Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Appellate Division
SUBJECT: Springfield Action Commission, Inc.
Docket No. A-95-107
Decision No. 1547
DECISION
The Springfield Action Commission, Inc. (SAC), a multi-
purpose agency located in western Massachusetts,
requested a hearing on an Administration for Children and
Families (ACF) determination denying refunding for SAC's
Head Start program effective August 1, 1995. ACF's
determination was based on a February 1994 On-Site
Program Review and a March 1995 follow-up review both of
which revealed large numbers of deficiencies in SAC's
Head Start program. During the course of pre-hearing
briefing, ACF moved for summary disposition of this
appeal, asserting that SAC had neither documented
compliance with, nor effectively placed in dispute, any
of the deficiency findings. We have fully considered
SAC's response to ACF's motion for summary disposition as
well as the parties' earlier briefs and submissions. We
conclude that an evidentiary hearing is not necessary in
this appeal because the undisputed deficiencies establish
conclusively that there is a basis for denying refunding
under 45 C.F.R. 1303.15(c) and 45 C.F.R. 1303.14(b).
Accordingly, we grant ACF's motion for summary
disposition and conclude that the denial of refunding is
warranted.
Summary of Our Decision
Compliance with Head Start program requirements is
measured by an On-Site Program Review Instrument or
OSPRI. An OSPRI enables federal reviewers to examine 11
program components by evaluating potentially 256 items of
a Head Start agency's performance. ACF's 1994 review
revealed 103 individual deficiencies spread throughout
all facets of SAC's Head Start program. ACF found SAC
severely deficient in five program components -- Parent
Involvement, Mental Health, Disabilities Services, Social
Services and Education. The 1995 follow-up identified 42
repeat deficiencies in SAC's 7 performance standard
components, including those cited as severely deficient
in 1994.
Based on these reviews, ACF found that there were valid
grounds to deny refunding to SAC pursuant to 45 C.F.R.
1303.15 and 1303.14(b)(4).
Upon completion of SAC's pre-hearing submissions,
including an opportunity for discovery, ACF filed a
motion for summary disposition (Motion). ACF asserted
that the grounds for denial of refunding had been
established based on the pre-hearing record. SAC filed a
brief in response to ACF's Motion.
At this point in the appeal, the Board has required --
the joinder of all contested evidentiary issues, the
submission of all documentary evidence upon which the
parties intended to rely, and the identification of all
proposed hearing witnesses and their expected testimony.
Further, ACF's Motion specifically obliged SAC to explain
how any proffered hearing testimony or other evidence
would apply to the period at issue and effectively refute
the 42 findings of repeat deficiencies. A requirement
affording opportunity for an evidentiary hearing is not
contravened by a summary disposition if there are no
genuine issues of material fact. SAC's submissions to
date fail to raise any genuine issue of material fact
requiring a hearing. We also conclude that the various
legal arguments made in SAC's submissions lack merit.
Accordingly, for reasons discussed more fully below, we
grant ACF's Motion. We determine that the effect of the
undisputed 42 findings of repeat deficiencies in
complying with performance standards constitutes a
material violation of Head Start performance standards
and therefore provides a basis for denial of refunding
under 45 C.F.R. 1303.14(b)(4).
The issues raised by the undisputed findings pervade
SAC's entire program. For example, the repeat deficiency
findings identify: failure in apprising parents of
developmental screening results, failure to ensure that
children had necessary dental exams and follow-up
treatment, failure to integrate health education into the
program as a whole, the lack of appropriate referrals of
children and families for mental health services, failure
to properly maintain records of counseling referrals and
follow-ups, failure to implement parent involvement
plans, failure to fully implement and annually update a
disabilities services plan.
ACF's determination does not end the Head Start program
in the area served by SAC, but rather enables ACF to
designate a new grantee that may be more capable of
meeting the performance standards and other critical Head
Start requirements.
Our decision is organized as follows. We first provide a
background section, including an overview of the
applicable law and regulations, a discussion of the
burden of proof and materiality, and the history of this
appeal. We then discuss the legal and other cross-
cutting arguments raised by SAC. Finally, we discuss the
sufficiency of SAC's proffer of evidence in general and
then examine each repeat finding of non-compliance.
BACKGROUND
OVERVIEW OF APPLICABLE LAW AND REGULATIONS
The Head Start program is designed to deliver
comprehensive health, educational, nutritional, social
and other services to economically disadvantaged children
and their families. See 42 U.S.C. 9831 and 45 C.F.R.
1304.1-3. ACF 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.
In addition, the Secretary has promulgated program
performance standards covering the education, health
(including medical, dental, mental health and nutrition),
social services, and parent involvement component areas
of Head Start. See 45 C.F.R. Part 1304. The program
performance standards covering services for children with
disabilities are in 45 C.F.R. Part 1308. 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.
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.
9836a(c)(1)(A). The performance standard regulations
require a 90-day opportunity for corrective action on
deficiencies in meeting performance standards. See 45
C.F.R. 1304.1-5(b); see also Campesinos Unidos, Inc.,
DAB No. 1518 at 14 (1995).
Head Start regulations list nine grounds for which a Head
Start grantee agency may be terminated or have its
refunding denied. As applicable here, refunding may be
denied when a grantee has failed to meet the performance
standards for operation of its Head Start program. 45
C.F.R. 1303.14(b)(4) and 1303.15(c).
The Head Start Act at 42 U.S.C. 9841(a)(3) and
corresponding regulations at 45 C.F.R. 1303.15(b)
provide that a grantee denied refunding shall have an
"opportunity for a full and fair hearing" on whether
refunding should be denied. A requirement affording
opportunity for an evidentiary hearing is not contravened
by a summary disposition if there are no genuine issues
of material fact. See, e.g., Travers v. Shalala, 20 F.3d
993, 998 (9th Cir. 1994). 1/ Procedures for the conduct
of a hearing are set forth at 45 C.F.R. 1303.16. The
Board is authorized to act on behalf of the Secretary to
provide this opportunity for hearing. 57 Fed. Reg.
59,260 (December 14, 1992). The Board's procedural
regulations at 45 C.F.R. Part 16 apply to these
proceedings insofar as they are not inconsistent with
Part 1303. 45 C.F.R. 1303.15(b)(1).
BURDEN OF PROOF AND MATERIALITY
The Board has previously stated that the provisions of 45
C.F.R. 1303.14 require ACF to make a prima facie case
that there exists sufficient evidence to satisfy the
regulatory standards for termination or denial of
refunding. See North Shore Community Action Programs,
Inc., Docket No. A-94-15, Ruling on Appellant's Motions
at 7 (December 23, 1993); see also Lake County Economic
Opportunity Council, Inc., Docket No. A-95-66, Rulings on
Burden of Proof, Materiality, and Jurisdiction Under 45
C.F.R. Part 1303 (May 19, 1995) (Lake County Rulings).
Once ACF has set forth legally adequate reasons to
support a denial of refunding or termination, and has
provided sufficient specificity for the grantee to
respond to the substance of individual findings, the
regulations require the appellant to respond.
Specifically, section 1303.15(d)(3) provides that a
grantee's appeal "must set forth the grounds for the
appeal and be accompanied by all documentation that the
grantee believes is relevant and supportive of its
position." See also 45 C.F.R. 16.8(a)(1), (2). The
Board may provide for further procedures to develop the
record for its analysis. Where there is a dispute of
material fact, the resolution of which requires an
evidentiary hearing, the Board will hold such a hearing.
