Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Appellate Division
SUBJECT: Meriden Community Action Agency, Inc.
DATE: November 29, 1994
Docket No. A-94-107
Decision No. 1501
DECISION
The Administration for Children and Families (ACF) of the Department of
Health and Human Services (HHS) notified Meriden Community Action
Agency, Inc. (MCAA), by letter dated March 15, 1994, of its intent to
deny refunding for the upcoming program year. This action was taken
under 45 C.F.R. 1303.15, which provides that a grantee may be denied
refunding for certain program deficiencies. The basis for ACF's action
was MCAA's alleged failure to demonstrate, during a November 1993 site
visit, that MCAA had remedied 69 of the 99 findings of deficiencies in
meeting Head Start Performance Standards identified in a March 1992
On-Site Program Review. ACF also alleged a general failure by MCAA to
comply with grant administration requirements, other terms and
conditions of the financial assistance award, and other applicable laws,
regulations and policies.
MCAA requested a hearing pursuant to the Head Start Act, 42 U.S.C.
9841. The Board set a hearing date which was postponed several times at
MCAA's request. As explained below, MCAA finally chose not to appear at
the scheduled hearing and did not file a brief challenging ACF's
findings although MCAA had an opportunity to do so.
We have carefully considered the record in this case, including all of
the documents submitted by both parties and attachments to motions and
proposed hearing exhibits, except for a few pages which we found were
not properly authenticated. 1/ MCAA failed to explain the significance
of the documents it submitted; however, there were numbers handwritten
on many of the exhibits which corresponded to item numbers in ACF's
follow-up review report. We therefore reviewed all of MCAA's exhibits
with the view that they were introduced to refute the many
non-compliance findings. Based on our consideration of this record, we
find that MCAA presented insufficient evidence to show that it was
meeting the performance standards and other requirements of the Head
Start program during the relevant time period even after being given
ample time to correct its deficiencies.
MCAA's response to the 1992 On-Site Program Review, submitted in April
1993, made it clear that the organization knew what was required of it,
and MCAA alleged that it was substantially meeting the applicable
requirements. MCAA had had the entire 1992-93 school year to remedy its
defects. However, even though MCAA had advance notice of the November
1993 follow-up review, MCAA failed to provide ACF with documents backing
up its claims that it was in substantial compliance with the applicable
requirements. MCAA also did not produce documents in this appeal
sufficient to substantiate its claims. 2/ The records that MCAA is
missing are fundamental. Among them, all relating to requirements of
the program as found in the regulations or other policy guidelines, are:
o records showing that the children that MCAA had enrolled in its
program had had proper immunizations so as not to put these
children at risk by exposure to each other;
o records showing that required health, mental health, and
nutritional screenings were administered to each child and reviewed
by a health professional to ascertain each child's needs in those
areas;
o records showing that each child's identified needs in the health,
mental health, nutritional, and social services areas had been
included in a plan of action, implemented, and followed up;
o records showing that MCAA's volunteers had been screened for
tuberculosis before assisting with food service or in the
classroom;
o records showing that the two mental health consultants and the
dietician MCAA claimed were providing numerous essential services
were indeed providing the majority of those services;
o records showing recruitment, identification and individualized
planning for handicapped children or even that handicapped children
made up the requisite 10 percent of the enrollment; and
o records showing that parents of enrolled children, through the
Policy Council and other means, were active participants in the
planning and implementation of MCAA's Head Start program.
MCAA never explained the lack of these vital records, which have never
been submitted despite continuous and repeated opportunities.
Consequently, MCAA failed to rebut ACF's determination that MCAA's Head
Start program is seriously flawed and should not be refunded. 3/ Thus,
we conclude that ACF has established an adequate legal and factual basis
for the denial of refunding under the applicable regulations at 45
C.F.R. 1303.15(c) and 1303.14(b).
BACKGROUND
1. 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 provides funds to grantees to serve as Head
Start agencies within designated communities and reviews their
performance in meeting program and fiscal requirements. See generally
42 U.S.C. 9836. The law requires that a Head Start agency utilize --
organization, management, and administration which will assure, so
far as reasonably possible, that all program activities are
conducted in a manner consistent with the purpose 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 . . . . Each such agency shall adopt
for itself . . . rules designed to . . . assure that only persons
capable of discharging their duties with competence and integrity
are employed . . . .
42 U.S.C. 9839(a); see also 45 C.F.R. 1301.30.
The Secretary has promulgated program performance standards covering the
education, health (including medical, dental, mental health and
nutrition), social services, and parent involvement areas of Head Start.
See 45 C.F.R. Part 1304. Generally, each grantee is required to
develop, with the advice and concurrence of its Policy Council, a
written plan to implement the performance standards for each component
area, and to update it at least annually. 45 C.F.R. 1304.1-4.
Culturally relevant programming is to be incorporated into all Head
Start components and services in order to validate and build upon the
cultures and strengths of the enrolled children and their families.
"Multicultural Principles for Head Start Programs," ACF Publication
ACYF-IM-91-03, at 4 (March 5, 1991).
The regulations governing the general administration of HHS grants
contain the provisions applying to the financial reporting, procurement,
and fiscal management of Head Start grants. 45 C.F.R. Part 74; 45
C.F.R. 1301.10. Grantees are required to maintain records of their
expenditures and to substantiate those expenditures with source
documentation, such as cancelled checks, paid bills, payrolls or other
documents. 45 C.F.R. 74.61(b) and (g).
Under the Head Start Act, HHS is required to conduct a full review of
each Head Start agency at least once during each three-year period. 42
U.S.C. 9836(c)(2)(A). The Head Start Act states that an agency will
not be denied refunding based solely on one review which finds
deficiencies. 42 U.S.C. 9836(c)(4).
Head Start regulations list nine grounds for which a Head Start grantee
agency may be terminated or have its refunding denied. Specifically, a
grantee may be terminated or have its refunding denied when the grantee
--
(1) is no longer financially viable; (2) has lost the requisite
legal status or permits; (3) has failed to comply with the
required fiscal or program reporting requirements; (4) has failed
to meet the performance standards for operation of Head Start
programs; (5) has violated enrollment or eligibility rules;
(6) has failed to comply with the Head Start grants administration
requirements; (7) has failed to comply with the requirements
of the Head Start Act; (8) has been debarred; or (9) has failed
to abide by any other terms and conditions of its award of
financial assistance, or any other applicable laws,
regulations, or other Federal or State requirements or
policies.
45 C.F.R. 1303.14(b) and 1303.15(c). ACF is seeking to deny
refunding to MCAA's Head Start program here based on grounds which fall
under paragraphs 3, 4, 5, 6, 7 and 9.
Pursuant to 42 U.S.C. 9841 and the Head Start regulations at 45 C.F.R.
1303.14(c)(2), 1303.15(b) and 1303.16(a), a hearing must be afforded
to a grantee before its funding is terminated or its application for
refunding denied. The Head Start regulations at 45 C.F.R. 1303.16 set
forth procedures for the conduct of a hearing. To the extent not
inconsistent with these procedures, the hearing procedures of the Board
at 45 C.F.R. Part 16 also govern. See 45 C.F.R. 1303.15(b)(1).
2. ACF's Burden of Proof
ACF has the burden of proving that it had a valid basis for denying
refunding. ACF must establish a prima facie case that MCAA did not meet
the federal requirements to receive continued federal funding for one or
more of the reasons listed at 45 C.F.R. 1303.14(b). 45 C.F.R.
1303.15(c). To establish a prima facie case, ACF must set forth reasons
for its decision which are legally adequate to support the denial of
refunding. Once ACF establishes a prima facie case, a grantee has the
burden of rebutting that evidence by providing evidence to show that
ACF's position is wrong and that the grantee did meet Head Start
requirements during the relevant period. Rural Day Care at 7-8 (1994);
Summary of June 7, 1994 Telephone Conference, dated June 8, 1994, at 2.
We do not agree with MCAA that since ACF took the position that all of
its findings were material to its decision to deny refunding, we must
remand the case to ACF if we find even one instance in which ACF did not
meet its burden of proof in showing that MCAA fell short of meeting
specific performance standards. See ACF Letters to the Board, June 2,
1994, at 3, and April 28, 1994, at 2. In this case, the record supports
such extensive findings that MCAA's program did not meet performance
standards that it is not necessary for us to determine how many findings
provide a sufficient basis for denying refunding.
MCAA was notified in an October 1992 written report about the serious
deficiencies which were found to exist in its program during the March
1992 On-Site Program Review. MCAA had a full year to correct these
problems before the November 1993 follow-up visit. For policy reasons,
the Head Start Act does not allow grantees an unlimited amount of time
to correct deficiencies; otherwise, families would not receive the full
benefits of the Head Start program. For this reason, we have determined
that the relevant time period for this matter begins with the March 1992
On-Site Program Review and ends with the November 1993 follow-up visit,
and that any corrections MCAA made to its program after that date are
not relevant in determining whether ACF has a reasonable basis on which
to deny refunding. See Summary of June 28, 1994 Telephone Conference,
dated June 30, 1994, at 5.
3. MCAA's History and Structure
MCAA operates a Head Start program in the city of Meriden, Connecticut.
During the 1992-93 school year, MCAA's Head Start program was funded to
serve 134 children in seven classrooms. Its funded enrollment for the
1993-94 school year was increased to 152 in eight classrooms.
In March 1992, ACF conducted an On-Site Program Review of MCAA's Head
Start program, as required by federal law. The review team found the
Head Start program to be poorly managed and significantly out of
compliance with critical program performance standards. According to
ACF, many of these deficiencies also had been found during a 1988 site
visit. In an October 1992 On-Site Program Review report, MCAA was
provided with the final results detailing 99 findings of non-compliance
and performance deficiencies. MCAA submitted a written response to the
On-Site Program Review on April 5, 1993 and submitted a revised response
in June 1993. 4/
On November 3-5, 1993, ACF conducted an on-site monitoring visit of
MCAA's Head Start program (follow-up review) for the purpose of
verifying MCAA's responses to the 1992 On-Site Program Review. MCAA was
notified in advance of this visit and was told that certain documents
would be reviewed and that interviews would be conducted. See November
1, 1993 Memorandum to Gregory Haskins from Andrew W. Stallworth re: Head
Start Program Site Visit, with attachments. The visit was conducted by
four ACF reviewers and one consultant. 5/ The follow-up review team
examined documents, made observations, and conducted interviews with
MCAA's Head Start staff and parents of children enrolled in the program.
