Title VI Compliance – The Nitty Gritty

Title VI Compliance – The Nitty Gritty Presented by: Erin L. Hall, Attorney &Title VI & ADA Program Manager INDOT Legal Division

Understand your Title VI Responsibilities: • Designate a Title VI Manager • Ensure Programmatic Implementation throughout your agency • Develop, Post & Implement a Title VI policy • Implement a Complaint Policy • Maintain a Complaint Log • Evaluate the following for discrimination: • Programs / facilities • Activities

Understand your Title VI Responsibilities: • Adhere to the signed Assurances of Nondiscrimination & include the appropriate appendices where applicable • Disseminate Title VI information to beneficiaries & stakeholders: Include Title VI in your Public Involvement Plan • Monitor Subrecipients for Compliance • Develop, Post & Implement your annual program documents: • Title VI Implementation Plan, and • Annual Goals & Accomplishments Report

Designate a Title VI Manager: Requirements: KEEP INFORMATION UPDATED WITH INDOT! • Designate a Title VI Coordinator who: • has a responsible position in the organization (Policy Implementation) and • has easy access to the head of the agency. • The Title VI Coordinator will also be responsible for ongoing monitoring of Title VI activities. • Identify the Title VI Coordinator by name and: • include his or her contact information in the Title VI Plan, • on your website and • with your grievance procedure.

Designate a Title VI Manager: Recommendations: • ID on Organizational Chart • The Title VI Coordinator's responsibilities should include: • Self‐monitoring and review activities: Consider a liaison approach • Ensuring that Title VI requirements are included in policy directives and that the procedures used have built in safeguards to prevent discrimination. • Prompt processing of Title VI external discrimination complaints.

Designate a Title VI Manager: (continued) Recommendations: • Attending, developing & presenting nondiscrimination training. • Public dissemination of Title VI information, where appropriate, in languages other than English. • Maintain meeting agendas/minutes demonstrating that civil rights requirements are being addressed by the Title VI Coordinator. • Drafting annual documents (Implementation Plan, Goals & Accomplishments Report) • Coordination of subrecipient monitoring

Develop a Nondiscrimination Policy Requirements: • Develop a Title VI Nondiscrimination Policy Statement assuring nondiscrimination in the agency’s programs and activities. • Post This policy • Implement this policy INDOT’s Policy: http://www.in.gov/indot/3584.htm

Develop a Nondiscrimination Policy Recommendations: • Policy Statement: Signed by executive “No person shall on the grounds or race, color, national origin, sex, sexual orientation, gender identity, age, disability, religion, income status, or Limited English Proficiency be excluded from participation in, be denied the benefits of, or be otherwise subjected to discrimination under any program or activity conducted by the recipient regardless of whether those programs and activities are federally‐ funded or not.”

Develop a Nondiscrimination Policy Recommendations: • Circulate the policy statement internally and to the general public • In languages other than English where appropriate! • Publish the statement on your website • Include it in your implementation plan. • Place in your Employee Handbook & retain signature pages from employees that they have read and agree

Develop a Complaint Policy Requirements: • Develop a grievance procedure. • Develop a complaint form that clearly identifies the Title VI Coordinator by name & provides contact information. • NotifyINDOT of any complaints received within ten (10) days. • Maintain a log of all complaints received

Develop a Complaint Policy Maintain a log of all complaints received that identifies: 1. Each complainant by race, color, sex, national origin or other pertinent basis 2. The recipient 3. The nature of the complaint 4. The dates the complaint was filed and the investigation completed 5. The disposition 6. The date of the disposition 7. Other pertinent information 8. The status of the complaint investigation or lawsuit 9. Corrective actions taken, if any

Develop a Complaint Policy Recommendations: • Train ALL staff on the complaint procedure • Clearly define what constitutes a “complete complaint” • Clearly define when a complaint is considered “received” • Be prepared to take a complaint in any format: • Accommodate disabilities! • Always make sure there is a written outcome. • Complainant may sign your written version if needed. • Know that Title VI complainants have legal rights and are able to file their complaints in other venues, including taking legal action. • Follow your complaint procedures & adhere to your policy! INDOT’s Complaint Policy: http://www.in.gov/indot/3584.htm

Programmatic Implementation: Requirements: Build a communication network of trained agency representatives in different divisions, program areas, agencies, etc. such that adequate awareness & data collection & analysis can occur. Can you make a list of everything your community does? Who do you need to connect with to complete that list.

