosure and referral requirements of
the proposed rule impose minimum
burden and allow maximum flexibility
in implementation by providing a model
notice to beneficiaries and model
beneficiary referral request form in
Appendix A, and by not requiring the
social service providers to follow a
specific format for the referrals. The
Department estimates it will take no
more than two hours for providers to
familiarize themselves with the notice
requirements and print and duplicate an
adequate number of disclosure notices
and referral request forms for potential
beneficiaries. Using May 2013 Bureau of
Labor Statistics information, the hourly
mean wage for a Training and
Development Specialist is $29.22.5 In
addition to wage costs, employers incur
costs for employee benefits such as paid
vacation and insurance. The ‘‘fully
loaded’’ hourly cost to employers
(which includes both wage and
employee benefit costs) of a Training
and Development Specialist equates to
$42.75.6 This results in an estimate of
the labor cost per service provider of
preparing the notice and referral form of
approximately $85.50 (2 hours ×
$42.75). In addition, the Department
5 Per BLS SOC 13–1151, the mean hourly wage of
a Training and Development Specialist is $29.22.
https://www.bls.gov/oes/2013/may/oes131151.htm.
6 The fully loaded Training and Development
Specialist wage is calculated using a load factor of
1.463 (1 + (10.49 ÷ 22.65)) based on the Bureau of
Labor Statistics Employer Costs for Employee
Compensation for civilian workers (Table 1) from
December 2014 for all workers, retrieved from
https://www.bls.gov/news.release/ecec.t01.htm. This
equates to a fully loaded Training and Development
Specialist wage of $42.75 ($29.22 × 1.463) when
applied to the hourly mean wage for a Training and
Development Specialist ($29.22).
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estimates an upper limit of $100 for the
annual cost of materials (paper, ink,
toner) to print multiple copies of the
notices and referral request forms for
covered grantees and subgrantees,
except for certain grantees and
subgrantees under the Emergency Food
and Shelter Program.7 Because these
costs will be borne by every small
service provider with a religious
affiliation, the Department believes that
a substantial number of small entities
will be affected by this provision.
However, the Department does not
believe that a compliance cost of less
than $200 per provider per year is
significant percentage of a provider’s
total revenue. In addition, we note that
after the first year, the labor cost
associated with compliance will likely
decrease significantly because small
service providers will be familiar with
the requirements.8 Assuming, consistent
with the Paperwork Reduction Act
analysis below, that this rule would
cover approximately 2,624 faith-based
grantees and subgrantees, the annual
costs associated with the notice
requirement are unlikely to exceed
$487,000 [2,624 entities × ($100 printing
+ $85.50 labor)].
The rule will require service
providers, at the beneficiary’s request, to
make reasonable efforts to identify and
refer the beneficiary to an alternative
provider to which the beneficiary has no
objection. The Department estimates
that each referral request will require no
more than four hours of a Training and
Development Specialist’s time to
process and complete a referral at a
‘‘fully loaded’’ labor cost of $42.75 per
hour. The Department’s estimate for the
total annual cost burden can be
summarized as follows.
• Total Estimated Number of Notices:
N, where N equals the total number of
7 In this analysis and the Paperwork Reduction
Act analysis below, the Department assumes that
certain grantees and subgrantees under the
Emergency Food and Shelter Program will not print
and disseminate a paper notice and referral form to
each individual beneficiary. Many of the activities
supported by that program, such as soup kitchens
and one-time assistance with rent, mortgage, or
utility bills, are ones for which individual
beneficiary forms would not be practicable, and in
those cases, a commonly posted notice, produced
at minimal cost, should suffice. The Department
believes that requests for referrals will be negligible
for activities involving these sorts of interactions,
such that the overall estimated cost and labor
burden related to the referral provision is
conservative enough to encompass the limited
number of referral requests that may result from
these brief interactions.
8 We also note that the costs associated with this
rule’s notice provisions may be an eligible
management and administrative cost under DHS
grant programs. Such costs would count towards
the administrative cap cost for a program. The cost
of the referral to an alternate provider may also be
grant-eligible.
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beneficiaries under DHS social service
programs for whom individual written
notices can practicably be provided.
Faith-based organizations covered by
this rule would be required to provide
a notice to each beneficiary of a DHSsupported social service program,
except where a limited exception for a
commonly posted notice applies. Based
on subject-matter expert best estimates,
DHS estimates that the total annual
number of notices required under this
rule equals approximately 60,000.9
• Total Estimated Annual Number of
Requests for Referrals: N × Z, where Z
is the percentage of beneficiaries or
potential beneficiaries who request
referrals. DHS assumes that Z is equal
to 0.0025.10 Under these assumptions,
DHS estimates approximately 150
requests for referrals annually.
• Total Time required to complete a
referral: T, where T is less than or equal
to 4 hours.
• Labor cost of a Training and
Development Specialist: L, where L
equals $42.75.
• Total estimated Annual Referral
Cost Burden: C, where C is equal to the
following:
C = (L × T) × (N × Z)
C = ($42.75 × 4) × (60,000 × 0.0025)
C = $25,650
The Department therefore estimates
the total estimated annual cost burden
to equal $512,650 or less ($487,000
notice requirement cost + $25,650
referral cost = $512,650). The cost on a
per entity basis averages approximately
$200 ($512,650 total cost ÷ 2,624
entities = $195.37). DHS expects that
this estimates likely overestimates the
actual cost burden associated with this
rulemaking. The Department invites
interested parties to provide comments
on this assumption, or to provide data
on which we can formulate better
estimates of the compliance costs
associated with the disclosure and
referral requirements of this proposed
rule.
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C. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates
Reform Act of 1995, 2 U.S.C. 1531–
1538, establishes requirements for
Federal agencies to assess the effects of
9 DHS notes that in light of the nature of the
grantor-grantee-subgrantee framework attendant to
some of its programs, it is very difficult to estimate
with accuracy the total number of beneficiaries
served by faith-based organizations administering
DHS-supported social service programs.
10 In DHS’s experience, beneficiaries do not
frequently object to receiving services from faithbased organizations. DHS assumes a referral request
rate of 0.25% for purposes of this analysis,
consistent with the practice of other agencies in this
area. DHS expects that this rate overestimates the
likely referral request rate.
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their regulatory actions on State, local,
and Tribal governments, and on the
private sector. This proposed rule does
not impose any Federal mandates on
any State, local, or Tribal governments,
or the private sector, within the
meaning of the Unfunded Mandates
Reform Act of 1995.
D. Federalism
Pursuant to Executive Order 13132,
DHS has determined that this action
will not have a substantial direct effect
on the States, or the relationship
between the Federal government and
the States, or on the distribution of
power and responsibilities among the
various levels of government, and,
therefore, does not have federalism
implications.
E. Paperwork Reduction Act
Under the Paperwork Reduction Act
(PRA) of 1995, Pub. L. 104–13, all
agencies are required to submit to the
OMB, for review and approval, any
reporting requirements inherent in a
rule. See 44 U.S.C. 3506. Specifically, a
Federal agency may not conduct or
sponsor a collection of information
unless OMB approves the collection of
information under the PRA, and the
collection of information must display a
currently valid OMB control number.
Notwithstanding any other provisions of
law, no person will be subject to penalty
for failing to comply with a collection
of information if the collection of
information does not display a currently
valid OMB control number. 44 U.S.C.
3512.
The proposed rule includes new
requirements. Section 19.6 would
require faith-based or religious
organizations that provide social
services to beneficiaries under a DHS
program supported by direct Federal
financial assistance to give beneficiaries
(or prospective beneficiaries) a notice
instructing them of their rights and
protections under this regulation and to
make reasonable efforts to identify and
refer beneficiaries requesting referrals to
alternative service providers. The
content of the notice and the actions the
faith-based or religious organizations
must take if a beneficiary objects to the
religious character of the organization
are described in the preamble and in the
proposed regulatory text. The burden of
providing the notice to beneficiaries,
and identifying and referring a
beneficiary to an alternative service
provider are estimated in this section.
Pursuant to program guidance and
grant agreements, faith-based
organizations that would be subject to
these requirements may have to retain
records to show that they have met the
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referral requirements in the proposed
regulations. Faith-based organizations
could meet such a retention requirement
by maintaining, in the case of paper
notices, the bottom portion of the notice
required under the proposed Appendix.
DHS does not include an estimate of the
burden of records retention.
The Department has retention
requirements included in information
collection instruments for Department
programs. Those collection instruments
cover burdens imposed under program
and administrative requirements under
current information collection
instruments that are approved by OMB
and each of those collections has an
OMB-assigned information collection
control number.
The retention burden that would be
added to those information collection
instruments under these proposed
regulations is so small as to not be
measurable in the context of all the
program and administrative
requirements in the existing program
collection instruments. For example, a
grantee or subgrantee that had to
provide notice under these proposed
regulations could meet the recordkeeping requirement by collecting the
tear-off portion of the notice for those
beneficiaries that request alternative
provider and keeping it in a designated
folder. Therefore, the Department has
determined that no burden would be
added that would require estimates of
time and cost burden as a result of
maintaining records of compliance with
these proposed regulations.
The Department must impose the
third-party notice requirements to
implement the requirements of
Executive Order 13559.
The Department will submit an
information collection request (ICR) to
the OMB to obtain PRA approval for the
information collection formatting
requirements contained in this NPRM.
Draft control number 1601–NEW will be
used for public comment. The burden
for the information collection provisions
of this NPRM can be summarized as
follows:
Agency: U.S. Department of
Homeland Security, Office for Civil
Rights and Civil Liberties.
Title of Collection: Written Notice of
Beneficiary Protections.
OMB ICR Reference Number Control
Number: 201505–1601–001.
Affected Public: State and local
governments, not-for-profit
organizations.
• Total Estimated Number of
Organizations: R, where R represents the
total number of entities that must give
notice. To estimate this number, the
Department relied upon information
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from two of its grant-making
components: FEMA and USCIS. FEMA
estimates that there are approximately
2,600 grantees and subgrantees that
would have to provide some form of
notice to beneficiaries.11 USCIS
estimates that there are approximately
24 grantees subject to the notice
requirement.12 Accordingly, DHS
estimates that R is equal to
approximately 2,600.
• Total Estimated Number of Notices:
N, where N equals the total number of
beneficiaries under DHS social service
programs to whom provision of an
individual written notice would be
practicable. Faith-based organizations
covered by this rule would be required
to provide, where practicable, a notice
to each beneficiary of a DHS-supported
social service program.13 Based on
subject-matter expert best estimates,
DHS estimates that the total annual
number of notices required under this
rule equals approximately 60,000.14
• Total Estimated Annual Burden to
Provide Each Notice: 60,000 minutes, or
1,000 hours (equivalent to 60,000 × T,
where T is less than or equal to one
minute).
• Total Estimated Annual Number of
Requests for Referrals: N × Z, where Z
is the percentage of beneficiaries or
potential beneficiaries who request
referrals. DHS assumes that Z is equal
to .0025.15 Under these assumptions,
11 This figure includes known grantees and
subgrantees of the Emergency Food and Shelter
Program, the Crisis Counseling Program and the
Disaster Case Management Program.
12 This figure includes known grantees and
subgrantees of the Citizenship and Integration Grant
Program.