The follow-up review team issued a report (follow-up report) stating
that MCAA remained out of compliance with 69 of the 99 previous findings
of non-compliance. 6/ Moreover, the follow-up reviewers stated they
were not able to verify the majority of the claims MCAA made in its
written response to the On-Site Program Review. ACF notified MCAA of
its intent to deny refunding by letter dated March 15, 1994.
4. Procedural History of the Case
MCAA appealed to the Board on April 4, 1994 and requested "full
discovery" of information describing the criteria used by ACF to
determine that MCAA was out of compliance with relevant program
standards. See Appeal of Denial of Refunding Pursuant to 45 C.F.R.
1303.15 (April 4, 1994). In an April 8, 1994 telephone conference, ACF
agreed to produce the documents or otherwise respond to MCAA's discovery
request by April 15, 1994. The hearing was tentatively scheduled for
the week of June 6, 1994. Acknowledgment of Notice of Appeal and Summary
of Preliminary Telephone Conference, dated April 12, 1994, at 2, 3. By
letter dated April 15, 1994, MCAA's counsel requested that the hearing
be rescheduled to the week of June 20, 1994 due to a scheduling conflict
with its client. The hearing was rescheduled as MCAA requested.
On May 26, 1994, MCAA requested a Board order for depositions of certain
ACF employees and a continuance of the June 20 hearing date. In a June
7, 1994 telephone conference, the Presiding Board Member granted MCAA's
request for a continuance of the hearing because ACF had only recently
provided to MCAA copies of certain documents it sought in discovery from
ACF. The hearing was then rescheduled for the week of July 11, 1994.
After initially delaying ruling on MCAA's motion for discovery until
witness lists were filed on June 1, 1994, on June 15, 1994 the Presiding
Board Member denied MCAA's motion for depositions. See Ruling on Motion
for Depositions, June 15, 1994.
MCAA then filed a Motion for Reconsideration of the Board's Ruling
Denying MCAA's Motion for Discovery, dated June 23, 1994. In that
Motion, MCAA quoted from the legislative history of the Human Services
Reauthorization Act of 1990:
[The legislation], as amended, clarifies that each grantee may
request timely hearings when funding is reduced or terminated. The
legislation further clarifies that grantees will continue to have
certain rights which are currently provided to them under the
existing Departmental appeals process. These rights include . . .
an opportunity to take depositions as part of the prehearing
process.
Motion at 7-8, citing S. Rep. No. 421, 101st Cong., 2d Sess. 5 (1990).
Based on the legislative history and over the objection of ACF, the
Presiding Board Member, with the concurrence of the two other panel
members, granted MCAA an opportunity to depose the ACF witnesses that
MCAA had identified in its June 1 witness list. 7/ At MCAA's request,
she once again continued the hearing, this time to the week of August
22, 1994, to allow time for the depositions. See Summary of June 28,
1994 Telephone Conference, dated June 30, 1994, at 5-6. The Presiding
Board Member informed the parties that she expected them to take their
depositions during the week of July 11-15, since the parties had already
ascertained that their witnesses were available that week for the
previously- scheduled hearing. Id. at 4.
MCAA wrote to the Board on July 6, 1994 requesting that the Board order
a "reasonable period of time" in which to conduct depositions. MCAA
stated that it would need at least one full day of preparation for and
one full day for taking each of its five depositions. MCAA insisted
that it must take the deposition of ACF's Regional Director, who was not
available for depositions until July 14, before it could take any other
depositions. 8/ Finally, MCAA told the Board (for the first time) that
it was not able to take any depositions after July 15 and before July 29
because of other commitments of its attorneys.
In a telephone conference on July 8, 1994, the Presiding Board Member
informed the parties that they were not entitled to have the deponents
made available in any particular order. Summary of July 8, 1994
Telephone Conference, dated July 11, 1994, at 2. She also stated that
MCAA's position that it needed two days to prepare for and depose each
ACF witness was unreasonable given that certain witnesses were minor
witnesses. Id. at 3. However, the Presiding Board Member nonetheless
extended the period of time for taking depositions through July 22,
1994. She stated that the parties could take depositions beyond July
22, 1994, but that the hearing would not be delayed beyond August 22 on
the ground that depositions were not completed by July 22. Id. at 5-6.
ACF took the depositions it requested during the week of July 11-15.
MCAA did not take depositions that week nor during the following week
(ending July 22). On July 12, MCAA requested that the period for taking
depositions be rescheduled to August 1-12 and stated that "[c]ounsel for
MCAA fully understand that the hearing will go forward on August 22 as
scheduled." MCAA's Letter to the Board, July 12, 1994. The following
day, again over the objection of ACF, the Presiding Board Member ruled
that MCAA could take the depositions of "available" ACF witnesses
during
this time period. However, she made it clear that --
[g]iven that [ACF] stood ready to make these witnesses available
during the week of July 11-15, 1994, and has promised to have them
appear at the hearing during the week of August 22, MCAA should not
take my permission to change the deposition schedule to mean that
it has an absolute right to depose all witnesses before the
hearing. In other words, if [ACF] is unable to make a witness or
witnesses available during the time requested (for example, because
of previously scheduled vacation time), MCAA should not expect that
its inability to depose such witnesses would furnish good cause for
delaying the hearing further.
Ruling on Request for Extension of Time, July 13, 1994 (emphasis in
original). ACF did make its witnesses available again during August
1-12. See ACF August 4, 1994 letter to the Board, at 2.
MCAA did not begin taking its depositions the week of August 1, 1994.
In the afternoon of Wednesday, August 3, 1994, MCAA wrote the Board and
requested an indefinite stay of the appeal based on an alleged failure
of ACF to provide MCAA with funds for attorneys' fees. 9/ Once again
ACF opposed any further postponement of the hearing. Attached to ACF's
letter of opposition to MCAA's request were documents indicating that
MCAA had been awarded all of the funds it had requested, including a
line item in the budget for legal fees, to continue its program through
September 30, 1994. See ACF Letter to the Board, dated August 4, 1994,
and attachment entitled "Application for Federal Assistance" for 5/1/94
through 9/30/94. While there was some disagreement over how MCAA was to
apply for additional legal fees for which it might be eligible under 45
C.F.R. 1303(b), the documents ACF provided to the Board indicated that
MCAA's grant award included $37,500 to cover legal fees through Septem-
ber 30, 1994, the full amount it had requested. MCAA never adequately
explained to the Board, either orally or in writing, its position that
ACF had not provided funds for attorneys' fees. 10/
The Board declined to grant MCAA's request for a stay on the following
grounds:
MCAA had already requested, and been granted, three previous
stays of the hearing date (usually over ACF's objection);
It was essential that this matter be resolved as soon as
possible since continued uncertainty as to who would run the
program was not in the best interests of the children served by
Head Start;
MCAA could have brought the matter of attorneys' fees to the
Board's attention earlier; and
MCAA had been told that the hearing would commence on August
22 and that if it delayed taking depositions until August instead
of taking them July 11-22 when it was supposed to, it did so at its
own risk.
Ruling on Appellant's Request for Reconsideration of Board's Decision
Denying an Indefinite Stay, August 12, 1994, at 1-2.
On August 16, 1994, the Presiding Board Member held a pre-hearing
conference with the parties. ACF stipulated generally to the
authenticity of MCAA's proposed hearing exhibits, which had been
previously produced. In that conference, MCAA's attorneys indicated
that MCAA was not currently preparing for the hearing through counsel
and that they doubted that MCAA was planning to appear at the hearing
pro se. The attorneys indicated that there was "a very good
possibility" that MCAA and its witnesses would not appear for the
scheduled hearing in Hartford, Connecticut on Monday, August 22, 1994.
The Presiding Board Member told MCAA's attorneys that they should notify
the Board by noon on Wednesday, August 17, 1994 whether MCAA and/or its
attorneys would appear at the hearing. That date was later extended to
noon on Friday, August 19, 1994. See Ruling on August 15, 1994 Request
for Stay, dated August 16, 1994, at 2. On August 16, 1994, the
Presiding Board Member also stated:
If MCAA should choose not to appear at the hearing as scheduled,
the Board will deem MCAA to have waived its opportunity for an
in-person hearing. 45 C.F.R. 16.14. The Board will then decide
how best to proceed to develop a record for decision. Id.
Id. (emphasis in original).
On the morning of August 19, 1994, MCAA's counsel wrote the Board asking
what procedures the Board would follow if MCAA did not appear for the
hearing. 11/ Stressing that MCAA must let the Board know by noon
whether it would appear, the Board told the parties, in writing, that if
MCAA informed the Board that it would not appear at the hearing, the
Board would set a schedule for the parties to submit briefs on their
factual and legal positions. MCAA then wrote the Board, stating that --
MCAA does not subscribe to the Board's view that it waives its
opportunity to a hearing if it chooses not to appear for the
hearing and therefore is not in a position to respond to the
Board's inquiry.
MCAA's second letter to the Board, August 19, 1994.
Because MCAA's response did not specifically answer whether MCAA would
appear at the hearing, a Board staff attorney called MCAA's attorneys at
the direction of the Presiding Board Member to inquire. MCAA's counsel
affirmatively refused to answer whether MCAA would appear at the
hearing. The Board then wrote the parties stating that the Board would
appear at the hearing site on Monday and the hearing would begin at 9:30
a.m. as scheduled. See Board's second letter to the parties, dated
August 19, 1994. Late in the afternoon, MCAA's counsel wrote the Board
stating that since MCAA lacked adequate funds to pay attorneys' fees, it
would not attend the hearing. The Board then deemed MCAA to have waived
its right to a hearing, and a briefing schedule was set. See
Cancellation of In-Person Hearing, dated August 19, 1994, and Summary of
August 23, 1994 Telephone Conference, dated August 25, 1994. ACF's
brief was received by the Board on September 27, 1994. MCAA never filed
a brief, although it was given until October 27, 1994 to do so. 12/
We are admitting into the record each of MCAA's proposed exhibits
(except for a few pages of several exhibits to which ACF objected on the
grounds of authenticity) since ACF did not object to these exhibits,
stipulated to their authenticity, and addressed many of them in its
brief. 13/ We are also admitting into the record each of ACF's
proposed exhibits, except for those excluded in the Board's October 12,
1994 Ruling on Respondent's Motion to Enter Late Document[s], since MCAA
has not objected to their authenticity.