Programmatic Implementation: Requirements: • Identify areas with potential for discrimination • Determine what data collection and analysis is necessary to look for discriminatory practices & impacts • Select subject matter experts who can obtain, gather & assist in analyzing this data • Train these individuals and any other program area representatives who will interact with the data / information being analyzed in Title VI requirements • Work as a team to set goals and develop a plan for Title VI analysis in that program area

Program Evaluation: Requirements: • Develop and implement procedures for the collection of statistical data (race, color, national origin, sex, disability, and age) of participants in and beneficiaries of your agency’s programs. • Work with your liaisons, Program Area Representatives, or other Title VI team members to analyze data and information collected and • Make adjustments to programs as necessary to reduce discriminatory impacts, • Document your efforts.

Program Evaluation: Recommendations: • Conduct a Title VI discrimination analysis whenever data collected reveals the potential for discrimination. Is there Potential for Discrimination or the appearance thereof?

Case Study: Snow Removal in Neat Town: Ned plows snow for Neat Town. Neat town is small & Ned fills up with salt on the East side of town and plows the streets working from East to West, ending at the Neat Town Café, where he can finish with an nice hot cup of coffee. Sid lives in last neighborhood Ned plows and complains of discrimination, arguing Neat Town always plows his neighborhood last.

Case Study: Doing Buisness with Belltown: Belltown is ready to design a new Town Hall. It plans to contract with an architect to design the project. All the architects interested in the project happen to be the same race, gender and about the same age. You are Belltown’s Title VI Coordinator and the Town Council wants to know if this raises a Title VI concern.

From Tennesee.gov According to the CDC, health disparities are preventable differences in the burden of disease, injury, violence or opportunities to achieve optimal health that are experienced by socially disadvantaged populations. Health disparities can arise from environmental factors such as limited access to health care and other services, poor water or air quality, substandard housing and unsafe neighborhoods. Health disparities may be related to poverty arising from lack of education or employment opportunities.

(continued) Certain disparities exist for different genders, ages, races and cultural backgrounds, and also for behavioral factors such as tobacco use, substance abuse and unprotected sex. Several disparities have been identified among people who live in urban areas include racial segregation and concentrated poverty. Poverty can lead to higher medical costs and reduce the potential to work and earn. In communities with low socioeconomic status there are can be higher rates of unintended pregnancy, STDs, depression, obesity and suicide.

(Continued) In families experiencing poverty, adolescents are more likely to drop out of school. People are more likely to suffer health problems like depression, asthma, heart disease and diabetes. Persons of lower socioeconomic status are less likely to be able to afford leisure time fitness activities or have adequate health insurance – See more at: https://www.tn.gov/health/article/healthy-places-urban-areas#sthash.X7UhDdhS.dpuf

Small Group Case Study: You are the Title VI Coordinator for a large urban area are “cordially invited” to attend every meeting that includes a program or projects that might have a Title VI impact. You learn that: • Your parks department will receive funding to upgrade playground equipment at half of the city’s parks this year. • Your local YMCA plans to open a new branch • Your community is receiving funding through INDOT for a rails-to-trail project • Your maintenance division is closing a bridge downtown for two weeks in June for a safety project • Your parks department is hosting a summer camp for elementary age children in the community.

Small Group Case Study • Identify some risks for discrimination present with each of these projects. • What additional information do you need to evaluate the risks and who, in your community, might have that information? • Which program or project do you think would post the greatest risk and why? • What policies and practices do you have in place to address these risks? • What additional policies or practices would be beneficial? • Would you have been invited to these meetings?

Case Study: Advisory Board in Inputsville: A citizen in Inputsville has complained that whole the community is very diverse in every respect (age, ethnicity, race, national origin income, religion, you name it) the 12 members selected for the Mayor’s voluntary citizen’s advisory board represents only one race, has ten members who are male, and of the 12 members selected, all but four are over age 55. Most members have a college education and work in middle or upper management. This citizen does not believe the advisory board truly represents the community and fears that advice given the mayor by this board may result in outcomes that are not equitable.