13 As noted above, in this analysis, the
Department assumes that certain grantees and
subgrantees under the Emergency Food and Shelter
Program provide services of a brief and potentially
one-time nature such that individual notice would
not be practicable. Creation of a common posted
notice in those circumstances would be comparable
in burden to creating a single notice, and so
creation of such common notices is encompassed
within the estimates provided for compliance with
the beneficiary notice provision.
14 DHS notes that in light of the nature of the
grantor-grantee-subgrantee framework attendant to
some of its programs, it is very difficult to estimate
with accuracy the total number of beneficiaries
served by faith-based organizations administering
DHS-supported social service programs. In general,
to produce the estimate described above, for each
covered program, DHS calculated the percentage of
grantees and subgrantees that may qualify as a faithbased or religious organization under this rule. DHS
then multiplied that percentage figure by the
estimated total number of beneficiaries for each
program, producing an estimate of the total number
of individuals served by faith-based or religious
organizations under each program.
Where using this methodology was not feasible
due to data limitations, DHS relied on subject
matter experts in the relevant grant program to
make an appropriate best estimate.
15 In DHS’s experience, beneficiaries do not
frequently object to receiving services from faith-
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DHS estimates approximately 150
requests for referrals annually.
• Total time required to complete a
referral T, where T is less than or equal
to 4 hours.
• Total Estimated Annual Referral
Burden Hours: B, where B is equal to
the following:
B = (N × Z) × T.
B = (60,000 × .0025) × 4
B = 600
The Department therefore estimates
that the Total Estimated Annual Burden
Hours is 1,600 hours or less. DHS
expects that this significantly
overestimates the actual burden hours
associated with this rulemaking. DHS
requests comments on this assumption,
as well as the remainder of this PRA
analysis and this proposed rule.
The recipient provider will be
required to complete the referral form,
notify the awarding entity, and maintain
information only if a beneficiary
requests a referral to an alternate
provider.
List of Subjects in 6 CFR Part 19
Civil rights, Religious discrimination.
For the reasons set forth above, DHS
proposes to amend title 6 of the Code of
Federal Regulations to add a new part
19 as follows:
PART 19—NONDISCRIMINATION IN
MATTERS PERTAINING TO FAITH–
BASED ORGANIZATIONS
Sec.
19.1
19.2
19.3
Purpose.
Definitions.
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; 6 U.S.C. 111, 112;
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 Department of
Homeland Security (DHS) to ensure the
equal treatment of faith-based
based organizations. DHS assumes a referral request
rate of 0.25% for purposes of this analysis,
consistent with the practice of other agencies in this
area. DHS expects that this rate overestimates the
likely referral request rate.
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organizations in social service programs
administered or supported by DHS or its
component agencies. 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 guidance 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 19:
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.
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
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, subgrants, 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
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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,
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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:
(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 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.
(d) Nothing in this part shall be
construed to preclude DHS or any of its
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47297
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 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.
§ 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
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in explicitly religious activities. No
grant document, agreement, covenant,
memorandum of understanding, or
policy 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) Religious activities that can be
publicly funded under the
Establishment Clause, such as
chaplaincy services, likewise would not
be considered ‘‘explicitly religious
activities’’ that are subject to direct
Federal financial assistance restrictions.
§ 19.5
Nondiscrimination requirements.
An organization that receives direct
financial assistance from DHS for a
social service program shall not favor or
discriminate against a beneficiary or
prospective beneficiary of said program
or activity on the basis of religion,
belief, religious practice, or lack thereof.
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.
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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 and prospective
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;
(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
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the beneficiary to an alternative
provider to which the prospective
beneficiary has no objection; and
(5) Beneficiaries may report violations
of these protections to DHS through the
Office for Civil Rights and Civil
Liberties.
(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 or prospective
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
prospective 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, or
when the organization determines that it
is unable to identify an alternative
provider, the organization shall notify
DHS. If the organization is unable to
identify an alternative provider, DHS
shall determine whether there is any
other suitable alternative provider to
which the beneficiary may be referred.
An intermediate organization that
receives a request for assistance in
identifying an alternative provider 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
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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 regulation.
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
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and therefore subject to the
requirements of this part.
Appendix A to Part 19—Model Written
Notice to Beneficiaries
NOTICE OF BENEFICIARY RIGHTS
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Name of Organization:
Name of Program:
Contact Information for Program Staff
(name, phone number, and email address, if
appropriate):
lllllllllllllllllllll
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;
• 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
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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 to the Department of Homeland
Security, Office for Civil Rights and Civil
Liberties:
E-mail: CRCLCompliance@hq.dhs.gov
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.
lllllllllllllllllllll
BENEFICARY REFERRAL REQUEST
If you object to receiving services from us
based on the religious character of our
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47299
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.
Jeh Charles Johnson,
Secretary.
[FR Doc. 2015–18257 Filed 8–5–15; 8:45 am]
BILLING CODE 9110–23–P
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]]>Agencies
[Federal Register Volume 80, Number 151 (Thursday, August 6, 2015)]
[Proposed Rules]
[Pages 47283-47299]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-18257]
[[Page 47283]]
Vol. 80
Thursday,
No. 151
August 6, 2015
Part IX
Department of Homeland Security
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Office of the Secretary
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6 CFR Part 19
Nondiscrimination in Matters Pertaining to Faith-Based Organizations;
Proposed Rule
Federal Register / Vol. 80 , No. 151 / Thursday, August 6, 2015 /
Proposed Rules
[[Page 47284]]
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DEPARTMENT OF HOMELAND SECURITY
Office of the Secretary
6 CFR Part 19
[Docket No. DHS-2006-0065]
RIN 1601-AA40
Nondiscrimination in Matters Pertaining to Faith-Based
Organizations
AGENCY: Office of the Secretary, DHS.
ACTION: Supplemental notice of proposed rulemaking.
-----------------------------------------------------------------------
SUMMARY: This proposed rule would implement revised Executive Branch
policy that, consistent with constitutional church-state parameters,
faith-based organizations compete on an equal footing with other
organizations for direct Federal financial assistance, and to fully
participate in Federally supported social service programs, while
beneficiaries under those programs receive appropriate protections.
This rulemaking is intended to ensure that the Department of Homeland
Security's social service programs are implemented in a manner
consistent with the requirements of the First Amendment to the
Constitution.
DATES: Written comments must be received on or before October 5, 2015.
ADDRESSES: You may submit comments, identified by agency name and
docket number DHS-2006-0065, by one of the following methods:
Federal eRulemaking Portal: https://www.regulations.gov.
Follow the instructions for submitting comments.
Facsimile: Federal eRulemaking portal at 866-466-5370.
Include the docket number on the cover sheet.
Mail: Scott Shuchart/Mail Stop No. 0190, Office for Civil
Rights and Civil Liberties, 245 Murray Lane SW., Bldg. 410, Washington,
DC 20528-0190. To ensure proper handling, please reference DHS Docket
No. DHS-2006-0065 on your correspondence. This mailing address may also
be used for paper, disk, or CD-ROM submissions.
FOR FURTHER INFORMATION CONTACT: Scott Shuchart, Department of Homeland
Security Office for Civil Rights and Civil Liberties, 202-401-1474
(telephone), 202-357-1196 (facsimile), scott.shuchart@hq.dhs.gov
(email).
SUPPLEMENTARY INFORMATION:
I. Public Participation
Interested persons are invited to participate in this rulemaking by
submitting written data, views, or arguments on all aspects of the
proposed rule. The Department of Homeland Security (DHS) also invites
comments that relate to the potential economic, environmental, or
federalism effects of this proposed rule. Comments that will provide
the most assistance to DHS in developing these procedures will
reference a specific portion of the proposed rule, explain the reason
for any recommended change, and include data, information, or authority
that support such recommended change.
All comments received will be posted without change to https://www.regulations.gov, including any personal information provided. See
ADDRESSES above for information on how to submit comments.
Docket: For access to the docket to read background documents or
comments received, go to https://www.regulations.gov.
II. Executive Summary
A. Purpose of the Regulatory Action
On January 14, 2008, the Department of Homeland Security (DHS)
proposed regulations to ensure that faith-based organizations be
equally eligible to participate in certain programs, as directed by
Executive Order 13279. 73 FR 2187. While DHS's final rule was still
pending, additional Executive Orders bearing on the same subject matter
were signed by President Obama: Executive Order 13498, Amendments to
Executive Order 13199 and Establishment of the President's Advisory
Council for Faith-Based and Neighborhood Partnerships, 74 FR 6533 (Feb.
9, 2009), and Executive Order 13559, Fundamental Principles and
Policymaking Criteria for Partnerships with Faith-Based and Other
Neighborhood Organizations, 75 FR 71319 (Nov. 17, 2010). Executive
Order 13559 amended Executive Order 13279 in several important
respects.
DHS now again proposes to issue a rule implementing the principles
of Executive Order 13279, as amended by Executive Order 13559, to
ensure that faith-based and community organizations are able to
participate fully in social service programs funded by DHS, consistent
with the Constitution, and with appropriate protections for the
beneficiaries and potential beneficiaries of those programs. The
proposed rule is largely similar to the rule proposed in 2008, with
changes to address, inter alia, public comments and the changes
required by Executive Order 13559.
B. Summary of Major Provisions
The proposed rule would provide for full participation by faith-
based and community groups in social service programs funded by DHS,
with suitable protections for individual beneficiaries, consistent with
the U.S. Constitution:
Equal treatment, nondiscrimination, and independence.
Faith-based organizations would be eligible to seek and receive direct
financial assistance from DHS for social service programs; the proposal
provides that neither DHS, nor states or local governments acting as
intermediaries distributing DHS funds, may discriminate against an
organization on the basis of the organization's religious character or
affiliation. By the same token, the proposal provides that recipients
of direct financial assistance may not discriminate against
beneficiaries on the basis of religion or religious belief. Those
organizations may maintain their independence, including practice of
their religious beliefs, selection of board members, and use of space
with religious symbols, so long as explicitly religious activities are
not supported with direct Federal financial assistance.
Explicitly religious activities. The proposal provides
that organizations receiving direct financial assistance (see below) to
participate in or administer social service programs may not engage in
explicitly religious activities in programs supported by or
administered by DHS. Recipients also wishing to offer non-DHS-supported
explicitly religious activities are free to do so, separately in time
or location from the DHS-supported programs, and only on a voluntary
basis for beneficiaries of DHS-supported social service programs.
Direct and indirect assistance. Most provisions of the
rule would apply to direct federal financial assistance, meaning that
the government or an intermediary (such as a State or local government)
selects the provider of the social service program, funded through
either a contract or grant. Programs involving indirect financial
assistance, where government funding is provided through a voucher,
certificate, or similar means placed in the hands of the beneficiary,
provide greater scope for explicitly religious content in programs or
activities, so long as the overall government program is neutral toward
religion, the choice of provider is the beneficiary's, and there is an
adequate secular option for use of the funds.
