Proposed Rules on Faith-Based Social Services

In 2009, President Obama asked the Advisory Council for Faith-Based and Neighborhood Partnerships (Advisory Council) to make recommendations for strengthening the constitutional and legal footing of social service partnerships the government forms with faith-based nongovernmental social service providers. The Advisory Council issued its recommendations in March 2010. In response to the Advisory Council’s recommendations, President Obama signed Executive Order 13559.

The Executive Order promulgated a set of “fundamental principles” for agencies to follow in formulating and implementing policies that have implications for faith-based organizations that administer social service programs or that support (including through prime awards or sub-awards) social service programs with Federal financial assistance.

Specifically, the Executive Order provided that such faith-based organizations should be prohibited from discriminating against beneficiaries or prospective beneficiaries of the social service programs on the basis of religion or religious belief.

Additionally, organizations that engage in explicitly religious activities must perform such activities separately from its services that are supported with direct Federal financial assistance. For example, if a faith-based provider offers a Bible study as well as a federally supported job training program, the Bible study must be privately funded and adequately separated in time or location from the job training program.

The Executive Order also provided that faith-based organizations should be eligible to compete for Federal financial assistance and to participate fully in the social service programs without impairing their religious character. For example, religious providers should be allowed to use religious terms in their organizational names and to include religious references in mission statements and in other organizational documents.

It also provided that if a beneficiary or prospective beneficiary objects to the religious character of an organization that provides services under the program, then that organization shall, within a reasonable time after the date of the objection, refer the beneficiary to an alternative provider.

On August 05, 2015, nine federal agencies issued proposed rules to accomplish some of the aims of President Obama’s Executive Order 13559.

The proposed rules, among other things, provided definitions for the terms “direct Federal financial assistance” and “indirect Federal financial assistance” so that faith-based organizations may understand that certain religious liberty protections are triggered under the updated regulations only if a faith-based organization receives direct Federal financial assistance.

The rules define the term "explicitly religious activities” and reiterate that explicitly religious activities must be performed separately from services that are supported with direct Federal financial assistance.

The rules also require that faith-based organizations supported with direct Federal financial assistance provide beneficiaries with a written notice informing them of a variety of religious liberty protections, including steps that must be taken to refer the beneficiary to an alternative provider, if the beneficiary requests such a provider.

Some of the rules also provide a resolution process so that beneficiaries can file complaints about social service providers that fail to comply with applicable rules.

The agencies received comments on the proposed rules until October 6, 2015. Once those comments have been analyzed, the final rules will be issued. Separate from the rulemaking process, different agencies have stated that they are continuing to work toward other modifications to their guidance, practices and communications strategies consistent with Executive Order 13559.

If you have any questions, please don’t hesitate to call Rob Quillin, Michael Crowder, or Zack Gardner at (865) 546-7311 or email us at quillinr@kmfpc.com, mcrowder@kmfpc.com, or zgardner@kmfpc.com.

Kennerly Montgomery is a general practice law firm that has provided legal advice to clients for almost 100 years. KM has attorneys experienced in assisting clients in navigating the hazards presented in today’s workplace. Our attorneys routinely deal with employment, civil rights, employee benefits, workers compensation, termination, and other workplace issues for our clients, including insurance defense and governance for churches and church-associated entities.