This process has practical underpinnings. A grantee
always bears the burden to demonstrate that it has
operated its federally funded program in compliance with
the terms and conditions of its grant and the applicable
regulations. See Lake County Rulings at 3; Meriden
Community Action Agency, Inc., DAB No. 1501 at 41 (1994);
Rural Day Care Association of Northeastern North
Carolina, DAB No. 1489 at 8, 16 (1994); see also 45
C.F.R. 74.61(b) and (g). Moreover, a grantee is
clearly in a better position to establish that it did
comply with applicable requirements than ACF is to
establish that it did not. Therefore, once presented
with a prima facie case, a grantee must present evidence
sufficient to challenge ACF's case or risk summary
disposition.
Regarding the question of how the Board should analyze
the record developed under Part 1303 in conjunction with
Part 16, the appropriate standard to be applied to
competing evidence is preponderance of the evidence.
That standard requires "evidence which is of greater
weight or more convincing than the evidence which is
offered in opposition to it; that is, evidence which as a
whole shows that the fact sought to be proved is more
probable than not." Black's Law Dictionary 1182 (6th ed.
1990). This is the commonly accepted standard for
administrative proceedings. Lake County Rulings at 3.
Further, the concept of "materiality" found in 45 C.F.R.
Part 74 is read into 45 C.F.R. Part 1303 because the
Department-wide grants administration regulations in
Part 74 apply to the extent that they are consistent. 2/
Given the general statutory preference for continuing
funding to existing grantees (42 U.S.C. 9836(c)(1))
and, where appropriate, permitting a grantee the
opportunity to correct deficiencies (42 U.S.C.
9836a(d)(1)(B)), it is consistent to read materiality
into 45 C.F.R. 1303.14(b), which lists the bases for
termination or denial of refunding actions. Certainly,
ACF should not seek to end a grantee's Head Start
participation on a mere technicality.
SAC'S HISTORY AND APPEAL
SAC has an annual operating budget of just under $5.1
million. Slightly less than half of SAC's budget
consists of federal Head Start funds. Head Start
services are provided through 26 classrooms at 11 sites,
as well as a relatively new home-based program.
From January 31 through February 4, 1994, ACF reviewed
SAC's Head Start program. 3/ In June 1994, ACF provided
SAC with an OSPRI Report chronicling the 103 items found
out of compliance. See ACF Exhibit (Ex.) 2. ACF found
that SAC's Head Start program was poorly managed and
severely out of compliance with five program components.
SAC provided ACF with a written response to those
findings. See ACF Ex. 3. 4/ On August 9, 1994,
officials from ACF and SAC met to clarify the critical
issues affecting the quality of SAC's Head Start program.
In a letter summarizing that meeting ACF noted that --
SAC Head Start has a history of serious non-
compliances and weak management. Both the 1991
and 1994 OSPRI reports cited underenrollment;
inadequate transportation; high rates of
absenteeism of children; absence of management
practices and poor supervision of staff who
were not evaluated or held accountable; and no
evidence of planning to provide for additional
children in developmentally appropriate
classroom space. The Regional Office
designated SAC Head Start as a "Poorly
Performing Grantee" as a result of the
longstanding number and depth of compliance
issues.
ACF Ex. 9.
ACF notified SAC that unless it made sufficient progress
toward compliance, it would not continue to receive
funding beyond the then current program year ending
July 31, 1995. Id.
From March 6-9, 1995, ACF conducted a follow-up review of
SAC's Head Start program. The follow-up review found a
total of 64 items out of compliance; 42 were repeat
deficiencies in performance standards from the 1994
review. The remaining deficiencies included 16 new
deficiencies in performance standards and six
deficiencies in other program review components. 5/ ACF
Br. 5-7. ACF's April 7, 1995 Denial of Refunding stated:
Despite intensive technical assistance (21
documented visits since February of 1994) and
support from this office, Head Start families are
still not receiving adequate services. Given our
analysis of the performance of the SAC Head Start
program, we find that there are valid grounds to
deny refunding of the Head Start program pursuant to
45 C.F.R. 1303.15, which includes by reference the
grounds stated in 45 C.F.R. 1303.14(b).
SAC timely appealed ACF's denial of refunding to the
Board. Both parties had ample opportunity to develop the
record. The record includes SAC's brief and
documentation filed with its Notice of Appeal; SAC's pre-
hearing brief with its proposed witnesses and
documentation obtained from ACF through discovery and
SAC's brief in response to ACF's Motion. ACF filed a
brief containing its Motion and supporting exhibits. The
Board provided SAC with copies of all prior Board
decisions involving Head Start terminations or denials of
refunding.
ANALYSIS
LEGAL ISSUES
SAC made a wide range of legal and other cross-cutting
arguments in its submissions to the Board. We address
each of these arguments below and conclude that not one
has merit.
SAC argued in several instances that ACF focused solely
on its deficiencies and failed to consider the real
progress it had made during the follow-up period. During
the 1994 review, ACF found that SAC had 103 deficiencies
out of the 256 items subject to review. SAC concededly
made improvements in its program operations during the
follow-up period which are evidenced from handwritten
notes prepared by reviewers. However, significant
repeat deficiencies occurred in all seven components of
the performance standards. Four entire components --
social services, mental health, parent involvement, and
disabilities -- remained severely non-compliant, while
the education component was substantially non-compliant.
The mere fact of improvements is not sufficient to
overcome a valid basis for a denial of refunding. Here,
we find that SAC still had material violations of the
performance standards, based on the 42 repeat
deficiencies in seven performance standard components.
In any event, we disagree that ACF was unaware of the
nature of the improvements made, and thus was unable to
take them into consideration. ACF retained the
reviewers' notes and in fact released them to SAC during
the discovery that occurred in this proceeding. Thus,
ACF was obviously aware of the improvements made by SAC
in the follow-up period, as shown by the notes and the
1995 OSPRI report and from the simple fact that just 42
repeat performance standard deficiencies continued.
Presumably in view of the number and seriousness of the
deficiencies identified in the 1994 review, ACF devised
an Action Plan to assist SAC in bringing itself into
compliance. See ACF Ex. 2 (FY '94 Program Review For
Springfield Action Commission, Inc. at VIII). SAC
argued that the language of the Action Plan and SAC's
"progress" mandated a continuation of its funding. SAC's
argument is unavailing. The Action Plan generally sought
to reemphasize: SAC's status (i.e., "a poorly performing
Head Start grantee"), some basic steps necessary "in the
rebuilding process," and the fact that SAC had been and
would continue to receive technical assistance. The
Action Plan did specifically alert SAC that --
Immediate attention is required where children
and parents are not receiving essential Head
Start services. All children must receive the
required health and dental screenings before
they leave the program. Records must be
reviewed so that children with serious medical
needs receive follow-up care.
Id.
These areas requiring immediate attention were the same
areas in which SAC remained severely deficient in the
1995 follow-up. Thus, ACF determined that SAC's progress
was not "sufficient," in that there continued to be
significant violations of numerous performance standards;
ACF was therefore not obliged, as SAC argued, to renew
SAC's funding.
