Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Appellate Division
SUBJECT: Mansfield-Richland-Morrow Total Operation Against Poverty, Inc.
Docket No. A-98-11
Decision No. 1671
DECISION
The Mansfield-Richland-Morrow Total Operation Against Poverty, Inc. (TOAP) appealed a November 13, 1997 decision by the Administration for Children and Families (ACF) terminating TOAP's Head Start grant pursuant to 45 C.F.R. . 1303.14. ACF's decision was based on the results of an April 1996 On-Site Program Review (OSPR) and a May 1997 follow-up review. The May 1997 review convinced ACF that termination was justified because TOAP continued to exhibit deficiencies in several program component areas initially cited as deficient in the April 1996 OSPR. ACF concluded that, in spite of ample opportunity to correct the 1996 deficiencies, TOAP continued to fail to provide required health services, did not have an effective enrollment process and, in general, did not effectively monitor its program to ensure compliance with various component requirements. See generally Notice of Termination (November 13, 1997).
On April 30, 1998, after TOAP had filed its brief and appeal file, ACF asked the Board to summarily affirm the termination. ACF stated that the documentary evidence in the record, including affidavits and documents submitted by TOAP in this proceeding, demonstrated the existence of material deficiencies in the three component areas which ACF cited in its Notice of Termination. On June 29, 1998, TOAP submitted its own Motion to Dismiss, arguing that the Board should summarily overturn ACF's termination of TOAP as a Head Start grantee because TOAP had not been given a full one-year period to correct its deficiencies before ACF conducted its May 1997 follow-up review.
Having considered fully the parties' arguments and evidence in support of their cross motions, we grant ACF's motion and deny TOAP's. We conclude that the Board may properly dispose of this appeal on the basis of the record now before us. We further conclude that, even though TOAP had the full opportunity required by statute and regulations to bring itself into compliance with program standards, TOAP failed to demonstrate, by a preponderance of the evidence in the record, that it complied with the performance standards cited in 17 repeat deficiencies. These deficiencies are so material as to warrant termination of TOAP's Head Start grant under 45 C.F.R. . 1303.14(b)(4).
BACKGROUND
Overview of Applicable Law and Regulations
The Head Start program is designed to deliver comprehensive health, educational, nutritional, social and other services to economically disadvantaged children and their families. See 42 U.S.C. . 9831 and 45 C.F.R. . 1304.1-3. ACF funds grantees to serve as Head Start agencies within designated communities and periodically reviews their performance in meeting program and fiscal requirements. See generally 42 U.S.C. . 9836. The law requires that a Head Start agency --
shall observe standards of organization, management, and administration which will assure, so far as reasonably possible, that all program activities are conducted in a manner consistent with the purposes of this subchapter. . . . Each such agency shall establish or adopt rules to carry out this section, which shall include rules to assure full staff accountability in matters governed by law, regulations or agency policy . . . . 42 U.S.C. . 9839(a); see also 45 C.F.R. . 1301.30.
In addition, the Secretary has promulgated program performance standards covering the education, health (including medical, dental, mental health and nutrition), social services, and parent involvement component areas of Head Start. See 45 C.F.R. Part 1304. The program performance standards covering services for children with disabilities are in 45 C.F.R. Part 1308.
The program regulations require each grantee, with the advice and concurrence of its Policy Council, to develop, and update at least annually --
a plan for implementing the performance standards prescribed in Subparts B, C, D, and E, of this part for use in the operation of its Head Start program (hereinafter called "plan" or "performance standards plan"). The plan shall provide that the Head Start program covered thereby shall meet or exceed the performance standards. 45 C.F.R. . 1304.1-4.
The Head Start Act requires HHS to conduct a full review of each Head Start agency at least once during each three-year period. 42 U.S.C. . 9836a(c)(1)(A).
The Head Start regulations at 45 C.F.R. . 1303.14(b) list nine grounds on which a Head Start grantee agency's funding may be terminated. In the present case, ACF relies on the regulatory provision for grant termination when a grantee has failed to meet the performance standards for operation of its Head Start program. 45 C.F.R. . 1303.14(b)(4).
The Head Start Act at 42 U.S.C. . 9841(a)(3) and regulations at 45 C.F.R. . 1303.16(a) provide that a grantee shall have an opportunity for "a full and fair hearing" on a proposed termination. Procedures for the conduct of a hearing are set forth at 45 C.F.R. . 1303.16. The Board is authorized to act on behalf of the Secretary to provide this opportunity for hearing. 57 Fed. Reg. 59,260 (December 14, 1992). The Board's procedural regulations at 45 C.F.R. Part 16 apply to these proceedings insofar as they are not inconsistent with Part 1303. 45 C.F.R. . 1303.14(c)(2).
Facts
TOAP is a community service organization with a 32-year history of involvement in a variety of community action programs in and around Mansfield, Ohio. At all times relevant to this proceeding, TOAP received federal funds from HHS through ACF to run a Head Start program.
ACF conducted an OSPR of TOAP's Head Start program from April 15-19, 1996. In a May 23, 1996, Letter of Understanding (LOU), ACF notified TOAP that it had been marked out of compliance with 21 OSPRI (On Site Program Review Instrument) items resulting in deficiencies in four principal component areas: Health; Eligibility, Recruitment, Selection, Enrollment, and Attendance; Parent Involvement; and Financial Management. ACF determined that the nature and degree of these non-compliances compromised TOAP's ability to provide quality Head Start Services. Consequently, ACF warned TOAP that, if uncorrected, these deficiencies would result in termination of TOAP's grant. ACF informed TOAP that it was required to develop and submit to ACF a Quality Improvement Plan (QIP) within 30 days of receipt of the LOU. The QIP was to establish substantive corrective actions for the deficiencies as well as a timetable for implementation. ACF indicated that it was prohibited, by law, from allowing a grantee more than one year, from the date of receipt of notice of the deficiencies, to correct the deficiencies. ACF Reply Brief (Br.) at 4-6. Throughout the LOU, ACF stressed that time was of the essence in correcting the deficiencies and that TOAP should not hesitate in using available resources (i.e., assistance from ACF) to achieve compliance. See ACF Ex. 2 at 1-3.
On June 24, 1996, TOAP submitted its QIP to ACF asserting that it would correct all deficiencies between July and November 1996. See ACF Ex. 4. ACF approved the QIP on July 8, 1996. ACF Ex. 5. At that time, ACF encouraged TOAP to maintain a sense of urgency in correcting the deficiencies, offered technical assistance, and scheduled on-site visits for September 1996 and January 1997. These on-site visits were intended to assist TOAP by monitoring its efforts at program compliance. ACF instructed TOAP to maintain documentation identifying improvements brought about by corrective actions. Moreover, ACF required TOAP to certify, by December 15, 1996, that it had corrected all deficiencies. ACF pointed out that since TOAP was required to have corrected all deficiencies by May 24, 1997, this earlier certification date would allow room for any adjustments which might be needed. ACF Ex. 5
TOAP canceled the September 1996 on-site monitoring visit. See ACF Ex. 6.
On January 9, 1997, TOAP certified to ACF that all its deficiencies had been corrected. ACF Ex. 9. On January 22-23, 1997, ACF reviewers visited TOAP to monitor its progress. ACF's ensuing (February 4, 1997) report indicated that TOAP had corrected its financial management deficiencies. The report concluded that TOAP remained out of compliance in the other three component areas (Health; Eligibility, Recruitment, Selection, Enrollment and Attendance; and Parent Involvement) cited in the 1996 OSPR. The report re-examined those areas and stressed the need for timely and complete correction of the remaining deficiencies. See ACF Ex. 11 at 1-6; ACF Br. at 11-13.
