DAB Decision 59
June 20, 1979 State of Texas Governor's Committee on Aging; Docket No.
78-37; Decision No. 59 DeGeorge, Francis D.; Malone, Thomas Yourman,
Edwin
SUMMARY
(The following summary is prepared on the responsibility of the
Executive Secretary of the Board as a convenience to the interested
public. It is not an official part of the decision and has not been
reviewed by the Panel. Similar official summaries of earlier cases
appear in 45 CFR Part 16, Appendix.)
Grantee appealed from the determination of the Commissioner on Aging to
terminate a grant awarded by the Administration on Aging to conduct a
Nursing Home Ombudsman program. The grant provided a limited amount of
funding for an Ombudsman Developmental Specialist who was charged with
assisting Area Agencies on Aging to establish community action programs
to identify and deal with the complaints of older persons, or their
relatives, regarding the operation of nursing homes. The Board found
that, although the grant in question was the third such grant awarded to
grantee by AoA, almost mid-way through the program year not a single
local program had begun nor was it clear that there was a good prospect
that any would be established. The Board rejected as unsupported
grantee's contention that AoA had approved its use of the first two
years' grant funds for a legal services program, and upheld the decision
to terminate.
The Commissioner on Aging's determination, dated May 8, 1978, stated
that the effective date of the termination was 30 days from the date of
his March 31, 1978, notice advising grantee that it would be necessary
to terminate the grant if grantee did not respond in writing within 30
days with plans to correct the deficiency, or on April 30, 1978. The
Board found, however, that the notice of intent to terminate was not
automatically effective at the expiration of the 30-day period even
though grantee did not respond to the notice, and that the OHD Grants
Administration Manual required the agency to take affirmative action at
the end of the 30-day period to advise grantee whether its grant would
be terminated, and held that the termination was not effective until the
date of grantee's receipt of the Commissioner's May 8, 1978, letter,
directing that the amount to be refunded be adjusted accordingly.
DECISION
I. FACTS
This case involves an appeal by the Texas Governor's Committee on Aging
(grantee) of the termination of a grant awarded by the Administration on
Aging (AoA) for a Nursing Home Ombudsman Program. The grant amounted to
$30,810 for the year ending September 30, 1978. By letter dated May 8,
1978, the Commissioner on Aging notified the grantee that the grant
would be terminated effective April 30, 1978 for failure to comply with
the terms and conditions under which it was made.
The termination followed a long period of negotiations between AoA and
the grantee about the type of activities to be financed by the grant.
The grant was made under Section 308 of the Older Americans Act of 1965
(42 U.S.C. 3028) to "enable State agencies on aging and other public and
private nonprofit organizations to assist in the promotion and
development of ombudsman services for residents of nursing homes." It
was the third such grant awarded to the grantee by AoA, the first having
been for the year ending June 30, 1976.
The grantee carried out all of its activities for the program through a
contract with the State Bar of Texas. Under that contract, the Bar
employed an Ombudsman Developmental Specialist who was charged with
accomplishing the grant purposes. By the end of the first year, AoA
objected that the project was not focusing on an advocacy program for
nursing home patients but instead was directed toward the much broader
problem of legal services for the elderly, including elderly who were
not in nursing homes.
The differences widened between AoA and the grantee over the type of
activities to be undertaken and the issue was drawn clearly by the
program report which the grantee submitted with its application for
funds for the fiscal year ending September 30, 1978. In approving that
application, AoA imposed the following condition:
The report for last year indicates that the Nursing Home Ombudsman
Developmental Specialist partially fulfilled the objectives of the
program in visiting and working with Area
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Agencies on Aging, but was focused on "primary legal problems
facing the area residents of nursing homes" and other legal
issues. Discussions between the Commissioner and the Director of
the State Agency on Aging clearly separated the legal services and
ombudsman developmental functions. The grant is based on the
latter functions.
To this end it is necessary that the State Agency on Aging submit
within 45 days of receipt of this grant notice a work plan for
1978 outlining specific action steps and dates for their
accomplishment in carrying out the developmental specialist
functions on behalf of nursing home residents per AoA TAM 76-24.
This condition was intended to ensure that the grant resources would be
used only for developmental activities in the nursing home ombudsman
program. AoA TAM 76-24 provided general guidelines for such a program,
the objectives of which were summarized in section VI, paragraph 8 as
follows:
All of these recommended actions add up to this: We are urging the
State agencies on Aging to provide the leadership, through the
Ombudsman Developmental Specialist, in inaugurating, in as many
areas as possible, a community action program dedicated to
identifying and dealing with the complaints of older persons, or
their relatives, relative to the operation of nursing homes. The
success of this effort in the first year will be judged solely on
the basis of the number of community action programs that are
launched and the effectiveness of these programs in receiving
complaints and then resolving them in an effective and
constructive manner.
The grants under the ombudsman program were not intended to cover the
costs of achieving these objectives. The grants ranged from $18,000 to
less than $60,000 per State per year and those to Texas were $30,810 per
year. These grants were intended to pay, or help pay, for the cost of
having what section III of AoA TAM 76-24 refers to as an "Ombudsman
Developmental Specialist" on the State agency level. That specialist
was to "be responsible for providing overall leadership in planning and
service areas but should not be involved in directly providing services
to patients or handling complaints."
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The planning and service areas at the local level were directed by Area
Agencies on Aging (AAA) which were financed by other funds. It was these
agencies which were to arrange for the community action programs
designed to provide the actual services in nursing homes.
In February 1978 the grantee submitted a work plan which AoA rejected as
not complying with the condition it had imposed. The plan's approach
was to make the services of the Ombudsman Developmental Specialist
available to such AAA's as might express interest; there was no
provision for activities to stimulate interest on the local level.