SAC also argued that many of the deficiencies taken alone
did not indicate that its performance was severely or
substantially deficient in any one performance component.
We here conclude that SAC's repeat deficiencies in the
performance standards remained widespread and included
significant deficiencies in every single component of the
performance standards. We therefore conclude that denial
of refunding is valid under 45 C.F.R. 1303.15(c) and 45
C.F.R. 1303.14(b)(4).
SAC questioned whether the follow-up reviewers
interviewed a sufficient number of staff members and,
particularly, parents. The performance standards and
other requirements at issue here do not necessarily
require that the reviewers perform an extensive number of
interviews, but rather require interviews with those
individuals most familiar with the grantee's operations
in the particular program component under scrutiny. Such
individuals would include the staff coordinator or other
important staff members for that component as well as
knowledgeable parents, where appropriate. In reviewing
the Parent Involvement Component, for example, ACF
interviewed 16 parents. Other components merited a
smaller number of interviews with parents and in some
instances, none. ACF alleged, and SAC did not dispute,
that ACF often interviewed the number of parents made
available by SAC during the review, of which SAC had
ample advance notice. Presumably, ACF would have
interviewed even more parents, if SAC had made them
available. Moreover, SAC failed to establish that the
reviews in any way violated established procedures for
conducting the interviews and receiving information.
Furthermore, while many deficiencies do indeed raise the
issue of parent involvement in one form or another, SAC's
staff members often would be in a better position to
assess its overall performance in these areas than
individual parents. These staff members would have the
responsibility of documenting SAC's parent involvement
efforts and would, therefore, be in a better position
than most parents to demonstrate if SAC had come into
compliance with the standards during the follow-up
period. Also, a wide range of documentary evidence, such
as minutes of meetings, are needed to show parent
involvement. SAC had the responsibility to proffer
evidence that potentially would rebut the findings,
regardless of the number of interviews on which they were
based, and altogether failed to do so. Notably, SAC did
not even offer a parent on its witness list.
SAC also alleged that ACF's findings in the Disability
and Mental Health Components were suspect because the
reviewer failed to interview SAC's Disability Services
Coordinator during the follow-up. SAC alleged that the
reviewer's failure to interview this coordinator and
properly take into account available information raised
an issue of the reviewer's credibility. The evidence,
including SAC's documentation, absolutely refutes this
argument. The OSPRI Response Exhibit 6/ headed
"Disabilities Response" contains a background paragraph
written by the Disabilities Services Coordinator. The
coordinator notes that she met the federal reviewer one
week after the follow-up and provided her with additional
documentation for review. See OSPRI Response Exhibit;
see also ACF Br. at 18-19. Further, SAC conceded that
this meeting took place in its response to ACF's Motion.
SAC Response Br. at 7-8. Moreover, SAC did not list the
disabilities services reviewer as a proposed hearing
witness, nor did SAC even allege how the reviewer's
credibility or objectivity specifically undercut any of
her findings.
Finally, SAC made a variety of arguments concerning
personnel issues. In particular, SAC argued that -- it
had difficulty in making personnel changes because of its
union contract; its Program Director had only been in
office for a year and a half; it had experienced
difficulties in filling particular positions; and it had
been unable to verify if in fact ACF had provided it
with 21 documented visits of technical assistance since
February of 1994, as ACF alleged. The primary difficulty
with all of these arguments is that they have no direct
relevance to particular findings of non-compliance.
Thus, for example, while SAC often asserted that its
union contract affected the pace at which it could make
necessary program changes, it never alleged that the
union contract was the cause of its failure to comply
with any particular deficiency at issue here. Nor did it
allege that it could have complied with any particular
standard if its executive director had had more
experience. In the one instance referenced where SAC had
difficulties in filling a position, SAC's own documents
indicate that those difficulties apparently arose from
SAC's inability to hire an individual with the requisite
qualifications, rather than from any issue relating to
its union contract. See SAC OSPRI Response Exhibit at
Social Services & Mental Health. Nevertheless, even in
that one instance, SAC failed to proffer evidence that it
took all reasonable steps to hire a replacement on a
timely basis so that it could have met the requisite
standards during the follow-up period.
SAC generally questioned the amount of technical
assistance it received. However, SAC did not proffer
hearing testimony to demonstrate that any particular
visit to provide technical assistance identified in ACF's
Exhibit 12 never occurred. That exhibit includes a
letter (March 22, 1995) from the New England Resource
Center to the ACF Regional Office purporting to
chronicle 21 "on-site technical assistance visits made by
Resource Center staff to . . . [SAC] . . . since January
1993." In fact, the letter identifies more than 30
visits to SAC by Resource Center and Regional personnel
during that period. Ultimately, however, the actual
number of visits provided by ACF is irrelevant to the
issue of whether the cited deficiencies at issue here
actually existed.
Accordingly, we conclude that none of SAC's legal
arguments has merit.
THE GENERAL INSUFFICIENCY OF SAC'S EVIDENTIARY PROFFER
ACF argued that the 1994 and 1995 OSPRI reviews
established a prima facie case supporting a denial of
refunding. ACF argued that many of the review findings
were based on the absence of records or the absence of
actions as reflected in SAC's records and that SAC had
submitted no further documentation to refute any of these
findings.
After SAC had completed its pre-hearing submissions, ACF
moved that we issue an order summarily denying refunding
based on the pre-hearing record. This record included
SAC's notice of appeal and pre-hearing brief as well as
the entire set of documentary exhibits both parties
intended to rely upon at the hearing. 7/
SAC had approximately five weeks to respond to ACF's
Motion. See Notice Postponing Hearing (August 15, 1995).
ACF's detailed challenge to SAC's hearing proffer made it
incumbent on SAC to clarify the evidentiary or legal
basis for contesting each finding. In particular, ACF's
Motion required SAC to explain whether any of the actions
described in the exhibit apparently prepared by SAC
officials that accompanied SAC's Notice of Appeal
pertained specifically to the time period at issue and
how those actions otherwise could be expected to rebut
the particular deficiency findings. Indeed, the Board
had already advised SAC twice that, as part of the pre-
hearing procedures, it was required to identify each
contested finding and to describe its legal or
evidentiary basis for contesting the finding. See
Summary of Telephone Conference (May 30, 1995); Summary
of Telephone Conference and Notice of Additional
Procedure (July 26, 1995).
We conclude, based on the detailed scrutiny of each
finding of non-compliance below, that SAC has not
effectively raised an evidentiary issue concerning even
one of the 42 repeat findings of non-compliance. SAC
failed altogether to clarify which of the findings of
non-compliance it was contesting. Moreover, although
required to do so by ACF's Motion, SAC did not proffer
any hearing testimony expressly pertaining to timely
corrective actions or otherwise rebut the findings of
non-compliance. Rather, SAC conceded generally that
"there are still deficiencies to correct." SAC Response
Br. at 12. Indeed, SAC's Notice of Appeal contained a
testimonial letter from the Mayor of Springfield. That
letter contained a "chronological history" ostensibly
prepared by SAC in which SAC stated that it contested 15
findings and agreed that 49 still needed to be addressed.
See Letter from Hon. Robert T. Markel to ACF Regional
Administrator (April 20, 1995). SAC has never identified
even these 15 contested deficiencies in its submissions
to the Board.