ACF conducted a follow-up on-site review on May 5-8, 1997. Generally, ACF found that TOAP had numerous repeat deficiencies and was still out of compliance with the three component areas remaining from the 1996 OSPR. See ACF Ex. 14; ACF Br. at 13-33. In November 1997, based on the results of the 1996 OSPR and the May 1997 follow-up, ACF proposed to terminate TOAP's Head Start grant.
On November 21, 1997, TOAP timely appealed, requesting a hearing on the proposed termination. In its Acknowledgment of Appeal (December 4, 1997) and in a subsequent telephone conference (December 11, 1997), the Board established deadlines for discovery, briefing and submission of evidence. The Board deferred setting a hearing schedule, pending receipt of the parties' submissions.
Following receipt of TOAP's brief and appeal file, ACF filed a Motion for Summary Disposition alleging, generally, that TOAP's evidence and argument supported, rather than refuted, ACF's termination decision.
Subsequently, on June 24, 1998, TOAP filed a Motion to Dismiss the termination. TOAP's Motion noted that evidence of repeat deficiencies had been gathered in a follow-up review conducted May 5-8, 1997. TOAP argued that, by law, it had one year from receipt of the deficiency notice (i.e., until May 24, 1997) to correct the deficiencies. Thus, TOAP concluded, evidence of repeat deficiencies based on a follow-up review conducted prior to May 24th could not serve as a basis for termination. TOAP alleged that, in fact, all deficiencies were corrected by May 24th. Consequently, TOAP asked the Board to overturn the termination.
Applicable Legal Standards
The standards applicable to terminations are well-settled. The Board has previously stated that the provisions of 45 C.F.R. . 1303.14 require ACF to make a prima facie case that there exists sufficient evidence to satisfy the regulatory standards for termination or denial of refunding. See Target Area Programs for Child Development, Inc.,(TAP) DAB No. 1615 at 6 (1997) (and cases cited therein). Once ACF has set forth legally adequate reasons to support a denial of refunding or termination, and has provided sufficient specificity for the grantee to respond to the substance of individual findings, the regulations require the grantee to respond. Specifically, section 1303.15(d)(3) provides that a grantee's appeal "must set forth the grounds for the appeal and be accompanied by all documentation that the grantee believes is relevant and supportive of its position." See also 45 C.F.R. . 16.8(a)(1),(2).
In prior cases in which the Board has decided a Head Start termination or denial of refunding appeal without an in-person hearing, the Board has held that once presented with a prima facie case, a grantee must present evidence sufficient to challenge ACF's case or risk summary disposition. Springfield Action Commission, DAB No. 1547 at 5 (1995). A grantee always bears the burden to demonstrate that it has operated its federally funded program in compliance with the terms and conditions of its grant and the applicable regulations. See Lake County Economic Opportunity Council, Inc., (Lake County) DAB No. 1580 at 5 (1996); Meriden Community Action Agency, Inc., (Meriden) DAB No. 1501 at 41 (1994); Rural Day Care Association of Northeastern North Carolina, DAB No. 1489 at 8, 16 (1994); see also 45 C.F.R. . 74.21(b)(2). Moreover, a grantee is clearly in a better position to establish that it did comply with applicable requirements than ACF is to establish that it did not. Therefore, the Board has held that the ultimate burden of persuasion is on the grantee to show that it was in compliance with program standards.
The Head Start Act does not allow grantees an unlimited amount of time to correct deficiencies in meeting performance standards; otherwise families would not receive the full benefits of the Head Start program and grantees would not have an incentive to improve their programs until termination or denial of refunding proceedings were initiated. Meriden at 6.
Regarding the question of how the Board should analyze the record developed under Part 1303 in conjunction with Part 16, the appropriate standard to be applied to competing evidence is preponderance of the evidence. That standard requires "evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not." Black's Law Dictionary 1182 (6th ed. 1990). This is the commonly accepted standard for administrative proceedings. See Lake County, at 5-6 (1996).
Further, once the Board has determined that a grantee has failed to meet program requirements, we must consider whether the deficiency or deficiencies are so material to the grantee's performance of the grant that termination is warranted. The concept of "materiality" found in 45 C.F.R. . 74.62 is read into 45 C.F.R. Part 1303 because the Department-wide grants administration regulations in Part 74 apply to the extent that they are consistent. Given the general statutory preference for continuing funding to existing grantees (42 U.S.C. . 9836(c)(1)) and, where appropriate, permitting a grantee the opportunity to correct deficiencies (42 U.S.C. . 9836a(d)(1)(B)), it is consistent to read materiality into 45 C.F.R. . 1303.14(b), which lists the bases for termination or denial of refunding actions. Certainly, ACF should not seek to end a grantee's Head Start participation on a mere technicality.
TOAP's MOTION FOR DISCOVERY
On July 14, 1998 TOAP submitted to ACF a request for production of documents "to properly prepare for the upcoming hearing," as well as a request to schedule depositions of potential witnesses. On July 17th, ACF declined to comply with that request, reminding TOAP that the Board had set deadlines for discovery which had expired months earlier. Further, ACF noted that preparation for hearing was unnecessary at this point because ACF's request for summary disposition had been fully briefed and was ripe for decision. On July 24th, TOAP filed a Motion for Discovery arguing that discovery would among other things narrow the issues to be litigated during the hearing.
We deny TOAP's Motion for Discovery.
The Board had previously set deadlines for discovery that expired well over six months prior to TOAP's Motion. In our December 11, 1997, telephone conference we notified the parties that they would "have 10 days at the start of your respective briefing processes to alert opposing counsel to any discovery issues." TOAP did not make any discovery request at the specified time and submitted its appeal brief and appeal file on February 2, 1998. In its Motion for Discovery, TOAP did not provide any reason why it could not have complied with the deadlines set by the Board.
TOAP's Motion requests discovery in order to facilitate the holding of an in-person hearing. As ACF stated, however, the parties have filed cross motions for summary disposition of the appeal, which would obviate the need to ever hold an in-person hearing. Those motions have been fully briefed and became ripe for decision before TOAP even filed its Motion for Discovery.
TOAP failed to indicate what relevance, if any, its Motion for Discovery had to the issues presented by the cross motions now pending before the Board or to any issues that conceivably might have to be addressed in the event of an in-person hearing. The primary issue raised by ACF's proposed termination of TOAP's grant is whether TOAP can demonstrate that it had complied with the performance standards reflected in the cited OSPRI deficiencies. Generally speaking, the best evidence of compliance would be records or documents generated by TOAP itself in operating its program. Presumably, all these documents would be in TOAP's possession, not ACF's. Furthermore, contrary to what TOAP seems to be suggesting in its Motion, the thought processes of ACF reviewers in preparing the 1996 or the 1997 OSPR (or of ACF in issuing the Notice of Termination) are irrelevant to the Board's consideration. Rather, our process is designed to give TOAP a de novo opportunity to demonstrate that, contrary to the findings cited in the Notice of Termination, it had come into compliance with the performance standards during the relevant period.
Accordingly, we deny TOAP's Motion for Discovery.
