Target Area Programs for Child Development Inc., DAB No. 1615 (1997)

Department of Health and Human Services

DEPARTMENTAL APPEALS BOARD

Appellate Division

SUBJECT: Target Area Programs for Child Development, Inc.

DATE: March 21, 1997
Docket No. A-96-165
Decision No. 1615

DECISION

Target Area Programs for Child Development, Inc (TAP)
appealed a July 1, 1996 decision by the Administration
for Children and Families (ACF) terminating TAP's Migrant
Head Start grant pursuant to 45 C.F.R. § 1303.14. ACF's
decision was based on the results of a June 1993 On-Site
Program Review (OSPR) and a September 1995 follow-up
review. Those reviews convinced ACF that termination was
justified because TAP's Migrant Head Start program had
"repeatedly failed to meet the Head Start Performance
Standards and the fiscal requirements established for
Head Start grantees." Notice of Termination at 1
(July 1, 1996).

At the parties' request, the Board set a hearing date and
established a schedule for submission of prepared direct
testimony and supporting documentation. See Letter to
the Parties (October 17, 1996). On December 18, 1996,
following submission of the parties' direct testimony and
documentation, ACF moved for summary disposition of TAP's
appeal based on 21 of the 29 repeat deficiencies cited in
the termination letter (ACF Motion). On January 13,
1997, TAP filed an Opposition to ACF's Motion and its own
Motion for Summary Disposition of all 29 repeat
deficiencies (TAP Motion). ACF responded on January 24,
1997 (ACF Response).

Having considered fully the parties' arguments, direct
testimony and supporting evidence 1/, we find that,
even though TAP had more than two years to bring itself
into compliance with program standards, TAP here failed
to demonstrate, by a preponderance of the evidence in the
record, that it complied with the performance standards
cited in 19 repeat deficiency findings. Given the often
brief period of time in which migrant children may
participate in a Head Start program, we are particularly
troubled by TAP's failure to follow-up promptly with
treatment and services for children that TAP identified
as needing dental, medical and disabilities services. We
conclude that these and the other deficiencies are so
material as to warrant termination of TAP's Migrant Head
Start grant under 45 C.F.R. § 1303.14(b)(4). 2/

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
periodically reviews their performance in meeting program
and fiscal requirements. See generally 42 U.S.C. § 9836.
The law requires that a Head Start agency --

shall observe standards of organization, management,
and administration which will assure, so far as
reasonably possible, that all program activities are
conducted in a manner consistent with the purposes
of this subchapter. . . . Each such agency shall
establish or adopt rules to carry out this section,
which shall include rules to assure full staff
accountability in matters governed by law,
regulations or agency policy . . . . 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.

The Head Start Act requires HHS to conduct a full review
of each Head Start agency at least once during each
three-year period. 42 U.S.C. § 9836a(c)(1)(A). The
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 Springfield Action Commission, DAB
No. 1547 at 13 (1995) (Springfield); Campesinos Unidos,
Inc., DAB No. 1518 at 14 (1995).

The Head Start regulations at 45 C.F.R. § 1303.14(b) list
nine grounds for which a Head Start grantee agency may be
terminated. ACF relied on the regulatory provision for
grant termination when a grantee has failed to meet the
performance standards for operation of its Head Start
program. 45 C.F.R. § 1303.14(b)(4).

The Head Start Act at 42 U.S.C. § 9841(a)(3) and
regulations at 45 C.F.R. § 1303.16(a) provide that a
terminated grantee shall have an "opportunity for a full
and fair hearing." Procedures for the conduct of a
hearing are set forth at 45 C.F.R. § 1303.16. The Board
is authorized to act on behalf of the Secretary to
provide this opportunity for hearing. 57 Fed. Reg.
59,260 (December 14, 1992). The Board's procedural
regulations at 45 C.F.R. Part 16 apply to these
proceedings insofar as they are not inconsistent with
Part 1303. 45 C.F.R. § 1303.14(c)(2).


FACTS

TAP is a non-profit organization with a home office in
Bakersfield, California. TAP was incorporated in 1965
with the purpose of providing economic and other
assistance to low-income residents and farmworkers in
Kern County and surrounding counties. At all times
relevant to this proceeding, TAP received federal funds
from HHS through ACF to run a Head Start program for
families of migrant farm workers who move into or within
its service area for the purpose of engaging in
agricultural work. TAP also regularly received state
funds to run other types of child care programs.

During the relevant time period (1993-1995), TAP operated
three Migrant Head Start centers in Kern County located
in Bakersfield, Lamont, and Delano. TAP's Migrant Head
Start centers were generally open from April until
October. The principal language of the majority of the
families served by TAP's Migrant Head Start program is
Spanish. Some families also speak a dialect known as
Mixteco.

From June 7 through June 11, 1993, ACF conducted an On-
Site Program Review (OSPR) of TAP's headquarters and
Migrant Head Start centers. See FY'93 Program Review
Report, ACF exhibit (ex.) 1 at 136-149. On August 4,
1993, ACF informed TAP that it had been marked out of
compliance with 83 out of 222 Items in the report of OSPR
findings (called an On-Site Program Review Instrument or
OSPRI), with deficiencies noted in every component area.
Id. 3/ Subsequently, TAP submitted to ACF one or more
corrective action plans and program improvement plans
whose purpose was to bring TAP's program into compliance
with Head Start performance standards. (See discussion
below as to the dispute regarding such plans.) ACF also
funded substantial training and technical assistance for
TAP during 1994 to assist it in achieving that goal.

During September 18 through 22, 1995, ACF returned to TAP
to conduct a follow-up on-site review. The reviewers,
except for the team leader, were contractors who had
extensive experience in operating Migrant Head Start
programs; some had participated in the 1993 review of
TAP. The review team visited TAP's headquarters and
centers, and requested and reviewed documents. The
review team also interviewed TAP's management, component
coordinators, staff, and parents. The review team
concluded that TAP was out of compliance with 76 OSPRI
Items, including 29 Items that were repeat deficiencies
from the 1993 review. As a result, on July 1, 1996, ACF
proposed to terminate TAP's Migrant Head Start program.

TAP requested a hearing on the proposed termination under
45 C.F.R. § 1303.14(c)(2). The Board set hearing
procedures including deadlines for submission of
documents, proposed witness lists, and written direct
testimony, and it scheduled a hearing for in-person cross
examination of witnesses. See Letter to the Parties
(October 17, 1996). On October 31, 1996, the Board
issued a Regulatory Notice of Hearing pursuant to 45
C.F.R. § 1303.16(g).

Following both parties' submissions of documents and
written direct testimony, both parties filed Motions for
Summary Disposition, and the Presiding Board Member
subsequently stayed the hearing date so that the Board
could rule on these motions.