Moreover, in spite of the Board's requirement that SAC
identify all contested findings, and in spite of ACF's
assertions in its motion that certain findings were never
addressed at all, SAC altogether failed at any time even
to reference numerous OSPRI findings. See, e.g., OSPRIs
49, 68, 76, 81, 83, 85, 87, 105, 114, 120, 126, 127, 128,
132, 139, 151, 152.
In addition, SAC failed to respond to ACF's contention
that many of the corrections alleged by SAC took place
after the follow-up and therefore are irrelevant to this
proceeding. For practical policy reasons, the Head Start
Act does not allow grantees an unlimited amount of time
to correct deficiencies. Otherwise, families would be
denied the program's full benefits. The performance
standard regulations simply require a 90-day opportunity
for corrective action on deficiencies in meeting
performance standards. 45 C.F.R. 1304.1-5(b); see also
Campesinos, at 14. In past consideration of this issue,
the Board has determined that the relevant time period
for correction of the deficiencies begins with the
initial on-site review and ends with the ensuing follow-
up. Here, that period would be February 4, 1994 through
March 6, 1995. Corrections made after that time are
simply not relevant. See Meriden, at 6-7.
Moreover, in the form of documentary evidence, SAC
provided only testimonial letters, a community needs
assessment, and a parent survey. SAC never described how
these documents relate to or refute specific findings of
non-compliance. Many of the testimonials are "form
letters," presumably prepared by SAC. Further, it
appears from the wording in much of this documentation
that the positive opinions expressed were supportive of
the Head Start program generally, rather than the
performance of SAC. ACF does not here seek to end the
Head Start program in the area served by SAC, but rather
to designate a new grantee that will be able to
administer the program more effectively by complying with
the performance standards and other program requirements.
ACF Br. at 13. It is also noteworthy that a significant
number of findings at issue here could only (or
primarily) be rebutted by the specific documents or
records that SAC was required to maintain under the
performance standards and other requirements in question.
Yet no documentary evidence of this kind has ever been
forthcoming from SAC. See, e.g., OSPRIs 15, 16, 17, 18,
22, 49, 80, 123, 126, 132, 133, 154.
Thus, at this point in the appeal, where the Board has
required all contested evidentiary issues to be at least
joined, and where ACF's Motion required SAC to explain
how any proffered hearing testimony would effectively
refute the 64 findings, SAC has simply failed to meet its
evidentiary burden. We have no reason to believe, based
on SAC's submissions to date, that a hearing would elicit
evidence that potentially might enable SAC to prevail on
even one finding of non-compliance. Below, we provide
our detailed evaluation of each OSPRI deficiency, and
explain in each case why SAC's proffer is insufficient.
THE OSPRIs
Our description of the deficiencies in issue are drawn
from the 1994 OSPRI and corresponding report (ACF
Exhibits 1 and 2) and the 1995 OSPRI (i.e., the follow-
up) and corresponding report (ACF Exhibits 4 and 5).
Each OSPRI item involves an examination of a particular
Head Start regulatory requirement cited in the item
description. Each of these exhibits contains findings
organized according to OSPRI item number (which we use to
identify where in the exhibits specific findings are
contained).
Performance Standards
Performance standards for Head Start agencies have been
in the regulations since 1975. When the regulations were
first promulgated, the preamble to the final rule
explained that the standards had been developed based on
seven years experience with the program, had been field
tested, and were considered reasonable and attainable.
40 Fed. Reg. 27,562 (June 30, 1975). Head Start grantees
are provided detailed guidance on how to meet the
standards in ACF publications and at annual regional and
national program meetings. They also have access to
government funded training and technical assistance.
SAC did not deny that it received training and technical
assistance from the New England Resource Center (only
questioning the amount, as discussed above).
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 that a grantee must have a plan for meeting
various 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. Further,
the regulations provide that parents should be involved
in the educational activities to enhance their role as
the principal influence on the child's education and
should be assisted to increase knowledge and parenting
skills, including identifying and reinforcing experiences
in the home which parents can use as educational
activities. 45 C.F.R. 1304.2-1(a)-(e).
ACF found SAC's education component severely deficient in
the 1994 review and substantially deficient in the 1995
follow-up.
OSPRI 12 - There shall be a curriculum that is relevant
and reflective of the needs of the population served. 8/
45 C.F.R. 1304.2-2(c)(1).
The 1994 review found that SAC lacked multi-cultural and
ethnically diverse teaching materials and activities.
The 1995 follow-up found varying degrees of ethnic
material in all classrooms and noted that SAC had
initiated use of a family profile to gather relevant
ethnic and cultural information. However, the review
found little evidence that the staff understood how to
utilize this information and involve parents.
In its Motion, ACF stated that SAC "alleged many
corrective actions" in its "original appeal submission"
(i.e., SAC's OSPRI Response Exhibit). However, ACF
determined that there was no indication these actions had
actually occurred, much less occurred prior to the end of
the follow-up period, March 6, 1995. SAC did not respond
to ACF's argument. Therefore, we find that SAC offered
no evidence to show that this finding was incorrect or
that satisfactory corrective actions were taken prior to
the follow-up review.
OSPRI 15 - Parents are included in curriculum development
and serve as resource persons. 45 C.F.R.
1304.2-2(c)(3).
The 1994 review found no evidence of parental involvement
in curriculum development or use of parents as resource
persons. SAC was advised to institute an Education
Advisory Committee. The 1995 follow-up found that SAC
was not using available resources to satisfy this
standard due to its lack of programmatic knowledge in the
area. The review revealed that although two meetings of
the Education Advisory Committee were alleged to have
occurred, the Committee was generally nonfunctional. The
review also revealed that the second meeting only had two
of 10 members in attendance.
SAC offered no evidence to show that these findings were
incorrect or that satisfactory corrective actions were
taken prior to the follow-up review.
OSPRI 16 - There shall be procedures for ongoing
observation, recording, and evaluation of each child's
growth and development for the purpose of planning
activities to suit individual needs. 45 C.F.R.
1304.2-2(d).
The 1994 review found inconsistencies in the quality of
the children's developmental assessment profiles. The
1995 follow-up noted some attempts to meet the standard,
but found that SAC's efforts fell far short of
compliance. The review noted that individualization was
understood only in terms of cognitive skills, and that
plans to meet individual's social service, mental health,
health and nutrition needs were not found.
Again, although several possible actions were identified
in SAC's OSPRI Response Exhibit, there was no specific
proffer of evidence that any corrective action had
actually occurred before March 6, 1995. Rather, the
management conceded the need to further improve
"individualization." Moreover, SAC provided no
representative assessment profiles for children to refute
the reference to inadequacy of the profiles.
We therefore find SAC's proffer insufficient to place
this finding in dispute.
OSPRI 17 - Staff must inform parents of the types and
purposes of the developmental screening well in advance
of the screening, the results of the screening, and the
purposes and results of any subsequent evaluations. 45
C.F.R. 1308.6(c).
The 1994 review found no evidence of parents being
informed of developmental screening results. This
deficiency remained at the 1995 follow-up, which found
that teachers were still not aware of the need to share
screening results with parents. Moreover, the follow-up
review found that, when parents were notified of results,
it was by note sent home with the child, without any
follow-up, and as late as six months after the screening.