Title VI programming in a Nutshell: Before we move on, let’s reflect on what we’ve covered: Identify • People who will work with you • Programs that have implications • Data that needs collected & analyzed Develop • Policies, procedures & plans Inform & Involve • Public awareness • Training staff, subrecipients Document • EVERYTHING

Assurances of Nondiscrimination: Requirements: • You sign the Assurances of Nondiscrimination when you receive federal funds either directly or as a subrecipient • They create a contractual obligation for Title VI Compliance • They contain Appendices that must be included in certain documents (bid solicitations, deeds, leases, etc.) • They create Do & Don’t obligations: • Don’t discriminate • Do monitor subrecipients • Do have a complaint policy • Do have a nondiscrimination policy • Do data analysis INDOT’s Assurances: http://www.in.gov/indot/3584.htm

Assurances of Nondiscrimination: Requirements: • Bid Solicitation Notice: “[Subrecipient] in accordance with Title VI of the Civil Rights Act of 1964, 78 Stat. 252, 42 U.S.C 2000d to 2000d-4 and Title 49, Code of Federal Regulations, Department of Transportation, Subtitle A, Office the Secretary, Part 21, Nondiscrimination in Federally assisted programs of the Department of Transportation and Title 23 Code of Federal Regulations, Part 200, Title VI Program and Related Statutes, issued pursuant to such Acts, hereby notifies all bidders that it will affirmatively insure that in any contact entered into pursuant to this advertisement, disadvantaged business enterprises will be afforded full opportunity to submit bids in response to this invitation and will not be discriminated against on the grounds of religion, race, color, national origin, sex, sexual orientation, gender identity, age, disability/handicap and low income in consideration for an award.”

Assurances of Nondiscrimination: Requirements: • Each program & facility will be operated in compliance with Title VI. • That the Recipient shall insert the clauses of Appendix A of this assurance in every contract subject to the Acts and the Regulations. • That the Recipient shall insert the clauses of Appendix B of this assurance, 'as a covenant running with the land, in any deed from the United States effecting a transfer of real property, structures, or improvements thereon, or interest therein.

Assurances of Nondiscrimination: Requirements: • Constructing facilities with federal funds = the assurance shall extend to the entire facility and facilities operated in connection therewith. • Federal funds to buy property or property interests = the assurance shall extend to rights to space on, over or under such property. • That the Recipient shall include the appropriate clauses set forth in Appendix C of this assurance, as a covenant running with the land, in any future deeds, leases, permits, licenses, and similar agreements entered into by the Recipient with other parties.

Assurances of Nondiscrimination: Requirements: • That this assurance obligates the Recipient for the period during which Federal financial assistance is extended to the program, except where the Federal financial assistance is to provide, or is in the form of, personal property, or real property or interest therein or structures or improvements thereon: • Then, the assurance extends for the greater of the following: • as long as the property is used for the purpose funded OR • as long as the recipient owns the property.

Assurances of Nondiscrimination: Requirements: • Subrecipient monitoring: • recipients must give reasonable guarantee that they, other recipients, subgrantees, contractors, subcontractors, transferees, successors in interest, and other participants of Federal financial assistance under such program will comply with all requirements imposed or pursuant to the Act, the Regulations and this assurance. • FHWA program contemplates subrecipient monitoring as part of that “reasonable guarantee” INDOT’s Assurances: http://www.in.gov/indot/files/DBWI_TitleVIAssurances.pdf

Assurances of Nondiscrimination: Requirements: • Enforcement: The Recipient agrees that the United States has a right to seek judicial enforcement with regard to any matter arising under the Act, the Regulations, and this assurance.

Assurances of Nondiscrimination: Enforcement: DOJ: • been directed to ensure the consistent and effective implementation of Title VI and other Nondiscrimination requirements • including Environmental Justice and Limited English Proficiency FHWA: • FHWA Division Offices are responsible for ensuring that all Recipients (State Transportation Agencies) have an approved Title VI/Nondiscrimination Plan and submit Annual Update Reports. • Ensuring that the State Transportation Agencies are implementing an effective Monitoring Program of their Subrecipients’ efforts to effectively implement Title VI INDOT’s Assurances: http://www.in.gov/indot/files/DBWI_TitleVIAssurances.pdf

Assurances of Nondiscrimination: Enforcement: Recipients: • Each recipient shall keep such records and submit timely, complete, and accurate compliance reports to determine compliance. • In the case in which a primary recipient extends Federal financial assistance to any other recipient, such other recipient shall also submit such compliance reports to the primary recipient. • In general recipients should have available racial and ethnic data showing the extent to which members of minority groups are beneficiaries of programs receiving Federal financial assistance. • Access to facilities & records should be made available • A Subrecipient’s noncompliance should be reported in the recipients report with a description of efforts made by the recipient to obtain compliance. • Recipients should educate their subrecipients in Title VI requirements. See 49 CFR 21.9 (b) (c) INDOT’s Assurances: http://www.in.gov/indot/files/DBWI_TitleVIAssurances.pdf

Disseminate Title VI Information: Requirements: • Provide an opportunity for public involvement and access to the transportation decision making process in every stage of the planning and development of transportation projects to everyone: • Including minority or low‐income communities and • Populations who are not proficient in English. • Consider disabilities! • Develop an agency Public Participation Plan with maps of the identified EJ and LEP populations (based upon the most recent Census data) that details how public participation is solicited, captured, and utilized.