LEGAL STANDARDS FOR RESOLUTION OF THESE MOTIONS

In its Motion, ACF referred to Rule 56 of the Federal
Rules of Civil Procedure and contended that there was no
genuine issue as to any material fact that required a
hearing for resolution. ACF argued that the Board did
not need to proceed with the scheduled in-person cross-
examination of witnesses because the record already
before the Board demonstrated that ACF was entitled to
judgment as a matter of law. TAP apparently agreed in
its Motion that the Board could decide the disputed
issues of material fact on the record already before it;
TAP did not claim that further testimony was needed on
any of the issues. Thus, although both parties called
their submissions "Motion for Summary Disposition," in
substance, both requested that the Board proceed to
judgment on the record before it, which includes
extensive documents and written direct testimony offered
by both parties. We agree that the record is sufficient
to enable us to proceed to decision on the merits without
further proceedings. Consequently, in ruling below on
each disputed issue of fact we consider the parties'
evidence and arguments and apply the statutory and
regulatory standards applicable to Head Start grant
terminations. 4/

The standards applicable to terminations are well-
settled. The Board has previously stated that the
provisions of 45 C.F.R. § 1303.14 require ACF to make a
prima facie case that there exists sufficient evidence to
satisfy the regulatory standards for termination or
denial of refunding. See 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. (Lake County), DAB
No. 1580 at 5-6 (1996). 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). In the
present case, both sides have subsequently provided
further evidence supporting their positions in the form
of additional documentation and written witness
testimony.

In prior cases in which the Board has decided a Head
Start termination or denial of refunding appeal without
an in-person hearing, the Board has held that once
presented with a prima facie case, a grantee must present
evidence sufficient to challenge ACF's case or risk
summary disposition. Springfield at 5. 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 at 5; 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. § 74.21(b)(2).
Moreover, a grantee is clearly in a better position to
establish that it did comply with applicable requirements
than ACF is to establish that it did not. Therefore, the
Board has held that the ultimate burden of persuasion is
on the grantee to show that it was in compliance with
program standards.

For policy reasons, the Head Start Act does not allow
grantees an unlimited amount of time to correct
deficiencies in meeting performance standards; otherwise
families would not receive the full benefits of the Head
Start program and grantees would not have an incentive to
improve their programs until termination or denial of
refunding proceedings were initiated. Meriden at 6. TAP
was notified in an August 4, 1993 report of deficiencies
which were found to exist in its program during an June
1993 on-site visit; TAP received a written report on
July 1, 1996 identifying deficiencies found to exist
during the September 1995 on-site visit. See, generally,
ACF ex. 1. Thus, we have determined that the relevant
time period for this matter is the period reviewed in the
June 1993 on-site visit through the September 1995 on-
site review. TAP was notified of this determination in
the Regulatory Notice of Hearing (October 31, 1996).

Regarding the question of how the Board should analyze
the record developed under Part 1303 in conjunction with
Part 16, the appropriate standard to be applied to
competing evidence is preponderance of the evidence.
That standard requires "evidence which is of greater
weight or more convincing than the evidence which is
offered in opposition to it; that is, evidence which as a
whole shows that the fact sought to be proved is more
probable than not." Black's Law Dictionary 1182 (6th ed.
1990). This is the commonly accepted standard for
administrative proceedings. See Lake County at 6.

Further, once the Board has determined that a grantee has
failed to meet program requirements, we must consider
whether the deficiency or deficiencies are so material to
the grantee's performance of the grant that termination
is warranted. The concept of "materiality" found in 45
C.F.R. § 74.62 is read into 45 C.F.R. Part 1303 because
the Department-wide grants administration regulations in
Part 74 apply to the extent that they are consistent.
Given the general statutory preference for continuing
funding to existing grantees (42 U.S.C. § 9836(c)(1))
and, where appropriate, permitting a grantee the
opportunity to correct deficiencies (42 U.S.C.
§ 9836a(d)(1)(B)), it is consistent to read materiality
into 45 C.F.R. § 1303.14(b), which lists the bases for
termination or denial of refunding actions. Certainly,
ACF should not seek to end a grantee's Head Start
participation on a mere technicality.

In discussing whether TAP had materially failed to comply
with regulatory standards embodied in the relevant OSPRI
Items, ACF sometimes referred in its Motion to TAP's
commitments to take specific actions, as stated in TAP's
November 3, 1993 corrective action plan (CAP). In the
notice of termination, ACF had determined that "in at
least 29 standards, TAP failed to take the corrective
actions agreed upon as evidenced by the repeated findings
of non-compliance for these items." Notice of
Termination at 2.

TAP contended in its Motion that ACF was attempting to
inject the issue of TAP's compliance with its own CAP as
a basis for granting ACF's Motion, and it requested that
the Board strike all such references from ACF's Motion.
TAP asserted that the core issue in this proceeding is
TAP's compliance with the regulations, not its CAP. In
its Response to TAP's motion, ACF noted that it would be
unusual to strike argument in a motion, rather than
evidence, and stated that it assumed that TAP was asking
the Board to reject ACF's arguments. ACF also contended
for the first time in this proceeding that the Board
should hold the CAP enforceable as a condition of the
continuation of TAP's grant, and that TAP's apparent
admission (through its urging that the CAP was
irrelevant) that it did not comply with its CAP is
sufficient in and of itself to warrant granting ACF
summary disposition. ACF Response at 4. 5/

We will not strike ACF's references to the CAP from this
record because we agree that it would be inappropriate to
do so. However, although we are denying TAP's request,
we are not necessarily endorsing ACF's construction of
the meaning that the Board should attach to the CAP in
this case. The notice of termination that initiated this
proceeding indicated that TAP's failure to comply with
the CAP resulted in its failure to come into compliance
with program standards, but ACF did not cite
noncompliance with the CAP itself as a basis for
termination. The Board's Regulatory Notice of Hearing
(October 31, 1996) also indicated that TAP's compliance
with program standards was the issue before the Board.
Thus, we agree with TAP that the relevant issue in this
case is TAP's compliance with program standards.
Furthermore, we find that TAP did not have sufficient
notice of ACF's position concerning the CAP for the Board
to hold, as now argued by ACF, that TAP's failure to
provide evidence or argument concerning its compliance
with the CAP should result in our finding that the
termination of TAP's grant is justified on that ground
alone. 6/ Consequently, we leave for another case an
analysis of the statutory and regulatory significance of
a grantee's submission and ACF's acceptance of a CAP.

ANALYSIS OF OSPRI FINDINGS

In its Motion, ACF identified 21 OSPRI Items in five
component areas that ACF alleged represented TAP's repeat
deficiencies in meeting program standards. Below we
provide a brief overview of each component, followed by a
discussion of individual or related groups of OSPRI Items
cited under the component. Under each OSPRI Item
heading, we identify the underlying regulations, review
the evidence, and come to a conclusion as to whether TAP
demonstrated compliance with the program standards
measured by the OSPRI Item.

HEALTH

The performance standards for the health component of the
Head Start program are found at 45 C.F.R. Part 1304,
Subpart C. The Head Start program emphasizes the
importance of early identification and prompt treatment
of health problems. The general objectives of this
component are to: (a) Provide a comprehensive health
services program to assist the child's development
including a broad range of medical, dental, mental health
and nutritional services; (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).