ANALYSIS
We discuss below the 73 findings of non-compliance that were made during
the follow-up review and are still in issue. They are organized
according to the particular component of the program to which each
finding applies. Each component discussion begins with an outline of the
Head Start requirements for that component. The outline is followed by
a discussion of each individual finding of non-compliance listed by item
number as identified in the On-Site Program Review (OSPR) report and the
follow-up report. In the OSPR report, each item states a performance
standard or other regulatory requirement and then lists findings related
to that standard or requirement. We include, where appropriate, a brief
discussion of how these Head Start requirements relate to important
program objectives.
As noted above, although MCAA never provided an explanation of the 65
exhibits it submitted prior to the hearing date, we reviewed these
exhibits to determine if, read in their best light, they refuted any of
ACF's findings in the follow-up report. We conclude that the vast
majority of ACF's findings of non-compliance were correct. While MCAA
produced some records, MCAA did not produce the complete set of records
MCAA necessarily should have created in order for MCAA to comply with
the requirements of the Act and the regulations. However, we indicate
below those few findings that we find to be unsubstantiated by the
record before us. Notwithstanding the fact that several of the findings
were not supported by the record, there is a more than ample basis for
the denial of refunding.
I. Education Component
The performance standards of the education component of the Head Start
program are found at 45 C.F.R. Part 1304, Subpart B. While the Head
Start regulations are worded to specify what a grantee must provide in
various components of a plan for meeting performance standards, the plan
is not itself the test of compliance with the performance standards.
The regulations contemplate that the grantee both develop and implement
the plan, in order to meet the performance standards. See 45 C.F.R.
1304.1-4 and 1304.1-5. Generally, the education component is designed
to ensure that children enrolled in the program are provided with a
learning environment which will help them develop socially,
intellectually, physically, and emotionally toward the overall goal of
social competence. 45 C.F.R. 1304.2-1(a). While the November 1993
follow-up report found that MCAA had made progress in correcting
deficiencies in this program component since the March 1992 OSPR, the
review team found that MCAA remained deficient in three areas. 14/
First, the review team found that many of the children's files lacked
individual education plans (IEPs), and those IEPs which were in the
files were poorly developed and did not appear to include parental
input. Although the teachers appeared to have had numerous contacts
with parents, there was no indication that individual parents were
informed about their child's development. (OSPR Item 16) MCAA had
asserted that it met the requirement at 45 C.F.R. 1304.2-2(d) that
there be procedures for observation, recording and evaluation of
individual development in order to plan to meet individual needs, by
producing IEPs for each child. Since MCAA's records did not contain
such IEPs, the follow-up report found that MCAA had not met this
performance standard.
Second, during the 1992 OSPR, the reviewers had found that health,
social services and mental health-related activities were not
sufficiently integrated into the educational component of Head Start.
(OSPR Item 17) In November 1993, reviewers found no documents showing
integration in the 1992-93 school year. 15/ The reviewers said that
MCAA's claims of improvement in this area also could not be verified
during the follow-up review because new coordinators had just been hired
for the health/mental health and social services components, and they
were unfamiliar with previous practices. Thus, the follow-up review
team found that MCAA was out of compliance with the requirement that the
educational aspects of other Head Start components be integrated into
the daily education program. See 45 C.F.R. 1304.2- 2(d).
Finally, the teams of reviewers who conducted both the OSPR and the
follow-up review found that MCAA's program lacked gross motor skill
equipment in each classroom. (OSPR Item 11) ACF alleged that this was a
violation of the requirement that a Head Start program provide for the
promotion of physical growth of the children through appropriate
guidance while children are using equipment and materials. See 45
C.F.R. 1304.2-2(b)(3)(ii).
Among the documents submitted by MCAA were the IEPs for two children
(MCAA Ex. 11), but these two documents do not rebut the finding that
MCAA did not have IEPs for all 134 children in the program. 16/ IEPs
(or equivalent records and plans related to each individual child's
needs) are designed to enhance the educational development of each child
in Head Start. MCAA's lack of IEPs for its children indicates that MCAA
was not identifying or meeting individual children's needs to the extent
required by Head Start. While MCAA Exhibits 1 and 2, notes of visits
with parents, show some evidence that MCAA informed some parents about
their child's progress and sought information from parents regarding
their child, the exhibits indicate these activities occurred only
sporadically and only for a limited number of children. In any event,
these contacts do not rise to the status of IEPs.
MCAA also did not introduce evidence showing that MCAA provided for
integrating the educational component with the health, social services
and mental health components through daily educational activities, as
required by the regulations. While MCAA Exhibit 47 -- one week's lesson
plan dealing with self-esteem -- indicates some acknow- ledgment of this
requirement before the follow-up visit, MCAA failed to produce documents
showing that it provided for this type of integration into the daily
education services program, as required by 45 C.F.R. 1304.2-2(d). See
also 45 C.F.R. 1304.2-1(b). Moreover, MCAA Exhibit 64, which contains
undated handwritten curriculum goals, does not mention integration of
program components.
Finally, MCAA did not introduce evidence that it had adequate equipment
for children to use large muscles to increase their physical skills in
order to promote their physical development. The reviewers found that
gross motor skill equipment was lacking even though MCAA previously had
been told it was needed. This could have been easily remedied by simply
budgeting for and buying the equipment. However, we find this lack was
a violation of 45 C.F.R. 1304.2-2(b)(3)(i) rather than of (3)(ii), as
alleged by ACF. Subsection (3)(i) requires that a Head Start program
promote the physical growth of children by "[p]roviding adequate indoor
and outdoor space, materials, equipment, and time for children to use
large and small muscles to increase their physical skills." We find
that the lack of equipment was a violation of this provision rather than
a violation of subsection (3)(ii), which addresses only a failure to
supervise the children's use of such equipment.
For the above reasons, we find that MCAA did not meet the performance
standards identified in OSPR Items 11 and 16- 17 at the time of the
follow-up review.
II. Health Component
The performance standards for the health component of the Head Start
program are found at 45 C.F.R. Part 1304, Subpart C.
Head Start emphasizes the importance of early identification of health
problems. Many preschool children from low-income families have never
seen a doctor or a dentist prior to entering the program. Head Start
arranges for each child to receive, if needed, comprehensive medical
care, including medical, dental, mental health, and nutrition services.
See 45 C.F.R. 1304.3-1(a); "Head Start: A Child Development Program,"
ACF Publication, at 4 (1993) (Brochure).
The follow-up review team concluded that --
[t]he findings of this review clearly indicate MCAA continues to
have serious deficiencies within the Head Start program's Health
component. These deficiencies substantially reduce the quality of
the delivery of health services to children and pose a potential
danger to the safety and well-being of children in the classroom.
Follow-up Report, OSPR Item 111. The review team listed the specific
deficiencies, as explained below.
A. Medical and Dental Services
The performance standards require current medical and dental plans for
the program which are reviewed at least annually, including a plan for
providing emergency services to the children. 45 C.F.R. 1304.1-4,
1304.3- 4(b). In order to develop and review these plans, the
regulations require that there be a functioning Health Advisory
Committee consisting of parents of Head Start children, health providers
from the community, and other health specialists. 45 C.F.R. 1304.3-2.
The standards require that children be screened for certain medical
problems, that they be given growth assessments and certain
immunizations, and that follow-up care be arranged for all health
problems which are detected. See 45 C.F.R. 1304.3-3 and 1304.3-4.
The program must obtain advance parent or guardian authorization for all
health services provided. 45 C.F.R. 1304.3-3(a). The performance
standards require an organized health education program for staff,
parents and children which provides information about health resources,
involves parents in the health care process, and offers training in
preventive health and emergency first aid. 45 C.F.R. 1304.3-6(a).
The performance standards require that a system be in place for
forwarding records, with parental consent, to the school or health
delivery system when a child leaves the program. 45 C.F.R.
1304.3-5(b). Head Start employees must have initial health examinations
and periodic check- ups, and be free from communicable diseases; Head
Start volunteers must have tuberculosis (TB) screenings. 45 C.F.R.
1304.3-3(d). Head Start funds are to be used for health care services
only when no other source of funding is available. 45 C.F.R.
1304.3-4(a)(1).
The review team found that many deficiencies in meeting these regulatory
requirements which existed at the time of the 1992 OSPR remained at the
time of the follow-up review. The team reviewed a sample of the
children's health files and determined that none of the children had had
all of the required screenings completed and that only one child out of
47 identified with problems needing follow-up care had received such
care. (OSPR Items 39, 42 and 54) The follow-up review team found that
the overwhelming majority of children's files also did not contain any
authorization forms for medical, dental or emergency treatment, and
there was no indication in any files that parents had been notified of
health services which were provided. (OSPR Item 41) No parental
consent forms authorizing the release of information to the school or
health care system were found by the review team, and the Health
Coordinator could not verify that the previous coordinator had given
medical summaries to the parents. (OSPR Item 57)
The list of local Medicaid providers which was provided to parents
contained only the names of dentists, not physicians. (OSPR Item 61)
According to the review team, MCAA was not able to provide documentation
of any health education programs it had offered to parents or staff,
although MCAA's Executive Director and Health Coordinator reported that
health education workshops were provided. (OSPR Item 62) According to
MCAA's Executive Director, there were no Head Start funds budgeted for
health care services. (OSPR Item 56)
At the time of the follow-up visit, the review team also found that MCAA
had only one staff member with cardio- pulmonary resuscitation (CPR)
certification and that training had been obtained through a class not
offered by MCAA. MCAA reported that it offered first aid training
during the 1992-93 school year, but the review team could not verify
whether any current Head Start employees were certified in first aid.