TOAP's MOTION TO DISMISS
In its Motion to Dismiss, TOAP argued that the termination was impermissible because TOAP had not been given a full year to correct its deficiencies. Specifically, TOAP argued that the statute contemplates a full one-year period to correct deficiencies in instances where ACF authorizes grantees to submit a QIP. TOAP contended, moreover, that ACF had specifically notified TOAP that it had one full year to correct its deficiencies beginning with its May 24, 1996 receipt of written notice of the deficiencies (i.e., the LOU). See Notice of Termination (November 13, 1997) at 2 (citing ACF's July 8, 1996 approval of the QIP). TOAP argued that the follow-up should have been held not immediately after the close of the one-year period on May 24, 1997, when its operations had been suspended for the summer, but in mid-October of 1997, when the 1997-1998 school year was in full progress. Noting that ACF performed its follow-up OSPR on May 5-8, 1997, TOAP argued that we should dismiss this proposed termination because TOAP should have been given through May 23, 1997 to come into compliance. See generally TOAP Motion to Dismiss.
Based on notices provided by ACF after the initial survey, TOAP was given a full calendar year to bring itself into compliance with the deficiencies cited in the 1996 OSPR. We conclude that ACF properly performed its resurvey approximately two weeks prior to the close of that period on May 5-8, 1997. The survey date as chosen by ACF was a practical necessity as TOAP's Head Start school year ended May 23, 1997. No staff or children would have been available after May 24, 1997 up until the beginning of the next school year for the surveyors to evaluate. Just as a grantee's program funding should not be denied or terminated on a mere technicality, so too should a mere technicality not serve to shield a grantee from the logical consequences of its failure to correct numerous and long-standing deficiencies.
Moreover, as will be evident from our analysis of the specific OSPRI Items below, the deficiencies at issue required remedial actions by TOAP while its program was still in operation and, in most instances, during the early part of the school year or even within the first 45 days. In its July 8, 1996 letter approving TOAP's QIP, for example, ACF not only reminded TOAP of the one-year deadline it had approved for corrections, but it also urged TOAP to make corrections more quickly according to the schedule in its QIP which TOAP itself represented it could meet. That schedule required compliance in all instances well before the close of the school year. Indeed, in that letter ACF counseled TOAP about the requirement to certify by letter that the deficiencies had been corrected on or before December 15, 1996. In fact, on January 9, 1997, well before the expiration of the one-year period for correction, TOAP certified that all deficiencies had been corrected in accordance with its QIP.
Given the assurances it developed in the QIP as well as ACF's numerous, consistent, directives on these deficiencies, it is illogical for TOAP to argue now that its ability to comply was compromised by a follow-up occurring two weeks prior to the close of the corrective period. As we discuss below, TOAP's inability to take timely corrective actions jeopardized its ability to provide its funded level of services to program participants. That result is contrary to the underlying intent of the Head Start Program in general and a misuse of scarce Federal funding.
The gist of TOAP's argument appears to be that it should be allowed still one more school year to come into compliance. ACF correctly noted that the Head Start statute and regulations do not contemplate that a grantee under a QIP be given substantially more than a year to bring itself into compliance. Rather, the statute provides that the correction date specified in a QIP shall not be "later than 1 year after the date the agency received notice of the determination and of the specific deficiency to be corrected." 42 U.S.C. . 9836a(d)(2)(A)(ii). Under the facts of this case, that one-year outer limit would end May 23, 1997.
Although the follow-up OSPR occurred from May 5-8, 1997, ACF considered supplemental evidence provided by TOAP after the follow-up review covering the period through May 23, 1997. See, e.g., Notice of Termination at 3-4, 7. We have also reviewed these documents. Thus, TOAP had the benefit of the full one-year period approved by ACF. In any event, TOAP has not demonstrated that it in fact corrected any of the deficiencies during the period between May 8, 1997 through May 23, 1997, by submitting documentary evidence supporting such a contention.
Accordingly, we conclude that TOAP's arguments for dismissal of the termination are unavailing, and we deny TOAP's Motion.
ACF's MOTION FOR SUMMARY DISPOSITION
In support of its Motion for Summary Disposition, ACF argued that the evidence of record (and particularly the documentation and affidavits supplied by TOAP during this Board proceeding) fully supports each of the findings of non-compliance, thereby making further Board proceedings unnecessary. We agree with ACF that disposition of this appeal on the existing record is appropriate for the following reasons:
The remainder of our decision is devoted to an analysis of the evidence of record concerning each of the 17 repeat OSPRI findings of program deficiencies and an analysis of why these deficiencies are material.
ANALYSIS OF OSPRI FINDINGS
I. Health
The performance standards for the health component of the Head Start program are found at 45 C.F.R. Part 1304, Subpart C. The Head Start program emphasizes the importance of early identification and prompt treatment of health problems. The general objectives of this component are to: (a) Provide a comprehensive health services program to assist the child's development including a broad range of medical, dental, mental health and nutritional services to preschool children; (b) Promote preventative health services and early intervention; and (c) Provide the child's family with the necessary skills and insight and otherwise attempt to link the family to an ongoing health care system to ensure that the child continues receiving comprehensive health care services after leaving Head Start. See 45 C.F.R. . 1304.3-1.
The program regulation at 45 C.F.R. . 1304.3-3(b) requires grantees to provide for health and developmental screenings within 45 days after the beginning of services for children in the fall or, for a late entering child, within 45 days of entrance into the program. The regulation at 45 C.F.R. . 1304.3-4(a)(1) and (3) requires grantees to provide for treatment and follow-up for all health problems detected as well as obtaining and arranging for basic dental care services.
Below, we examine the six OSPRI Items in issue.
OSPRI 40 Medical records for each child must contain [1304.3-5(a)]:
D. Follow-up treatment for medical problems [see #57]:
OSPRI 49 Dental records for each child must contain [1304.3-5(a)]:
B. Follow-up treatment for dental problems.
OSPRI Items 40 and 49 are based on the program regulation at 45 C.F.R. . 1304.3-5(a) which requires that a grantee's plan provide for the establishment and maintenance of individual health records containing a child's medical and developmental history, screening results, medical and dental examination data, evaluation of this material and up-to-date information about treatment and follow-up.
The following basic dental care services are obtained or arranged: [1304.3-4(a)(3)] OSPRI 51. Services required for the relief of pain or infection; (ii)
OSPRI 52. Restoration of decayed primary and permanent teeth; (iii)
OSPRI 54. Extraction of non-restorable teeth; (v)
These OSPRI Items implement the requirement of 45 C.F.R. . 1304.3-4(a)(3) that the basic dental care services
contained in a grantee's health services plan are obtained or arranged.
OSPRI 57 Treatment is obtained or arranged for all health problems detected in enrolled children.
This OSPRI Item measures compliance with 45 C.F.R. . 1304.3-4(a)(1), which requires that the grantee's health services plan must obtain or arrange treatment for all health problems detected in enrolled children.
Following the 1996 OSPR, TOAP's QIP made an extensive commitment to correcting deficiencies in this component area by August 31, 1996 and to carrying those practices into the upcoming school year. The corrective actions included: component collaboration to develop a family assessment plan/contract; visits to health care providers to update family needs; service requirements and form completion; development of a new control tracking form; completion of health and dental examinations prior to enrollment in classroom or home based programs; upon receipt of exam forms by TOAP's Health Component, parents would be sent dated written acknowledgments which would seek responses concerning children's follow-up within 10 working days; follow-up phone calls to families where necessary; referrals to the appropriate family advocates and to the [State] Departments of Human or Children [sic] Services as needed. ACF Ex. 4 at 2-3.
The rationale underlying the 1997 findings of noncompliance for each of the six health OSPRI Items was largely the same. The ACF Report of Findings (ROF) for these items indicated that, of 20 files reviewed, seven were missing screening (i.e., speech, vision and hearing) results. Three of the 20 did not have any record of hematocrit or hemoglobin screening. Two of the 20 indicated a need for dental treatment without any further indication that treatment had been completed, or that there was a plan in place for getting the treatment completed or specific restorations required (aside from a check mark beside the child's name indicating the general need). TOAP's Health Tracking Form indicated that 96 children had not completed necessary dental treatment. Dental forms returned from providers were incomplete and three of the 20 children did not complete their dental exams within 45 days of entry into the program. Generally, ACF found that the children's dental needs were not actively stressed and records were not regularly or carefully reviewed. ACF Ex. 14 at 1-4.