Notice to beneficiaries. Faith-based or religious
organizations receiving direct financial assistance for social service
programs would, in most
[[Page 47285]]
circumstances, be required to provide beneficiaries and prospective
individual beneficiaries written notice of particular protections
afforded to them:
[cir] The faith-based organization's obligation not to discriminate
against beneficiaries on the basis of religion or religious belief;
[cir] that the beneficiary cannot be required to attend or
participate in any explicitly religious activities, but may do so
voluntarily;
[cir] that privately funded explicitly religious activities must be
separate in time or place from the program receiving Federal financial
assistance;
[cir] that if the beneficiary objects to the religious character of
the organization, the organization must attempt to refer the
beneficiary to an alternative provider to which the beneficiary does
not object; and
[cir] that beneficiaries may report violations of these protections
to DHS.
Referral requirement. Where a beneficiary objects to the
religious character of an organization providing social service
programs supported by DHS financial assistance, the organization would
be required to undertake reasonable efforts to identify and refer the
beneficiary to an alternative provider to which the beneficiary does
not object. Such organizations must notify DHS when such a referral is
made, or when it is unable to identify an appropriate alternative
provider to which the beneficiary can be referred. DHS would then also
attempt to identify an alternative provider.
Employment discrimination. The exemption from the federal
prohibition on employment discrimination based on religion (under
section 702(a) of the Civil Rights Act of 1964 (42 U.S.C. 2000e-1))
remains applicable for religious organizations delivering Federally
supported social services; independent statutory or regulatory
provisions that impose nondiscrimination requirements on all grantees
would not be waived or mitigated by this regulation.
III. Background
On December 12, 2002, President Bush signed Executive Order 13279,
Equal Protection of the Laws for Faith-Based and Community
Organizations, 67 FR 77141 (Dec. 16, 2002). Executive Order 13279 sets
forth the principles and policymaking criteria 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, and to expand opportunities for, and strengthen the
capacity of, faith-based and other community organizations to meet
social needs in America's communities. In addition, Executive Order
13279 required specified agency heads to review and evaluate existing
policies relating to Federal financial assistance for social services
programs and, where appropriate, to implement new policies that were
consistent with and necessary to further the fundamental principles and
policymaking criteria that have implications for faith-based and
community organizations.
On January 14, 2008, following Executive Order 13403 (which brought
DHS within the scope of Executive Order 13279), DHS proposed to amend
its regulations to clarify that faith-based organizations are equally
eligible to participate in any social or community service programs
established, administered, or supported by DHS (including any component
of DHS), and would be equally eligible to seek and receive Federal
financial assistance from DHS service programs where such assistance is
available to other organizations. 73 FR 2187. DHS published the
proposed rule with a thirty-day public comment period from January 14
to February 13, 2008. During this time, DHS received twenty comments on
the proposed rule; some expressed support while others expressed
concerns with certain elements of the proposed rule.
Shortly after taking office, President Obama signed Executive Order
13498, Amendments to Executive Order 13199 and Establishment of the
President's Advisory Council for Faith-Based and Neighborhood
Partnerships, 74 FR 6533 (Feb. 9, 2009). Executive Order 13498 changed
the name of the White House Office of Faith-Based and Community
Initiatives to the White House Office of Faith-Based and Neighborhood
Partnerships and established the President's Advisory Council for
Faith-Based and Neighborhood Partnerships (Advisory Council). The
President created the Advisory Council to bring together experts to,
among other things, make recommendations to the President for changes
in policies, programs, and practices that affect the delivery of
services by faith-based and other neighborhood organizations.
The Advisory Council issued its recommendations in a report
entitled A New Era of Partnerships: Report of Recommendations to the
President in March 2010 (Advisory Council Report) (available at https://www.whitehouse.gov/sites/default/files/microsites/ofbnp-council-final-report.pdf). The Advisory Council Report included recommendations to
amend Executive Order 13279 in order to clarify the legal foundation of
partnerships and offered a new set of fundamental principles to guide
agency decision-making in administering Federal financial assistance
and support to faith-based and neighborhood organizations.
President Obama signed Executive Order 13559, Fundamental
Principles and Policymaking Criteria for Partnerships with Faith-Based
and Other Neighborhood Organizations, on November 17, 2010. 75 FR 71319
(Nov. 22, 2010). Executive Order 13559 incorporated the Advisory
Council's recommendations by amending Executive Order 13279 to:
Require agencies that administer or award Federal
financial assistance for social service programs to implement
protections for the beneficiaries or prospective beneficiaries of such
programs by providing referrals to alternative providers if the
beneficiary objects to the religious character of the organization
providing services written notice of these and other protections to
beneficiaries before enrolling in or receiving services;
state that 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, or lack of
affiliation, of the recipient organization;
state that the Federal government has an obligation to
monitor and enforce all standards regarding the relationship between
religion and government in ways that avoid excessive entanglement
between religious bodies and governmental entities;
clarify the principle that organizations engaging in
explicitly religious activity must separate these activities in time or
location from programs supported with direct Federal financial
assistance, and that participation in any explicit religious activity
cannot be subsidized with direct Federal financial assistance and that
participation in such activities must be voluntary for the
beneficiaries of the social service program supported with such Federal
financial assistance;
emphasize that religious providers are welcome to compete
for government social service funding and maintain a religious identity
as described in the order;
require agencies that provide Federal financial assistance
for social service programs to post online regulations, guidance
documents, and
[[Page 47286]]
policies that have implications for faith-based and neighborhood
organizations and to post online a list of entities receiving such
assistance;
clarify that church-state standards and other standards
apply to sub-awards as well as prime awards; and
distinguish between ``direct'' and ``indirect'' Federal
financial assistance.
In addition, Executive Order 13559 created the Interagency Working
Group on Faith-Based and Other Neighborhood Partnerships (Working
Group) to review and evaluate existing regulations, guidance documents,
and policies.
The Executive Order also stated that, following receipt of the
Working Group's report, the Office of Management and Budget (OMB), in
coordination with the Department of Justice, must issue guidance to
agencies on the implementation of the order. In August 2013, OMB issued
such guidance (available at https://www.whitehouse.gov/sites/default/files/omb/memoranda/2013/m-13-19.pdf). In this guidance, OMB instructed
specified agency heads to adopt regulations and guidance that will
fulfill the requirements of the Executive Order and to amend
regulations and guidance to ensure that they are consistent with
Executive Order 13559.
Building on the rule first proposed in 2008, DHS hereby proposes a
rule that incorporates the language and recommendations from Executive
Order 13559 and the succeeding reports and guidance just described. The
proposed rule would ensure that DHS social service programs are
implemented in a manner consistent with the requirements of the U.S.
Constitution and are open to all qualified organizations, regardless of
their religious character. To that end, under this proposed rule,
private, nonprofit faith-based organizations seeking to participate in
Federally supported social service programs or seeking Federal
financial assistance for social service programs would be eligible to
participate fully, with appropriate protections for beneficiaries.
IV. Changes From the Original Proposed Rule
DHS has made several changes to the previously proposed regulatory
text from the original notice of proposed rulemaking.
Definition of Social Service Program
The original proposed rule defined ``social service program''
differently than does Executive Order 13279. (The definition in
Executive Order 13279 is unaffected by the Executive Order 13559
amendments.) This rule proposes to use the definition in Executive
Order 13279, instead of the definition in the original proposed rule.
This approach will better ensure uniformity with the rules of other
agencies and consistency with the relevant Executive Orders. DHS may
also issue guidance at a future time with respect to the applicability
of the Executive Orders and the rule to particular programs. At the
present time, DHS believes that it administers four programs with
grantees, subgrantees, and beneficiaries that would be covered by this
rule.\1\
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\1\ Within FEMA, the covered programs would be the Emergency
Food and Shelter Program, the Crisis Counseling Program, and the
Disaster Case Management Program. The USCIS Citizenship and
Integration Grant Program would also covered by this rule.
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Explicitly Religious Activities
The original proposed rule and Executive Order 13279 prohibit
nongovernmental organizations from using direct Federal financial
assistance (e.g., government grants, contracts, sub-grants, and
subcontracts) for ``inherently religious activities, such as worship,
religious instruction, and proselytization.'' The term ``inherently
religious,'' which was carried over in several other agencies'
regulations implementing Executive Order 13279, has proven confusing.
In 2006, for example, the Government Accountability Office (GAO) found
that while all 26 of the religious social service providers it
interviewed said they understood the prohibition on using direct
Federal financial assistance for ``inherently religious activities,''
four of the providers described acting in ways that appeared to violate
that rule. GAO, Faith-Based and Community Initiative: Improvements in
Monitoring Grantees and Measuring Performance Could Enhance
Accountability, GAO-06-616, at 34-35 (June 2006) (available at https://www.gao.gov/new.items/d06616.pdf).
Further, while the Supreme Court has sometimes used the term
``inherently religious,'' it has not used it to indicate the boundary
of what the Federal government may subsidize with direct Federal
financial assistance. If the term is interpreted narrowly, it could
permit actions that the Constitution prohibits. On the other hand, one
could also argue that the term ``inherently religious'' is too broad
rather than too narrow. For example, some might consider their
provision of a hot meal to a needy person to be an ``inherently
religious'' act when it is undertaken from a sense of religious
motivation or obligation, even though it has no overt religious
content.
The Court has determined that the government cannot subsidize ``a
specifically religious activity in an otherwise substantially secular
setting.'' Hunt v. McNair, 413 U.S. 734, 743 (1973). It has also said a
direct aid program impermissibly advances religion when the aid results
in governmental indoctrination of religion. See Mitchell v. Helms, 530
U.S. 793, 808 (2000) (plurality opinion); id. at 845 (O'Connor, J.,
concurring in judgment); Agostini v. Felton, 521 U.S. 203, 223 (1997).
This terminology is fairly interpreted to prohibit the government from
directly subsidizing any ``explicitly religious activity,'' including
activities that involve overt religious content. Thus, direct Federal
financial assistance should not be used to pay for activities such as
religious instruction, devotional exercises, worship, proselytizing or
evangelism; production or dissemination of devotional guides or other
religious materials; or counseling in which counselors introduce
religious content. Similarly, direct Federal financial assistance may
not be used to pay for equipment or supplies to the extent they are
allocated to such activities. Activities that are secular in content,
such as serving meals to the needy or using a nonreligious text to
teach someone to read, are not considered ``explicitly religious
activities'' merely because the provider is religiously motivated to
provide those services. The study or acknowledgement of religion as a
historical or cultural reality also would not be considered an
explicitly religious activity.
Notwithstanding the general prohibition on the use of direct
Federal financial assistance to support explicitly religious
activities, there are times when religious activities may be Federally
financed under the Establishment Clause and not subject to the direct
Federal financial assistance restrictions: For instance, where Federal
financial assistance is provided to chaplains to work with inmates in
prisons, detention facilities, or community correction centers through
social service programs. This is because where there is extensive
government control over the environment of the Federally financed
social service program, program officials may sometimes need to take
affirmative steps to provide an opportunity for beneficiaries of the
social service program to exercise their religion. See Cruz v. Beto,
405 U.S. 319, 322 n.2 (1972) (per curiam) (``[R]easonable opportunities
must be afforded to all prisoners to exercise the religious freedom
guaranteed by the First and Fourteenth Amendment without fear of
[[Page 47287]]
penalty.''); 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''). Without such efforts,
religious freedom might not exist for these beneficiaries. Accordingly,
services such as chaplaincy services would not be considered explicitly
religious activities that are subject to direct financial aid
restrictions.