(OSPR Item 63) The follow-up review team found that the majority of
MCAA's Head Start staff had not had their physical examinations and TB
screenings for the 1993-94 school year at the time of the November 1993
follow-up visit. (OSPR Item 66) The review team found that MCAA did
not maintain parent volunteer records from which it could determine
whether TB tests were done on parent volunteers. (OSPR Item 67) The
reviewers noted that emergency plans in both English and Spanish were
posted in all the classrooms, but allergy lists for current enrollees
were not. (OSPR Item 60)
Finally, while MCAA had informed ACF that it had revised its medical and
dental plans in September 1992, the reviewers found no documentation
that the health and dental plans had either been reviewed by the Health
Advisory Committee or implemented by the Head Start program. (OSPR Item
37) The follow-up review team reported that it could not determine
whether a Health Advisory Committee had either been formed or had met
during the 1992-93 school year, although MCAA stated that the committee
had met twice. The follow-up review team was unable to find any dates
or minutes of meetings or membership lists, other than a list of Policy
Council parents who had volunteered to participate on the Health
Advisory Committee. (OSPR Item 38) The medical and dental plans had
not yet been updated for the 1993-94 school year and the Health
Coordinator informed the reviewers that she would not be updating the
plans at that time. (OSPR Item 37)
MCAA did not specifically dispute before the Board the deficiencies
identified in the medical and dental services component of the follow-up
report, and we find that MCAA violated the performance standards
identified in each of the OSPR items in the medical and dental component
except OSPR Item 66. MCAA submitted, as MCAA Exhibit 3, a health plan
dated September 1992 that did not indicate that it was reviewed by the
Health Advisory Committee or adopted by the Policy Council. 17/ Without
approval by the Health Advisory Committee, consisting in part of health
care professionals as well as parents, the plan did not reflect the
input of professionals but rather reflected only the views of the Health
Coordinator, who was not a licensed health care provider. 18/ MCAA's
putative health plan specified that all records of children's
immunizations and screenings would be kept in each child's individual
health record. MCAA did not provide any individual health records but
did submit a two-page list of children with last names beginning with A
through M who each had one height and weight screening. MCAA Ex. 6. It
is not clear to what school year this pertained; from the dates of the
height and weight screenings, of which there was only one of the two
required, it appears that these children were 1992-93 students. The
fact that MCAA did not submit records showing that screenings and
immunizations were completed for all of the children, or that the height
and weight information and other health screenings were reviewed to
determine health needs of the children, is disturbing. Moreover, without
individual records or parental permission to forward those records to
the child's next placement, there was no assurance that children's
health needs would receive continued attention beyond the Head Start
program. 19/ The health benefits of a child's year(s) in Head Start
could be lost without continued attention to a child's health needs.
While MCAA had posted, in classrooms and corridors, emergency medical
plans in both Spanish and English and had allergy lists posted during
the 1992-93 school year, MCAA did not rebut the finding that as of
November 1993 allergy lists for children enrolled in the program for
1993-94 were not posted. MCAA's Exhibit 9, which contained eight
"health-food-allergy alerts" by MCAA listing children with allergies,
included a list which noted that a child was in a home-based program
from April 15, 1994 to May 20, 1994, indicating that these lists were
made well after the November 1993 site visit. Failure to timely post
1993-94 allergy lists seriously jeopardized the health of children with
particular allergy sensitivities. MCAA's lack of personnel currently
certified in CPR or first aid was also potentially life-threatening for
the children. MCAA's only exhibit addressing this item, Exhibit 32,
showed several persons' certification for first aid as expiring in April
1993. MCAA's total lack of records indicating that parent volunteers
had received recent TB tests also suggests that MCAA placed
participants' health in jeopardy. 20/
In addition, the follow-up review team found that parents were not asked
to consent in advance to health care treatment for their children.
MCAA's submission of permission slips for eight children does not rebut
the review team's finding that the majority of the 134 children's files
lacked such documents. Lack of consent could result either in children
being placed in peril in emergencies while authorization for care was
sought or in providing health care services to children without parental
permission.
Moreover, MCAA should have revised its community resource list to
include the names of doctors as well as dentists. This is important in
order to provide Head Start parents with access to physicians for their
children. MCAA introduced copies of community medical resources
brochures (MCAA Exhibit 34) to address this finding, but presented no
evidence that these brochures were disseminated. Moreover, these
brochures do not list physicians and therefore do not address ACF's
concern that there was a lack of physicians on MCAA's community resource
list.
Finally, the finding that MCAA had no Head Start funds budgeted to pay
for health care services indicates that MCAA did not comply with the
requirement that it ensure that required services were provided, after
using other community resources, even after being notified of this
problem in the 1992 OSPR.
However, we find that ACF's assertions regarding OSPR Item 66 are
inadequate to show that MCAA was out of compliance with the requirements
for staff physicals and TB screenings. The ACF reviewers indicated that
20 staff persons had received physical examinations during the 1992-93
school year. MCAA's Exhibit 18 indicates that there were 21 persons
(excluding bus drivers and maintenance workers) on the staff during that
school year. The fact that only two employees had received health
screenings during the 1993-94 school year at the time of the follow-up
review does not on its face present a serious health concern without
further information concerning when in the 1992-93 school year the 20
employees had received their physical examinations. Only if they were
due for examinations before the follow-up review and did not receive
them does this become a legitimate concern. Moreover, the follow-up
reviewers did not dispute MCAA's assertion that TB tests were scheduled
as part of the annual physical examinations provided to MCAA's employees
by the Meriden city employees' health plan.
For the above reasons, we find that MCAA did not meet the performance
standards identified in OSPR Items 37-39, 41- 42, 54, 56-57, 60-63 and
67 at the time of the follow-up review. We find that ACF did not have a
sufficient basis for its finding in OSPR Item 66.
B. Mental Health Services
The mental health component program standards are designed to ensure
that children are assisted in participating in the program through
services which are intended to enhance emotional, social and cognitive
development. 45 C.F.R. 1304.3-7(a). The standards are designed to
provide for prevention and early intervention in problems which can
affect a child's development. 45 C.F.R. 1304.3-7(d).
The program performance standards require that a mental health
professional be available to the Head Start program, on at least a
consultation basis, to provide certain services to the staff, parents,
and children of the program. 45 C.F.R. 1304.3-8(a). The performance
standards also require that the mental health plan provide attention to
the medical and family history of each child, use existing community
resources, coordinate with the education component, and provide for
confidentiality of records and for parental consent, active involvement
and assistance. 45 C.F.R. 1304.3- 8(b).
The mental health component is an area in which MCAA's failure to meet
the performance standards is unusually pronounced. In the 1992 OSPR,
the reviewers found that the entire mental health component was out of
compliance with the performance standards and that the program had not
obtained access to the services of a qualified mental health
professional. Moreover, the OSPR review team found that MCAA was not
providing any of the services that the mental health professional was
required by the regulations to provide, identified in OSPR Items 69-76.
21/
In the November 1993 follow-up review, the review team found that the
program remained grossly out of compliance with the performance
standards in this area. This was particularly disturbing to the review
team because in its response to the OSPR, MCAA had claimed that it had
attained compliance with most aspects of the mental health requirements
by obtaining the services of two mental health professionals as
consultants. At the follow-up visit, however, MCAA did not supply any
documents to the review team confirming that it had either contracted
with these mental health consultants or that they were providing any
services whatsoever.
During the follow-up review, the review team also found that none of the
children's files which were randomly sampled contained documentation
regarding mental health services or screenings by a mental health
professional. (OSPR Item 68) While MCAA staff expressed a belief to the
reviewers that the MCAA Health and Social Services Coordinators had met
with a mental health consultant, this was not documented nor was there
any indication that information on individual children's needs had been
communicated to MCAA's teachers. (OSPR Item 68) While MCAA staff told
the reviewers that there had been some workshops during the 1992-93
school year on behavior management and classroom issues, the reviewers
found there was no documentation that workshops had been offered to
parents and only a reference in one personnel file that training had
been offered to staff. Id.
While MCAA asserted that it had two mental health professionals
available to assist its Head Start program, the follow-up reviewers
found no evidence that these two professionals actually provided
services to MCAA. At the time of the follow-up review, MCAA produced no
contracts with either of these two persons to provide mental health
services. The Head Start Director told the reviewers that she believed
there had been one classroom observation by a mental health professional
and that she had met with a consultant whom she believed gave
inappropriate advice. 22/ There was no report on the classroom
observation by a consultant, and there was apparently no follow-up or
resolution to this matter or any attempt to find a more satisfactory
consultant. The reviewers found that MCAA was out of compliance with
each of the requirements as to services the mental health professional
should provide. These services include mental health care planning,
observation of children, developmental screening and assessment,
assistance with behavioral problems, referrals to community resources
and physicians for diagnosis, and parent orientation. Additionally, the
review team was unable to verify the assertions made by MCAA staff which
indicated that MCAA staff were providing some of these services.
Moreover, the follow-up reviewers found that the methods used by MCAA to
assess medical and family histories were ineffective and that there was
no communication between program areas concerning mental health needs of
particular children. (OSPR Item 77) The review team found that there
was no use of community mental health resources, no integration of
mental health services with the education component, nor any provisions
for confidentiality in the release of mental health records. (OSPR Items
78-80) The review team found there were no regular mental health
meetings for parents and staff, and there was no evidence of parental
consent forms for services. (OSPR Items 81-82) There was no system in
place for parents to obtain individual assistance with mental health
needs, nor were parents involved through the program in addressing the
mental health needs of their children. (OSPR Items 83-84)
We do not fully agree with ACF's findings during the follow-up visit
regarding the lack of any services provided by a mental health
consultant. Upon review of the documents submitted by MCAA, we find
that MCAA did utilize some limited services of one of the consultants it
identified in its OSPR response. See MCAA Ex. 33. These documents
include bills from the named consultant for consultation services to the
program, although it is not clear what type of consultation services
were provided. In addition, the documents show that another consultant
not identified in the OSPR response provided some staff workshops on
behavior and classroom management, stress management, and IEPs. Id.;
see also MCAA Exs. 4, 18 and 58. Therefore, we do not find that MCAA
failed to meet the performance standards which require it to have access
to the services of a mental health consultant (OSPR Item 69) and that
such consultant provide staff training (OSPR Item 70).
However, MCAA did not show that a mental health professional provided
the other services required by the regulations. MCAA never produced,
either for the follow- up reviewers or the Board, any of the documents
that would have been generated by such services: there were no reports
of observations of classrooms, children's records with professional
analyses noted, notices of mental health presentations for parents, or
similar activities. 23/ Thus, MCAA left unrefuted OSPR Items 71 through
76. Compliance with the requirements embodied in OSPR Items 81 through
84, which list communications which should occur between parents and
staff regarding services, also should have generated documents that MCAA
should have produced. 24/
We also do not find that the review team findings related to OSPR Item
80, which addresses the confidentiality of records, amounted to a
sufficient finding of a program deficiency. MCAA informed the follow-up
review team that the health files were maintained in a locked area, that
only the Head Start Director and the Social Services Coordinator have
keys to that area, and that a third key is maintained in a locked case.