The reviewers' recommendations noted the absence of systematic follow-up for dental examinations and treatment. The reviewers stated that follow-ups could "begin in September" and "must be well-documented and occur not only by form letter, but with phone and face-to-face contacts with parents." ACF Ex. 15 at 2.
The reviewers' general comments accompanying these OSPRI findings noted that TOAP had submitted additional Health Tracking Forms to ACF on May 23, 1997, the end of the school year. Review of those forms revealed 101 children with incomplete dental treatment (some of whom had not had their initial dental exam), 17 physicals not completed, 30 children with no or pending hemoglobin/hematocrit screening, 18 children with no or pending hearing screening and 16 children with no or pending vision screening. TOAP officers and ACF officials met on June 26, 1997. There, TOAP's Health Coordinator provided a further update on this information. At that point, 11 children still needed physical follow-ups, four needed physicals, 65 were without dental treatment, 19 were without hearing screening, 13 were without vision screening and four were without hemoglobin or hematocrit screening. Most of these children had been enrolled in September and October 1996. ACF Ex. 14 at 2-3.
We find very clear and persuasive evidence in the record supporting the six Health OSPRI Items. The surveyor reviewing the Health OSPRI Items specifically noted that TOAP's own tracking system identified more than 100 children whose records contained no data indicating whether they required dental treatment or whether required dental treatment had been completed. See ACF Ex. 15. Immediately following the survey, TOAP's documentation demonstrates that TOAP performed additional dental follow-up activity. Nevertheless, its own amended tracking forms filed in this proceeding (as well as additional documents TOAP filed in response to these OSPRI findings) demonstrate that at least 73 children still required follow-up treatment by May 24, 1997. That such a large number of children still required follow-up dental treatment conclusively demonstrates that TOAP did not comply with the cited OSPRI Items on follow-up dental treatment and record keeping.
With respect to the single OSPRI Item concerning deficiencies in medical records for children who may require follow-up medical treatment (OSPRI Item 40(D)), TOAP's documentation supports this OSPRI finding as well. The record before us contains ample evidence of inadequacies in the primary documentation in the files of sampled children to substantiate vision, hearing or hematocrit/hemoglobin screening as well as evidence of follow-up treatment where necessary. Moreover, based on TOAP's own tracking records presented in this proceeding, at least eight children requiring follow-up medical treatment had not received the treatment. TOAP provided no explanation of what treatment was needed or why the treatment was not provided in each case. Moreover, the record before us demonstrates that even where TOAP provided the requisite screening and follow-up treatment, it was often well beyond the applicable guidelines for timeliness. Consequently, we conclude that TOAP was out of compliance with this performance standard.
TOAP argued, nevertheless, that it because the 73 children who did not receive follow-up dental treatment represented only 13 percent of the total number of 566 listed children in the tracking system. It also argued that its performance in dental and medical screenings, examinations and follow-up treatment is consistent with national averages for the performance of Head Start organizations. What TOAP fails to recognize is that in calculating the percentage of children who needed, but did not receive, dental follow-up, it should have used as the denominator the number of children who required follow-up, not the number of all children receiving their initial examination and treatment. Thus, while the 73 children identified by TOAP's own tracking system may be only 13 percent of the initially examined children, the same number necessarily would be a much larger percentage of the number of children within that population that required follow-up dental treatment. The latter percentage would be the appropriate gauge of TOAP's performance on follow-up treatment, and TOAP failed to provide us with any indication of what that percentage would be. Since that percentage would surely exceed 13 percent, we need not address TOAP's argument that its performance was consistent with national averages at this level.
We also agree with ACF that even when TOAP did facilitate the requisite follow-up treatment for some of its children, it often did so after substantial delays following the initial examinations or after the initial examinations themselves had been delayed beyond the 45- day guideline.
TOAP also contended that its poor performance should be excused because of alleged difficulties in locating participating providers. TOAP indicated that its efforts to obtain services for children in two counties were impeded by the scarcity of medical professionals in those counties who accepted the "medical card" used by many TOAP families to obtain services. TOAP noted that it had made efforts to transport these children to service providers outside its service area. We find that these circumstances do not excuse TOAP's deficient performance. TOAP had an entire school year to complete the follow-up treatment and should have taken actions much earlier to address this problem. TOAP could have made better use of those providers that were available within its service area or could have taken better measures to locate new providers in outlying areas. Moreover, the progress TOAP made in the short time between the May 5-8, 1997 follow-up review and May 24, 1997 demonstrates that TOAP could have succeeded if it had exerted itself throughout the year as much as it did in that three-week period. Finally, as noted by the surveyors, TOAP's deficient performance was caused in major part by the woeful inadequacy of its tracking records on follow-up dental treatment.
Additionally, TOAP relied on the Board's holding in Home Education Livelihood Program, Inc., (HELP) DAB No. 1598 (1996), ostensibly for the proposition that a failure to comply with program standards was not material unless it compromised a grantee's ability to provide services. TOAP implied that its failure to document the children's medical records here had not compromised its ability to provide services. TOAP Reply Br. at 12-13. TOAP's reliance on HELP is misplaced. Missing and inadequate health records were not at issue in HELP. Moreover, TOAP's assertion that failure to adequately maintain and properly document medical records is excusable if services are not compromised is disingenuous. Provision of adequate basic medical services is an intrinsic part of the Head Start program. Health services are indeed compromised because of incomplete, inaccurate or missing records. Children are endangered both by the fact that medical records have not been properly maintained because the records are an essential part of ensuring that the children get the preventative and remedial care they need and are not subjected to repeat unnecessary tests and immunizations. Thus, failure to provide those services or to maintain proper records documenting the provision of the services constitutes a failure to provide critical program services.
Accordingly, we find that TOAP has failed to show that it complied with the performance standards measured by the Health OSPRI Items.
II. Social Services & Eligibility, Recruitment, Selection, Enrollment and Attendance
The two deficiencies cited in the Social Services Component (OSPRI Items 119 and 125) and the six cited in the Eligibility, Recruitment, Selection, Enrollment, and Attendance (hereafter, Eligibility, Enrollment, and Attendance) Component (OSPRI Items 168, 172-174, 177 and 179) are interrelated and were discussed by the parties as a group in their briefs.
The social services component is designed to ensure a recruitment process within the community which seeks to enroll eligible children regardless of race, sex, creed, color, national origin or handicap. The component assists families of enrolled children to improve their quality of life within the community and seeks to involve the parents as active participants in the Head Start center. Additionally, it is intended to familiarize Head Start families with community resources available to them and to work with the community to determine what unmet needs exist. See 45 C.F.R. . 1304.4-1(e).
The social services component objectives are carried out through a social services component plan, which is to be reviewed and updated annually. 45 C.F.R. . 1304.1-4. The plan is to: a) provide for the recruitment of children, including handicapped children; b) provide families with, or refer families for, counseling, assistance, crisis intervention, and necessary community services; c) follow-up with families to assure that needed assistance was provided; d) be an advocate for Head Start families within the community; e) contact parents of children whose attendance is irregular or whose absences are extended; and f) work with other community service agencies to develop programs to meet the social service needs of Head Start families. 45 C.F.R. . 1304.4-2.