Likewise, it is important to emphasize that the restrictions on
explicit religious content apply to content generated by the
administrators of the program receiving direct Federal financial
assistance, not to spontaneous comments made by individual
beneficiaries about their personal lives in the context of these
programs. For example, if a person administering a Federally supported
job skills program asks beneficiaries to describe how they gain the
motivation necessary for their job searches and some beneficiaries
refer to their faith or membership in a faith community, these kinds of
comments do not violate the restrictions and should not be censored. In
this context, it is clear that the administrators of the government
program did not orchestrate or encourage such comments.
DHS, therefore, now proposes that Sec. 19.4 employ the term
``explicitly religious activities'' (in lieu of ``inherently religious
activities'' in the initially proposed rule) and define the term as
``including activities that involve overt religious content such as
worship, religious instruction, or proselytization.'' This language
will provide greater clarity and more closely match constitutional
standards as they have been developed in case law.
These restrictions would not diminish previously proposed
regulatory protections for the religious identity of faith-based
providers. The proposed rule would not affect, for example,
organizations' ability to use religious terms in their organizational
names, select board members on a religious basis, include religious
references in mission statements and other organizational documents,
and post religious art, messages, scriptures and symbols in buildings
where Federal financial assistance is delivered.
Direct and Indirect Federal Financial Assistance
Executive Order 13559 noted that new regulations should distinguish
between ``direct'' and ``indirect'' Federal financial assistance
because the limitation on explicitly religious activities applies to
programs that are supported with ``direct'' Federal financial
assistance but does not apply to programs supported with ``indirect''
Federal financial assistance. DHS proposes to define these terms in
Sec. 19.2. Programs are supported with direct Federal financial
assistance when either the Federal government or an intermediary, as
identified in these proposed rules, selects a service provider and
either purchases services from that provider (e.g., through a contract)
or awards funds to that provider to carry out a social service (e.g.,
through a grant or cooperative agreement). Under these circumstances,
there are no intervening steps in which the beneficiary's choice
determines the provider's identity.
Indirect Federal financial assistance is distinguishable because it
places the choice of service provider in the hands of a beneficiary
before the Federal government pays for the cost of that service through
a voucher, certificate, or other similar means. For example, the
government could choose to allow the beneficiary to secure the needed
service on his or her own. Alternatively, a governmental agency,
operating under a neutral program of aid, could present each
beneficiary or prospective beneficiary with a list of all qualified
providers from which the beneficiary could obtain services using a
government-provided certificate. Either way, the government empowers
the beneficiary to choose for himself or herself whether to receive the
needed services, including those that contain explicitly religious
activities, through a faith-based or other neighborhood organization.
The government could then pay for the beneficiary's choice of provider
by giving the beneficiary a voucher or similar document. Alternatively,
the government could choose to pay the provider directly after asking
the beneficiary to indicate his or her choice. See Freedom From
Religion Found. v. McCallum, 324 F.3d 880, 882 (7th Cir. 2003).
The Supreme Court has held that if a program meets certain
criteria, the government may fund the programs if, among other things,
it places the benefit in the hands of individuals, who in turn have the
freedom to choose the provider to which they take their benefit and
``spend'' it, whether that provider is public or private, non-religious
or religious. See Zelman v. Simmons-Harris, 536 U.S. 639, 652-53
(2002). In these instances, the government does not encourage or
promote any explicitly religious programs that may be among the options
available to beneficiaries. Notably, the voucher scheme at issue in the
Zelman decision, which was described by the Court as one of ``true
private choice,'' id. at 653, was also neutral toward religion and
offered beneficiaries adequate secular options. Accordingly, these
criteria also are included in the text of the proposed definition of
``indirect financial assistance.''
Intermediaries
The Department also proposes regulatory language in Sec. 19.2 that
will clarify the responsibilities of intermediaries.\2\ An intermediary
is 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 such assistance to other organizations that, in turn,
provide government-funded social services. Each intermediary must abide
by all statutory and regulatory requirements by, for example, providing
any services supported with direct Federal financial assistance in a
religiously neutral manner that does not include explicitly religious
activities. The intermediary also has the same duties as the government
to comply with these rules by, for example, selecting any providers to
receive Federal financial assistance in a manner that does not favor or
disfavor organizations on the basis of religion or religious belief.
While intermediaries may be used to distribute Federal financial
assistance to other organizations in some programs, intermediaries
remain accountable for the Federal financial assistance they disburse.
Accordingly, intermediaries must ensure that any providers to which
they disburse Federal financial assistance also comply with these
rules. If the intermediary is a non-governmental organization, it
retains all other rights of a non-governmental organization under the
statutory and regulatory provisions governing the program.
---------------------------------------------------------------------------
\2\ In this document, the terms ``intermediary'' and ``pass-
through entity'' may be used interchangeably. See 2 CFR 200.74.
---------------------------------------------------------------------------
A State's use of intermediaries does not relieve the State of its
traditional responsibility to effectively monitor the actions of such
organizations. States are obligated to manage the day-to-day operations
of grant- and sub-grant- supported activities to ensure compliance with
applicable Federal requirements and performance goals. Moreover, a
State's use of intermediaries
[[Page 47288]]
does not relieve the State of its responsibility to ensure that
providers are selected, and deliver services, in a manner consistent
with the First Amendment's Establishment Clause.
Protections for Beneficiaries
Executive Order 13559 indicates a variety of valuable protections
for the religious liberty rights of social service beneficiaries.\3\
These protections are aimed at ensuring that Federal financial
assistance is not used to coerce or pressure beneficiaries along
religious lines, and to make beneficiaries aware of their rights,
through appropriate notice, when potentially obtaining services from
providers with a religious affiliation.
---------------------------------------------------------------------------
\3\ DHS proposes to define ``beneficiary'' in Sec. 19.2 to mean
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.
---------------------------------------------------------------------------
The executive order makes it clear that all organizations that
receive Federal financial assistance for the purpose of delivering
social welfare services are prohibited from discriminating against
beneficiaries or potential beneficiaries of those programs on the basis
of religion, a religious belief, refusal to hold a religious belief, or
a refusal to attend or participate in a religious practice. It also
states that organizations offering explicitly religious activities
(including activities that involve overt religious content such as
worship, religious instruction or proselytization) must not use direct
Federal financial assistance to subsidize or support those activities,
and that any explicitly religious activities must be offered outside of
programs that are supported with direct Federal financial assistance
(including through prime awards or sub-awards). In other words, to the
extent that an organization provides explicitly religious activities,
those activities must be offered separately in time or location from
programs or services supported with direct Federal financial
assistance. And, as noted above, participation in those religious
activities must be completely voluntary for beneficiaries of programs
supported by Federal financial assistance.
Executive Order 13559 also states that organizations administering
a program that is supported by Federal financial assistance must
provide written notice in a manner prescribed by the agency to
beneficiaries and prospective beneficiaries of their right to be
referred to an alternative provider when available. 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. Where the recipient and beneficiary
have only a brief, potentially one-time interaction, such as at a soup
kitchen, individual notice may be impracticable; in those cases, DHS
anticipates that a conspicuous posted notice would satisfy this
requirement.
These requirements are set forth in Sec. Sec. 19.6 and 19.7 of the
proposed rule. Section 19.7 states that 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, the beneficiary shall be referred
to an alternative provider. More specifically, the proposed rule
provides that, 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 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.
Model language for the notice to beneficiaries is provided in the
proposed Appendix A to the rule.
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 that
offers the needed services is available, then a referral must be made
to that provider.
The proposed rule would specify that, except for services provided
by telephone, internet, or similar means, the referral would be to an
alternate provider that is in 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 would need to 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 financial assistance
but does meet these requirements and is acceptable to the beneficiary.
If an organization is unable to identify an alternative provider,
the organization is required under the proposed rule to notify the
awarding entity and that entity would determine whether there is any
other suitable alternative provider to which the beneficiary may be
referred. Further, the executive order and the proposed rule require
the relevant government agency to ensure that appropriate and timely
referrals are made to an appropriate provider, and that referrals are
made in a manner consistent with applicable privacy laws and
regulations. It must be noted, however, that in some instances, the
awarding entity may also be unable to identify a suitable alternative
provider.
Political or Religious Affiliation
DHS proposes to add proposed Sec. 19.3(c) to clarify that
decisions about awards of Federal financial assistance must be free
from political interference or even the appearance of such
interference. The awarding entity should instruct participants in the
awarding process to refrain from taking religious affiliations or non-
religious affiliations into account in this process; i.e., an
organization should not receive favorable or unfavorable marks merely
because it is affiliated or unaffiliated with a religious body, or
related or unrelated to a specific religion. When selecting peer
reviewers, the awarding entity should never ask about religious
affiliation or take such matters into account. But it should encourage
religious, political, and professional diversity among peer reviewers
by advertising for these positions in a wide variety of venues.
Additional Changes Based on Comments on the Notice of Proposed
Rulemaking
In addition to the aforementioned changes regarding the scope of
the rule or based on the new policy guidance in Executive Order 13559,
this proposed rule includes further revisions to address comments made
on the initial notice of proposed rulemaking. DHS revised proposed
Sec. 19.1 to reflect that the purpose of these regulations is to
ensure equal treatment of faith-based organizations, not to establish
equal participation rates for faith-based organizations. The term
``sectarian'' was removed from proposed Sec. 19.2 as a response to a
comment that suggested the term may be perceived pejoratively. To
address comments on new reporting and monitoring requirements, a new
paragraph (c) was added to proposed
[[Page 47289]]
Sec. 19.4 to clarify that all DHS programs apply the same standards to
faith-based and secular organizations, and that all organizations carry
out eligible activities in accordance with all program requirements and
requirements governing the conduct of DHS-supported activities. A new
paragraph (d) was also added to proposed Sec. 19.4 to clarify that
restrictions regarding the use of direct DHS financial assistance apply
only to direct financial assistance; they do not apply to social
service programs where DHS financial assistance is provided to a
religious or other non-governmental organization indirectly. The
proposed changes to FEMA-specific regulations have been removed as
unnecessary because those changes amended regulations for programs that
DHS has not presently identified as being covered by this rule.
V. Discussion of the Public Comments Received on the January 14, 2008,
Proposed Rule
DHS received 20 comments on the notice of proposed rulemaking from
civil rights organizations, religious organizations, and interested
members of the public. Some of the comments were generally supportive
of the proposed rule; others were critical.
A. Participation by Faith-Based Organizations in DHS Programs
Some commenters supported the participation of religious
organizations, noting the widespread contributions of religious
organizations to civil society, connections to their communities, and
concern for those in need. Other commenters suggested that DHS should
prohibit either all faith-based organizations, or a subset of
``pervasively sectarian'' organizations, from participating in DHS
programs, to avoid violating the First Amendment's Establishment
Clause. U.S. Const. Amdt I (1791).
The Establishment Clause does not bar direct Federal grants to
organizations that are controlled and operated exclusively by members
of a single faith. See Bradfield v. Roberts, 175 U.S. 291 (1899); see
also Bowen v. Kendrick, 487 U.S. 589, 609 (1988). The Constitution does
require the application of certain safeguards, however, when government
financial assistance flows to religious organizations, and the proposed
rule articulated here respects those safeguards. See Sec. 19.2,
definitions of ``direct'' and ``indirect Federal financial
assistance,'' and Sec. 19.4(a)-(b). For the reasons described above,
DHS believes that the proposed rule provides the appropriate approach
to this matter.