Disseminate Title VI Information: Recommendations: • Engage the public at the earliest stages of any project • maintain participation throughout the process. • Document your solicitation efforts, • Keep good records. • Demonstrate how you utilized the comments received and what actions you are taking to broaden public participation where your data reveals participation is lacking REACH OUT TO YOUR MPOs! • If you are in a Metropolitan Planning Organization’s (MPO’s) area, much of this data may be available from the MPO for your use.

Disseminate Title VI Information: Recommendations: • Post your information on your website if you have one and don’t bury it! • Information at the forefront communicates that this is a priority! (The opposite is also true.) • Think outside the box: • Minority shopping stores • Places of worship • Community centers

Monitor Subrecipients for Compliance: Requirements: • Develop and implement pre and post-award subrecipient monitoring policies to ensure those further subrecipients who receive federal funds from you are compliant and remain compliant with Title VI. • Ensure post-award compliance reviews are risk-based • Ensure pre-award compliance monitoring strategies (i.e. CERTIFICATIONS) exist as this is the best opportunity to ensure discrimination does not occur.

Monitor Subrecipients for Compliance: Recommendations: • Develop subrecipient policies that fit the size and function of your community but that meet the requirements for monitoring. • Consider FHWA and INDOT policies when designing your own. http://www.in.gov/indot/files/DBE_SubrecipientTechnicalAssistanceTool.pdf • Clearly communicate your expectations • Train your staff of the importance of compliance monitoring as well as the procedures • Maintain records of all compliance reviews for at least three (3) years from the date the project is complete, NOT the date of the review.

Monitor Subrecipients for Compliance: Recommendations: • Let INDOT know if you are having trouble obtaining compliance from a subrecipient. We can help! • Do NOT withhold funding from a noncompliant subrecipient without following the appropriate administrative procedures. • Work with counsel to ensure compliance with 49 CFR 21 and other regulations.

Putting it all together: Title VI Implementation Plans Annual Goals & Accomplishments Reports Includes the analysis of facts & data collected & analyzed the prior program year Who received training, what data was gathered & how, what did it show. Who reviewed it, what changes were made? Defines goals for the next year Include task management for better outcomes! • Policy document • Who does what & how • Every person, role, business practice, policy, form & workflow should be identified here

Title VI Implementation Plan: Requirements: • Communicates how the agency implements the Title VI/Nondiscrimination requirements (including EJ & LEP) • Contains procedures, strategies, and activities to facilitate and assure nondiscrimination in federally assisted programs and activities of the agency. • Identifies the Title VI Coordinator, the Complaint Procedure, and includes all policies and nondiscrimination statements.

Title VI Implementation Plan: Requirements: • Includes mechanisms to guarantee effective and efficient implementation, compliance, and enforcement of Title VI. • Includes maps of Environmental Justice (EJ) and Limited English Proficient (LEP) populations (based upon the most recent Census data). • Includes organizational charts including any Title VI liaisons and program area representatives. • Discusses training programs, audiences and frequency. • Includes subrecipient monitoring practices.

Goals & Accomplishments Report: Requirements: • Identifies specific goals for the upcoming year including: • What program areas will be evaluated? • How? What data will be collected? How will it be analyzed? What will the analysis show? • Think “Who, What, When, Where, How & Why?”

Goals & Accomplishments Report: Requirements: • Discusses accomplishments from the prior year including: • What programs were evaluated? Include the data or a summary thereof, what it revealed and what action will result. • Subrecipient monitoring • Trainings & attendance • Complaints • Public comments

Even More Resources: • Virtual Office Hours • Networking / Coordinator’s Association • DOT website / FHWA • Consultants • GOOGLE!!! – There are other cities out there, increasingly – even in other states who have a plan that will work for you! • City / County Attorney • MPO’s • INDOT Regional Meetings

Resources: INDOT’s Local Programs Page: http://www.in.gov/indot/2390.htm • Funding opportunities (as they occur) • ITAP and website access • Eligibility & Training – ERC • Q&A: LPAQuestions@indot.in.gov

“With Liberty & Justice For ALL” As President John F. Kennedy said in 1963: “Simple justice requires that public funds, to which all taxpayers of all races [colors, and national origins] contribute, not be spent in any fashion which encourages, entrenches, subsidizes or results in racial [color or national origin] discrimination.”

Title VI Compliance – The Nitty Gritty