SAC did not effectively address this issue. SAC argued
that ACF failed to interview the Disability Services
Coordinator concerning this OSPRI Item. As discussed
above, there is no merit in this argument. The
documentation submitted with SAC's Notice of Appeal
indicates that the Disabilities Services Coordinator did
speak with the federal reviewer the week following the
review. SAC indicated (but offered no evidence to
substantiate) that parents were invited to call their
child's teacher with questions or concerns. However,
SAC's response ignores the plain language of the Head
Start requirement at 45 C.F.R. 1308.6(c) which provides
that the grantee's staff "must inform parents of the
types and purposes of the screening well in
advance . . ., the results . . ., and the purposes and
results of any subsequent evaluations." In its OSPRI
Response Exhibit, SAC also referred to corrective action
which occurred after the follow-up and thus is not
pertinent here. SAC provided no documentation to refute
the allegation that screening notices, if sent, were
routinely sent late with no follow-up.
We therefore find SAC's proffer insufficient to place
this finding in dispute.
OSPRI 18 - The educational aspects of other Head Start
components are integrated into the daily education
services program. 45 C.F.R. 1304.2-2(d).
The 1994 review found minimal integration of the other
components into the education program and that SAC did
not have a system or guidelines for cross-component
integration. The 1995 follow-up noted a lack of
training, knowledge and skill for effective case
management by teachers, teachers aides and family liaison
workers. Moreover, the follow-up cited a lack of a
manager or supervisor at team meetings as a cause of poor
or weak cross-component integration. SAC asserted in its
OSPRI Response Exhibit that it had initiated some
corrective actions. However, SAC failed to allege that
these measures were taken during the follow-up period.
Moreover, SAC provided no documentation to refute this
finding.
We therefore find SAC's response insufficient to place
this finding in dispute.
PERFORMANCE STANDARD - The knowledge and understanding of
both staff and parents of the educational and
developmental needs and activities of children in the
program are enhanced by: (45 C.F.R. 1304.2-2(e))
OSPRI 20 - Parent participation in planning the education
program, and in the classroom, and home program
activities. 45 C.F.R. 1304.2-2(e)(1)
The 1994 review found no evidence of the required
parental participation. The 1994 review also noted the
absence of an Educational Advisory Committee to include
parents in educational planning. The 1995 follow-up
reaffirmed the 1994 finding by reference to deficiencies
found in the parent involvement component. In its OSPRI
Response Exhibit SAC conceded that it had to strengthen
its Parent Involvement Program. SAC did not proffer
evidence to dispute the 1994 finding, nor to show any
measures specifically taken during the follow-up period
to correct this deficiency. Thus, we find SAC's proffer
insufficient to place this finding in dispute.
OSPRI 22 - Parent training in the observation of growth
and development of their children in the home environment
and identification and handling of special developmental
needs. 45 C.F.R. 1304.2-2(e)(3)
The 1994 review found no evidence of parental training in
the observation of the growth and development of children
in the home and identification and handling of special
needs. The 1995 follow-up referred to the findings in
the parental involvement component which generally
reaffirms the 1994 finding. SAC provided absolutely no
documentation of the requisite parent training and did
not otherwise effectively respond to this finding.
We therefore find SAC's proffer insufficient to place
this finding in dispute.
OSPRI 23 - Staff and parent training, under a program
jointly developed with all components of the Head Start
program, in child development and behavioral
developmental problems of preschool children. 45 C.F.R.
1304.2-2(e)(5).
The 1994 review revealed the absence of an educational
staff training plan and cited numerous areas in which the
educational staff needed training and technical
assistance. The 1995 follow-up noted the existence of a
"generic" training plan which did not meet the extensive
needs of the component. The reviewer indicated that
training, where provided, was unskilled and superficial.
Moreover, the review found that SAC's Manager of
Education recognized the need for individual staff
training, but viewed this as a long-range goal. The need
for parent training was not addressed.
SAC's OSPRI Response Exhibit spoke only to plans for
future improvement, not to actual accomplishments that
would refute ACF's findings. SAC's briefing generally
attacked the way in which the follow-up review was
handled. However, SAC provided no substantiation of its
allegations and more importantly provided no evidentiary
rebuttal to the findings.
We therefore find SAC's proffer insufficient to place
this item in dispute.
OSPRI 24 - Staff training in identification and handling
of children with special needs and working with the
parents of such children, and in coordinating relevant
referral resources. 45 C.F.R. 1304.2-2(e)(6).
The 1994 review found no documentation of staff training
in the handling of children with special needs. The 1995
follow-up noted very weak coordination between the
education and disabilities component. SAC's OSPRI
Response Exhibit recognized the need to strengthen the
coordination between these components. However, all
subsequent references to actions in the exhibit are
apparently to efforts that are currently being taken to
respond to the problem, not to efforts that would refute
the deficiency finding.
We therefore find SAC's proffer insufficient to place
this finding in dispute.
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. The Head Start program emphasizes the
importance of early identification of health problems.
Many pre-school children from low-income families have
never seen a doctor or a dentist prior to entering the
program. The general objectives of this component are
to: (a) Provide a comprehensive health services program
to assist the child's development including a broad range
of medical, dental, mental health and nutritional
services; (b) Promote preventative health services and
early intervention; (c) Provide the child's family with
the necessary skills and insight and otherwise link the
family to an ongoing health care system to ensure that
the child continues receiving comprehensive health care
services after leaving Head Start. See 45 C.F.R.
1304.3-1(a).
OSPRI 49 - Dental records for each child must contain:
A. Dental exam and evaluation by a qualified provider;
B. Follow-up treatment for dental problems. 45 C.F.R.
1304.3-5(a).
The 1994 review indicated that children with dental
problems had not received follow-up treatment. It also
indicated that children with immediate problems were not
given priority and at least some of those with severe
problems had not received follow-up treatment. The 1995
follow-up revealed that almost 20% of the sampled
children either had not had initial dental examinations
or follow-ups needed for further treatment.
SAC nowhere responded to these findings and thus did not
put this item in dispute.
Performance Standard - There is an organized health
education program for program staff, parents, and
children that ensures: 45 C.F.R. 1304.3-6(a).
OSPRI 68 - Health education is integrated into ongoing
classroom and other program activities. 45 C.F.R.
1304.3-6(a)(4).
The 1994 review found that health education was not
integrated into classroom and program activities. The
1994 report provided guidance to assist SAC in achieving
compliance. See ACF Ex. 2. The 1995 follow-up noted
that this problem still existed.
SAC nowhere responded to these findings and thus did not
put this item in dispute.
Mental Health Component
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 of 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 for certain actions, including coordination of
the mental health component with the education component,
and regular group meetings of parents and program staff.
45 C.F.R. 1304.3-8(b).
ACF found the entire mental health component to be
severely deficient in the initial and follow-up review.
Only five of 17 standards were found in compliance as of
the follow-up review, and those only minimally.
OSPRI 76 - The mental health professional is to advise
and assist in development screening and assessment. 45
C.F.R. 1304.3-8(a)(4).
The 1994 review found that SAC's mental health
coordinator was not involved in the developmental
screening and assessment process. In the 1995 follow-up,
ACF determined that SAC did not have a mental health
specialist in place for several months prior to the
follow-up review. SAC offered nothing to refute ACF's
findings.