B. Inherently (Explicitly) Religious Activities
One commenter suggested DHS clarify the definition of inherently
religious activities, and suggested that DHS provide additional
examples. As discussed, DHS agrees that the term ``inherently
religious'' is confusing, and has revised its proposal to remove the
term and replace it with ``explicitly religious.''
DHS believes that it would be difficult at best to establish an
acceptable list of all explicitly religious activities. Inevitably, the
regulatory definition would fail to include some explicitly religious
activities or include certain activities that are not explicitly
religious. Rather than attempt to establish an exhaustive regulatory
definition, the proposed definition of ``explicitly religious
activities'' both provides examples of the general types of activities
that are prohibited by the regulations, and establishes that providing
services does not become explicitly religious merely because providers
are religiously motivated to undertake them. This approach is
consistent with judicial decisions that likewise have not
comprehensively defined explicitly religious activities. DHS also
anticipates providing additional guidance to assist recipients in
identifying explicitly religious activities.
The commenter also urged DHS to revise the definition of inherently
religious activities to remove the term ``sectarian,'' noting that the
term is often used pejoratively and does not add any significant
clarification. DHS agrees that the term ``sectarian'' may be perceived
pejoratively, which is not the intent of the rule, and has revised
proposed Sec. 19.2 accordingly. While, with these revisions, DHS
believes the definition of explicitly religious activities is
sufficiently clear, comments on the revised definition are welcome.
C. Separation and Monitoring of Explicitly Religious Activities
Some commenters asserted that religious organizations are incapable
of distributing aid without regard to religion or other prohibited
factors, or incapable of separating their inherently (explicitly)
religious activities from Federally supported, secular activities. One
commenter suggested DHS amend the proposed rule to prohibit all
organizations participating in DHS programs from engaging in inherently
(explicitly) religious activities, regardless of whether the activities
are separated from the activities supported with direct Federal
financial assistance and voluntary for DHS program beneficiaries. The
commenter asserted that the proposed rule advances religion by giving
faith-based organizations access to disaster victims who may be
persuaded to religion when they otherwise may not have been inclined.
Similarly, one commenter suggested that religious organizations should
only be permitted to participate in the immediate aftermath of a
disaster, in order to minimize the role of religious organizations and
avoid ``entanglement with religion.'' DHS believes such a change would
be unnecessarily restrictive and not consistent with either the law or
good government.
Other commenters suggested that the proposed rule did not specify a
sufficient means of monitoring the separation of organizations'
inherently (explicitly) religious activities from activities supported
with direct Federal financial assistance. One of these commenters
recommended sanctions for violating this provision. Others suggested
that an effort to monitor for such separation would require improper
``excessive entanglement'' between government and religion in violation
of the Constitution. One commenter recommended DHS revise the proposed
rule to include ``specific language forbidding officials from applying
more stringent reporting, certification, or other requirements to
faith-based organizations than their secular counterparts.''
DHS proposes substantial revisions to proposed Sec. 19.4, which
would address concerns over separation requirements for faith-based or
religious organizations that receive direct Federal financial
assistance for social service programs. Under Sec. 19.4(b), any
explicitly religious activities must be separate, distinct, and
voluntary for beneficiaries or potential beneficiaries of DHS-supported
social service programs. Faith-based or religious organizations need to
make this distinction completely clear to beneficiaries or prospective
beneficiaries. In addition to this notification requirement, faith-
based or religious organizations must also uphold further beneficiary
protections, as discussed above. DHS also anticipates providing
additional guidance to assist recipients in abiding by, among other
things, the separation requirement.
With regard to monitoring and compliance concerns,\4\ any
organization
[[Page 47290]]
could violate DHS rules on inappropriate use of direct DHS financial
assistance or fail to comply with DHS requirements, not just religious
or faith-based organizations. All organizations therefore must be
monitored for compliance with program requirements, and no organization
may use direct DHS financial assistance for any ineligible activity.
Moreover, the First Amendment requires the Federal government to
monitor the activities and programs it funds to ensure that they comply
with church-state requirements, including prohibition against the use
of direct Federal financial assistance in a manner that results in
governmental indoctrination on religious matters. See Bowen v.
Kendrick, 487 U.S. 589, 615 (1988); see also Comm. for Pub. Educ. &
Religious Liberty v. Nyquist, 413 U.S. 756, 780 (1973).
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\4\ DHS has considered, in connection with the monitoring
question, both the 2006 GAO report discussed above and a 2005 Urban
Institute report noted by commentators. Fredrica D. Kramer et al.,
Urban Institute, Federal Policy on the Ground: Faith-Based
Organizations Delivering Local Services (July 2005) (available at
https://www.urban.org/UploadedPDF/311197_DP05-01.pdf).
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Executive Order 13559 amended Executive Order 13279 to describe the
Federal government's obligation to monitor and enforce constitutional,
statutory, and regulatory requirements relating to the use of Federal
financial assistance, including the constitutional obligation to
monitor and enforce church-state standards in ways that avoid excessive
entanglement between religion and government. To address this issue and
the comments received on it, DHS has added proposed Sec. 19.4(c) to
clarify that all DHS programs must apply the same standards to faith-
based and secular organizations, and that all organizations that
participate in DHS programs, including religious ones, must carry out
eligible activities in accordance with all program requirements and
other applicable requirements governing the conduct of DHS-supported
activities.
Any organization receiving direct DHS financial assistance that
uses the DHS portion of their funding for prohibited purposes will be
subject to the imposition of sanctions or penalties to the extent
authorized by the program's statutory authority. Recipients of Federal
financial assistance must therefore demonstrate, through proper
accounting principles, that direct DHS financial assistance is only
being used for the Federally supported program. Applicable policies,
guidelines, and regulations prescribe the cost accounting procedures
that are to be followed in using direct DHS financial assistance. For
example, a faith-based or religious organization may fulfill this
requirement by keeping separate track of all staff hours charged to the
Federally supported program or showing cost allocations for all items
and activities that involve both Federally supported and non-Federally
supported funded programs, such as staff, time, equipment, and other
expenses, such as travel to event sites.
At the same time, the Federal government must respect the
constitutional command against excessive entanglement between
government and religion. Lemon v. Kurtzman, 403 U.S. 602, 613 (1971).
Three commenters suggested that the Federal government's efforts to
monitor or enforce compliance with the proposed rule would create
excessive government entanglement with religion. One commenter
suggested that the proposed rule satisfied Lemon since the protection
provisions in proposed Sec. 19.6 (now Sec. 19.8) and Sec. 19.7 (now
Sec. 19.9) ``prevent[] the government from interfering with the day to
day operations of the religious organization.''
The Supreme Court has said that excessive entanglement includes
``comprehensive, discriminating, and continuing state surveillance.''
Id. at 619. So, for example, the Federal government need not and should
not engage in ``pervasive monitoring'' of religious bodies. Id. at 627.
DHS believes that the monitoring of Federal financial assistance
provided for in the proposed rule falls far short of the ``pervasive
monitoring'' of religious bodies that would be prohibited under the
Constitution. Nonetheless, DHS is interested in further comment
regarding oversight and entanglement concerns, and anticipates
providing further guidance regarding appropriate compliance monitoring.
D. Beneficiary Protections
Several commenters suggested that the proposed rule did not
sufficiently require faith-based organizations to explain to
beneficiaries that all inherently (explicitly) religious activities are
voluntary and not required for participation in the Federally supported
program. Some commenters expressed a concern that beneficiaries would
be unwilling to seek services from a religious organization because of
the perception that they would be forced into participating in
inherently (explicitly) religious activities, or that an individual
receiving an invitation to attend an inherently religious activity
would feel obligated to attend.
Another commenter suggested that the proposed rule be revised to
include a right for beneficiaries to receive services from an alternate
or non-religious provider, and that beneficiaries be informed of this
right by the faith-based provider. The commenter suggested that without
an equivalent secular alternative, beneficiaries might be forced to
participate in programs provided by faith-based organizations where
they may be required to participate in religious activity in order to
receive essential Federally supported benefits.
In accordance with Executive Order 13559, DHS added Sec. Sec. 19.6
and 19.7 to this proposal, which address these concerns. As discussed
above, new proposed Sec. 19.6 includes a written notice requirement.
New proposed Sec. 19.7 describes the requirements that a faith-based
organization must follow when referring a beneficiary or prospective
beneficiary to an alternative provider. DHS is interested in public
comment on whether new and revised Sec. Sec. 19.5, 19.6, and 19.7
provide sufficient protection for the interests of program
beneficiaries with respect to their individual decisions regarding
religion.
E. The ``Separate in Time or Location'' Requirement
Three commenters suggested that the proposed rule's requirement
that inherently (explicitly) religious activities be separate in time
or location from the Federally supported activities is unclear or does
not provide constitutionally mandated separation, and should be changed
to require that inherently (explicitly) religious activities be
separate by both time and location.
Under Sec. 19.4 of this proposal, where a religious organization
receives direct government assistance, any religious activities that
the organization offers must be offered separately--in time or place--
from the activities supported by direct Federal financial assistance.
This separation by time or place must be done in such a way that it is
clear that the two programs are separate and distinct. For example,
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. DHS believes that
requiring separation by both time and place is not legally necessary
and could impose an unnecessary burden on small faith-based
organizations. DHS welcomes additional input on the matter. DHS also
anticipates providing additional guidance to assist recipients in
abiding by, among other things, the separation requirement.
[[Page 47291]]
F. Faith-based Organizations' Display of Religious Art or Symbols
Several commenters objected to the proposed rule's clarification
that faith-based organizations may use space in their facilities to
provide DHS-supported services ``without removing or concealing
religious articles, texts, art, or symbols.''
A number of Federal statutes affirm the principle embodied in this
rule. See, e.g., 42 U.S.C. 290kk-1(d)(2)(B). Moreover, no other DHS
regulations prescribe the types of artwork, statues, or icons that must
be removed by program participants from within the structures or rooms
in which DHS-supported services are provided. A prohibition on the use
of religious icons could make it more difficult for many faith-based
organizations to participate in DHS programs than other organizations.
It might require them to procure additional space, for example. Such a
requirement would thus be typical of the types of barriers that the
proposed rule seeks to eliminate. Furthermore, this prohibition would
also threaten excessive government entanglement. Accordingly, the
proposed rule would continue to permit faith-based organizations to use
space in their facilities to provide DHS-supported services, without
removing religious art, icons, scriptures, or other religious symbols.
At the same time, the proposed rule also contains added protections for
beneficiaries, including the requirement that written notice be
provided to beneficiaries informing them of their ability to request an
alternative provider if the religious character of their existing
provider is objectionable to them. These provisions attempt to strike a
sensible balance between protecting beneficiaries and faith-based
institutions.
G. Nondiscrimination in Providing Assistance
One commenter suggested that the proposed rule's prohibition on
discrimination against beneficiaries on the basis of ``religion, belief
or religious practice'' should specifically include ``refusing to
engage in any religion, belief, or religious practice.'' Federal award
recipients may not establish selection criteria that have the effect of
discriminating against beneficiaries based on religion or non-religion.