MCAA stated that one known attempt had been made to break into the case.
Although ACF concluded from these facts that MCAA was not maintaining
adequate security for these files, ACF failed to state what measures it
would have considered adequate. We note that ACF did not allege that the
break-in attempt was successful; therefore, this provides some evidence
that MCAA's procedures for maintaining the records in a safe place were
in fact adequate.
Accordingly, we find that MCAA did not meet the performance standards
identified in OSPR Items 68, 71-79 and 81-84 at the time of the
follow-up review. We find that ACF did not have a sufficient basis for
its findings that MCAA did not meet the performance standards identified
in OSPR Item 69-70 and 80 at the time of the follow-up review.
C. Nutrition Services
Many children entering Head Start do not receive good, nourishing meals
at home. Brochure, at 4. The performance standards of the nutrition
component of the program provide that nutritional needs of enrolled
children must be identified and that children will be provided with
certain meals and snacks throughout the day. Meals and snacks are
designed to provide an adequate quantity and variety of foods, taking
into consideration the needs of the children. See 45 C.F.R.
1304.3-10. Like other component plans, the nutrition plan is to be
reviewed and updated annually. 45 C.F.R. 1304.1-4.
In order to assess the nutritional needs of children, the program is to
obtain information on the height, weight, and hemoglobin or hematocrit
level of each enrolled child. 45 C.F.R. 1304.3-10(a)(1). The program
is to gather information about family eating habits and special dietary
needs, as well as of community nutrition problems. 45 C.F.R.
1304.3-10(a)(2) and (3). The nutrition plan is expected to have an
organized education program which educates parents, staff and children
in the selection and preparation of nutritious foods. 45 C.F.R.
1304.3-10(d). Parents are to be informed about and are to be involved
in discussions regarding the nutritional status of their children, the
menus and nutrition activities of the program, and the availability of
community food benefits. 45 C.F.R. 1304.3-10(e). The performance
standards require that a nutritionist be available to the program for
either full-time or periodic and regular supervision of the meal
program, and the program must maintain records of the menus, recipes,
number of children and quantity of food served, and food budget
information. 45 C.F.R. 1304.3-10(g) and (h).
The follow-up review team found that the required height and weight
charts were incomplete for some children and had not been used to assess
nutritional needs for any of the children. (OSPR Item 85) The
reviewers found no evidence that Head Start staff or a nutritionist made
observations of children's eating patterns, performed nutritional health
assessments, or made contact with the Meriden Health Department or
parents. The program was not able to produce any lists of children in
need of special nutritional services. The Health Coordinator told the
reviewers that special meals were available, but MCAA's staff was unable
to identify how special needs were identified and communicated with the
kitchen staff. (OSPR Item 86) The review team found no evidence that
MCAA had any contract with a nutritionist for the purpose of reviewing
its menus or that its Health Advisory Committee had reviewed the current
nutrition plan, which had been revised in September 1992 for the 1992-93
school year but had not yet been revised for the 1993-94 school year.
(OSPR Items 86 and 111)
While the follow-up review team found that many of the problems
discovered in the 1992 OSPR no longer existed -- such as a lack of a hot
breakfast program, the use of canned vegetables, and insufficient
quantities of breakfast foods -- the review team expressed concern that
the program was serving hot dogs to preschool children, putting them in
danger of choking. (OSPR Item 89) The follow-up review team also was
concerned that there was insufficient cultural or ethnic diversity in
the meal program, as well as insufficient preparation of foods in the
classroom, although it noted the program was making an effort to address
these concerns. (OSPR Items 95 and 101)
Finally, the follow-up review team found that there was no documentation
establishing that the program had provided nutrition-related training to
Head Start parents, children and staff. (OSPR Items 102-104) The
review team found no documentation of parent volunteers participating in
the food program, although the Health Coordinator and the parent
volunteers indicated that they did participate in delivering food to the
classrooms from the kitchen. There was no evidence that the local
health department or other community agencies were involved in planning,
implementing or evaluating the nutrition program. (OSPR Item 105) The
review team also found a lack of play items in the classrooms dealing
with food and nutrition education. (OSPR Item 101)
The nutritional component is important to Head Start in that it ensures
that children, whose opportunities to receive proper nutrition at home
may be limited, receive well-planned meals and snacks. A child who is
hungry or who receives foods which do not meet his or her nutritional
needs cannot fully benefit from the educational and other aspects of
Head Start.
The nature and content of the individual nutritional component
performance standards would seem to indicate that some standards are
more critical than others. We find that MCAA failed to meet the
performance standards identified in OSPR Items 85-86, 101-106 and 111.
The fact that the reviewers found that height and weight charts were
incomplete and that no nutritional planning for individual children's
needs was based on these assessments is of concern. 25/ This concern is
further supported by the unrebutted finding of the reviewers that,
although a registered dietician reviewed menus (MCAA Exs. 39, 45, 54 and
59), neither a nutritional consultant nor the Health Advisory Committee
was reviewing the overall nutritional plan (at least prior to February,
1994), nor was there any community agency involved in the nutritional
aspects of the program. 26/ While MCAA provided the Board with in-house
referral forms which it labeled "Communication between Coordinators,
Teaching Staff and Kitchen Staff Relative to Special Nutrition Needs"
(MCAA Ex. 44), this exhibit contains only very general, undated blank
forms. The fact that MCAA failed to provide adequate nutritional
training to Head Start parents and children could contribute to some of
the children not having their nutritional needs met at home either while
enrolled in the program or after leaving Head Start. The lack of play
equipment relating to nutritional concerns is further evidence of the
lack of nutritional training for the children.
However, we find that ACF had an insufficient basis for its finding that
MCAA did not meet the performance standards identified in OSPR Items 89
and 95 at the time of the follow-up review. The 1992 OSPR review team
had found that the program did not serve a hot breakfast, served
insufficient quantities of milk and cereal for the children to have
second helpings, obtained lunches from the school system which were
inadequate, and served overcooked canned vegetables. (OSPR Item 89) At
the time of the follow-up review, the review team found that virtually
all of these problems had been corrected. The only deficiency cited by
the review team was the serving of hot dogs to the pre-school children.
(OSPR Item 89) ACF did not explain why hot dogs could not be served if
they were cut into smaller pieces nor why this one concern caused an
overall deficiency in meeting the standard.
Moreover, ACF also alleged that MCAA failed to meet performance
standards because "a majority of the menus do not reflect cultural or
ethnic diversity." (OSPR Item 95) Thus, clearly MCAA provided some
diversity. ACF did not identify any requirement specifying how much
cultural and ethnic diversity in food programs was required.
For the above reasons, we find that MCAA did not meet the performance
standards identified in OSPR Items 85-86, 101-106 and 111 at the time of
the follow-up review. We find that ACF did not have a sufficient basis
for its findings that MCAA did not meet the performance standards
identified in OSPR Items 89 and 95 at the time of that review.
III. Social Services Component
The social services component of Head Start represents an organized
method of assisting families to assess their needs and of providing
those services that will build upon the individual strengths of families
to meet their own needs. Brochure, at 5. 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. In addition, it is designed to assist the
families of enrolled children in improving their quality of life within
the community and to involve the parents in actively participating in
the Head Start center. It is also designed to familiarize Head Start
families with community resources which are available to them and to
work with the community to determine what unmet needs exist. See 45
C.F.R. 1304.4-1.
The social services component objectives are to be carried out through a
social services component plan, which is to be annually reviewed and
updated. The plan is a) to provide for the recruitment of children,
including handicapped children; b) to provide families with, or refer
families for, counseling, assistance, crisis intervention, and necessary
community services; c) to follow-up with families to assure that needed
assistance was provided; d) to be an advocate for Head Start families
within the community; e) to contact parents of children whose attendance
is irregular or whose absences are extended; and f) to 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.
In the 1992 OSPR, the review team found that the social services plan
had not been updated since 1983. The follow-up review team was given a
copy of the 1983 plan with "1993" written over the previous date.
There
was no evidence that there had been any parental input into the plan or
that the Social Services Committee had met or reviewed the plan. (OSPR
Item 114)
The follow-up review team found that although a recent plan had been
developed for the recruitment of local Head Start children, it was not
implemented for the 1993-94 school year because of turnover in the
position of Social Services Coordinator. (OSPR Item 115) The follow-up
review team found that the former Social Services Coordinator had made
inappropriate comments to parents, and that, rather than referring the
families to qualified agencies, MCAA staff had provided in-depth
counselling services to families which they were not qualified to
provide. While the Social Services Coordinator had made contacts with
parents, there was no documentation regarding follow-up and very little
documentation in individual files regarding social services concerns.
The review team determined there was little or no interaction between
the Social Services Coordinator and the other component coordinators to
facilitate understanding among the staff of particular family needs.
(OSPR Item 116) ACF alleged that there was no evidence at either the
1992 OSPR or the 1993 follow-up review that there was a procedure in
place for emergency assistance or crisis intervention. (See OSPR Item
117.) The Family Needs Assessment Forms, which MCAA used to identify
social services needs of families, were not complete. The reviewers
found no evidence that the forms were used to formulate social services
plans or to properly track follow-up throughout the school year. (OSPR
Items 118- 119) There was no evidence that community resource lists
were distributed to parents or that newsletters were regularly sent to
parents. (OSPR Items 120 and 127)
Recruitment is one of the more important areas of Head Start since it is
designed to ensure that the program reaches the children whom it is
intended to benefit. While MCAA did enroll the number of children it was
funded to serve by the time of the follow-up review, the ACF review team
found, and MCAA has not denied, that the recruitment plan was not
followed during the spring of 1993 because the program did not have a
Social Services Coordinator. 27/
The record before us contains insufficient evidence that an updated
component plan was annually reviewed and approved by the appropriate
committee. MCAA also had many other problems with the social services
component, mostly centering around a lack of communication with parents
and among program staff. 28/ MCAA did not deny that its former Social
Services Coordinator had some communications with parents which ACF
found were highly inappropriate or that MCAA staff were providing
counselling services to families which they were not qualified to
provide. 29/ The lack of communications among staff as to family needs
would indicate that staff were not working as a team to meet those
needs. The lack of evidence that there was follow-up or case management
of family needs again would indicate that MCAA fell short of the
required performance standards.