49 Dental records for each child must contain:

A. Dental exam and evaluation by qualified provider
B. Follow-up treatment for dental problems.

This OSPRI Item measures compliance with 45 C.F.R.
§ 1304.3-4(a)(3), which requires that a grantee's health
services plan provide for treatment and follow-up
services which include obtaining or arranging for basic
dental services including dental examination and
treatment of identified dental problems. At the time of
the 1995 OSPR, TAP had 171 children enrolled in Head
Start. The health component reviewer examined 37 dental
records in the three facilities operated by TAP to
measure compliance. Rodriguez testimony at 4. As
recorded in the reviewer's family tracking system (FTS)
(a form documenting findings on records reviewed (Id.
at 9)), 15 children had inadequate dental records. See
ACF ex. 3 at 491-93. The reviewer found inadequate
documentation of both dental examinations and, where
applicable, follow-up treatment. Specifically, ACF
identified at least 10 children who had been enrolled in
the program as early as June 1995 but had not had a
dental examination by the start of the 1995 OSPR
(September 18) and others who had been in the program at
least 45 days prior to the OSPR without dental
examinations. ACF Motion at 13-14.

TAP asserted that since it had been found in compliance
with Item 47 in the 1993 OSPR, its alleged noncompliance
with Item 49 in the 1995 Review was not a repeat
deficiency. TAP's reliance on Item 47 from the 1993 OSPR
is mistaken. The parallel Item from the 1993 OSPR was
Item 46. In 1993, TAP was found out of compliance with
Item 46; the reviewer found "no documentation that
children received follow-up treatment for dental problems
identified on the dental exams. There was no
documentation of completed treatment plans by a qualified
dentist." ACF ex. 14 at 785. (Coincidentally, the same
person reviewed this component in 1993 and 1995.)

TAP also contended that it was in compliance with this
Item regardless of whether it was a repeat deficiency.
TAP asserted that 60 of its 222 total enrollees were two
years old or younger and thus, dental examinations would
not have been reasonably practicable or of particular
value. TAP also cited the testimony of TAP's Health
Coordinator (Armida Bermudez) and the program's dentist
(Simon Yanez) as evidence of TAP's compliance with this
standard. Finally, TAP argued that its failure to
document the treatment of the 21 children for whom it
conceded it had no documentation was immaterial and could
not be a basis for finding in ACF's favor on this Item.
TAP Motion at 6-8.

TAP's arguments are not persuasive. ACF's findings on
this issue were not based on the absence of documentation
for 15 children out of the entire TAP enrollment (or even
the records for 21 children which, in its brief, TAP
conceded were missing). Rather, the reviewer's findings
were based on a random sample of enrollees which revealed
that about 40 percent of the required dental records for
the sample were missing, and the logical extrapolation of
this finding to the universe of children in the program.
TAP has not asserted that the sample was not random or
was otherwise skewed in some way to produce a higher
percentage of missing records. It also has not shown
that the reviewer's findings were in error because she
did not see or did not understand entries in the
children's records that showed that the needed services
were actually provided.

As we noted above, recipients of federal funds bear the
burden of demonstrating compliance with applicable
program requirements. See Lake County at 5; 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). There is no
evidence in this record which would permit us to find
that TAP met that burden for the standard in question.
Two of the three records provided by TAP with its appeal
do not appear to be records of children whose records
were included in the sample. Compare ACF ex. 1 at 190-92
with TAP ex. 8 at 320-323, 330-333, 340-347. The one
record that may match one from the sample does not
disprove the reviewer's finding because the treatment
documented there took place in October 1995. Other
records provided by TAP as supplemental exhibit M also
either do not match sampled records or postdate the
follow-up OSPR. Since the reviewer's finding was that
many (not all) children were not receiving treatment,
these documents do not show that the reviewer's finding
was incorrect. Finally, the testimony of TAP's witnesses
that TAP generally provided these services cannot
overcome the established fact that required documentation
did not exist for a substantial number of children.

In addition, even if we accepted as true TAP's assertion
that dental examinations for the children two years old
and younger would not have been reasonably practicable or
of particular value, we would still find TAP's
performance deficient. 7/ At the outset TAP identified
60 two-year-olds out of 222 children, leaving a universe
of 162 for whom TAP admits examinations would have been
practical and valuable. Although she did not testify
specifically regarding the ages of the children in her
sample of 38 records, the reviewer testified that she
placed each child's date of birth on the FTS for the
particular facility. Rodriguez testimony at 9. Our
review of those documents (ACF ex. 3 at 491-493) reveals
that the vast majority of sampled children were at least
three years old by January 1, 1995. Only five were born
in 1993, with the youngest of those apparently turning
two in late July 1995. Of these children, three were
reported as having received a complete dental exam,
despite TAP's assertion that such services were not
productive for such young children. Eliminating children
younger than two years old who did not receive a dental
exam would still result in a finding that required
documentation was missing in about 40 percent of the
cases. 8/ That level of noncompliance would still
constitute a serious violation of the regulation
underlying this Item.

51 Services required for the relief of pain or infection

52 Restoration of decayed primary and permanent teeth

53 Pulp therapy for primary and permanent teeth as
necessary

54 Extraction of non-restorable teeth

These OSPRI Items implement the requirement of 45 C.F.R.
§ 1304.3-4(a)(3) that the basic dental care services
enumerated therein are obtained or arranged. Regarding
Item 51, the reviewer indicated that the situation at TAP
was the same in 1995 as it had been in 1993, i.e., there
was no documentation that TAP had clearly and timely
documented the type of problem discovered and any follow-
up treatment recommended by the dentist. Rodriguez
testimony at 11. Regarding Item 52, the reviewer found
that there "were not a lot of children with problems, but
the ones that did have problems, there was no follow-up
documentation." Id. at 12. Moreover, the reviewer's
1995 findings on this Item were "pretty much the same" as
those she made in 1993. Id. Regarding Item 53, the
reviewer indicated that, following her 1993 findings, she
was looking for dental plans developed by the dentist or
records of contacts and/or appointments with the dentist
or, minimally, purchase orders to indicate that dental
treatment was in progress. Essentially, however, she
found that there was no supporting documentation of this
nature on record. Id. at 13. Regarding Item 54, the
reviewer's findings were the same as with the previous
three Items -- there was no dental plan or documentation
of follow-up treatment in the sampled records. Id.
at 14-15.

TAP cited the direct testimony of its Health Coordinator
(Ms. Bermudez), who testified that records were kept
which tracked dental services provided to each child.
Bermudez testimony at 3-5. The dentist providing
services to TAP also testified that the services required
by regulation were provided and recorded. Yanez
testimony at 1-2.