Accordingly, Federally supported programs should not limit outreach,
recruitment efforts, or advertising of the Federal program services
exclusively to religious or non-religious target populations. The new
language on nondiscrimination requirements in Sec. 19.5, and on
beneficiary protections in Sec. Sec. 19.6 and 19.7, is meant to
prevent discrimination against beneficiaries who do not engage in any
religion, belief, or religious practice.
H. The Exemption of Chaplains From the Restriction on Direct Financial
Assistance for Inherently (Explicitly) Religious Activities
The proposed rule provided an exemption from the restrictions on
inherently (explicitly) religious activities for chaplains serving
inmates in detention facilities and organizations assisting those
chaplains. One commenter noted that chaplains also often provide non-
religious activities such as secular counseling. The commenter proposed
that DHS revise the rule to limit the exemption for inherently
(explicitly) religious activity conducted by chaplains and the
organizations providing assistance to chaplains to ``inherently
religious activity conducted by chaplains and the organizations
providing assistance to chaplains in such religious activity,'' and
urged DHS to set up a monitoring system to ensure chaplains and
organizations assisting chaplains do not engage in inherently
(explicitly) religious activities during their secular duties.
As noted above, the legal restrictions that apply to religious
programs within detention facilities will sometimes be different from
legal restrictions that are applied to other DHS programs. This
difference is because detention facilities are heavily regulated, and
this extensive government control over the facility environment means
that officials must sometimes take affirmative steps, in the form of
chaplaincies and similar programs, to provide an opportunity for
detainees to exercise their religion.
Sometimes the activities of chaplains and those assisting them will
be explicitly religious. For example, a chaplain might provide
religious counseling, conduct worship services, or administer
sacraments. Religious activities must be purely voluntary for all
detainees. The proposed rule would not make any change in the
professional or legal responsibilities of chaplains or those persons or
organizations assisting them in detention facilities. Neither would the
proposed rule diminish the fact that chaplains' duties often include
the provision of secular counseling. Rather, the chaplaincy exemption
is intended to clarify that the proposed rule's otherwise-applicable
restrictions on the use of direct DHS financial assistance for
explicitly religious activities do not apply to chaplains in detention
facilities or those functioning in similar roles, as provision of
explicitly religious activities is part of their duties and necessary
to accommodate detainees' exercise of religion.
I. Definition of Financial Assistance
One commenter expressed the view that the proposed rule did not
sufficiently distinguish between direct and indirect financial
assistance. The commenter suggested that passages of the rule referring
to ``direct financial assistance'' may suggest that the freedoms
secured by the rule do not apply where DHS ``direct financial
assistance'' is administered by a State or local agency (as opposed to
``direct financial assistance'' administered by a component of DHS).
The commenter also urged DHS to revise the proposed rule to make clear
that the restrictions on inherently (explicitly) religious activities
do not apply to DHS-supported programs where individual beneficiaries
are provided a choice among a range of qualified service providers, and
DHS financial assistance reach the private organization by independent
choice.
As discussed above, in light of Executive Order 13559, DHS has
clarified the distinction between direct and indirect assistance in
proposed Sec. 19.2 and revised the proposed rule to recognize that,
where DHS financial assistance reaches an organization indirectly,
through the genuine and independent choice of the beneficiary (e.g.,
voucher, certificate, or other ``indirect'' financial assistance
mechanism), the restrictions on explicitly religious activities
outlined in the proposed rule are not applicable. DHS proposes to add a
definition of ``intermediary'' to proposed Sec. 19.2 to clarify that
the restrictions on explicitly religious activities would apply to
intermediaries that are 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 direct Federal
financial assistance. Thus, direct DHS financial assistance would
include DHS funds administered by States and local governments as well
as funds administered by DHS's component organizations and regional
offices. For example, direct DHS financial assistance includes
subawards of DHS financial assistance made by a State to nonprofit
organizations to provide social services to beneficiaries; in this
example, DHS, the State, and the nonprofit organizations would be
required to administer DHS financial assistance and the services
provided by
[[Page 47292]]
that assistance in accordance with this proposed rule.
J. Recognition of Faith-Based Organizations' Title VII Exemption
A number of commenters expressed views on the proposed rule's
provision that faith-based organizations do not forfeit their exemption
under Title VII of the Civil Rights Act of 1964, Public Law 88-352, as
amended, codified at 42 U.S.C. 2000e-1, to consider religion in hiring
decisions, if they receive DHS financial assistance, absent statutory
authority to the contrary. Some commenters supported the rule as
drafted, noting that a religious organization will retain its
independence in this regard, while others disagreed with the provision
retaining the Title VII exemption. Some asserted that it is
unconstitutional for the government to provide financial assistance for
the provision of social services to an organization that considers
religion in its employment decisions.
With respect to the Title VII exemption, in 1972, Congress
broadened section 702(a) of the Civil Rights Act to exempt religious
organizations from the religious nondiscrimination provisions of Title
VII, regardless of the nature of the job at issue. The broader, amended
provision was upheld. See Corp. of Presiding Bishop v. Amos, 483 U.S.
327 (1987). This Title VII exemption is applicable when religious
organizations are delivering Federally supported social services. As
the proposed rule also notes, however, 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 regulation. Accordingly, grantees
should consult with the appropriate DHS program office to determine the
scope of any applicable requirements.
One commenter stated that this provision likely violates the ``no
religious tests'' clause in Article VI, clause 3 of the Constitution,
under which ``no religious Test shall ever be required as a
Qualification to any Office or public Trust under the United States.''
This provision has no application in the current regulation. The
receipt of government financial assistance does not convert the
employment decisions of private institutions into ``state action'' that
is subject to the constitutional restrictions such as the ``no
religious tests'' clause.
One commenter suggested religious organizations participating in
DHS programs should be required to hire or deploy staff on a religious
basis, so that the religious beliefs of the staff reflect the religious
demographics of the service area. DHS does not believe it would be
appropriate to direct hiring decisions of recipients in this manner.
Finally, two commenters sought a statement that where a specific
statute or regulation contains general prohibitions against a recipient
considering religion when hiring staff, they may seek, and if they meet
the qualifications, be granted relief under the Religious Freedom
Restoration Act (RFRA), Public Law 103-141, sec. 3, 107 Stat. 1488
(Nov. 16, 1993), found at 42 U.S.C. 2000bb-1 et seq. RFRA applies to
all Federal law, regardless of whether it is specifically mentioned in
these regulations. See 42 U.S.C. 2000bb-3. Thus, organizations that
believe RFRA affords them an exemption from any legal obligation should
raise that claim with appropriate DHS program offices.
K. Interaction With State and Local Laws
Several commenters expressed views on the proposed rule's
interaction with State and local laws. One commenter supported proposed
Sec. 19.8 (now Sec. 19.10) as supporting the principle ``that federal
funds should be governed by federal policies and that DHS funded
programs should be governed by all of its provisions, even when state
or local funds are commingled with federal funds.'' One commenter also
expressed support for this section but urged DHS to revise the rule to
clarify that its provisions override any contrary state or local laws.
Another commenter suggested that the proposed rule be revised to
explicitly state that nothing in the rule is intended to modify or
affect any state law or regulation that relates to discrimination in
employment.
The requirements that govern direct Federal financial assistance
under the DHS programs at issue in these regulations do not directly
address preemption of State or local laws. Federal funds, or direct
Federal financial assistance, however, carry Federal requirements.
Federal requirements continue to be applicable even when Federal
financial assistance is first awarded to States and localities that are
then responsible for administering the Federal financial assistance. No
organization is required to apply for direct Federal financial
assistance from or to participate in DHS programs, but organizations
that apply and are selected must comply with the requirements
applicable to the program funds. As noted in proposed Sec. 19.10, if a
State or local government voluntarily contributes its own funds to
supplement Federally supported activities, the State or local
government has the option to segregate the Federal assistance or
commingle it. If the Federal assistance is commingled, this regulation
would apply to all the commingled finances.
L. Tax-Exempt 501(c)(3) Status or Other Separate Corporate Structure
Two commenters expressed concerns regarding the type of corporate
structure that should be required of organizations applying to
participate in DHS programs. One commenter urged DHS to revise the rule
to require religious organizations to establish a ``separate corporate
structure'' for its government-supported social welfare activities in
order to prevent diversion of direct Federal financial assistance to
``religious activities.''
An organization may create a separate account for its direct DHS
financial assistance. All program participants receiving financial
assistance from various sources and carrying out a wide range of
activities must ensure through proper accounting principles that each
set of funds is applied only to the activities for which the funding
was provided. Applicable policies, guidelines, and regulations
prescribe the cost accounting procedures that are to be followed by all
recipients of DHS financial assistance, including but not limited to
the methods described above and the regulation on commingling of
Federal assistance in Sec. 19.10. This system of monitoring is
expected to adequately protect against the diversion of direct Federal
financial assistance for religious activities.
One commenter suggested DHS clarify whether nonprofit
organizations, religious or secular, are required to obtain tax-exempt
status under section 501(c)(3) of the Internal Revenue Code of 1986, 26
U.S.C. 501(c)(3), to receive DHS financial assistance, particularly
where the pertinent statute requires only ``nonprofit'' status. This
commenter noted that requiring nonprofit organizations to obtain tax-
exempt status can pose a barrier to participation in Federally
supported programs. Requirements for tax exempt status under the
Internal Revenue Code are unique to each DHS financial assistance
program and are established in each program's regulations and program
guidance. Where not otherwise required by statute or regulation, this
rule does not impose a requirement that an eligible nonprofit
organization have tax-exempt status.
M. Participation by ``Anti-Semitic, Racist, or Bigoted Organizations''
One commenter wrote that the proposed rule fails ``to take any
steps to
[[Page 47293]]
prevent government money from flowing to anti-Semitic, racist, or
bigoted organizations.'' Another commenter asked how DHS will stop a
faith-based organization from discriminating against a beneficiary
based on his or her sexual orientation. Other Federal law prohibits
beneficiaries from being excluded from participation in DHS-supported
services or subject to discrimination based on race, color, national
origin, sex, age, or disability, and this proposed rule does not in any
way alter those existing prohibitions. See, e.g., Rehabilitation Act of
1973, 29 U.S.C. 794 (prohibiting discrimination on the basis of
disability in federal programs and by recipients of financial
assistance); title VI of the Civil Rights Act of 1964, 42 U.S.C. 2000d
et seq. (prohibiting discrimination on the basis of race, color, or
national origin by recipients of financial assistance).
While Federal law does not expressly prohibit recipients of direct
Federal financial assistance from discriminating against beneficiaries
because of their sexual orientation or gender identity, Federal law
does prohibit Federal contractors and subcontractors from
discriminating against employees and applicants for employment on these
bases, see Executive Order 13627, Further Amendments to Executive Order
11478, Equal Employment Opportunity in the Federal Government, and
Executive Order 11246, Equal Employment Opportunity (July 21, 2014)
(prohibiting employment discrimination on the bases of sexual
orientation and gender identity in the Federal government and its
contracting workforce); Directive 2014-02, Gender Identity and Sex
Discrimination (Aug. 19, 2014) (clarifying that all Federal contractors
and subcontractors are protected from gender identity discrimination as
a form of sex discrimination under Executive Order 11246, as amended);
and Implementation of Executive Order 13672 Prohibiting Discrimination
Based on Sexual Orientation and Gender Identity by Contractors and
Subcontractors, 41 CFR parts 60-1, 60-2, 60-4, and 60-50, (Dec. 9,
2014) (implementing these principles for contracts entered into on or
after April 8, 2015).
