Total Community Action, DAB No. 856 (1987)

DEPARTMENTAL GRANT APPEALS BOARD

Department of Health and Human Services

SUBJECT:  Total Community Action    

DATE:  March 31, 1987

Docket No. 86-20
Decision No. 856

DECISION

Total Community Action (TCA) appealed the decision by the Office of
Human Development Services (OHDS) to deny reimbursement for some
indirect costs relating to the operation of TCA's Head Start program.
TCA had requested reimbursement of $361,552 for under- payment of
indirect costs for the program years ending December 31, 1977 through
December 31, 1981.  OHDS approved the reimburse- ment of $143,656, but
denied the further payment of $217,896 because that amount exceeded
TCA's total obligation authority for those program years.

The issue presented is whether OHDS properly refused to reimburse the
$217,896.  For the reasons explained below, we find that OHDS' decision
to deny the transfer of unobligated funds from TCA's Head Start
Handicapped grant to its basic Head Start grant was reasonable in light
of certain statutory directives, but that, with OHDS approval, TCA could
be permitted, within each grant program, to carry over any unobligated
funds available from prior years to cover indirect costs.

Factual_Background

TCA operates and administers a number of community programs funded by
agencies of the federal government.  At issue here are grant funds
received by TCA for the operation of a Head Start program and a
companion Head Start Handicapped program.  Each program was funded by
distinct grants.

In December 1984, TCA and the federal government reached agreement on
indirect cost rates to be applied to TCA's grants. TCA Ex. B.  As a
result of this agreement, TCA sought reimbursement for indirect costs
for the years 1977 through 1981. For those years OHDS informed TCA that
the following funds were available to TCA based on the unobligated funds
balances from those years:

                     Head Start Grant  0473

               1977    1978    1979      1980     1981

Underpayment  $34,583 (21,820) 47,668    129,962  131,183 of indirect
costs

Audited          65,278  32,746  21,245    34,190    45,863 Unobligated
Funds

Funds            34,583 (21,820)* 21,245   34,190    45,863 Available
Within TOA (Total Obligational Authority) * overpayment


               Head Start Handicapped Grant 6-C-40

                          1979          1980          1981

Underpayment            10,092        13,586        16,298 of indirect
costs

Audited Unobligated    222,874           3,205       144,876 Funds

Funds Available           10,092         3,205        16,298 Within TOA


Thus, for the five years of the basic Head Start grant, there was a
total underpayment of $321,576 in indirect costs and a total of $199,322
in unobligated funds.  OHDS, treating each Head Start program year
separately, found that a total of only $114,061 was available to
reimburse TCA for indirect costs.  For the three years of the
Handicapped grant (the findings for the 1977 and 1978 program years were
not disputed), there was a total under- payment of $39,976 and a total
of $370,955 in unobligated funds. OHDS, also treating each Handicapped
program year separately, found a total of $29,595 available to reimburse
TCA for indirect costs.

Totaling the figures from the two grants, OHDS determined that there was
a total underpayment of $361,552 for indirect costs, but funds were
available to reimburse TCA for only $143,656.  TCA Ex. C.  OHDS stated
that the remaining $217,896 would exceed TCA's total obligation
authority for the years in question, and therefore was unallowable.

Discussion

In order to recoup the additional $217,896 in indirect costs, TCA sought
to carry over any unobligated funds in each grant year for use in other
years and to transfer unobligated funds available under the Handicapped
grant to the Head Start grant.  TCA explained that it had intended to
combine all the grants it received from the federal government into one
operational program to better meet the needs of the community TCA
served.  While some of the grants were so combined, according to TCA,
the Handicapped grant, 6-C-40, was not combined because of either
oversight or the grant's particular provisions for handicapped
children's special needs.  TCA termed the separation of the Handicapped
grant funds from the Head Start grant funds an "accounting distinction,"
which should not bar TCA from using unobligated Handicapped funds to
cover the indirect costs of the Head Start program, since TCA considered
its activities as one program serving the community.

In response to TCA's assertion that any unobligated funds should be
carried over or transferred between the grants, OHDS responded, citing
to various Board decisions, that the Board does not have the authority
engage in grants administration and management; consequently, the Board
cannot forgive a grantee's overexpenditures, transfer funds from one
grant year to another, or transfer funds from one grant program to
another.  Thus OHDS argued, the Board cannot grant the relief TCA is
seeking, the carry over of funds from one program year to another and
the transfer of Handicapped grant funds to cover costs in the basic Head
Start program grant.