However, ACF did not have an adequate basis for finding program
deficiencies with respect to OSPR Items 117 and 127. ACF found during
the follow-up review that MCAA violated the performance standard
requirement that an emergency or crisis intervention plan be in
existence. (OSPR Item 117) However, ACF's only finding on this matter
was that a form which MCAA was going to implement in January 1993 for
social services referrals had not been implemented. This lack of
implementation goes to MCAA's failure to actually provide referrals for
appropriate counselling (which is covered in OSPR Item 116), not to a
lack of a plan for emergency services. Therefore, we do not find that
this presents a violation of a separate performance standard.
Moreover, the performance standards identified in OSPR Item 127 require
that there be close cooperation with existing community resources and
that a resource list be provided to Head Start families. The follow-up
review team found that the community resource list was not updated and
that only two newsletters were sent to parents. However, the review
team made no finding that the community resource list being used by MCAA
in November 1993 needed to be updated. Nor did ACF allege how many
newsletters were required by the program or where such a standard is
established. It may be that ACF's criticism of MCAA in this OSPR item
is related to a failure of MCAA to meet its own plan, as set out in its
OSPR responses, rather than a failure to meet the performance standard.
Also, MCAA's Exhibit 27, which contains minutes of classroom committee
meetings, indicates that MCAA used meetings with parents as an
additional method to disseminate information about available social
services.
For the above reasons, we find that MCAA did not meet the performance
standards identified in OSPR Items 114-116 and 118-120 at the time of
the follow-up review. We find that ACF did not have a sufficient basis
for its findings that MCAA did not meet the performance standards
identified in OSPR Items 117 and 127 at the time of that review.
IV. Parent Involvement Component
The parent involvement component of Head Start is designed to recognize
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 local community. The
standards provide opportunities for parents to participate in the
program as employees, volunteers or observers; to directly participate
in Head Start decision-making; to participate in activities they have
helped to develop; and to work with their own and other children in the
program. 45 C.F.R. 1304.5-1. The parent participation policy of Head
Start is set out in the Head Start Policy Manual. See 45 C.F.R.
1304.5-2 and Part 1304, Appendix B.
Generally, the parent involvement regulations provide for three areas of
parent involvement: enhancement of parenting skills; communication with
Head Start staff; and community involvement. In support of enhancing
parenting skills, the plan provides opportunities to involve parents in
activities which a) enhance their knowledge and self-confidence in
fostering a good home environment; b) provide for experiences which will
strengthen their role as the primary influence over their children; c)
provide educational activities for children at home; d) provide health
education; e) identify uses of family and community resources; f)
identify opportunities for continuing education for parents; and g)
enhance communication with teachers and other Head Start staff. 45
C.F.R. 1304.5-3.
The follow-up review found that parents are encouraged through MCAA's
Parent Handbook to volunteer in the classroom, and that the Head Start
Director holds an orientation program for parents. However, the review
found that there was no indication that training was held for parents
who became volunteers. (OSPR Item 131) Many parents indicated that
they were unaware of any parent interest surveys made or of any money
available within the program to support parent activities. (OSPR Item
132) The ACF reviewers found that the Policy Council, which is to
consist in part of parents of enrolled children, was not filling its
proper role at either the time of the OSPR or of the follow-up review.
While the Policy Council was meeting regularly by the time of the
follow-up review, the reviewers found no indication that it had
sufficient input into preparation of the budget, hiring and firing of
personnel, or reorganizing management. The follow-up review found no
evidence that the Policy Council had updated its by-laws, which
according to the Head Start Director were "probably ten years old."
(OSPR Item 133)
The follow-up reviewers reported that parents interviewed during the
follow-up review were not aware of any procedures for parents to file
complaints with the program. 30/ (OSPR Item 133) While parents were
provided with written material designed to enhance their skills and
self-confidence as parents, the follow-up reviewers found there was
little documentation indicating that there were training, workshops or
speakers offered for this purpose. (OSPR Item 135) Likewise, the
reviewers found there were no meetings between a mental health
consultant and the parents for mental health education. (OSPR Item 138)
The team determined that the program did not have a sufficient method
for two-way communication with parents and that the parents did not have
a good understanding about the role of the Policy Council or have much
input into Policy Council decisions. (OSPR Item 143) The reviewers
determined the Policy Council was not well-informed in advance regarding
decisions it was making. (OSPR Item 144)
MCAA's documentation does not show that its Head Start program was in
compliance with the parent involvement component performance standards
in 45 C.F.R. Subpart E, cited in OSPR Items 132-133, 138, and 143-144.
MCAA was required to have made greater efforts to communicate with the
parents and to let parents know that money was available for parent
involvement activities. While there appears to have been some informal
communication, and there were no allegations of which we are aware that
Head Start staff were inaccessible, the performance standards require
parent surveys and workshops based, in part, on the results of those
surveys. 31/
We also find that the Policy Council, which consists in part of Head
Start parents, was not fulfilling its required function. The follow-up
report found that the Policy Council was asked to delegate some of its
non- delegable hiring authority to Head Start staff, and certain Head
Start staff were hired without Policy Council review. See MCAA Ex. 23.
As stated earlier, the Policy Council did not review the 1993-94
nutrition plan until May 1994, and the Policy Council bylaws had not
been updated in approximately ten years. See MCAA Exs. 22 and 41. 32/
On the other hand, ACF's findings are not sufficient as a basis for
concluding that MCAA did not meet the performance standards, contained
in OSPR Item 131, that every Head Start program must have effective
parent participation in the classroom as volunteers. While MCAA did not
establish that it had a formal training program for parent volunteers,
the record indicates that many parents participated in the classroom as
volunteers. MCAA submitted an extensive guide to volunteering and
instructions for volunteers helping at mealtimes. (MCAA Exs. 18 and 60)
ACF's finding that parents could not recall "training for parents on
volunteering" is too vague as a basis for concluding that volunteer
parent participation was not effective.
We also do not agree with ACF that MCAA was not meeting the performance
standards requiring training to parents in parenting skills and
self-esteem (OSPR Item 135) at the time of the follow-up review. MCAA
introduced several pages of documents which indicate that it offered
luncheons with parents to discuss self-esteem for parents and children
and parenting skills. MCAA also included documents showing that the
local Parent Share and Catholic Social Services programs were offering
classes in child development, active parenting, self-esteem, child
abuse, home safety, AIDS, and budgeting. See MCAA Ex. 33. We find that
MCAA's evidence is sufficient to show it complied with this performance
requirement.
Based on the above, we find that MCAA did not meet the performance
standards identified in OSPR Items 132-133, 138, and 143-144 at the time
of the follow-up review. We find that ACF did not have a sufficient
basis for its findings that MCAA did not meet the performance standards
identified in OSPR Items 131 and 135 at the time of the follow-up
review.
V. Disabilities Component
In addition to the program performance standards, the Head Start
regulations provide eligibility requirements and limitations for
enrollment in Head Start. Among other things, Head Start programs are
to make available at least ten percent of their enrollment opportunities
to handicapped children. 45 C.F.R. 1305.5. Handicapped children are
defined as those who are mentally retarded, hard of hearing or deaf,
visually handicapped, seriously emotionally disturbed, orthopedically
impaired, or impaired by other health conditions which make them require
special education and services. 45 C.F.R. 1305.2(b)(3). 33/
In the 1992 OSPR, ACF determined that only six MCAA Head Start children
were handicapped. Because MCAA was funded for 134 children, MCAA should
have enrolled at least 13 handicapped children. At the follow-up
review, MCAA responded that the following school year (1992-93) it had
16 handicapped children enrolled. However, MCAA produced no
documentation supporting this assertion nor could the Education
Coordinator for that year identify who were the 16 handicapped children.
Because MCAA could not identify which children were handicapped, the
follow-up review team found that MCAA was not providing handicapped
children with individual services designed for their individual
diagnosed conditions. (OSPR Items 149 and 154)
In addition to the failure to enroll and document the requisite number
of handicapped children, at the time of the follow-up review MCAA also
did not have a policy for dispensing medications within state-approved
guidelines. In fact, MCAA stated that it was its policy not to dispense
any medications. (See OSPR Item 156 Response; MCAA Ex. 37.) Nor did
MCAA provide the reviewers with a written policy regarding the
termination of children from the program, although it had terminated at
least one child from the program the previous year. (OSPR Item 157)
MCAA's failure to enroll and document the requisite number of
handicapped children indicates that MCAA did not comply with Head
Start's mandate to make at least ten percent of its enrollment positions
available to handicapped children, who may have greater needs than
non-handicapped children for the Head Start program. While MCAA's
exhibits mentioned one or two handicapped children who received
assessment services before or during their enrollment at MCAA (see MCAA
Exs. 10, 30, 40 and 65), MCAA's documents do not show that the requisite
number of handicapped children were served. In addition, MCAA submitted
no documents that show it had a policy regarding the termination of
children from the program; this lack could lead to arbitrary termination
decisions. 34/
For the above reasons, we find that MCAA did not meet the performance
standards identified in OSPR Items 149, 154, and 156-157 at the time of
the follow-up review.
VI. Administrative, Management and Fiscal Components
The Head Start Act requires that each Head Start agency must observe
standards of organization, management, and administration which will
assure that all Head Start program activities are conducted with the
purposes of Head Start in mind and in a manner which is effective and
efficient. 42 U.S.C. 9839. The Head Start regulations provide that
Head Start agencies are bound by the Administration of Grants
regulations found at 45 C.F.R. Part 74. 45 C.F.R. 1301.10(a). As
the Board has previously recognized, the relationship between a Head
Start grantee and ACF requires that ACF be able to rely upon the grantee
to have systems in place to assure that federal funds are used
efficiently and only for their intended purpose. Moreover, a Head Start
grantee has an affirmative obligation to provide documentation to show
that funds were used only for purposes for which they were awarded.
Rural Day Care, DAB No. 1489 at 8, 16.
Head Start grantees are to have written procedures for determining the
allowability, allocability and reasonableness of costs. 45 C.F.R.