In large part, TAP relied on the same evidence proffered
to show compliance with Item 49 to demonstrate compliance
with Items 51-54. Thus, the testimony from TAP's
witnesses is not accompanied by any substantive
documentation which would lead us to find that TAP had
met this regulatory requirement. TAP pointed to its
supplemental exhibit M as supporting documentation. This
exhibit contains dental records for only five children
and none of these match those sampled by the reviewer.
TAP does not allege that these records are a random
sample, nor that these records document services that the
reviewer somehow overlooked in her random sample.
Moreover, as noted above, the majority of these
documented services were provided in October 1995, or
after the 1995 OSPR. Thus, they are irrelevant to our
consideration of whether TAP had brought itself into
compliance with the regulation by the time of the follow-
up review.

Consequently, we find that TAP has failed to show that it
complied with the performance standards measured by these
Items.

57 Treatment is obtained or arranged for all health
problems detected in enrolled children.

This OSPRI Item measures compliance with 45 C.F.R.
§ 1304.3-4(a)(1), which requires that the grantee's
health services plan must obtain or arrange treatment for
all health problems detected in enrolled children. 9/
In supporting her findings, the ACF reviewer pointed to
the three FTS forms from the reviewed facilities. She
noted that those forms identified children with medical
problems who had no records demonstrating that those
problems had been addressed. Rodriguez testimony at 14-
15. The reviewer testified that she brought this problem
to TAP's attention during the 1995 exit conference, but
received no response from TAP. Id. at 15-16.
Additionally, ACF noted that almost one-half the sampled
medical records had inadequate documentation of dental
examinations or follow-up treatment. This high
percentage of noncompliance in this area alone, ACF
asserted, required a finding of material noncompliance
with this regulatory requirement. ACF Motion at 27.

TAP pointed to its supplemental exhibit A (at pages 1
and 7) to show that 29 children were diagnosed as needing
medical treatment and that all 29 completed treatment.

As with the earlier Items in this component, TAP has
provided no supporting documentation which would refute
the reviewer's finding or ACF's conclusions. TAP's
supplemental exhibit A is nothing more than a statistical
reporting form for the period March through October 1995
that does not contain children's names or records. It
was incumbent on TAP to produce documentary evidence that
the medical problems of particular children in the
sample, as identified by the reviewer, had been
addressed. TAP failed to provide such evidence, and it
did not otherwise attempt to show that the reviewer's
findings were inaccurate. Accordingly, we conclude that
TAP has failed to demonstrate compliance with this
regulation.

Conclusion for the Health Component

TAP had a responsibility once it identified medical or
dental treatment needs to follow through promptly on
fulfilling those needs. The record shows that nearly all
of the children were enrolled in Medicaid, so that
payment for the services was not an issue. See TAP
supplemental exhibit (supp. ex.) A at 7. Moreover,
documents in the record demonstrate that service
providers would permit TAP personnel to take children to
their appointments if the parents consented. See TAP
supp. ex. C at 54, 57. Nevertheless, TAP failed to
provide follow-up to address identified problems in a
substantial number of cases. We find these failures to
be particularly egregious because it would be difficult
for children with dental or medical problems to receive
the full benefit of the other services provided by TAP,
for example, educational or nutritional services. See
Kolb testimony at 24.

DISABILITIES

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. A
Head Start grantee is required to develop a disabilities
service plan that includes procedures for actively
recruiting children with disabilities, for timely
screening and referral of children who may have
disabilities, for development and implementation of an
individualized education plan (IEP) for each child with
disabilities, and for coordination of efforts among Head
Start staff for meeting the needs of children with
disabilities. 45 C.F.R. § 1308.4.

157 Specific actions are taken to actively locate and
recruit children with disabilities, including children
with severe disabilities.

This OSPRI Item measures compliance with 45 C.F.R.
§ 1308.5(a). In general, the mental health component
reviewer found that TAP had not made specific recruiting
efforts for children with disabilities, nor were there
materials available to conduct such recruiting. No
member of TAP's staff was charged with the responsibility
to recruit children with disabilities into the program.
ACF ex. 8 at 617, 647. Regarding his impressions of the
TAP staff involved in administering the disabilities
component, the reviewer testified: "Basically, the
coordinator was new and she didn't seem to be
knowledgeable about the disabilities component. The
center directors didn't have much to say and appeared not
to have received much guidance from their central
office . . . ." Bermea D testimony at 5. 10/

The reviewer indicated that, in order to measure a
grantee's efforts at recruiting children with
disabilities, he normally looked for posters, newspaper
advertisements and any documentation of television
advertisements or contacts with service providers,
parents or community groups, as well as handouts. He
testified that, during his component review, he could
find no evidence of any of these materials. He cross-
checked with the disabilities coordinator and center
directors, who were unable to produce any of this
material. Bermea D testimony at 6.

TAP cited the list of contacts compiled by its Family
Services Coordinator to support its argument that it had
complied with this performance standard. See
Personal/Agency Contact Log, TAP supp. ex. H. This
exhibit consists of slightly more than four pages listing
various contacts made by the Coordinator between March
and July 1995. However, the underlying purpose of the
vast majority of those contacts is identified as "flyers
for recruitment." 11/ The Coordinator also testified
that he "personally contacted the Kern Regional Center,
the Search and Serve Department of the Kern County
Superintendent of Schools, Rafer Johnson School (. . . a
special education school) of the Bakersfield City School
district . . . during April of 1995." Alford testimony
at 5. While none of those contacts are recorded in TAP's
Contact Log, a mileage reimbursement claim form for
travel to those facilities on April 18, 1995 is included
as the next to last page of that exhibit. See Tap supp.
ex. H. While contacts reported on the Contact Log have
an entry for "purpose of contact," the record is devoid
of such information for the contacts indicated on the
travel reimbursement form, and the Coordinator offered no
explanation of the substance of those contacts in his
testimony. Thus, this documentation is not probative of
TAP's assertion that it made contacts with community
agencies and professionals who specialized in serving
children with disabilities with the specific purpose of
recruiting children with disabilities.

TAP also provided contact logs specifically titled "MHS
Disabilities Services Recruitment Contact Log" as further
proof of its compliance efforts in this area. See TAP
ex. 8 at 450-457. All contacts recorded in this log were
made in 1996 and thus are irrelevant to the issue in
question.

Finally, TAP cited a September 15, 1995 agreement
(effective September 1) with the Kern County Consortium
Special Education Local Plan Agency (SELPA) which, it
alleged, was "substantially similar to" a long-standing
verbal agreement with that organization for referral of
children with disabilities to TAP. TAP Motion at 21; TAP
ex. 8 at 474-485. However, this contract provides for
services to be provided by the SELPA to children already
enrolled in TAP's program rather than referrals by the
SELPA to TAP of children with disabilities. Therefore,
this documentation also does not demonstrate compliance
with the standard.