The regulations underlying the eligibility, enrollment, and attendance component are found at 45 C.F.R. Part 1305. The component establishes the requirements for determining community needs and recruitment areas. It establishes procedures to ensure that the individual aspects of the component are carried out. 45 C.F.R. . 1305.1.
Below we first identify the eight OSPRI Items in this group, summarize the parties arguments and then analyze first the Eligibility, Enrollment and Attendance deficiencies at OSPRI Items 168, 172-174 and 177 and the related Social Services deficiency at OSPRI Item 119.
OSPRI 119 There shall be procedures for the recruitment of children, taking into account the demographic make-up of the community and the needs of the families and recruitment of children with disabilities: [1304.4-2(a)(1)-(2)]
E. waiting list, with children ranked by priority for enrollment in the program,
H. written criteria for selection of children, are available and implemented.
This OSPRI Item is based on the program regulation at 45 C.F.R. . 1304.4-2(a)(1) and (2) which requires that the social services plan provide recruitment procedures taking into consideration the community's demographics and the needs of children and families, as well as the recruitment of handicapped children. Additionally, OSPRI Items (Indicators) 119 E and H are cross-referenced specifically to OSPRI Items 174 and 173 respectively. The precise regulatory underpinnings of those OSPRI Items are set out below.
OSPRI 168 At least 90 percent of the children who are enrolled in the program are from low-income families. Up to 10 percent of the enrolled children may be from families that exceed the low-income guidelines but who meet criteria the program has established for selecting such children and who would benefit from Head Start services. [1305.4(b)]
This OSPRI tracks the program regulation at 45 C.F.R. .1305.4(b).
OSPRI 172 The program, except if it is a migrant program, has obtained a number of applications during the recruitment process that is greater than the enrollment opportunities anticipated to be available over the course of the next enrollment year in order to select those with the greatest need for Head Start services. [1305.5(c)]
This OSPRI Item tracks the program regulation at 45 C.F.R. . 1305.5(c). Specifically, the regulation requires that the recruitment process through which a waiting list is established must occur "prior to the beginning of the enrollment year." Id.
OSPRI 173 The program has a formal process for establishing selection criteria and for selecting children and families that considers all eligible applicants for Head Start services. [1305.6(a)] In selecting the children and families to be served, the program considers: [1305.6(b)]
OSPRI 174 The program maintains a waiting list that ranks children according to the program's selection criteria to assure that eligible children enter the program as vacancies occur. [1305.6(d)]
This OSPRI is based on the program regulation at 45 C.F.R. . 1305.6(d) which requires that grantees develop these waiting lists at the beginning of the program year and maintain them during the year.
OSPRI 177 Funded enrollment levels are maintained. Vacancies are filled as they occur, unless 60 calendar days or less remain in the program's enrollment year. [1305.7(b)]
This OSPRI effectively tracks the regulation at 45 C.F.R. .1305.7(b), which also requires that, unless less than 60 days remain in the enrollment year, no more than 30 days elapse before a vacancy is filled.
In essence, ACF's findings of deficiencies for OSPRI Items 119, 168, 172-174 and 177 were all based on its review of TOAP's waiting list and enrollment records. See generally ACF Ex. 14 at 5-9. In the 1997 follow-up review, ACF reviewers examined a waiting list containing the alphabetized names of 35 children. The reviewers indicated that the list did not identify which of TOAP's several facilities these children were waiting to enter. Further, only three of these children met income eligibility requirements. Id. at 5. Thus, ACF concluded that TOAP's waiting list was deficient. ACF also discounted the waiting list submitted by TOAP in this proceeding. See TOAP OSPRI 119 at 2 (unpaginated). That waiting list was a one-page document, dated "4/18/97," containing an alphabetical list of names and birth dates of 32 children and the "priority points" assigned to each child. There is no other information on the list and no indication as to the facility for which any of the children were waiting. ACF Br. at 20.
ACF reviewers also examined files for 20 children. Eight of those children were from over-income families. Two of the eight were included on the over-income list and the other six were marked income eligible, but were over-income. ACF Ex. 14 at 7. ACF concluded from this review that TOAP violated the regulations requiring that no more than 10 percent participating children be over-income.
Additionally, ACF reviewers determined that TOAP's program had been under-enrolled since the beginning (September) of the 1996 program year. As they had in the 1996 OSPR, the reviewers found it very difficult to obtain an up-to-date enrollment list. Staff interviewed during the follow-up stated that the program was fully enrolled and that there were 35 names on the waiting list. However, the reviewers referred to their findings relative to Item 119 in concluding that this waiting list was deficient; specifically, that 32 of those 35 applicants were over-income. ACF Ex. 14 at 7.
Prior to the follow-up, TOAP provided the Review Team Leader with an enrollment list (dated April 30, 1997) showing 601 children enrolled in the program. However, the reviewers found that 58 of these children were not participating in the program. Relying on TOAP's April 30th enrollment figures, the reviewers found that TOAP had, at best, 543 (601 minus 58) participants. Noting that TOAP had "622 enrollment opportunities," the reviewers concluded that the program was under-enrolled by 79 children (622 minus 543). ACF's reviewers noted that, during the course of their review, TOAP staff indicated that TOAP was not required to enroll new children if there were 60 days, or less, left in the program year. However, the Review Team noted that 58 children were enrolled after March 22, 1997 or within that 60 day time frame. The ROF also indicated that, in a June 26, 1997 meeting between ACF and TOAP officials, ACF questioned TOAP about this late enrollment activity but TOAP did not address this dichotomy. ACF Ex. 14 at 8.
Next we describe the Social Service deficiency at OSPRI Item 125 and the Eligibility, Enrollment, and Attendance deficiency at OSPRI Item 179.
OSPRI 125 A parent or guardian will be contacted with respect to an enrolled child whose participation in the Head Start program is irregular or who has been absent four consecutive days. [1304.4-2(a)(8)]
OSPRI 179 When the reasons for a child's absences are unexcused for four or more consecutive days, the program has initiated appropriate family support procedures, including home visits or other direct contact with the child's parents, that emphasize the benefits of regular attendance, while at the same time remaining sensitive to any special family circumstances. [1305.8(b)]
This OSPRI Item tracks the regulation at 45 C.F.R. . 1305.8(b) which also requires that all contacts with a child's family as well as special family support service activities provided by program staff must be documented.
The reviewers' examination of attendance and enrollment records provided evidence of a significant, unmonitored attendance problem within TOAP. In particular, the surveyors noted that of 204 children enrolled at Lincoln Heights, 58 were absent for an extensive length of time; 14 children named on class lists never attended one day of activities; 23 listed children were absent since April, 10 since March, two since February, five since January, three since December and one since November. ACF Ex. 14 at 6.
In finding TOAP out of compliance with OSPRI Item 179, ACF relied principally on the rationale underlying the its findings supporting the deficiencies for OSPRI Items 177 and 187. See ACF Ex. 14 at 8-10 and 15. Moreover, the reviewers found that at least one of eight teachers interviewed had no idea why a student had been absent for three months. ACF Ex. 53 at 4; see also TOAP Br. at 12.
Generally, while conceding that there may have been shortcomings in the areas cited by ACF, TOAP took issue with ACF's determination of related Social Services and Eligibility, Enrollment and Attendance deficiencies.
TOAP did not deny that it was under-enrolled during the 1996-97 program year, but asserted that it reached full enrollment by April 30, 1997. TOAP Reply Br. at 14. TOAP contended that it had policies in place which fostered gradual improvement and eventually allowed it to achieve full enrollment. TOAP Br. at 4. TOAP asserted that its full enrollment in April 1997, followed by 87% enrollment in May (when full enrollment was not required because less than 60 days were left in the program year) constituted full compliance. Further, citing HELP, TOAP argued that, because it was under-enrolled, it was not required to maintain a waiting list. TOAP Reply Br. at 16-17.