74.61(f). They are to have in place a system for providing cost data in
a timely manner to financial and program managers to aid in the
administration of their programs. 45 C.F.R. 74.61. The regulations
require that grantees maintain accurate property records for all
personal property and that such property be inventoried and checked
against those records at least once every two years. 45 C.F.R.
74.140(a).
The Head Start regulations require that a Head Start grantee conduct an
annual self-assessment of its program with representation of its Board
of Directors on the annual self-assessment review team. 45 C.F.R. Part
1304, Appendix B, Chart C. The program must have a system of internal
communication which includes an internal record system, as well as a
system which generates accurate information and periodic reports of
activities to boards, council and staff. See 45 C.F.R. 1304.5-4. A
Head Start grantee must establish personnel policies which are approved
by its Policy Council, and must follow those policies when hiring or
terminating employees. The program must establish enrollment procedures
which, among other things, automatically identify children who are
eligible for a second year of Head Start. See 45 C.F.R. 1305.6,
1305.7 and 1305.10. Head Start programs are required to enroll and
maintain the number of enrolled children which the particular grant
award requires the program to serve. 45 C.F.R. 1305.7.
The follow-up review found that there were many deficiencies in MCAA's
administration, management, and fiscal operation of the program. The
reviewers found there was no annual self-assessment of the Head Start
program by MCAA during the 1992-93 school year, nor was there
participation of the Board in the self-assessment which occurred the
prior school year. (OSPR Items 170 and 171) At the time of the 1992
OSPR review, the grantee's personnel policies lacked certain required
provisions. During the follow-up review, the review team found that
MCAA had recently contracted with a consultant to develop a personnel
policy. However, there were no documents to indicate if the current
personnel policy had ever been approved by the Policy Council, as
required. (OSPR Item 172) Moreover, the follow-up review team found
that MCAA did not follow reasonable personnel procedures when it laid
off and rehired most of its staff during the summer of 1993 and when it
hired its new Health Coordinator. (OSPR Item 174)
The follow-up review team also found that MCAA was not in compliance
with the performance standard relating to employee personnel files.
MCAA did not show the review team that it maintained records indicating
that it had done criminal records checks or that it had made adequate
performance evaluations. Each staff person had access to his or her
file for the purpose of updating information on training or education
received; the follow-up review team found that this "self-reporting"
without outside verification was unreliable. (OSPR Item 174)
The follow-up review team further found that MCAA did not have in place
a system for identifying those children automatically eligible for a
second year in Head Start. (OSPR Item 178) During the 1992-93 school
year, MCAA was funded to serve 134 children but records indicate that it
served only 125 (although MCAA appeared to be fully enrolled for the
1993-94 school year). (OSPR Item 179) Finally, the follow-up review
team found that MCAA did not have written procedures governing cost
allowability or an allocation system. (OSPR Item 185) The review team
found no internal system for tracking budget expenditures by the
program, nor was there any apparent system for conducting an inventory
of property on a biannual basis. (OSPR Items 187 and 222)
MCAA did not provide any documents refuting ACF's findings in these
areas. While these administrative, management and fiscal areas of the
program arguably have less of a direct impact on the children enrolled
in the program than other component areas, they nonetheless cannot be
overlooked because they affect MCAA's ability to provide a quality
program with the funds allotted to it. A grantee, such as MCAA, which
receives approximately half a million dollars in annual funding from the
public fisc simply must be accountable to those who are entrusting the
program funds to it. We find that MCAA violated each of the
requirements identified in the OSPR items noted in this section.
It is necessary that a grantee have written procedures for determining
the allowability and allocability of costs, and for communicating that
information to the entire Head Start staff. Otherwise, the staff cannot
be expected to know when they are overspending or how to budget the
funds to last for the entire program year. MCAA should have also been
more attentive to inventorying its personal property, as required by the
regulations.
The purpose of the annual self-assessment is to take a critical look at
the program with the constant focus on improvement. A program cannot be
expected to improve unless it is willing to look critically at itself
and change those things which are simply not working. Yet, MCAA did not
perform an annual self-assessment during 1992-93, despite the problems
identified in the March 1992 OSPR review, and did not have definite
plans to do one during 1993-94. Moreover, MCAA should have had a
recognizable system for identifying children eligible for a second year
in the program.
Finally, MCAA violated the requirements that it maintain adequate files
relating to its employees and that it have adequate personnel policies.
MCAA did not provide any evidence of annual personnel evaluations or
criminal record checks. The unrebutted finding that employees added
information to their own files without external verification renders the
personnel files not reliable sources of information. 35/ While the
personnel policies were being updated by a consultant at the time of the
follow-up review, the current policies lacked criteria for the selection
of employees as well as Policy Council approval. 36/
For the above reasons, we find that MCAA did not meet the requirements
identified in OSPR Items 170-172, 174, 178- 179, 185, 187 and 222 at the
time of the final review.
CONCLUSION
We conclude above that MCAA did not meet performance standards in the
education, health, social services, parent involvement and disability
components of its program. Likewise, MCAA did not meet requirements for
administration of its Head Start grant. Thus, we find that MCAA has
failed to comply with the required fiscal requirements; has failed to
meet the performance standards for operation of Head Start programs; has
violated enrollment and eligibility rules; has failed to comply with the
Head Start grants administration requirements; has failed to comply with
the requirements of the Head Start Act; and has failed to abide by other
applicable federal requirements and policies.
While a number of MCAA's failures to meet individual performance
standards individually might not have provided a sufficient basis for
denying refunding, taken together they clearly do. They show an
inability by MCAA to meet performance standards even after being
notified of blatant deficiencies and after being given more than a year
(October 1992 through November 1993) to correct them. For the above
reasons, we find that ACF had a valid basis for denying refunding under
the applicable regulations at 45 C.F.R. 1303.15(c) and 1303.14(b).
____________________________ Judith A. Ballard
____________________________ Norval D. (John)
Settle
____________________________ M. Terry Johnson
Presiding Board Member
1. Details about which proposed exhibits were included in this record
are located in our discussion of the procedural history of this case.
Although we may not mention every exhibit in the decision below, we have
considered each and every exhibit offered by MCAA, except for the few
pages which were not admitted into the record.
2. Many of MCAA's exhibits consisted of records for only a few of
the children enrolled in the program, pieces of which were introduced as
separate exhibits in response to different ACF findings. MCAA did not
suggest that these records were somehow representative of all of the
children's records. Rather than support MCAA, the introduction of these
limited records actually gave additional credence to ACF's findings that
records for the majority of the children were missing.
Moreover, while MCAA complained that the follow-up
review was unfair because new staff had just been hired and the program
had requested a delay in the follow-up review which was denied, MCAA was
given an opportunity during the appeal before the Board to provide all
documents which were allegedly missing during the review and which would
have refuted ACF's findings. See Appeal File at 4. In fact, all of the
exhibits introduced by MCAA (with the exception of certain pages to
which ACF objected) were considered by the Board and, based in part on
these exhibits, we are not adopting all of ACF's findings.
3. It is important to recognize that what is at issue before us is not
whether the Meriden, Connecticut area served by MCAA will have a Head
Start program, but whether MCAA should continue to administer that
program. Under the regulations, ACF must select a replacement grantee
that reasonably promises the most effective and responsible Head Start
program from among applicants, and ACF must also consider the extent to
which those applicants will provide for "continuation of services to the
eligible children who have been participating" and to the target areas
that have been served and for "continued employment . . . of the
qualified personnel of the existing program." 45 C.F.R. 1302.10 and
1302.11; Rural Day Care Association of Northeastern North Carolina, DAB
No. 1489, at 2-3 (1994) (Rural Day Care), quoting 45 C.F.R. 1302.10
and 1302.11.
4. MCAA's June 1993 response is not included in the record. The
Presiding Board Member ruled to exclude the response since ACF did not
submit it to the Board in a timely manner and MCAA objected to its
inclusion. See October 12, 1994 Ruling on Respondent's Motion to Enter
Late Document.
5. The consultant in this matter was a registered nurse who had served
for several years as a Health and Nutrition Coordinator and then as an
Interim Executive Director of another Head Start program. She also had
years of experience in childhood medical care and health education. See
Resume of Jeanne McBride, R.N., attached to ACF's witness list.
The consultant examined the health area of the program,
including the medical and dental, mental health and nutrition
components. Her notes were included in the exhibits and were obviously
the source of much of the follow-up report's findings in this area. We
view the opinion of the independent consultant, who is knowledgeable
about the requirements of the program areas which she reviewed, as
providing a particularly useful and persuasive perspective. Cf. Rural
Day Care at 20 (1994).
In its notice of appeal, MCAA alleged a possible
conspiracy between former MCAA employee Linda Preato, a local city
councilman, and ACF to deny refunding to MCAA. MCAA offered no evidence
of such a conspiracy. Moreover, we are less concerned about allegations
of such a conspiracy where the program was reviewed by an independent
consultant and the consultant found extensive violations of program
requirements. Even if there were evidence of a conspiracy, it would
still be necessary for MCAA to address ACF's findings that MCAA's
program did not comply with Head Start requirements.
6. During the course of this proceeding, we discovered that there were
more than 80 findings of non-compliance in the follow-up report, rather
than 69 as stated by ACF. Certain of these findings were dropped by ACF
in the course of this proceeding. The Board listed the 73 follow-up
review items that were still in contention at the time the hearing was
scheduled (and which remain in contention) in its Notice of Hearing,
Legal Authority, Jurisdiction and Issues, dated July 25, 1994, at 3.
7. On June 30, 1994, the Presiding Board Member denied a request by
MCAA to depose additional persons not listed on its June 1 witness list,
as well as individuals yet to be identified. She also denied MCAA's
request that she issue subpoenas to appear for depositions to both named
persons no longer under either party's control and unnamed persons
discovered during depositions. Summary of June 30, 1994 Telephone
Conference, dated June 30, 1994, at 2.
8. ACF's Regional Director was scheduled to testify at the hearing by
telephone, and so he was not available each and every day of the week of
July 11-15.
9. Under 45 C.F.R. 1303.3(a)(1), a Head Start grantee may charge to
the grant reasonable attorneys' fees for contesting a proposed
termination or denial of refunding, subject to certain limitations.
Under section 1303.3(b), a grantee may apply to ACF for payment of
attorneys' fees in the event that use of program funds would result in
curtailment of program operations or inability to liquidate prior
obligations.