TAP has provided little evidence that it was even
attempting to achieve compliance with this standard. TAP
relies most heavily on the distribution of flyers by its
Disabilities Coordinator as evidence of compliance with
this standard. The distribution of flyers in the
recruitment process is an indicator (one of eight) of
compliance with the OSPRI Item 119, a general recruitment
requirement. Even though ACF found TAP out of compliance
with Item 119 in general, it did find that TAP had
successfully complied with Indicator A, regarding
distribution of flyers and bulletins. See ACF ex. 6
at 550, 558, 565. Unlike Item 119, Item 157 sets a more
specific standard, requiring "specific actions . . . to
actively locate and recruit children with disabilities."
Reviewers are instructed to interview staff and a sample
of parents and to look for evidence such as recruitment
materials, contacts with professionals and community
agencies as well as parental confirmation of recruitment
efforts of children with disabilities. The distribution
of flyers alone is no more than a general activity which
could not reasonably be categorized as a specific action
to actively locate and recruit children with
disabilities. The reviewer found no supporting evidence
to show specific efforts at recruiting children with
disabilities, contacts with professionals and community
agencies or confirmation at recruitment efforts from
parents.

TAP's noncompliance with this standard (as with all
others discussed here) was a repeat violation from the
1993 OSPR. Thus, TAP was on notice of the problem for at
least two years, but made only feeble efforts to bring
itself into compliance. For example, it did not actually
sign the contract with the SELPA until the 1995 review
was imminent. 12/ Generally, while TAP espoused
commitment to the Program standards, it produced no
documentary evidence supporting that commitment.
Consequently, based on the record before us, we find that
TAP has failed to show that it was in compliance with the
regulation underlying OSPRI Item 157.

161 There is an Individual Education Plan (IEP) for
every Head Start child with a disability and in need of
special education and/or related services.

162 Special education and related services as described
in the IEP are provided as soon as possible after the IEP
meeting.

163 Head Start IEP's are developed by a multi-
disciplinary team.

These three Items are related to the requirements of 45
C.F.R. § 1308.19 for the development and implementation
of IEPs for children with disabilities. An IEP is a
written statement for a child with disabilities which
contains the special education and related services to be
provided to an individual child. 45 C.F.R. § 1308.3(i).
Head Start regulations provide:

Every child receiving services in Head Start who has
been evaluated and found to have a disability and in
need of special education must have an IEP before
special education and related services are provided

to ensure that comprehensive information is
used to develop the child's program.

45 C.F.R. § 1308.19(b) (emphasis added).

These three Items are interrelated. ACF found that TAP
did not have IEPs for children with disabilities
(Item 161). Thus, special education and related
services, as described in the IEP, could not be provided
(Item 162), nor could the IEPs have been developed by a
multi-disciplinary team (Item 163). In the 1993 OSPR,
ACF found that TAP did not have any IEPs in place for
children with disabilities. See generally ACF ex. 19,
at 851-61.

The reviewer examined the files of children identified as
having disabilities. TAP staff indicated that when a
child was identified as possibly having a disability,
that child's classroom teacher would refer the child to a
family service worker who would contact an outside agency
charged with evaluating the children. The reviewer
determined that TAP's process was satisfactory to that
point. Bermea D testimony at 7-8. However, once the
evaluation identifying a disability was returned, the
reviewer "saw no evidence that anything else was done. I
never saw any IEPs for such children." Id. at 8.

TAP denied that its failure to have IEPs for these
children in September 1995 constituted a material failure
to comply with the disabilities standard. TAP argued
that the "missing" IEPs cited by ACF would have been
those for the 1995-96 school year, which would not have
started until late August or early September 1995. TAP
cited the regulatory definition of an IEP -- "a written
statement for a child with disabilities, developed by the
public agency responsible for providing free appropriate
public education to a child, and contains the special
education and related services to be provided to an
individual child." 45 C.F.R. § 1308.3(i) (emphasis
added). TAP noted that, consistent with 45 C.F.R.
§ 1308.19(c), it had contracted with a Local Education
Agency (LEA) to generate the IEPs, and that this
satisfied TAP's obligations under the regulation.
Moreover, TAP asserted that Item 161 did not establish a
point in time in which an IEP must be prepared. Rather,
TAP noted, the only time requirement is found in 45
C.F.R. § 1308.19(i), which requires a meeting between
parents and staff to develop the IEP within 30 days of
determination that a child has special needs. TAP argued
that these regulations were the standards by which its
compliance with Items 161, 162 and 163 should have been
measured. TAP Motion at 32-33.

Insofar as it offered any explanation for the failure to
have IEPs for children with disabilities, TAP generally
described its policies for evaluating and referring
children leading to development of an IEP. Initial
referral took one month, followed by recommendation by
the health aide, observation by the teacher, physical
examination, completion of the necessary testing and
written consent of the parents. TAP noted at least one
instance in which it took two months to get the parents'
signature on the consent form. TAP also pointed to one
case in which the referral was dated April 20, 1995 but
the LEA did not schedule the IEP meeting until
September 29, 1995. Effectively, TAP laid the blame for
the absence of the IEPs at the feet of its LEA. Id.
at 33-35.

The regulation at 45 C.F.R. § 1308.19 indicates that an
IEP may be developed by either an LEA or the Head Start
agency. Even if the usual practice was to provide for
the LEA to perform that function, the recipient of Head
Start funding bears the ultimate responsibility to see
that IEPs are developed and implemented in a timely
fashion, as they are instrumental in providing the
specialized services needed by these children. TAP has
argued that there is no firm deadline for development of
an IEP. While it may be true that the regulations do not
set a deadline for IEP development, as they do for
screening, clearly TAP should know, as a provider of
services to migrant families, that it was essential to
move quickly if it was to provide effective services to
the children that it had identified as in need of
specialized services. At a minimum, an IEP should soon
enough so that the Head Start agency can provide the
plan's services during a significant part of the program
year.

TAP intimated that the IEPs were in place in October 1995
and thus it had complied with the regulatory and OSPR
requirement. Even if these documents were relevant to
the September 1995 OSPR findings, TAP begins admitting
children into the program as early as March for a program
year ending in October. Consequently, TAP's suggestion
that these children's IEPs could not be done until
September is inaccurate. Moreover, we agree with ACF
that the only evidence in the record showed that (but for
three exceptions occurring in July) the IEP screening
process did not start until August. See TAP supp. ex. C.
Thus, these children apparently received few or no
services during the program year due to the lack of
timely IEPs. In addition, there is no evidence that TAP
completed IEPs for children in its program during 1994.

Based on the facts in the record, we conclude that one of
the major goals of the Head Start program, the provision
of educational services to children with disabilities,
was effectively ignored by TAP. As noted above, despite
the flexibility provided in the regulations, this
responsibility cannot be shifted to the LEA. TAP was
funded, in part, to provide these services to children
with disabilities. There is no evidence here that TAP
fulfilled that responsibility. Consequently, we find
that TAP failed to demonstrate compliance with the
regulations underlying this OSPRI Item.

165 The disabilities coordinator works closely with the
other Head Start staff to ensure that the special needs
of each child with disabilities are met.