TOAP contended that, contrary to assertions by ACF, it did not have an excessive number of participating children (i.e., more than 10%) who were over-income. Rather, TOAP asserted that as of May 22, 1997 it had only 60 over-income enrollees and thus was within the 10% limitation established by regulation. TOAP Br. at 14. TOAP asserted that a variety of factors contributed to the instability of the income eligible population in the program. TOAP stated that over-income children were used to fill "remaining vacancies." TOAP alleged that over-income children comprised almost 10% of its funded enrollment, "precluding the enrollment of any more . . . who remained on the waiting list." TOAP provided affidavits from two Family Service Workers who averred that whenever a classroom vacancy occurred, they would refer to the waiting list, or pre-applications, to fill the vacancy. TOAP Reply Br. at 17; TOAP Appendix (App.), Tabs 10 and 11.
TOAP asserted that the mere existence of an attendance problem, without more, is not a violation of the performance standard. TOAP Br. at 12. TOAP took the position that OSPRI Item 125 is violated only when a program fails to have a system in place for documenting absences or making parent contact. TOAP contended, and offered supporting affidavit testimony, that it had an attendance policy in place since October 1996 and had documented attendance follow-ups since it had implemented a documentation policy in March 1997. Thus, TOAP maintained that it was in compliance with this OSPRI Item as of May 24, 1997. TOAP Reply Br. at 17-18; see also TOAP App. at Tabs 10 and 11. Regarding OSPRI Item 179, TOAP merely cited the reviewer's determination that TOAP, in fact, had an attendance policy, although it was not being implemented. TOAP Br. at 13.
ACF argued that TOAP was funded to serve 622 children for the 1996-97 school year, but, in reality, was under-enrolled for the entire year. The record shows that TOAP's enrollment in October 1996 was 413 children; November 1996 -- 530; January 1997 -- 549; March, 1997 -- 525. ACF asserted that TOAP had 543 children as of the follow-up OSPR, May 5-8, 1997. The school year ended on May 23, 1997. ACF Br. at 19-20; ACF Exs. 10, 24 and 25; TOAP Ex. Policy Council Minutes at 6.
ACF noted that, due at least in part to TOAP's under- enrollment, TOAP had "consistently recorded less than 85% attendance" and had merely sought to excuse, but never denied, that fact. ACF pointed to TOAP's position that "an attendance problem without more is not a violation" as proof of TOAP's misunderstanding of both the facts and applicable law. ACF cited this situation not as a "mere attendance problem," but as another example of TOAP's failure to provide services to the number of children for which it was funded. ACF noted that while TOAP argued that the attendance problem existed in spite of its best efforts, TOAP's recitation of those efforts chronicled its failure to take appropriate, regulation-mandated, efforts to correct those problems. ACF argued that, for more than two years, TOAP "tolerated a staggering level of absenteeism to which its response was demonstrably sporadic and disorganized." ACF Br. at 50-55; TOAP OSPRI 125 at 10-11, 13, 15, 18; ACF Exs. 27-31, 52.
ACF voiced serious concerns about the accuracy of the enrollment information provided by TOAP. ACF maintained that the credibility of TOAP's position was further undercut by the fact that TOAP maintained more than one version of the same attendance records. ACF stated that the children's case notes provided by TOAP with its brief and in response to ACF's discovery request contained a variety of deficiencies, including the "general" nature of the content, inadequacy of the content, different versions of notes for the same children and entries on the notes which conflicted with assertions or evidence provided by TOAP elsewhere in this appeal. See ACF Br. at 23-26 and 54.
TOAP failed to persuasively rebut ACF's assertions concerning these deficiencies.
As noted above, the program regulation at 45 C.F.R. .1305.7(b) specifies that a grantee must maintain its funded enrollment level. That regulation also provides a grantee with the option of not filling a vacancy only if less than 60 days are left in the program year. In spite of the clarity of this regulation, TOAP offered no viable explanation for its continual under-enrollment throughout the 1996-97 program year.
Even assuming that TOAP reached full enrollment on April 30, 1997, that achievement cannot serve to erase the fact that TOAP never attained more than 88% (549 children in January 1997) of full funded enrollment (622 children) in any other month in the program year. Moreover, TOAP conceded that it had reached full enrollment only at a time when it was not required to fill a vacancy because there were less than 60 days left in the program year. Rather than supporting TOAP's claim of full compliance, the increased enrollment just one week before the follow-up review suggests that TOAP rushed to fill its program in anticipation of the follow-up OSPR. Under these circumstances, TOAP cannot credibly argue that it was providing the level of services envisioned by funding received for the 1996-97 school program year.
It is particularly disingenuous of TOAP to argue that full enrollment on one day of the year could demonstrate compliance with the enrollment OSPRI Items. Full enrollment is an objective to be maintained throughout the year, not merely on one day. When a Head Start program is under-enrolled, that program does not fully utilize limited funding dollars that have been provided on the basis of the pre-approved size of the program. A logical consequence of continuous, long-term under-enrollment is the under-utilization of Head Start staff, facilities, and services to the detriment of eligible, but unenrolled children in the community.
Moreover, TOAP's evidence on effective recruiting efforts and increased enrollment for the 1997-1998 school year is not relevant to the period under consideration here. Additionally, TOAP never explained why similar effective recruitment efforts could not have been implemented sooner so that it could have reached full enrollment throughout the 1996-1997 school year.
Furthermore, there is no evidence that TOAP maintained an accurate and comprehensive waiting list throughout the school year as the Head Start regulations require. In the 1997 follow-up review, ACF reviewers examined a waiting list containing the names of 35 children. As noted above, this waiting list contained minimal information which would assist in placing the children. More importantly, however, only three of these 35 children were income eligible for Head Start. ACF Ex. 14 at 5. ACF discounted the waiting list submitted by TOAP in this proceeding for essentially the same reasons. See TOAP OSPRI 119 at 2. As ACF noted, that waiting list is a one-page document dated "4/18/97" containing an alphabetical list of names and birth dates of 32 children. The only other information on the list consists of the "priority points" assigned to each child. There is no other information on the list and no indication as to the facility for which any of the children were waiting. ACF Br. at 20.
We also conclude that TOAP failed to effectively rebut the surveyors' findings suggesting that its program had an excessive number (beyond the 10 percent limit) of children from families that exceeded the low-income guidelines. As noted above, TOAP contended that it was difficult to retain low income children in the program and conceded a liberal use of over-income children to fill classroom vacancies. See TOAP Reply Br. at 16-17. Regardless, TOAP asserted that its subsequent review of files of sampled children revealed that only four children, not the eight alleged by ACF, were over-income. TOAP Br. at 20. Even assuming TOAP's figure to be correct, this represents 17% (4/24) of the sample, which is clearly more than the 10% permitted by regulation. Regarding TOAP's assertion that it had only 60 children over-income as of May 22, 1997, and was thus within the 10% limit, the performance standard requires a comparison of the number of children over-income with the actual program enrollees. However, TOAP measures those 60 against its funded enrollment ceiling (622), a number it conceded it consistently failed to attain throughout the school year.
Here too, TOAP's reliance on HELP is misplaced. There, the Board found that HELP had exerted extraordinary efforts to recruit eligible children for its migrant Head Start Program, but had been hindered by late funding and poor crop conditions. HELP, at 79-82; see also TAP, at 31-33. The migrant nature of HELP's program presented circumstances that are in no way replicated here. Thus, we concluded that HELP's failure to maintain a waiting list to cope with under-enrollment was excusable. TOAP is not a migrant program and has presented no evidence of any exceptional problems which hindered its recruiting process. Rather, TOAP merely relies on its under-enrollment as the justification for not having the list.
