Summary
The Food and Nutrition Service (FNS) proposes to revise Supplemental Nutrition Assistance Program (SNAP) regulations that cover the collection and reporting of race and ethnicity data by state agencies on persons receiving benefits from SNAP. This rule would remove regulatory language that provides an example that state agencies might collect race and ethnicity data by observation (also referred to as “visual observation”) when participants do not voluntarily provide the information on the application form. Through this rulemaking, FNS intends to improve the quality of data collected for purposes of federal civil rights law and policy (including Title VI of the Civil Rights Act of 1964). USDA's Food and Nutrition Service is committed to promoting equity and inclusion through its federal nutrition assistance programs. This regulatory change is consistent with this Administration's priorities and furthers FNS' commitment to build equitable and inclusive systems for nutrition access.
Dates
Written comments must be received on or before Aug. 26, 2022 to be assured of consideration.
Background
Current Policy
Title VI of the Civil Rights Act of 1964 prohibits discrimination on the basis of race, color, or national origin in programs receiving federal financial assistance. Additionally, Department of Justice (DOJ) regulations1 at title 28 of the Code of Federal Regulations (CFR), § 42.406(a) require all federal agencies to provide for the collection of racial and ethnic information from applicants and beneficiaries of federal assistance programs sufficient to permit effective enforcement of Title VI. Accordingly, SNAP regulations at 7 CFR 272.6(g) and (h) require state agencies to collect race and ethnicity data on participating households and report the data to FNS to help ensure program benefits are distributed without regard to race, color, or national origin. FNS uses this data to determine how effectively FNS programs are reaching potential eligible persons and beneficiaries, identify areas where additional outreach is needed, assist in the selection of location for compliance reviews, and complete reports as required.
Per 7 CFR 272.6(g), state agencies that administer SNAP are required to collect data on participants' race and ethnicity in the manner specified by FNS. The regulations provide that the application form must clearly indicate that the information is voluntary and that it will not affect the eligibility or the level of benefits. SNAP regulations at 7 CFR 272.6(g) also require state agencies to develop alternative means of collecting racial and ethnic data on households, such as by observation during the interview, when the information is not provided voluntarily by the household on the application form.
State agencies report aggregate race and ethnicity data to FNS annually via the form FNS-101, “Participation in Food Programs by Race” (Office of Management and Budget (OMB) Control Number 0584-0594, expiration 7/31/2023). FNS uses this aggregate data to conduct compliance reviews and investigations, identify trends or disparities that affect participation goals and opportunities to address them, and identify any potential adverse or disproportionate impacts when developing program policy.
Review of Visual Observation Policy and Proposed Regulatory Change
OMB Directive 15, Standards for the Classification of Federal Data on Race and Ethnicity,2 provides that self-identification is the preferred means for gaining information about an individual's race and ethnicity, when practicable, and notes that when these data points are collected through observation, they are likely to be very different than from the information obtained when respondents report about themselves, especially in populations with multiple racial heritages.
In a recent review of existing policy by the FNS Civil Rights Division and child nutrition programs,3 FNS updated its policy to eliminate visual observation as data collection method for other FNS programs where “visual observation” was permitted per the regulatory language or policy guidance. The review referenced reports stating that program participants do not want to have their race or ethnicity determined for them. Moreover, FNS concluded in this policy update that a third party's observation of an individual's appearance is not a reliable means to capture how a participant self-identifies their own racial or ethnic identity. This conclusion is supported by a recent Center for Medicaid Studies (CMS) study that assessed the quality of race and ethnicity information in observational health databases. The study suggested that patient self-reporting may provide better quality data than visual observation.4
A review of SNAP policy led to the conclusion that the use of visual observation for racial and ethnicity identification is unreliable data as it requires that state eligibility workers assume or guess the race or ethnicity of households. Therefore, FNS has determined that SNAP state agencies are no longer permitted to collect racial and ethnic data on households through visual observation. State agencies must continue to use alternative means to collect this information when not provided voluntarily on the SNAP application.
Accordingly, through this rule FNS proposes revising paragraph (g) at 7 CFR 272.6 to remove the phrase, “such as by observation during the interview,” as a way for SNAP state agencies to collect racial and ethnic data from households that do not voluntarily provide it in their application. FNS believes this change will better align SNAP regulations with current federal policy (including Title VI of the Civil Rights Act of 1964) by improving the quality of collected data. This proposed rule will increase the accuracy of data collected on the race and ethnicity of SNAP households by reducing errors in data collection caused by inaccurate visual observation. Eliminating the use of visual observation would still provide FNS the information needed to meet the federal requirement to collect this data. This underreporting may be mitigated through the use of other data sources or statistical tools to account for the times when participants choose not to self-identify.
FNS acknowledges the potential challenges this regulatory change may place on states' administrative processes for collecting demographic data. States should continue to explain the importance of this data to participants as they encourage them to self-identify and self-report.
States must still develop an alternative means of collecting the data, besides visual observation, when participants do not voluntarily provide the information. In developing these alternative collection methods, FNS encourages states to consider obtaining the data from other reliable sources where the respondent has self-identified race or ethnicity, such as applications for other assistance programs operated by the state agency (e.g.,employment, health, or social services). During the public comment period on this rule, FNS encourages states to submit comments on best practices for developing alternative methods for collecting race and ethnicity data when the information is not voluntarily provided on the application form. FNS plans to provide guidance to states on this issue.
2 62 FR 58782 (October 30, 1997) (https://www.govinfo.gov/content/pkg/FR-1997-10-30/pdf/97-28653.pdf).
3 CACFP 11-2021, SFSP 07-2021- “Collection of Race and Ethnicity Data by Visual Observation and Identification in the Child and Adult Care Food Program and Summer
Food Service Program—Policy Rescission” (https://www.fns.usda.gov/cn/Race-and-Ethnicity-Data-Policy-Rescission).
4 https://www.cms.gov/about-cms/agency-information/omh/downloads/data-collection-resources.pdf.