This OSPRI Item measures compliance with the requirements
of 45 C.F.R. §§ 1308.18; 1308.20; and 1308.4. The ACF
reviewer testified that, before reaching his conclusion
that TAP was out of compliance with this Item, he spoke
with the disabilities and other coordinators "about
working closely concerning children with disabilities."
He noted that the Disabilities Coordinator was new and
did not know much about this subject. The other
coordinators did not provide verbal evidence of
compliance and the reviewer could find no written
evidence of compliance. Bermea D testimony at 11. When
the reviewer informed her of this problem, the Head Start
Director indicated that TAP was doing the best it could.
However, the reviewer received the impression that TAP
staff "lacked an understanding of this component and its
requirements" and, given the other major problems in the
program, "the disabilities component did not have a
priority in the program." Id.

In support of its opposition to ACF's Motion regarding
this Item, TAP relied on the arguments it proffered for
Items 161-163. Additionally, TAP asserted that its
Disabilities Coordinator worked closely with other Head
Start staff to insure that the special needs of children
with disabilities were met. TAP contended that these
efforts were documented in its supplemental exhibit C.
TAP Motion at 37.

We have discussed and found unpersuasive the evidence
offered by TAP regarding Items 161-163. We will not
repeat that analysis here. TAP's supplemental exhibit C
is documentation of the Coordinator's contacts with
program parents and service providers between July 20 and
September 1, 1995. Even assuming that all these contacts
involved children with disabilities, these documents do
not show that the disabilities coordinator works closely
with the other Head Start staff to ensure that the
special needs of each child with disabilities are met.
Thus, there is simply no evidence in the record on which
to base a finding that TAP complied with the regulations
underlying this Item.

Conclusion for the Disabilities Component

TAP did not show that it exerted the required efforts to
recruit children with disabilities, and it totally failed
to provide services beyond screening and referral to the
children with disabilities in its program. Thus, these
children's needs for special education and related
services were left unmet. That these children are from
migrant families makes TAP's failure to promptly meet its
obligations in this area very serious.

MENTAL HEALTH

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, such as providing the
opportunity for parents to obtain individual assistance.
45 C.F.R. § 1304.3-8(b)(7).

[A mental health professional shall be available, at
least on a consultation basis, to the Head Start program
and to the children to:]

73 Assist in planning mental health program activities.

This Item measures compliance with 45 C.F.R. § 1304.3-
8(a)(1). The ACF reviewer found that no mental health
professional was involved in the development of the
mental health plan. ACF ex. 1 at 194. He testified that
he asked Ms. Linda Hoyle, the mental health professional
with whom TAP had contracted, if she assisted in the
development of the mental health plan and she said "No."
Bermea MH testimony at 3.

In response to this finding, TAP provided testimony from
Ms. Hoyle which appears to directly contradict ACF's
testimony:

Q Did you or anyone else from the Child Guidance
Clinic assist in the planning of TAP's mental health
programs?

A Yes, in our June 23, 1994 proposal, David Camara
and I outlined, in a general way, the mental program
being offered by the Child Guidance Clinic. As
indicated previously, I then monitored the efforts
of [service providers] Mary Cornett and Bertha
Fraire, to see that the program was being
appropriately implemented. Additionally, I became a
member of TAP's Advisory Board in late 1994 and,
along with the other members of the Advisory
Committee, reviewed TAP's mental health program and
assisted in the ongoing planning and evolution of
that by providing feedback and input at our
scheduled meetings.

Hoyle testimony at 3. TAP also provided the June 23,
1994 proposal referred to by Ms. Hoyle, which is a letter
offering to renew an agreement from the prior year to
provide direct services to Head Start children. TAP
ex. 8 at 361-362. TAP also provided a roster of Health
Services Advisory Committee (HSAC) members for 1995
showing Ms. Hoyle as a member (TAP supp. ex. K at 148),
and documents purporting to be minutes for HSAC meetings
dated April 19, 1995 (Id. at 150-51); July 18, 1995 (TAP
ex. 8 at 366-67) 13/; and October 18, 1995 (TAP supp.
ex. K at 155-56). TAP contended that this evidence
showed that Ms. Hoyle was involved in the development of
TAP's mental health plan.

After examining TAP's testimony and documents, we have
concluded that the evidence is insufficient to establish
TAP's compliance with this program standard. The first
part of Ms. Hoyle's testimony equates proposing a
contract for providing mental health services directly to
Head Start enrollees with performing the planning
function for TAP's entire mental health program
activities. However, the limited direct services covered
by the contract are only one segment of what a mental
health program plan should contain. See 45 C.F.R.
§ 1304.3-8(b). Thus, we conclude that proposing a
contract is not equivalent to assisting in the
development of the entire mental health services
component plan.

In addition, although Ms. Hoyle testified that she was
part of the mental health plan review and approval
process, she was referring to a different time period
than that considered by the OSPRI reviewer. The reviewer
was looking for evidence that TAP had brought itself into
compliance with this requirement since the 1993 program
review, i.e., that a mental health professional was
involved in the development of TAP's mental health
program as in effect in September 1995. The April 1995
HSAC minutes indicate that HSAC members (including Ms.
Hoyle) received copies of TAP's health services component
plans and were told that these plans were to be reviewed,
revised, updated and then presented to the Parent Policy
Council and the TAP Board for approval for inclusion in
the grant application for the following year, i.e., 1996.
TAP did not provide any evidence that a mental health
professional participated in developing the plan in
effect for the 1995 grant year, even though TAP's
noncompliance with this requirement had been cited in
June 1993. In fact, the record shows that Ms. Hoyle did
not join the HSAC until November 1994, while TAP's grant
year began on September 1, 1994. Thus, she could not
have been involved in developing the mental health
component plan for the period prior to the follow-up
review.

We therefore conclude that TAP has not established that
it was in compliance with the regulatory standard
embodied in OSPRI Item 73.

79 Orient and work with parents

This OSPRI Item measures compliance with the requirement
of 45 C.F.R. § 1304.3-8(a)(7) that the grantee's mental
health professional shall "orient parents and work with
them to achieve the objectives of the mental health
program." The OSPRI reviewer marked TAP out of
compliance and commented, "There was no evidence of the
orientation of parents in the programs [sic] plan to
deliver services." ACF ex. 1 at 194. He testified, "I
spoke with the mental health professional and she didn't
do any work with parents and I spoke with parents and
they didn't indicate any contact with the mental health
professional. I didn't see any involvement there with
the parents, there were no records. At least they didn't
produce any records -- I specifically asked for records
and none were produced." Bermea MH testimony at 4.

TAP contended that it has shown that it complied with
this requirement through the testimony of Ms. Hoyle and
Ms. Armida Bermudez and by certain documents that it
submitted, including the HSAC roster and minutes
discussed above in connection with Item 73.

We find that the evidence TAP has furnished does not
satisfactorily document its compliance with this
performance standard. As discussed above, the HSAC
roster and minutes pertain to the mental health program
plan for 1996, not 1995, so that these documents do not
show that TAP had brought itself into compliance for the
relevant period. TAP's two witnesses both described in
general terms what TAP's policies were, but they did not
specifically state that these policies were implemented
during the relevant period. Given our finding that Ms.
Hoyle was apparently referring to her recent experience
with TAP in her testimony about the HSAC, we cannot
assume that she was referring to policies implemented in
1995. Moreover, neither witness affirmatively stated
that the witness had personal knowledge of the policies'
implementation, and there were no documents provided that
substantiated actions claimed to have been taken -- for
example, orientation of parents to the mental health
program at the beginning of the program year.