A waiting list is an essential element of a Head Start grantee's recruitment efforts and is designed to help fill a program vacancy as quickly as possible within no more than 30 days after it occurs. See 45 C.F.R. . 1305.7(b). Rather, as discussed above, TOAP should have implemented effective recruitment practices, including the maintenance of comprehensive and up-to-date waiting lists, so that it would not have been in a situation of chronic under-enrollment from the outset. Further, we have no basis in the record to conclude that TOAP could not have located children who were income eligible for its waiting lists if TOAP had followed effective recruitment practices.
We also agree that TOAP failed to demonstrate that it followed the required procedures to insure that its program had full attendance. TOAP's Weekly Attendance Forms in fact had spaces available for documenting the "reasons for poor attendance." However, the TOAP's own evidence demonstrated that TOAP's staff consistently failed to fill out this portion of the Form or furnished unhelpful information that generally listed the causes of absenteeism, but did not associate a cause with a child or a specific period of absence. See TOAP OSPRI 125. Thus, the Forms provided little insight into the cause or dimension of TOAP's attendance problem.
We further agree with ACF that the affidavits submitted by TOAP on this issue were conclusory and failed to respond to specific deficiencies that are apparent on the face of the records. Absent actual documentation of compliance with the requirements for attendance records, we can give little or no weight to the affidavits. For example, all contacts with the family of a child with four or more consecutive unexcused absences must be documented. See 45 C.F.R. . 1305.8(b). TOAP, however, failed to demonstrate that such absences were in fact routinely documented. ACF cited the affidavit of the individual who served as TOAP's Social Services Coordinator from August 1, 1996 through January 6, 1997 as a further example of the inadequacy of TOAP's affidavits. That person stated that TOAP instituted an attendance policy in October 1996 and adhered to that policy. The succeeding Coordinator stated that a record-keeping requirement for poor attendance follow-up was instituted in March 1997. However, ACF noted that there is no documentation in the record supporting these affiants. Therefore, we conclude that TOAP's conclusory affidavits are insufficient to rebut ACF's prima facie case on the inadequacy of TOAP's attendance procedures. ACF Reply Br. at 16-18; TOAP App. Tabs 6 and 7; see also TOAP App. at Tabs 10 and 11.
Accordingly, we find that TOAP has failed to show that it complied with the performance standards measured by the Eligibility, Recruitment, Selection, Enrollment, and Attendance OSPRI Items and the related Social Service OSPRI Items.
III. Staffing
The program regulations underlying this component are found at 45 C.F.R. Part 1306. The component requirements, including those pertaining to staffing patterns, the choice of program options to be implemented and the acceptable ranges in the implementation of those options, have been developed to help maintain and improve the quality of Head Start and to help promote lasting benefits to the children and families served. 45 C.F.R. . 1306.1.
There is one OSPRI Item in dispute under this component.
OSPRI 211 If the program provides full-day services, they are provided only to those children and families with special needs that justify full-day services or to those children whose parents are employed or in job training with no care giver present in the home. [1306.32(d)(3)]
This OSPRI tracks 45 C.F.R. . 1306.32(d)(3), which also requires that the "records of each child receiving services for more than six hours per day must show how the child meets the criteria stated above."
Guidance provided with this OSPRI Item requires that reviewers examine enrollment forms to determine that programs providing full-day service obtain information that documents child or family need for such services and review a sample of enrollment records for full-day children to determine that they meet the criteria.
The ROF noted that this was a repeat deficiency which first surfaced in 1994. In the 1996-1997 school year, TOAP enrolled 68 children as full-day participants. ACF indicated that out of a sample of 11 full-day files examined, only five contained documentation justifying full-day enrollment. The remaining six contained no documentation. ACF noted that TOAP had a policy and form in place for documenting the need for full-day services. The policy indicated that parent employment or training/continuing education were the justifying factors. However, the reviewers determined that TOAP was not adhering to that policy. ACF Ex. 14 at 11.
ACF further indicated that, on May 23, 1997, TOAP provided forms for 52 children in the full-day program. There were no forms for the other 16. "[V]arious information was missing on over half" of the 52 forms (i.e., information indicating parent employment, training or continuing education, staff signatures, date and documentation of job or training). One child had a full-day enrollment form and was listed as full-day, but was also listed on the home-based program. Id.
As part of its evidentiary submission, TOAP provided more than 80 (unpaginated) Full-Day Enrollment Forms as well as two pages at the beginning of that submission titled "Noncompliance #211 Response" and "#211 OSPRI Response." In the Noncompliance Response, TOAP asserted that it was providing the full-day forms for the children enrolled. TOAP indicated that these forms are kept --
in the Advocate file located on-site therefore the central files reviewed may not have contained a Full-Day Enrollment Form as noted by the OSPRI reviewer. Letters were sent to all full-day families along with a Full-Day Enrollment Form. All families who did not respond or who did not meet the full-day criteria were placed in the half-day sessions.
See TOAP OSPRI 211.
In the OSPRI Response, TOAP stated that, although the follow-up review team found five full-day enrollment forms in the central files (out of 11 reviewed), those forms were not kept in that file. TOAP noted that it provided some, but not all, of the full-day forms to the Regional Office on May 23, 1997. TOAP indicated that the team leader requested the remainder of those forms and, following receipt in late June 1997, then indicated that TOAP was in compliance. Thus, TOAP expressed consternation that ACF continued to find it out of compliance. Id.
TOAP provided no documentation supporting its allegation that the follow-up review team leader found it in compliance with this Item in June 1997. Additionally, the validity of the full-day enrollment forms provided by TOAP appears questionable. Those forms contain a printed date "1/14/97" in the lower left-hand corner, suggesting that no such forms or records were employed prior to that point. Generally, the forms are incomplete, unsigned and undated. Those with dated signatures are dated no earlier than February 21, 1997. The performance standard, on the other hand, requires consideration of the existence of special factors relating to full-day services at the time the decision is made to provide children with full-day services, which would generally be at the time of enrollment at the beginning of the school year. TOAP's evidence is wholly inadequate.
Accordingly, we conclude that the incomplete documentation presented by TOAP fails to demonstrate that TOAP was in compliance with the performance standard measured by this OSPRI Item.
IV. Parent Involvement
The parent involvement component recognizes the critical role that parents play in the development of their children. The performance standards are designed to recognize parents as responsible guardians and the primary educators of their children, as well as contributors to the Head Start program and the local community. The implementing regulation at 45 C.F.R. . 1304.5-2 incorporates by reference Appendix B to Part 1304, which defines the role parents are expected to play in the Head Start program. Generally, parents are expected to participate in the decision making process regarding the nature and operation of the program; to participate in the classroom as paid employees, volunteers or observers; to participate in activities for the parents which they have helped develop; and to work with their children in cooperation with the center's staff. See 45 C.F.R. .. 1304.5-1, 1304.5-2; and 45 C.F.R. Part 1304, Appendix B.
There is one OSPRI Item in dispute under this component.
OSPRI 137 [Every Head Start Program Must Have Effective Parent Participation in: 1304.5-2(a)[I-30-2B]] The process of making decisions about the nature and operation of the Head Start program.
Policy Council Minutes for the last 12 months indicate:
The ROF noted that this was a repeat deficiency finding from the 1991, 1994 and 1996 reviews. ACF found that Policy Council members were unaware of critical training they should have attended in March 1997 and that there was a general lack of evidence of effective Policy Council training. There was no training for the self-assessment process nor was a self-assessment conducted during the program year. The review team examined 11 personnel files, and only two files contained proper documentation of the Council's approval of the individual hirings. ACF Ex. 14 at 12.