Prior to August 3, 1994, the issue of attorneys' fees had been
raised with the Board, but only in the context of requesting a waiver of
the regulatory dollar limit placed on them. The Presiding Board Member
ruled that the Board had no authority to waive the terms of this
regulation, which MCAA conceded applied. See Summary of May 31, 1994
Telephone Conference, dated June 1, 1994, at 4; Summary of June 7, 1994
Telephone Conference, dated June 8, 1994, at 1-2. MCAA's August 3
letter was the first indication that MCAA believed it had not received
all of the fees to which it was entitled under the regulation.
10. In the Ruling on Appellant's Request for Reconsideration of Board
Decision Denying an Indefinite Stay, dated August 12, 1994, the interim
Presiding Board Member found that documents submitted by ACF indicated
that MCAA had received a total of $37,500 for attorneys' fees in its
Head Start continuation grant for May 1, 1994 through September 30,
1994, the full amount it requested. MCAA has not denied that it received
the full amount it requested for this and other line-item expenditures,
but stated that taking into account its actual and projected operating
costs, MCAA was out of funds on August 11, 1994.
11. All of the written communications which occurred between the
parties and the Board on August 19, 1994 were sent via facsimile.
12. Following the filing of ACF's brief, the Board staff attorney
called MCAA to confirm the date by which it was to file its brief.
(MCAA had stated that it was not represented by counsel at the time.)
MCAA's fiscal officer told the staff attorney that there was no one on
MCAA's staff qualified to respond to ACF's brief. The Board did not
extend the briefing date, but informed MCAA that it could request an
extension if it decided to file a brief. The Presiding Board Member
informed MCAA that many parties appear and prevail before the Board
without legal representation, that the Board's procedures are informal,
and that most of the allegations in the case involved a determination of
factual issues which MCAA would be in a position to respond to without
counsel. See Letter to Parties, October 5, 1994. On October 26, 1994,
MCAA requested that the case be stayed for 60 days in order to give it
time to proceed with a related case it had filed in federal district
court, requesting that the court issue a preliminary injunction and rule
on the merits of certain issues. MCAA asserted again that it lacked
attorneys' fees. Finding that MCAA still had not substantiated its
position on attorneys' fees, the Board denied the stay request on
October 28, 1994. No more documents were received into evidence after
that date. We have been informed that the court denied MCAA's request
for a preliminary injunction on November 15, 1994.
13. During the pre-hearing telephone conference, ACF questioned the
authenticity of pages 2 and 3 of MCAA's proposed Exhibit 17, page 1 of
proposed Exhibit 26, page 5 of proposed Exhibit 44, and page 12 of
proposed exhibit 65. See Summary of August 16, 1994 Pre-Hearing
Telephone Conference, dated August 17, 1994, at 5-6. Since MCAA did not
attend the hearing or otherwise avail itself of an opportunity to
establish the authenticity of these documents, we are excluding these
pages from the record.
14. The follow-up report listed two of the three findings discussed in
this section in its education component findings, and one in the
additional findings section at the end of the report. Because this
third finding also pertains to the educational component, we have
discussed it in this section. Throughout this decision, we have
included our discussions of the additional findings in the relevant
component sections of the decision.
15. Examples of documentation which should have been produced include
posters, lesson plans, records of visits by doctors, or receipts or
purchase orders for play food items.
16. In addition, we note that one IEP is dated May 29, 1991, and
therefore was probably for a child who had attended during the 1991-92
school year, prior to the relevant period here.
17. While the last three pages of MCAA Exhibit 41 indicate that MCAA's
health plan was reviewed and revised in February and March 1994, and was
considered by the Policy Council on March 10, 1994, these dates are
after the November 1993 follow-up review and these actions are therefore
irrelevant.
18. While MCAA did provide agendas for two Health Advisory Committee
meetings and minutes for one meeting (MCAA Ex. 4), these documents
reflect (a) no parent members on the committee, and (b) provision of the
draft health plan to committee members for comment, but no indication
that comments were provided or incorporated. MCAA Exhibit 51 indicates
Health Advisory Committee membership for 1993-94, but does not indicate
whether any meetings took place. While these two documents may indicate
that MCAA had a Health Advisory Committee, they do not establish proper
composition and functioning of the committee. MCAA Exhibit 41 documents
minutes of a Health Advisory Committee meeting of April 7, 1994, after
the relevant time period.
19. The five signed records release authorization forms (MCAA Ex. 8)
and eleven signed permission slips for emergency medical treatment and
first aid (MCAA Ex. 7) submitted by MCAA are too few for us to infer
that MCAA had such records for all of the 134 children for whom such
documents were required.
20. MCAA introduced the results of TB tests on a number of persons
(MCAA Ex. 36); however, it is not clear from the record whether these
are parent volunteers. Moreover, all but two of the tests were
administered after the November 1993 follow-up review.
MCAA also introduced a list of substitute parent
volunteer duties (MCAA Ex. 35) referencing OSPR Item 67. While the list
states that TB tests are required of substitute parent volunteers, it
does not indicate the tests were actually performed.
21. The services to be provided by the mental health consultant,
identified in OSPR Items 69-76, include the following:
1) assisting in planning the mental health program; 2) training of
staff; 3) observing children and consulting with staff; 4) advising
and assisting in developmental screening and assessment; 5) providing
special help for children with atypical behavior; 6) advising in the
utilization of community resources; 7) orienting and working with
parents; and 8) referring for diagnostic examination to confirm that
emotional problems do not have a physical basis.
22. MCAA introduced a contract with an educational consultant calling
for classroom observations (MCAA Ex. 28), which referenced OSPR Item
68, which may explain who the visiting consultant was.
23. Exhibit 18 also contains some advice to parents about interacting
with children that could, most generously viewed, be construed as
relating to mental health. These three documents do not refute ACF's
finding that there were no regularly scheduled training sessions for
parents.
24. MCAA introduced the records of speech tests performed on three
children (MCAA Ex. 10) to show that MCAA made referrals for mental
health screenings. However, these records do not indicate who made the
referrals or for what purpose.
MCAA also introduced three identical copies of its
1992-93 Referral Process (MCAA Ex. 12), but these documents do not show
whether this process was implemented. MCAA also introduced copies of
parent contact logs (MCAA Ex. 13), which indicate that information was
communicated between program coordinators, teachers, and parents.
However, this alone is insufficient to meet the overall objectives
identified in OSPR Item 77, which requires joint staff meetings,
assessments, and parental consent forms relating to access to children's
records. Exhibit 13 also indicates that some referrals were made of
children with atypical behavior. However, there is no evidence that it
was a mental health professional who was observing this behavior and
making the referrals, which is required by the regulations identified in
OSPR Item 73.
25. MCAA introduced evidence of a nutritional review for one child
(MCAA Ex. 43); however, this review was done after the follow-up site
visit and does not show that nutritional reviews were done for each
child in the program. MCAA also introduced a chart of children with
last names A through M (MCAA Ex. 6) containing height and weight
measurements for each child; however, this list contains only one set of
measurements taken during the year rather than two, as required, and is
only a partial list of enrolled children.
26. MCAA introduced a list of tasks to be performed by a nutritionist
(MCAA Ex. 42). However, it is undated. MCAA's 1992-93 nutrition plan
was approved by the Policy Council on May 12, 1994 (MCAA Ex. 41).
27. MCAA introduced its recruitment plan for 1991-92 (MCAA Ex. 14), as
well as two memoranda discussing updating the recruitment plan (MCAA
Exs. 15 and 16).
28. MCAA introduced blank, undated social services referral sheets and
contact logs (MCAA Ex. 26); however, there is no indication that these
forms were used during the relevant time period.
29. For example, the former Social Services Coordinator informed a
parent, whose child had witnessed a violent event, that the child would
be removed from the classroom if she did not stop expressing her fears
about being hurt. (OSPR Item 116)
30. MCAA's submission of an undated page entitled "Complaint
Procedure" (MCAA Ex. 21) does not refute the finding that parents were
not aware of complaints procedures because there is no evidence this was
disseminated.
31. MCAA Ex. 19 consists of two parent interest questionnaires, but
this exhibit does not indicate that these forms were distributed to (or
collected from) more than two parents or that workshops resulted from
them. MCAA Exhibit 27, consisting of minutes of some classroom committee
meetings, merely indicates that some meetings to disseminate information
were held.
32. MCAA introduced three pages of lists labeled "GEDs" (MCAA Ex.
62)
and referenced OSPR Item 144. OSPR Item 144 found that Policy Council
members are often not provided in advance with information about
decisions which they must make. While MCAA Ex. 62 may show that certain
members of the Policy Council may have received MCAA's assistance in
obtaining the equivalent of a high school education, that was not a
contested matter. OSPR Item 144 addresses only whether the Policy
Council members were given insufficient prior information on matters on
which they were being asked to vote.
33. MCAA alleged that ACF did not rely on any authority for many of
the standards it found MCAA to fall below in the disabilities and
administrative components of its program. Appeal File, at 3-4. While
the follow-up report does not cite to any authority, the language of
these items closely tracks the regulatory standards. See, e.g., 45
C.F.R. 1305.7 and 1308.18(c). Moreover, to the extent these were the
same standards which MCAA was held to during the 1992 OSPR, which was
conducted a full year and a half prior to the follow-up review, MCAA
cannot complain that it did not have notice of these standards at the
time of the follow-up review, on which this denial of refunding is
based. Indeed, MCAA alleged in its response to the OSPR report that it
was meeting most of these standards.
34. However, we note that it appears in the case of the child
terminated during the 1992-93 school year that the staff went to
extraordinary efforts to work with the child, who clearly had extreme
behavioral problems, prior to terminating her. See generally MCAA
Exhibit 65, at 20-35.
35. MCAA's staff training records (MCAA Ex. 24) appear to confirm the
finding that employees entered their own training information into their
personnel records. MCAA could have corrected this deficiency by putting
photocopied certificates from the training programs into their files or
having another staff member enter the information.
36. MCAA Exhibit 63 contains an undated eight-page document entitled
"Personnel Management." However, MCAA did not explain its relevance
or
identify its author. MCAA Exhibit 23 indicates that there was a
telephone poll approval of three personnel hires, pending a vote at the
next Policy Council