In addition, the documents proffered during this appeal
to show orientation of parents are also too general to
provide persuasive evidence of compliance. One is a
single report of contact with the mental health provider
stating, "Child was referred to Child Guidance.
Screening is completed. Parents participated. If child
meets criteria, case will be open [sic] and services will
be provided as soon as possible." TAP supp. ex. C at 39.
While this document shows parental involvement in
screening, it does not demonstrate that the mental health
professional was orienting and working with the parents
on a mental health program for their child, since it
appears that no treatment had yet been approved. The
other document consists of minutes of a meeting at the
Delano center that indicate that one of the mental health
provider contractors spoke on "Parent Education." TAP
supp. ex. D. There is no supporting testimony or another
document showing how this presentation related to the
regulatory requirement. We therefore conclude that TAP
has failed to show that it had a mental health
professional orient parents and work with them to achieve
the objectives of the mental health program.

81 [Mental health services shall also provide:]
Attention to pertinent medical and family history of each
child so that mental health services can be made readily
available when needed.

This Item directly mirrors the regulation at 45 C.F.R.
§ 1304.3-8(b)(1). The OSPRI reviewer marked this Item
out of compliance and commented, "Although children were
being referred for evaluation, diagnostic or treatment
services, those were not provided." ACF ex. 1, at 195.
The following is an excerpt of his testimony about his
determination on this Item:

Q: How did you make that determination?

A: What I saw there, although children were being
referred, it seemed to stop at the referral point,
no treatment was provided, as far as I could tell
from review of the records and interviews with the
staff. Children were evaluated and diagnosed, but
the treatment part of it did not happen, up to the
time I was there.

Q: In its November 1993 corrective action plan, . . .
TAP stated as its objective for this item, "Ensure
pertinent medical and family history of each child
will be properly documented and in the child's file
to be made readily available when needed" to be
accomplished "beginning 9/1/93 and ongoing." At the
time of the 1995 OSPR, had TAP accomplished this
objective?

A: As far as that was concerned, they had done that,
however, the treatment process that goes with that
had not been done. That's basically why I found
them out of compliance with that Item. The medical
history was there, but the services were not
available.

Bermea MH testimony at 5.

TAP contended that the reviewer's statements indicate
that he was judging its compliance using the
supplementary guidance for this Item, not the language of
the Item or the underlying regulation. TAP maintained
that it demonstrated compliance with the regulatory
requirement by providing an exemplar of the type of
history taken for each child for the 1995 program year
according to the testimony of Ms. Bermudez (at 3). 14/

Resolution of this dispute rests on whether ACF's
interpretation of the regulatory requirement is correct.
We agree with TAP that, on its face, the regulation does
not necessarily support the interpretation given it by
ACF in this case. On the other hand, both
interpretations are reasonable. In analyzing questions
of regulatory interpretation, the Board has previously
held that, where a regulation may be reasonably
interpreted in more than one way, a grantee may be held
accountable for the agency interpretation only where the
grantee had notice of that interpretation. Hillman
Rehabilitation Center, DAB No. 1611 (1997) at 57-58;
Connecticut Dept. of Children & Youth Services, DAB
No. 1395 (1993). In Home Education Livelihood Program,
Inc., DAB No. 1598 (1996) we applied this general
principle to hold that a grantee could not be held to be
out of compliance with an ACF interpretation where that
interpretation was not compelled by the language of the
regulations, the grantee had an equally reasonable
interpretation, and the grantee had no notice of ACF's
interpretation. Id. at 87-89.

In determining what notice this grantee had of ACF's 1995
interpretation of this regulatory requirement, we note
that ACF has not provided any evidence that it gave TAP
notice of its interpretation prior to this OSPRI by, for
example, sending it official policy interpretations.
Moreover, the OSPRI reviewer acknowledged that TAP had
complied with its CAP provision for correcting this
deficiency. Although it is not necessary for us to rule
on ACF's contentions concerning the binding effect of the
CAP (see above), certainly it would be unfair to hold TAP
to ACF's current interpretation of this regulation, if
ACF failed to notify TAP that its interpretation was
incorrect.

Consequently, we conclude that under these circumstances
TAP's interpretation is at least as reasonable as ACF's,
and that TAP had no prior notice of ACF's interpretation.
We therefore conclude that ACF's finding that TAP was
out of compliance with 45 C.F.R. § 1304.3-8(b)(1) is not
supported by this record.

87 Opportunity for parents to obtain individual
assistance

The performance standard at 45 C.F.R. § 1304.3-8(b)(7),
which is assessed through OSPRI Item 87, requires that a
grantee's mental health services plan shall provide for
the opportunity for parents to obtain individual
assistance. In his testimony, the reviewer stated that
he found TAP out of compliance because he did not see any
records of any counselling sessions with parents, and
none of the parents he spoke to knew of any parents
receiving such counselling or services. In addition, he
found that there were no records in the children's files
that parents received services. Bermea MH testimony
at 5.

TAP contended that the reviewer was wrong in interpreting
this regulation to require that the grantee document that
assistance was actually provided, since the language of
the regulation requires only that the grantee provide an
opportunity for parents to obtain individual assistance.
Nevertheless, TAP maintained that Ms. Hoyle's testimony
established that both the opportunity and actual
assistance were provided, and that the reason the
reviewer did not find records of individual counselling
sessions for parents was because such records would be
kept by the counsellor at the clinic, and would be kept
confidential.

We find that TAP has failed to show that it complied with
its interpretation of this performance standard during
the relevant period. 15/ TAP has failed to provide
the required documentation showing that services were
actually offered to parents. TAP's submission of
documents and testimony concerning presentations on
mental health made to parents in groups does not satisfy
the requirement for individual assistance. That
individual treatment records may be confidential is no
excuse for not providing them to the reviewers or the
Board, since TAP could have obscured identifying
information as it did with other confidential documents
that it submitted in this proceeding.

We also find TAP's testimonial evidence unpersuasive.
When Ms. Hoyle told the reviewer that she did not do any
work with parents (Bermea MH testimony at 4), she
certainly should have added, if it were true, that she
oversaw counselors who did work directly with parents and
that parents received such services during 1994 and 1995.
The contract that she alluded to as comprising the
mental health services plan does not include individual
assistance for parents. See TAP ex. 8 at 360-361. If
such assistance were provided, TAP should have received
either a bill or a notice of in-kind contribution, either
of which could have been submitted (with identifying
information obscured) as documentation that services were
provided.

We therefore conclude that TAP has not established that
it was in compliance with this regulation.