The reviewers determined that there was no evidence presented that Council members were active participants in the budget or program planning process or that their participation had been actively sought in the process of making informed decisions about the nature and operation of the program. Policy Council attendance was low. On May 6th, 1997, the Policy Council noted that it had not reached a quorum in the three previous meetings. Many important decisions were made by telephone polling. The reviewers found that the few parents who attended Policy Council meetings were parents in the home-based program. ACF Ex. 14 at 13.
TOAP cited an affidavit from the Policy Council Chairperson, asserting that training was made available to parents, but was poorly attended. TOAP contended that even though it conducted business without quorums and used devices such as telephone polling of members, the Policy Council minutes in the record refuted all of ACF's contentions regarding lack of parent participation. TOAP Br. at 16-18; see also TOAP OSPRI 137. TOAP also cited an affidavit from its Head Start director who attested to numerous training opportunities made available to and attended by parents and Policy Council members and other instances of parent involvement in "major personnel decisions." TOAP App. 9. TOAP deflected ACF's criticism regarding parent participation, asserting that it could not control Policy Council meeting attendance, or the degree or nature of any parent's involvement. TOAP essentially asserted that it did the best it could under the circumstances in terms of parent participation, and it maintained that avenues of discussion, such as telephone polling, were effective methods of deliberation in spite of ACF's arguments to the contrary. TOAP Reply Br. at 19-21.
ACF cited the Head Start Act's mandate for direct parent involvement in formulating and implementing program policies as the standard for compliance with this Item. ACF Br. at 58.
ACF argued that, far from supporting its position, TOAP's documentation underscored ACF's findings and conclusions. ACF noted that the Policy Council minutes in the record demonstrated that the Policy Council meetings were poorly attended, often without a quorum and that major decisions, such as hiring 50 people, were conducted through telephone polls. Similarly, the 1997-98 budget was presented for approval the day before it was due in the Regional Office. ACF insisted that these types of actions precluded meaningful deliberation on major issues affecting the Head Start program. Further, ACF indicated that it had brought this "nearly identical lack of genuine parent input" to TOAP's attention following the 1996 review. ACF Br. at 59-60.
TOAP's arguments and evidence are not persuasive. An examination of the first three sets of Policy Council minutes (covering September 19 and December 3, 1996 and February 4, 1997) provided in TOAP's evidentiary submission relative to this deficiency reveals a lack of quorum in at least two of those meetings and an ongoing concern about the ability to conduct those meeting without a quorum. The Policy Council noted the problem, as some members questioned the body's ability to function effectively in those circumstances. See TOAP OSPRI 137. This ongoing problem calls into question whether TOAP laid the essential groundwork for a functional Policy Council, effective training and coordination of parent participation. Here, it appears that only a small core of parents was involved in the Council's actions. Even if the Policy Council's efforts without a quorum could be considered admirable, the fact remains that a critical component in the operation of a successful Head Start program was basically dysfunctional. Moreover, TOAP cannot credibly argue that the Policy Council's last minute consideration of an annual budget and its continuous use of telephone polling on major personnel and fiscal issues, in the absence of quorums, realistically promote the deliberative process one would normally envision from a functional advisory body. Finally, contrary to TOAP's arguments in its brief, TOAP bears the responsibility through appropriate training, coordination, and other means to insure that it has a fully functioning Policy Council.
Based on the preceding analysis, we conclude that TOAP failed to demonstrate that it was in compliance with the performance standard measured by this OSPRI Item.
V. Administration
Among other requirements for running an efficient and effective program, this component sets out the procedures for monitoring and reporting on a grantee's financial and program performance. 45 C.F.R. . 74.50. The program regulations for this component are found at 45 C.F.R. .. 74.51-74.53.
There is one OSPRI Item in dispute under this component.
OSPRI 187 The grantee has and implements a written procedure which describes an ongoing monitoring process that assures specific program objectives and activities are completed in a timely manner.
This OSPRI tracks the program regulation at 45 C.F.R. . 74.51(a)-(h). This regulation establishes the necessity and guidelines for a grantee's financial and program reports.
The ROF indicated that TOAP had been deficient in this area in OSPRs conducted in 1991, 1994 and 1996. The reviewers determined that there were limited or no monitoring systems in place to assure compliance with program regulations. As in 1996, monitoring systems were not in place to assure that the program was maintaining full enrollment; following program policies and procedures; providing for or following up on medical and dental needs of children and families; actively pursuing parent involvement and providing support and involvement for policy groups; submitting timely reports to the Regional Office; and hiring staff in accordance with personnel policies. ACF Ex. 14 at 15.
Further, the ROF noted that neither management staff nor the Policy Council members could explain the process for monitoring program goals and objectives. Even though some new forms and policies had been introduced to staff for documenting and reporting program activities, the forms and policies were not used or use was limited. Of many forms used for enrollment, medical issues and attendance, only a limited amount had complete information. Id.
TOAP relied on a memorandum (from its Head Start Director to the Review Team Leader) which stated that "this Item was not a noncompliance issue, but needed to be more in depth." TOAP noted that detailed Program Plans and Objectives for the 1997-98 funding year were included in its supporting documentation for this Item. TOAP Br. at 18.
This deficiency is largely supported by the same findings as the others relied on by ACF. As is evident from the preceding analysis, TOAP's inability to effectively monitor its program was a major factor causing many of its deficiencies. For example, TOAP did not effectively monitor its enrollment and attendance so that it failed to maintain full enrollment, or have a system in place to effectively correct that problem. Moreover, TOAP did not have monitoring systems in place to assure that appropriate medical and dental treatment was provided. This clearly runs afoul of the purposes for which TOAP received its Head Start grant.
There is no evidence in the record that ACF did not consider this deficiency a compliance issue. The OSPRI Item was plainly noted as a noncompliance in the ROF. ACF Ex. 14 at 15. Moreover, TOAP has provided no documentary evidence to show that it had complied with this Performance Standard. To the extent it might be satisfactory to ACF, the TOAP document titled "Goals and Objectives Program Year 1997 -- 1998" pertains to the 1997-98 program year and thus is irrelevant to the question of TOAP's compliance during the period at issue here.
Based on the preceding analysis, we conclude that TOAP failed to demonstrate that it was in compliance with the performance standard measured by this OSPRI Item.
MATERIALITY OF TOAP'S DEFICIENCIES
We have determined above that TOAP failed to comply with the Head Start program standards measured by OSPRI Items in component areas. ACF argued generally that any one of these deficiencies was sufficiently material to justify termination. ACF Br. at 63. TOAP addressed materiality only on a limited basis, since it maintained that it had demonstrated compliance with the standards.
The Board has previously held that a single violation of program standards could be so material as to warrant termination. Lonoke Economic Development Agency, DAB No. 1568 (1996); and Franklin County Community Action Agency, DAB No. 1609 (1997). In this case, ACF has presented convincing evidence of 17 deficiencies encompassing three different component areas. Our discussion above demonstrates the seriousness of each of these deficiencies. They strike at the very heart of the Head Start program objectives.
CONCLUSION
Based on our analysis of the record, as reflected in the discussion above, we conclude that TOAP materially failed to meet Head Start program standards. Thus, termination of TOAP's grant is warranted based on 45 C.F.R. . 1303.14(b)(4).
_____________________________
Cecilia Sparks Ford
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M. Terry Johnson
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Donald F. Garrett
Presiding Board Member