We therefore find SAC has failed to place this item in
dispute.
OSPRI 79 - The mental health professional shall orient
parents and work with them to achieve the goals of the
mental health program. 45 C.F.R. 1304.3-8(a)(7).
The 1994 review found that the then mental health
coordinator did not consistently orient and work with
parents to achieve the goals of the mental health program
and that the coordinator could not define her role or
identify her priorities. The 1995 follow-up revealed an
absence of documentation to evidence the necessary parent
participation in this process. SAC provided some
argument pertaining to the post follow-up period, but
nothing relevant to the period in issue.
We therefore find SAC's proffer insufficient to place
this finding in dispute.
OSPRI 80 - The mental health professional shall refer for
diagnostic examination to confirm that emotional problems
do not have a physical basis. 45 C.F.R.
1304.3-8(a)(8).
The 1994 review found that children in need of mental
health services were not routinely examined to determine
if their emotional problems have a physical basis. The
1995 follow-up reaffirmed the absence of any system for
examination.
SAC's proffer was insufficient since it failed to
describe actions specifically taken during the follow-up
period.
Performance Standard - Mental health services shall also
provide: (45 C.F.R. 1304.3.8(b)(1-8))
OSPRI 81 - Attention to pertinent medical and family
history of each child so that mental health services can
be made readily available when needed. 45 C.F.R.
1304.3.8(b)(1).
The 1994 review indicated that SAC was not routinely
reviewing family histories and medical records at the
start of the school year to identify potential areas of
mental health intervention and prevention. Further,
staff interviews indicated a lack of training necessary
to implement this standard. The 1995 follow-up indicated
that SAC was not meeting this standard. Specifically, it
found that preventative steps or services (e.g., early
identification and referrals) were lacking and mental
health needs were being addressed only from a crisis
perspective.
SAC nowhere responded to these findings and thus did not
put this item in dispute.
OSPRI 83 - Coordination with the education services
component to provide a program keyed to individual
development levels. 45 C.F.R. 1304.3.8(b)(3).
The 1994 review found an absence of coordination with
education services to provide individualized curriculum
and activities. The 1994 review also found that teachers
of children with mental health challenges did not
individualize or adapt activities to children's needs.
At the time of the 1995 follow-up, the Disabilities
Coordinator was managing this component under the
supervision of the Education Coordinator. Their
communication was described as weak with only a minimum
of full team planning and coordination. Again, the
review found that there was no evidence of a preventative
curriculum for affected children.
SAC nowhere responded to these findings and thus did not
put this item in dispute.
OSPRI 85 - Regular group meetings of parents and program
staff. 45 C.F.R. 1304.3.8(b)(5).
The 1994 review found no evidence of regular mental
health support meetings. The 1995 follow-up affirmed
this finding, acknowledging the existence of one parent
group, but finding that there was no tracking system to
identify the attendees or provide follow-up services.
SAC nowhere responded to these findings and thus did not
put this item in dispute.
OSPRI 87 - Opportunity for parents to obtain individual
assistance. 45 C.F.R. 1304.3.8(b)(7).
The 1994 review found that numerous parents who could
benefit from mental health services were not referred.
Basically, the review found that the program was not
functioning effectively. The 1995 follow-up revealed an
absence of opportunity for parents to obtain services in
spite of numerous and severe problems and the obvious
need for assistance.
SAC nowhere responded to these findings and thus did not
put this item in dispute.
OSPRI 88 - Active involvement of parents in planning and
implementing the individual mental health needs of their
children. 45 C.F.R. 1304.3.8(b)(8).
The 1994 review determined that parents were not actively
involved in planning and implementing the individual
mental health needs of their children. The 1995 follow-
up found that SAC was still not complying in this area.
The review found that, while parents occasionally were
made aware of the existence of support agencies, SAC
staff did not provide support or advocacy to assist
parents in obtaining individual services. In response,
SAC failed to reference any actions specifically taken
during the follow-up period to correct the deficiency.
We therefore find SAC's proffer insufficient to place
this finding in dispute.
Nutrition Component
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.
The program is to gather information about community
nutrition problems. 45 C.F.R. 1304.3-10(a)(3). A
nutritionist must be available to the program for either
full-time or periodic and regular supervision of the meal
program. 45 C.F.R. 1304.3-10(g).
Performance Standard - The organized nutrition education
program for staff, parents, and children must assure
that: (45 C.F.R. 1304.3 -10(d)).
OSPRI 105 - Meal periods and food are used as an integral
part of the total education program. 45 C.F.R.
1304.3 -10(1).
The 1994 review found that meal periods were not used as
an integral part of the total education program. That
review noted the need for more teacher participation to
provide direction for the children. The 1995 follow-up
found continuing deficiencies in this area.
Specifically, it found that teachers and site managers
needed training to learn to use meals as an educational
experience.
SAC nowhere responded to these findings and thus did not
put this item in dispute.
OSPRI 114 - There shall be compliance with applicable
local, State, and Federal sanitation laws and regulations
for food service operations, including standards for
storage, preparation and service of food, health and food
handlers, and for posting of evidence of such compliance.
Vendors and caterers supplying food and beverages shall
comply with similar applicable laws and regulations. 45
C.F.R. 1304.3-10(f).
The 1994 review found that SAC was not in compliance with
all applicable laws and regulations, especially with
regard to a Commonwealth law pertaining to the safe
temperature of food. The 1995 follow-up found that SAC
remained out of compliance and that teachers were not
consistently cooperating with the Nutrition Coordinator's
efforts to remedy this problem.
SAC nowhere responded to these findings and thus did not
put this item in dispute.
Social Services Component
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. 45 C.F.R.
1304.1-4. 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.
ACF found SAC to be severely deficient in the social
services component in both the initial on-site and the
follow-up review.
Performance Standard - There are established procedures
used for: (45 C.F.R. 1304.4-2(a)).
OSPRI 120 - Providing or referral for appropriate
counseling. 45 C.F.R. 1304.4-2(a)(3).
The 1994 review found that not all families requiring
counseling were referred. Staff interviews indicated
that family service workers were either not sufficiently
skilled to identify and respond to family needs and/or
were unclear about their roles in working with parents.
Further, the review found no evidence of coordination
between the social service and mental health components.
The 1995 follow-up found that the staff did not provide
for or refer parents for appropriate counseling.
SAC proffered no evidence to rebut these findings and
thus did not put this item in dispute.
OSPRI 123 - There shall be follow-up to assure delivery
of needed assistance. 45 C.F.R. 1304.4-2(a)(6).
The 1994 review found little or no follow-up on issues
and concerns listed on family needs assessments. Staff
interviews confirmed these findings. The 1995 follow-up
indicated a lack of evidence that SAC staff was aware of
the need to provide follow-up support or advocacy.
ACF alleged in its motion that SAC's OSPRI Response
Exhibit failed to refer to corrective actions taken in
the follow-up period and that SAC had otherwise failed to
refute these findings with substantive information or
documentation. SAC failed to clarify its position on
this finding in response to ACF's motion.
We, therefore, find SAC's proffer insufficient to place
this finding in dispute.