Regardless of the organization's own beliefs, it would be required
under the proposed rule not to discriminate against or among
beneficiaries on the basis of religion, belief, religious practice, or
lack thereof, and any beneficiary objecting to the religious character
of the organization could seek a referral to a different service
provider pursuant to the beneficiary protections provided by the rule.
N. Participation of Faith-Based Organizations in Disaster Programs
Several commenters expressed their views on the proposed rule's
clarification that faith-based nonprofit organizations that are
otherwise eligible to receive direct Federal financial assistance for
the repair, restoration, or replacement of damaged facilities, should
not have the organization's religious status considered in determining
whether to authorize a grant. Two commenters expressed support for the
rule; one of these commenters stated that the initial proposal would
remedy a previous disparity of treatment. Two commenters objected to
the proposal as unconstitutional; one commenter specified a concern
that Stafford Act funds might be used to replace religious items such
as sacred texts.
Although FEMA's program that provides Federal financial assistance
for the repair, restoration, or replacement of damaged facilities has
not been identified by DHS as being covered by this rule, section 406
of the Robert T. Stafford Disaster Relief and Emergency Assistance Act
provides disaster assistance on the basis of neutral criteria to an
unusually broad class of beneficiaries defined without reference to
religion. Eligible private nonprofit facilities under the Stafford
Act's Public Assistance program are educational, utility, emergency,
medical, or custodial care facilities (including a facility for the
aged or disabled) or other facilities that provide essential
governmental type services to the general public, and such facilities
on Indian reservations. 44 CFR 206.221(e). An eligible private
nonprofit organization is a nongovernmental agency or entity that has
an IRS tax exemption ruling letter under sections 501(c), (d), or (e)
of the Internal Revenue Code or satisfactory evidence from the State
that it is a nonprofit organized or doing business under State law. 44
CFR 206.221(f). Religious organizations are able to receive these
generally available government benefits and services, just as other
organizations that meet the eligibility criteria.
O. Effect of Receipt of Disaster Grant With Regard to Other Federal
Laws
One commenter urged DHS to include a specific statement that ``a
faith-based school receiving a federal grant for the restoration or
repair of facilities damaged in a disaster is not deemed to be a
`recipient of federal funds' for the purposes of other statutes.'' DHS
does not have the legal authority to exempt its programs from such
statutory requirements, if any. Statutes that restrict Federal grant
recipients' actions or limit their eligibility to receive additional
Federal financial assistance, as well as any exemptions from those
limitations, are established by Congress. The statutes authorizing the
financial assistance do not contain such an exemption. DHS does not
have the legal authority to unilaterally create the exemption requested
by the commenter.
P. Purpose and Applicability of the Regulation
One commenter noted that proposed Sec. 19.1 uses the term ``equal
participation'' to characterize the intent of the proposed rule,
suggested that the term ``wrongly implies that faith-based
organizations should take part in DHS programs to the same extent as
secular organizations,'' and recommended DHS consider revising that
section to better express the intent of the rule. In response to this
comment, DHS has revised proposed Sec. 19.1 to reference the
regulation's purpose as ensuring the ``equal ability for faith-based
organizations to seek and receive financial assistance through DHS
social service programs''. DHS did not intend to suggest that it would
establish participation rates for religious organizations in DHS
programs. As described in the preamble of this proposed rule, the
purpose of the rule is to ensure all qualified organizations may
compete for funds offered under DHS social service programs, regardless
of their religious character.
One commenter suggested DHS revise the title of the proposed rule
because several aspects of the proposed rule apply to secular as well
as faith-based organizations. Although several aspects of the rule
apply to all organizations seeking to participate in DHS social service
programs, secular or religious, the title conveys the principal intent
of the rule and poses little risk of confusion.
VI. Statutory and Regulatory Review
A. Executive Order 12866 and 13563
Executive Orders 13563 and 12866 direct agencies to assess the
costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distributive impacts, and equity). Executive
Order 13563 emphasizes the importance of quantifying both costs and
benefits, of
[[Page 47294]]
reducing costs, of harmonizing rules, and of promoting flexibility.
This rule has not been designated a ``significant regulatory action,''
under section 3(f) of Executive Order 12866. Accordingly, the rule has
not been reviewed by the Office of Management and Budget.
The Department believes that the only provisions of this proposed
rule likely to impose costs on the regulated community are the
requirements that:
(1) Faith-based organizations that receive direct financial
assistance from DHS to participate in or administer any social service
program must give beneficiaries a written notice informing them of
particular protections afforded to them including their ability to
request an alternative provider if the religious character of their
existing provider is objectionable to them; and
(2) where a beneficiary objects to the religious character of an
organization providing social service programs supported by DHS
financial assistance, the social service provider make reasonable
efforts to identify and refer the beneficiary to an alternative
provider to which the beneficiary does not object.
The Department considered and adopted alternatives that minimized
compliance costs on social service providers given the requirements of
Executive Orders 13279 and 13559. Specifically, the proposed rule
includes model language for the notice to beneficiaries and for the
beneficiary referral request form, in Appendix A. Individual advance
notice forms are not required where it is impracticable to provide
them. Where individual, advance written notice is impracticable because
the recipient and beneficiary have only a brief, potentially one-time
interaction, such as at a soup kitchen, DHS believes a conspicuous
posted notice would suffice.
In addition, to minimize compliance costs and allow maximum
flexibility in implementation, the Department has elected not to
establish a specific format for the referrals required when
beneficiaries request an alternative provider. Furthermore, if the
social service provider is unable to identify an appropriate
alternative provider after undertaking reasonable efforts, DHS would
then attempt to identify an alternative provider.
The Department estimates this rule would impose a maximum cost of
approximately $500,000 annually. A more detailed estimate of the cost
of providing these notices to beneficiaries and, if requested, the
beneficiary referral request form is discussed below in the Regulatory
Flexibility Act section of this proposed rule. An estimate of the cost
of the referral provision is also discussed in Regulatory Flexibility
Act section. In addition, an estimate of the annual total burden hours
of the referral provision is discussed in the Paperwork Reduction Act
section of this proposed rule.
B. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) at 5 U.S.C. 603(a) requires
agencies to consider the impacts of their rules on small entities. The
RFA defines small entities as small business concerns, small not-for-
profit enterprises, or small governmental jurisdictions.
Given the lack of specific small entity data, the Department has
prepared an initial regulatory flexibility analysis even though the
Department does not believe this rule will impose a significant
economic impact on a substantial number of small entities. As described
above, the Department has made every effort to ensure that the
disclosure and referral requirements of the proposed rule impose
minimum burden and allow maximum flexibility in implementation by
providing a model notice to beneficiaries and model beneficiary
referral request form in Appendix A, and by not requiring the social
service providers to follow a specific format for the referrals. The
Department estimates it will take no more than two hours for providers
to familiarize themselves with the notice requirements and print and
duplicate an adequate number of disclosure notices and referral request
forms for potential beneficiaries. Using May 2013 Bureau of Labor
Statistics information, the hourly mean wage for a Training and
Development Specialist is $29.22.\5\ In addition to wage costs,
employers incur costs for employee benefits such as paid vacation and
insurance. The ``fully loaded'' hourly cost to employers (which
includes both wage and employee benefit costs) of a Training and
Development Specialist equates to $42.75.\6\ This results in an
estimate of the labor cost per service provider of preparing the notice
and referral form of approximately $85.50 (2 hours x $42.75). In
addition, the Department estimates an upper limit of $100 for the
annual cost of materials (paper, ink, toner) to print multiple copies
of the notices and referral request forms for covered grantees and
subgrantees, except for certain grantees and subgrantees under the
Emergency Food and Shelter Program.\7\ Because these costs will be
borne by every small service provider with a religious affiliation, the
Department believes that a substantial number of small entities will be
affected by this provision. However, the Department does not believe
that a compliance cost of less than $200 per provider per year is
significant percentage of a provider's total revenue. In addition, we
note that after the first year, the labor cost associated with
compliance will likely decrease significantly because small service
providers will be familiar with the requirements.\8\ Assuming,
consistent with the Paperwork Reduction Act analysis below, that this
rule would cover approximately 2,624 faith-based grantees and
subgrantees, the annual costs associated with the notice requirement
are unlikely to exceed $487,000 [2,624 entities x ($100 printing +
$85.50 labor)].
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\5\ Per BLS SOC 13-1151, the mean hourly wage of a Training and
Development Specialist is $29.22. https://www.bls.gov/oes/2013/may/oes131151.htm.
\6\ The fully loaded Training and Development Specialist wage is
calculated using a load factor of 1.463 (1 + (10.49 / 22.65)) based
on the Bureau of Labor Statistics Employer Costs for Employee
Compensation for civilian workers (Table 1) from December 2014 for
all workers, retrieved from https://www.bls.gov/news.release/ecec.t01.htm. This equates to a fully loaded Training and
Development Specialist wage of $42.75 ($29.22 x 1.463) when applied
to the hourly mean wage for a Training and Development Specialist
($29.22).
\7\ In this analysis and the Paperwork Reduction Act analysis
below, the Department assumes that certain grantees and subgrantees
under the Emergency Food and Shelter Program will not print and
disseminate a paper notice and referral form to each individual
beneficiary. Many of the activities supported by that program, such
as soup kitchens and one-time assistance with rent, mortgage, or
utility bills, are ones for which individual beneficiary forms would
not be practicable, and in those cases, a commonly posted notice,
produced at minimal cost, should suffice. The Department believes
that requests for referrals will be negligible for activities
involving these sorts of interactions, such that the overall
estimated cost and labor burden related to the referral provision is
conservative enough to encompass the limited number of referral
requests that may result from these brief interactions.
\8\ We also note that the costs associated with this rule's
notice provisions may be an eligible management and administrative
cost under DHS grant programs. Such costs would count towards the
administrative cap cost for a program. The cost of the referral to
an alternate provider may also be grant-eligible.
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The rule will require service providers, at the beneficiary's
request, to make reasonable efforts to identify and refer the
beneficiary to an alternative provider to which the beneficiary has no
objection. The Department estimates that each referral request will
require no more than four hours of a Training and Development
Specialist's time to process and complete a referral at a ``fully
loaded'' labor cost of $42.75 per hour. The Department's estimate for
the total annual cost burden can be summarized as follows.
Total Estimated Number of Notices: N, where N equals the
total number of
[[Page 47295]]
beneficiaries under DHS social service programs for whom individual
written notices can practicably be provided. Faith-based organizations
covered by this rule would be required to provide a notice to each
beneficiary of a DHS-supported social service program, except where a
limited exception for a commonly posted notice applies. Based on
subject-matter expert best estimates, DHS estimates that the total
annual number of notices required under this rule equals approximately
60,000.\9\
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\9\ DHS notes that in light of the nature of the grantor-
grantee-subgrantee framework attendant to some of its programs, it
is very difficult to estimate with accuracy the total number of
beneficiaries served by faith-based organizations administering DHS-
supported social service programs.