After receiving the parties' briefs and reviewing the record in this
appeal, the Board found nothing to indicate that OHDS had itself ever
formally considered whether to approve the use of carryover funds or the
transfer of funds between the grant programs for the remaining indirect
costs.  The Board therefore requested OHDS to rule on TCA's request,
stating the legal or programmatic rationale for denying the request.
While noting that OHDS' brief dealt solely with limitations on the
Board's authority in grants administration, the Board cited Pinellas
Opportunity Council, Inc., Decision No. 80, February 6, 1980,
Anderson-Oconee Headstart Project, Inc., Decision No. 90, April 28,
1980, and Community Mental Health Center Services Board, Decision No.
138, December 1, 1980, and observed that an agency decision disapproving
the use of carryover funds or the transfer of funds from other program
accounts could be reversed if the agency action were shown to be
arbitrary and capricious.

OHDS' ruling was limited to the question of the transfer of funds.  OHDS
responded that it did not have authority to approve the transfer of
unobligated funds under the Handicapped grant to cover the indirect
costs incurred in excess of unobligated funds available under the basic
Head Start grant.  OHDS cited the 1972 Amendments to the Economic
Opportunity Act, Pub. L. 92-424, as support for its position.

The authorization of appropriations in Pub. L. 92-424 provides, at
section 3(b)(2), that at least 10% of the total number of enrollment
opportunities in the Head Start program should be available for
handicapped children.  By this provision Congress intended that local
Head Start programs should take an active role in recruiting handicapped
children so that 10% of the children enrolled are handicapped.  S. REP.
NO. 792, 92d Cong., 2d Sess. 19 (1972).  Subsequent appropriations
legislation has echoed this provision, providing that a percentage of
Head Start funds be allotted for handicapped children.  See, e.g.,
section 640(a)(2) of the Omnibus Budget Reconciliation Act of 1981, Pub.
L. 97-35.

Congress thus intended that a portion of the Head Start program and its
appropriated funds be set aside for the sole purpose of including
handicapped children as recipients of Head Start program services.
Funds were set aside to encourage local Head Start agencies to actively
recruit handicapped children.  If TCA and other Head Start agencies were
permitted to use funds designated for handicapped children for other
portions of their Head Start activities, they would have no incentive to
carry out this congressional mandate.  The intermingling of funds would
effectively defeat the purpose of the amendment.  Moreover, OHDS
particularly stressed that it had specifically informed all Head Start
grantees that Handicapped grant funds were to be considered separately
and were not to be used to increase the level of expenditures for any
other program.  OHDS Exs. 1, 2, and 3. 1/ Given the explicit
Congressional directives, we think OHDS acted reasonably in denying
TCA's request to use Handicapped funds for its Head Start program in
general.  We therefore find that OHDS has not acted arbitrarily or
capriciously or abused its discretion in refusing to approve the
transfer of funds from the Handicapped grant program account.

As to the use of carryover funds, however, OHDS did not present any
rationale for denying TCA's request.  The OHDS Grants Administration
Manual provides both for the use of carryover funds, with prior written
approval, and for the obligation of awarded funds at any time during the
grant's project period. Section F, p. 1-1-3; and Section H-2, p. 1-1-4.
There is no dispute that the indirect costs in question are allowable,
allocable costs of the program years in question.

Our calculations indicate that the Head Start grant's shortfall of
indirect costs is $207,515, and the Handicapped grant's shortfall is
$10,381.  Yet the record shows that, in addition to the funds within
each year's total obligation authority already used for indirect costs,
the Head Start grant contains $85,261 in unobligated funds, and the
Handicapped grant contains $341,360 in unobligated funds.  To the extent
that any of these funds are still available within their respective
grants, i.e., if the funds have not been included in later awards as a
carryover, we see no reason why, in the absence of any OHDS explanation
to the contrary, OHDS could not authorize the funds as carryover funds
to cover all or part of the indirect costs within each particular grant.
Accordingly, we return this matter to OHDS for its action.  Should OHDS
deny the use of carry over funds, TCA may return to the Board for review
of the reasonableness of that action.

Conclusion

For the reasons stated above, we uphold the disallowance, except to the
extent carryover funds are still available within the separate grants to
cover all or part of the indirect costs.

 

                               ________________________________ Judith
                            A. Ballard

 

                            ________________________________ Donald F.
                            Garrett


                             ________________________________ Cecilia
                            Sparks Ford Presiding Board Member

 

1.   OHDS pointed out that the Handicapped grants had been awarded to
TCA as the lead grantee in a consortium of grantees and were designed to
fund handicapped programs for a number of