OSPRI 126 - Records shall be established, maintained,
and kept confidential that include: (C) referral reports
to other agencies; (D) follow-up reports on referrals to
other agencies. 45 C.F.R. 1304.4-2(c).
The 1994 review found that social service records did not
consistently contain evidence of referrals or follow ups.
Based on the evidence, reviewers concluded that family
liaisons were not doing their job. The 1995 follow-up
confirmed the 1994 results.
SAC provided no documentation or information to refute
the finding and thus did not put this item in dispute.
Performance Standard - There is close cooperation with
existing community resources including: 45 C.F.R.
1304.4-2(b)
OSPRI 127 - Helping Head Start parent groups work with
other neighborhood and community groups with similar
concerns. 45 C.F.R. 1304.4-2(b)(1).
The 1994 review found no evidence that SAC's Head Start
program helps organize parent groups to work with other
community and neighborhood groups with similar concerns.
The 1995 follow-up affirmed these findings for 10 of
the 11 sites involved.
SAC nowhere responded to these findings and thus did not
put this item in dispute.
OSPRI 128 - Communicating to other community agencies the
needs of Head Start families and ways of meeting those
needs. 45 C.F.R. 1304.4-2(b)(2).
The 1994 review recognized that there was some contact
with other community agency personnel, but found no
evidence that SAC communicated the needs of its families
or coordinated with such agencies to address those needs.
Based on staff interviews, the 1995 follow-up indicated
that SAC's major focus had been on developing its
"current" management team. Thus, communication with
other community agencies regarding the needs of Head
Start families had not occurred.
SAC nowhere responded to these findings and thus did not
put this item in dispute.
OSPRI 129 - Helping to assure better coordination,
cooperation, and information sharing with community
agencies. 45 C.F.R. 1304.4-2(b)(3).
ACF found SAC out of compliance here for the same reasons
underlying the deficiency in OSPRI 128. SAC offered no
relevant evidence to refute this finding, instead citing
its efforts apparently taken after the follow-up review.
We, therefore, find SAC's proffer insufficient to place
this finding in dispute.
OSPRI 130 - Calling attention to the inadequacies of
existing community services and assisting in improving
the available services, or bringing in new services. 45
C.F.R. 1304.4-2(b)(4).
The 1994 review found that the Head Start program was not
actively involved in calling attention to the
inadequacies of community services and assisting in
improving those services or bringing new services to the
community. The 1995 follow-up confirmed that the
program's focus had been internal structure and
management needs, not community services. SAC's response
relied on activities apparently taken after the follow-up
and provided no evidence that timely corrections of
deficiencies had been made.
We, therefore, find SAC's proffer insufficient to place
this finding in dispute.
OSPRI 132 - There are procedures for establishing a role
of advocacy and spokesperson for Head Start families. 45
C.F.R. 1304.4-2(a)(7).
The 1994 review found that SAC staff was not aware of
procedures or their roles as advocates for parents. The
1995 follow-up found no procedures for establishing
advocacy or spokesperson roles.
SAC nowhere responded to these findings and thus failed
to put this item in dispute.
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.
ACF found SAC to be severely deficient in this component
in both the initial and follow-up reviews.
OSPRI 133 - There is a written parent involvement plan
annually updated and/or revised. 45 C.F.R. 1304.1-4.
This includes a detailed plan on implementation of I-30-2
"The Parents" (70.2). 45 C.F.R. 1304.5-2(b).
The 1994 review revealed that the parent involvement plan
had not been updated or revised "in recent years." ACF
Ex. 2 at Item 133. The review found that, from staff to
parents, there was a lack of understanding as to the need
and purpose of such a plan. The 1995 follow-up indicated
that the parent involvement plan did not include a 70.2
implementation plan. While SAC's arguments referenced
documentation of parental participation, SAC provided no
actual documentation on this issue. Further, SAC
conceded that its parent involvement plan lacked a 70.2
implementation plan. See SAC OSPRI Response Exhibit.
We, therefore, find SAC's proffer insufficient to place
this finding in dispute.
Performance Standard - Every Head Start Program must have
effective parent participation in: (45 C.F.R.
1304.5-2(a))
OSPRI 137 - The process of making decisions about the
nature and operation of the Head Start program. 45
C.F.R. 1304.5-2(a).
The 1994 review found no evidence of a written complaint
procedure, approved by the Policy Council, for community
or parent concerns about the Head Start program.
Moreover, some employees were hired without Policy
Council approval. The 1995 follow-up noted that, with
the exception of parent involvement, no plans (component
plans, recruitment plans or personnel policies) had been
approved by the Policy Council. Further, parents from
certain geographic service areas were not represented on
the Policy Council.
SAC's proffer was insufficient since it failed to
describe evidence of timely actions which would rebut
these findings.
OSPRI 139 - There shall be opportunities for experiences
and activities for parents which lead to enhancing the
development of their skills, self-confidence, and sense
of independence in fostering an environment in which the
children can develop to their full potential. 45 C.F.R.
1304.5-3(a).
The 1994 review found no evidence of organized programs
or workshops for parents to improve self-confidence and
parenting skills. The 1995 follow-up revealed little or
no change in SAC's performance. The review found that --
opportunities for parents were sporadic, piecemeal and
poorly attended; parents' self-confidence was not
reinforced by staff; very little information was provided
to parents on topics ostensibly addressed by the program;
and teachers and family liaison staff did not view
themselves as involved in parent education.
SAC nowhere addressed these findings and thus did not put
this item in dispute.
OSPRI 142 - Health, mental health, dental and nutritional
education. 45 C.F.R. 1304.5-3(d).
The 1994 review found no consistent program-wide
education programs available to parents in these areas.
The 1995 follow-up found this item was still out of
compliance. The review found that parents were not
viewed as partners, but instead, SAC's interaction with
them was to ask that they fill out forms. Moreover, the
review found that there was no education program for
parents, nor were they trained to utilize resources. SAC
referred to this and related findings in its OSPRI
Response Exhibit but its response was general and
insufficient to refute these findings.
We, therefore, find SAC's proffer insufficient to place
this finding in dispute.
OSPRI 143 - Identification and use of family and
community resources to meet the basic life support needs
of the families. 45 C.F.R. 1304.5-3(e).
Neither the 1994 review, nor the 1995 follow-up found
evidence of parental training in the use of community
resources. The rationale for a finding of noncompliance
and SAC's response were the same as that for OSPRI 142.
We, therefore, find SAC's proffer insufficient to place
this finding in dispute.
Performance Standard - Program support is provided for
parents and area residents to influence their
environment. 45 C.F.R. 1304.5-5.
OSPRI 150 - Effective procedures are established by which
parents and area residents concerned will be enabled to
influence the character of programs affecting their
interests. 45 C.F.R. 1304.5-5(1).
The 1994 review and the 1995 follow-up found no evidence
of such procedures or evidence that the concepts of
advocacy and community organizations are understood or
utilized. SAC's OSPRI Response Exhibit on this finding
contained unsubstantiated assertions of action taken and
no indication that the alleged action was timely. SAC
offered no further response to this finding.
We, therefore, find SAC's proffer insufficient to place
this finding in dispute.
OSPRI 151 - There is regular participation by parents in
the implementation of such programs. 45 C.F.R.
1304.5-5(2).
ACF's findings here were, effectively, the same as those
for OSPRI 150.