Negotiations ensued and AoA suggested a work plan under which immediate
steps would be taken to initiate the program in the 28 areas of the
State which operated under an AAA. AoA asked that the State make $5,000
of funds from other sources available to each agency to enable it to
start the program on a local level.
The grantee's representatives protested that the AoA plan was
unrealistic in expecting such a broad implementation of the program, but
finally stated they would seek to get State approval of a plan to start
the program in 16 areas. On March IS, 1978, however, the grantee
submitted a plan similar to the one AoA previously had rejected, except
that it modified the plan by making $5,000 from other funds available to
any AAA which would agree to establish a project.
The Commissioner on Aging responded to the March 15 submittal in a
letter dated March 31, 1978, which stated in part:
The purpose of this letter is to notify you that the Texas
Governor's Committee on Aging has failed to comply with the terms
and conditions under which the grant was made for the Texas
Nursing Home Ombudsman Program. As has been pointed out
previously, this is an advocacy program for nursing home patients.
There must be therefore an active effort on the part of the State
or its contractor to enlist the involvement of the Area Agencies
on Aging and/or other sponsors. It is not sufficient to wait for
requests for assistance.
Guidelines and procedures established by the Office of Human
Development Services require that you be granted thirty (30) days,
from the date of this letter to respond in writing describing the
plans you will take to correct the deficiency. If an acceptable
plan is not forthcoming, it will be necessary for the
Administration on Aging to terminate this grant.
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On May 8, 1978, the Commissioner notified the grantee that since it had
not responded to the March 31 letter, he was terminating the grant "as
of April 30, 1978". He modified the grant award, decreasing it by
$12,834, which was the amount allocable to the period May through
September 1978.
II. Issues
The grantee contends that it applied for the grant with the
understanding that it would not be required to achieve "large numerical
goals" with the limited funds available. In any event, it claims that
it could not promise the number of projects expected by AoA because (1)
local agencies could not be forced to participate at a faster pace than
they chose, (2) the program was highly dependent upon securing
volunteers and (3) the amount of the grant was insufficient to permit
coverage of a large State. Also, it contends that the work plan AoA
sought would have required an additional expenditure of some $150,000
which was not contemplated by the grantee when it entered the program.
The grantee characterizes this as "in violation of the contractual
obligations" it had agreed to accept.
AoA on the other hand characterizes the work plan it presented as a
model or sample plan. It denies that it was requiring precise numerical
goals; rather it states that it sought to develop an approach designed
to stimulate activity at the local level.
III. Discussion
It is not without reason that AoA felt compelled to impose a condition
in the third year to require that the grantee submit a work plan which
complied with AoA TAM 76-24 within 45 days. The success of the program
was to be measured by the number of community action programs at the
local level. These clearly would have to be developed through the AAA or
some substitute agency. Yet, the grantee operated for two grant years
without asking the AoAs to develop local programs. Those agencies were
not solicited until October 1977, the beginning of the third grant year
and it was not until February 1978 that the grantee's Ombudsman
Developmental Specialist held the first meeting with the director of an
AAA to discuss plans for the ombudsman program.
The grantee asserts that its activities in using these grant funds to
develop a legal services program the first two years were approved by
AoA. It, however, submitted no evidence that AoA had approved the use of
the ombudsman program grants for that purpose. The grantee asserts that
such approval is contained in a letter from the Commissioner on Aging to
the Governor of Texas, undated but stamped received by the grantee
August 9, 1976. That letter, however, approved use of a contract
between the grantee and the State Bar
"designed to bring increased awareness of the problems of older
persons in nursing homes in Texas and to work toward the
amelioration of these problems. The goal of this program is to
develop a process at the area or
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community level which will be responsive to complaints from
residents or relatives of older persons in skilled nursing homes
and intermediate care facilities."
A year and a half later not a single local program had begun, nor was it
even clear that there was a good prospect that any would be established.
Rather than providing support for the grantee's position, the letter
indicates that AoA was unduly patient in waiting so long to take
definitive action.
The grantee argues that under current AoA regulations there is a
"combined nursing home ombudsman base and legal services development
base for the newly enacted Older Americans Advocacy Program." That
argument is not relevant. We can only consider the program as it existed
during the fiscal years ending in 1976, 1977 and 1978. At that time
there was a clear intent that the very limited resources which then were
available be directed toward the development of local nursing home
ombudsman projects.
IV. Effective Date of Termination
The grantee also challenges the use of April 30, 1978, as the effective
date of the termination. The grantee did not have notice of the
termination until it received the May 8, 1978, termination letter. The
termination followed a notice of intent to terminate which was dated
March 31, 1978, and stated that it would be necessary to terminate the
grant if grantee did not respond in writing within 30 days with plans to
correct the deficiency. The notice of intent did not state that the
termination would be automatically effective at the expiration of that
30-day period. Moreover, the OHD (now OHDS) Grants Administration
Manual provides that "(i)f circumstances warrant... termination action
may be taken in lieu of a suspension (but after a 30-day period to take
corrective action has expired)." We believe this requires the agency to
take affirmative action at the end of the 30-day period to advise a
grantee whether its grant will be suspended or terminated. We hold,
therefore, that the termination could not have been effective prior to
May 15, 1978, the date of the receipt by grantee of the May 8, 1978,
termination letter.
Conclusion
The effective date of the termination is May 15, 1978, the date of the
grantee's receipt of the termination letter. The decrease in grant
shall be adjusted accordingly; otherwise, the appeal is denied. D11
May 15, 1992