---------------------------------------------------------------------------
Total Estimated Annual Number of Requests for Referrals: N
x Z, where Z is the percentage of beneficiaries or potential
beneficiaries who request referrals. DHS assumes that Z is equal to
0.0025.\10\ Under these assumptions, DHS estimates approximately 150
requests for referrals annually.
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\10\ In DHS's experience, beneficiaries do not frequently object
to receiving services from faith-based organizations. DHS assumes a
referral request rate of 0.25% for purposes of this analysis,
consistent with the practice of other agencies in this area. DHS
expects that this rate overestimates the likely referral request
rate.
---------------------------------------------------------------------------
Total Time required to complete a referral: T, where T is
less than or equal to 4 hours.
Labor cost of a Training and Development Specialist: L,
where L equals $42.75.
Total estimated Annual Referral Cost Burden: C, where C is
equal to the following:
C = (L x T) x (N x Z)
C = ($42.75 x 4) x (60,000 x 0.0025)
C = $25,650
The Department therefore estimates the total estimated annual cost
burden to equal $512,650 or less ($487,000 notice requirement cost +
$25,650 referral cost = $512,650). The cost on a per entity basis
averages approximately $200 ($512,650 total cost / 2,624 entities =
$195.37). DHS expects that this estimates likely overestimates the
actual cost burden associated with this rulemaking. The Department
invites interested parties to provide comments on this assumption, or
to provide data on which we can formulate better estimates of the
compliance costs associated with the disclosure and referral
requirements of this proposed rule.
C. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995, 2 U.S.C.
1531-1538, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and Tribal
governments, and on the private sector. This proposed rule does not
impose any Federal mandates on any State, local, or Tribal governments,
or the private sector, within the meaning of the Unfunded Mandates
Reform Act of 1995.
D. Federalism
Pursuant to Executive Order 13132, DHS has determined that this
action will not have a substantial direct effect on the States, or the
relationship between the Federal government and the States, or on the
distribution of power and responsibilities among the various levels of
government, and, therefore, does not have federalism implications.
E. Paperwork Reduction Act
Under the Paperwork Reduction Act (PRA) of 1995, Pub. L. 104-13,
all agencies are required to submit to the OMB, for review and
approval, any reporting requirements inherent in a rule. See 44 U.S.C.
3506. Specifically, a Federal agency may not conduct or sponsor a
collection of information unless OMB approves the collection of
information under the PRA, and the collection of information must
display a currently valid OMB control number. Notwithstanding any other
provisions of law, no person will be subject to penalty for failing to
comply with a collection of information if the collection of
information does not display a currently valid OMB control number. 44
U.S.C. 3512.
The proposed rule includes new requirements. Section 19.6 would
require faith-based or religious organizations that provide social
services to beneficiaries under a DHS program supported by direct
Federal financial assistance to give beneficiaries (or prospective
beneficiaries) a notice instructing them of their rights and
protections under this regulation and to make reasonable efforts to
identify and refer beneficiaries requesting referrals to alternative
service providers. The content of the notice and the actions the faith-
based or religious organizations must take if a beneficiary objects to
the religious character of the organization are described in the
preamble and in the proposed regulatory text. The burden of providing
the notice to beneficiaries, and identifying and referring a
beneficiary to an alternative service provider are estimated in this
section.
Pursuant to program guidance and grant agreements, faith-based
organizations that would be subject to these requirements may have to
retain records to show that they have met the referral requirements in
the proposed regulations. Faith-based organizations could meet such a
retention requirement by maintaining, in the case of paper notices, the
bottom portion of the notice required under the proposed Appendix. DHS
does not include an estimate of the burden of records retention.
The Department has retention requirements included in information
collection instruments for Department programs. Those collection
instruments cover burdens imposed under program and administrative
requirements under current information collection instruments that are
approved by OMB and each of those collections has an OMB-assigned
information collection control number.
The retention burden that would be added to those information
collection instruments under these proposed regulations is so small as
to not be measurable in the context of all the program and
administrative requirements in the existing program collection
instruments. For example, a grantee or subgrantee that had to provide
notice under these proposed regulations could meet the record-keeping
requirement by collecting the tear-off portion of the notice for those
beneficiaries that request alternative provider and keeping it in a
designated folder. Therefore, the Department has determined that no
burden would be added that would require estimates of time and cost
burden as a result of maintaining records of compliance with these
proposed regulations.
The Department must impose the third-party notice requirements to
implement the requirements of Executive Order 13559.
The Department will submit an information collection request (ICR)
to the OMB to obtain PRA approval for the information collection
formatting requirements contained in this NPRM. Draft control number
1601-NEW will be used for public comment. The burden for the
information collection provisions of this NPRM can be summarized as
follows:
Agency: U.S. Department of Homeland Security, Office for Civil
Rights and Civil Liberties.
Title of Collection: Written Notice of Beneficiary Protections.
OMB ICR Reference Number Control Number: 201505-1601-001.
Affected Public: State and local governments, not-for-profit
organizations.
Total Estimated Number of Organizations: R, where R
represents the total number of entities that must give notice. To
estimate this number, the Department relied upon information
[[Page 47296]]
from two of its grant-making components: FEMA and USCIS. FEMA estimates
that there are approximately 2,600 grantees and subgrantees that would
have to provide some form of notice to beneficiaries.\11\ USCIS
estimates that there are approximately 24 grantees subject to the
notice requirement.\12\ Accordingly, DHS estimates that R is equal to
approximately 2,600.
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\11\ This figure includes known grantees and subgrantees of the
Emergency Food and Shelter Program, the Crisis Counseling Program
and the Disaster Case Management Program.
\12\ This figure includes known grantees and subgrantees of the
Citizenship and Integration Grant Program.
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Total Estimated Number of Notices: N, where N equals the
total number of beneficiaries under DHS social service programs to whom
provision of an individual written notice would be practicable. Faith-
based organizations covered by this rule would be required to provide,
where practicable, a notice to each beneficiary of a DHS-supported
social service program.\13\ Based on subject-matter expert best
estimates, DHS estimates that the total annual number of notices
required under this rule equals approximately 60,000.\14\
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\13\ As noted above, in this analysis, the Department assumes
that certain grantees and subgrantees under the Emergency Food and
Shelter Program provide services of a brief and potentially one-time
nature such that individual notice would not be practicable.
Creation of a common posted notice in those circumstances would be
comparable in burden to creating a single notice, and so creation of
such common notices is encompassed within the estimates provided for
compliance with the beneficiary notice provision.
\14\ DHS notes that in light of the nature of the grantor-
grantee-subgrantee framework attendant to some of its programs, it
is very difficult to estimate with accuracy the total number of
beneficiaries served by faith-based organizations administering DHS-
supported social service programs. In general, to produce the
estimate described above, for each covered program, DHS calculated
the percentage of grantees and subgrantees that may qualify as a
faith-based or religious organization under this rule. DHS then
multiplied that percentage figure by the estimated total number of
beneficiaries for each program, producing an estimate of the total
number of individuals served by faith-based or religious
organizations under each program.
Where using this methodology was not feasible due to data
limitations, DHS relied on subject matter experts in the relevant
grant program to make an appropriate best estimate.
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Total Estimated Annual Burden to Provide Each Notice:
60,000 minutes, or 1,000 hours (equivalent to 60,000 x T, where T is
less than or equal to one minute).
Total Estimated Annual Number of Requests for Referrals: N
x Z, where Z is the percentage of beneficiaries or potential
beneficiaries who request referrals. DHS assumes that Z is equal to
.0025.\15\ Under these assumptions, DHS estimates approximately 150
requests for referrals annually.
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\15\ In DHS's experience, beneficiaries do not frequently object
to receiving services from faith-based organizations. DHS assumes a
referral request rate of 0.25% for purposes of this analysis,
consistent with the practice of other agencies in this area. DHS
expects that this rate overestimates the likely referral request
rate.
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Total time required to complete a referral T, where T is
less than or equal to 4 hours.
Total Estimated Annual Referral Burden Hours: B, where B
is equal to the following:
B = (N x Z) x T.
B = (60,000 x .0025) x 4
B = 600
The Department therefore estimates that the Total Estimated Annual
Burden Hours is 1,600 hours or less. DHS expects that this
significantly overestimates the actual burden hours associated with
this rulemaking. DHS requests comments on this assumption, as well as
the remainder of this PRA analysis and this proposed rule.
The recipient provider will be required to complete the referral
form, notify the awarding entity, and maintain information only if a
beneficiary requests a referral to an alternate provider.
List of Subjects in 6 CFR Part 19
Civil rights, Religious discrimination.
For the reasons set forth above, DHS proposes to amend title 6 of
the Code of Federal Regulations to add a new part 19 as follows:
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; 6 U.S.C. 111, 112; 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.
Sec. 19.1 Purpose.
It is the policy of 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.
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
guidance at a future time with respect to the applicability of this
policy and this part to particular programs.
Sec. 19.2 Definitions.
For purposes of this part 19:
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.
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 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
[[Page 47297]]
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 non-governmental 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 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.
Sec. 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 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.
(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 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.
Sec. 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
[[Page 47298]]
in explicitly religious activities. No grant document, agreement,
covenant, memorandum of understanding, or policy 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) Religious activities that can be publicly funded under the
Establishment Clause, such as chaplaincy services, likewise would not
be considered ``explicitly religious activities'' that are subject to
direct Federal financial assistance restrictions.
Sec. 19.5 Nondiscrimination requirements.
An organization that receives direct financial assistance from DHS
for a social service program shall not favor or discriminate against a
beneficiary or prospective beneficiary of said program or activity on
the basis of religion, belief, religious practice, or lack thereof.
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.
Sec. 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
and prospective 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;
(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 prospective beneficiary has no objection; and
(5) Beneficiaries may report violations of these protections to DHS
through the Office for Civil Rights and Civil Liberties.
(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.
Sec. 19.7 Beneficiary protections: Referral requirements.
(a) If a beneficiary or prospective beneficiary of a social service
program covered under Sec. 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
prospective 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, or when the organization determines that it is unable to
identify an alternative provider, the organization shall notify DHS. If
the organization is unable to identify an alternative provider, DHS
shall determine whether there is any other suitable alternative
provider to which the beneficiary may be referred. An intermediate
organization that receives a request for assistance in identifying an
alternative provider may request assistance from DHS.
Sec. 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 Sec. 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.
Sec. 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
regulation. Accordingly, grantees should consult with the appropriate
DHS program office to determine the scope of any applicable
requirements.
Sec. 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
[[Page 47299]]
and therefore subject to the requirements of this part.
Appendix A to Part 19--Model Written Notice to Beneficiaries
NOTICE OF BENEFICIARY RIGHTS
Name of Organization:
Name of Program:
Contact Information for Program Staff (name, phone number, and
email address, if appropriate):
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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;
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 to the
Department of Homeland Security, Office for Civil Rights and Civil
Liberties:
E-mail: CRCLCompliance@hq.dhs.gov
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.
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BENEFICARY 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.
Jeh Charles Johnson,
Secretary.
[FR Doc. 2015-18257 Filed 8-5-15; 8:45 am]
BILLING CODE 9110-23-P