SAC nowhere responded to these findings and thus did not
put this item in dispute.
OSPRI 152 - Technical and other support needed is
provided to enable parents and area residents to secure,
on their own behalf, available assistance from public and
private sources. 45 C.F.R. 1304.5-5(3).
The 1994 review concluded that minimal support was given
to parents. The 1995 follow-up characterized technical
and other support as sporadic with poor follow-up.
SAC nowhere responded to these findings and thus did not
put this item in dispute.
DISABILITIES SERVICES
The regulation at 45 C.F.R. 1305.6(c) provides that
Head Start programs must make at least 10 percent of
their enrollment opportunities available to children who
meet the definition of children with disabilities. The
regulation also provides that an exception to this
requirement --
will be granted only if the responsible HHS
official determines, based on such supporting
evidence as he or she may require, that the
grantee made a reasonable effort to
comply . . . but was unable to do so because
there was an insufficient number of children
with disabilities in the recruitment area who
wished to attend the program and for whom the
program was an appropriate placement based on
their Individual Education Plans (IEP) with
services provided directly by Head Start or in
conjunction with other providers.
ACF found this component to be severely deficient in both
the 1994 review and the 1995 follow-up.
OSPRI 153 - At least 10 percent of the total number of
enrollment opportunities in each grantee and delegate
agency during an enrollment year is made available to
children with disabilities who meet the definition for
children with disabilities in 45 C.F.R. Part 1305.2(a)
unless there is evidence of an exception to this
requirement that was granted by the responsible regional
HHS official. 45 C.F.R. 1305.6(c).
The 1994 review found that less than 10 percent of SAC's
enrollment was comprised of children with disabilities.
The 1995 follow-up indicated this enrollment was eight
percent. SAC appeal contained documentation which
establishes that this figure was 8.5 percent. SAC did
not show that its failure to meet the 10 percent goal was
excused by an ACF official pursuant to the criteria for
an exception contained in 45 C.F.R. 1305.6(c).
Thus, SAC did not refute the finding that it was out of
compliance with this standard.
OSPRI 154 - An annually updated disabilities service plan
guides the program's efforts to meet the special needs of
children with disabilities and to include them and their
families in the full range of Head Start activities and
services. 45 C.F.R. 1308.4.
The 1994 review found that SAC did not have a
disabilities services plan meeting applicable
requirements. The 1995 follow-up noted that a plan had
been written in 1993, but never approved by the Policy
Council. The plan had since been revised/updated, but,
in the reviewer's estimation, was still unacceptable as
it did not provide evidence of consultation with parents
and staff across all components, nor describe the
program's efforts to ensure that children's special
education and related services are provided or supervised
by personnel meeting state qualifications, by the 1994-
1995 program year. SAC referenced evidence of some
actions taken after the date of the follow-up, but
offered no evidence of actions specifically taken during
the follow-up period.
We, therefore, find SAC's proffer insufficient to place
this item in dispute.
OSPRI 155 - Resources to implement the disabilities
services plan are adequate: 45 C.F.R. 1308.4(n-o).
The 1994 review found that disabilities services were not
being provided based primarily on the staff perception
that such services were the sole responsibility of the
disabilities coordinator. The review found that
facilities were not handicapped accessible and training
for staff and parents was inadequate. The 1995 follow-up
found that site needs for the handicapped had not been
identified, noting that the inaccessibility was
disruptive to the provision of services to children and
families. SAC's response failed to reference timely
evidence of actions that would refute this finding.
We, therefore, find SAC's proffer insufficient to place
this finding in dispute.
OSPRI 164 - Vigorous efforts to involve parents in the
IEP process were made. 45 C.F.R. 1308.19(j).
The 1994 review showed minimal parental involvement in
the IEP process. The 1995 follow-up reaffirmed minimal
parental involvement. Parent participation in the IEP
process was characterized as "just . . . [signing] the
plan." ACF Ex. 5 at Item 164. Transportation barriers
were found to impede parents' ability to attend various
meetings. SAC's discussion of this finding in its OSPRI
Response Exhibit failed to address and rebut, with
evidence of timely actions, each aspect of this finding.
We therefore,find SAC's proffer insufficient to place
this item in dispute.
OSPRI 165 - The disabilities coordinator works closely
with other Head Start staff to ensure that the special
needs of each child with disabilities are met. 45 C.F.R.
1308.18, 1308.20, 1308.4.
The 1994 review revealed minimal inter-component
collaboration between staff members. The 1995 follow-up
found the disabilities services coordinator did not work
closely with other components. In the OSPRI Response
Exhibit, SAC's Disabilities Services Coordinator admitted
collaborative shortcomings and did not reference evidence
of timely actions adequate to address each aspect of this
finding.
We therefore find SAC's proffer insufficient to place
this item in dispute.
CONCLUSION
On the basis of the foregoing, we determine that the
effect of the 42 repeat findings of non-compliance with
various performance standards establish conclusively that
there is a basis for denying refunding under 45 C.F.R.
1303.15(c) and 45 C.F.R. 1303.14(b)(4).
_________________________
Judith A. Ballard
_________________________
M. Terry Johnson
_________________________
Donald F. Garrett
Presiding Board Member
1.
While the Travers decision does not directly address
the Head Start requirement for reasonable notice and
opportunity for a full and fair hearing, it involved a
statutory right to a formal hearing by an administrative
law judge under the Administrative Procedure Act. See
Campesinos, at 10.
2.
The concept of materiality applicable to these
proceedings is found in 45 C.F.R. 74.113. That
regulation has been amended and redesignated as 45 C.F.R.
74.62 since the 1994 review, but continues to require
materiality. See 59 Fed. Reg. 43,760 (August 25, 1994).
3.
Federal on-site reviews are generally conducted either
by federal Head Start officials or by consultants hired
by ACF who are past or present employees from other Head
Start programs similar to the program under review.
4.
ACF noted that this exhibit is not "totally complete."
ACF personnel took SAC's response apart to facilitate
their analysis of it. ACF was not able to reconstruct
SAC's response for its submission here. ACF explained
this situation to the Board and SAC in a July 21, 1995
telephone conference. At that time, SAC indicated that
it would resubmit a copy of its response to ACF within a
week. However, ACF has since asserted that SAC made no
such submission. ACF Br. at 7, n.2.
5.
We reached this conclusion by comparing the "Agency
Profile Reports" and the OSPRI Review Reports for the
1994 and 1995 reviews found in ACF Exhibits 2 and 5.
6.
As part of its Notice of Appeal (April 24, 1995), SAC
submitted a collection of unidentified, unpaginated and
otherwise unorganized documents that addressed certain
OSPRI findings. These documents may have been submitted
to ACF at an earlier date. As these documents were
unidentified by SAC, we have titled them OSPRI Response
Exhibits for ease of reference.
7.
During the discovery process, ACF specifically
requested that SAC release every document (aside from
those accompanying its Notice of Appeal) that SAC
intended to rely upon at the hearing. SAC released no
further documents.
8. According to 1990 census figures, provided by ACF
and not disputed by SAC, Springfield's population is
approximately 64% Caucasian, 18% Black and 17% Hispanic.
Asians and Native Americans comprise the remainder of the
population. ACF indicated that the Hispanic population
has increased 92% since 1980. ACF Br. at 5-6.