88 Active involvement of parents in planning and
implementing the individual mental health needs of their
children

The performance standard at 45 C.F.R. § 1304.3-8(b)(8),
which is assessed through OSPRI Item 88, requires that a
grantee's mental health services plan shall provide for
active involvement of parents in planning and
implementing the individual mental health needs of their
children. The OSPRI reviewer explained that he
determined TAP to be out of compliance because: "Again,
I didn't see any documentation. Normally you would see
sign-in sheets, meeting minutes where parents are
involved in the planning process. I asked for such
documentation and received nothing. I didn't see
anything as far as parent involvement." Bermea MH
testimony at 6.

TAP contended that it tried to involve parents but that
actual involvement depended on parents' responsiveness,
which was often difficult to obtain. TAP provided
documents consisting of "Contact Agency Sheets" that
showed the disability coordinator's efforts to meet with
parents regarding their children's referrals. TAP supp.
ex. C. TAP also contended that testimony from Ms. Hoyle
and Ms. Bermudez provided evidence of its efforts in this
area, but that records showing parent participation in
any individual child's service plan would be
confidential.

We find that although TAP knew that documentation was
required to show compliance with this standard, it did
not provide any. The 1993 OSPR finding for this Item
included a comment that, "There was no documentation of
parental input into the planning and implementation of
mental health services for their children." ACF ex. 1
at 197. The reviewer testified that he specifically
asked for documents on this Item. If such records
existed but were maintained by the mental health services
provider, the reviewer should at least have been told
this. While Ms. Hoyle testified that a therapist working
with a child would meet with parents and set up a
coordination plan to be signed by parents, TAP provided
no documents showing that this process ever actually took
place during the relevant period. TAP's only
documentation consists of referrals that were mostly to
the Search and Serve Department of the Kern County
Superintendent of Schools rather than to the mental
health service provider. There is no way to tell on the
face of the documents whether these were mental health
referrals. The few referrals to the mental health
services provider demonstrate that parents' permission
was sought but not that their input into planning and
implementing services was obtained. Thus, we conclude
that TAP has not shown that it was in compliance with
this regulatory requirement during the relevant period.

Conclusion for the Mental Health Component

As in the disabilities component, at the time of the
second OSPR, TAP had only begun efforts to bring itself
into compliance with the requirements of this component
by, for example, finally adding a mental health
professional to its Health Services Advisory Council.
The record showed that TAP failed in several important
respects to comply with the standards in this area.

SOCIAL SERVICES

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(e).

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.

119 There shall be procedures for the recruitment of
children.

This OSPRI Item measures the grantee's compliance with
§ 1304.4-2(a)(1)-(2), and reads, in pertinent part:

There shall be procedures for recruitment of
children, taking into account the demographic
make-up of the community and the needs of the
children and families and recruitment of
children with disabilities. [The reviewer
should look for] evidence of contacts with
community agencies; contacts specifically with
professionals and community agencies providing
services to children with disabilities; waiting
list, with children ranked by priority for
enrollment in the program; written criteria for
selection of children, are available and
implemented.

The reviewer found that there was no evidence that TAP
made contacts with community agencies to recruit eligible
children in general or with professionals and community
agencies providing services to children with disabilities
to recruit such children. She also observed that
applications were incomplete because they lacked
verification of income or of migrant status or had only a
name and address; and that the criteria for selection of
children were not implemented. See ACF ex. 6 at 550.
She stated that she interviewed staff, asked for
supporting documentation, and asked if staff were aware
of what needed to be done for compliance. Avila
testimony at 7.

TAP contended that it has provided testimony and
documentation showing compliance with the regulation
underlying this OSPRI Item. With respect to recruitment
of handicapped children, TAP supplied a contract dated
September 1, 1995 that it had entered into with the SELPA
for disabilities services, and its parent involvement
coordinator testified that he contacted certain named
agencies specializing in services to children with
disabilities in April 1995. TAP contended that no
waiting lists were needed, and the criteria for selection
of children did not need to be implemented, because its
program was underenrolled during the period. TAP also
maintained that it could not respond to the ACF
reviewer's findings concerning incomplete applications,
because the particular applications were not identified.

We find that TAP has failed to show that it complied with
the performance standards underlying this OSPRI Item. We
have already analyzed and found wanting the evidence
provided by TAP in support of its contention that it made
contacts with agencies and professionals specializing in
services to children with disabilities. The parent
involvement coordinator's log of contacts does back up
contacts with general community agencies, however. The
ACF reviewer testified that she had been told that this
particular coordinator was in charge of making such
contacts, but there is no indication that she followed up
to ask him if he had documentation. Therefore we find
that TAP has shown that it did make contacts with
community agencies but has not shown that it made
contacts with disabilities specialists. Given TAP's poor
record on other Items dealing with services to children
with disabilities, this deficiency is particularly
troubling.

TAP also has failed to show that it did not need a
waiting list with children ranked by priority, that it
did not need to implement its selection criteria for
children, or that the finding about incomplete
applications (which would make it impossible to implement
selection criteria to admit children ranked by priority)
was incorrect. While TAP maintained that it did not need
waiting lists because it was underenrolled, TAP's
underenrollment was due to its having limited its
services by reducing its service area so that only three
of six budgeted centers were in operation and to its
channelling of many eligible children to its state-funded
program. 16/ The record showed an "actual enrollment"
in excess of the funded enrollment at two of the three
open centers in August 1995, yet no waiting lists were
found. TAP ex. 8 at 612. TAP simply did not respond to
the ACF reviewer's finding that although TAP had a policy
for prioritizing enrollees, it was not adopted until
August 1995 and was not used to select children from a
waiting list when openings occurred. Finally, TAP's
contention that it could not attempt to rebut the ACF
reviewer's findings about incomplete applications because
it did not know which applications were reviewed is
disingenuous, as there is a list of files reviewed in the
OSPR report. See ACF ex. 6 at 556.

Consequently, we find that TAP failed to show that it met
the performance standard measured by this OSPRI Item.

130 [There is close cooperation with existing community
resources including:] Calling attention to the
inadequacies of existing community services and assisting
in improving the available services, or bringing in new
services.

This OSPRI Item implements 45 C.F.R. § 1304.4-2(b)(2),
which requires that the grantee's social services plan
shall provide for close cooperation with existing
community resources including communicating to other
community agencies the needs of Head Start families and
ways of meeting these needs. The ACF reviewer commented,
"[S]taff stated that they have just started to attend
inter-agency meetings -- attended only one so far." ACF
ex. 6 at 554.

TAP contended that it fulfilled this requirement by
training its staff to advocate for Head Start families
and by developing extensive contacts with other community
agencies, as evidenced by the testimony of its parent
involvement coordinator and Ms. Curioso, TAP's executive
director. TAP provided an agenda and sign-in sheet for
the training, and some documents showing contact with the
Local Farm Worker Committee.

We find that TAP has failed to document its compliance
with this regulation. The training agenda simply does
not show training in the type of advocacy sought by this
requirement because, when read in context, it appears
that the topic is staff advocacy for individuals referred
to community services, not advocacy for an overall
improvement in community services. Moreover, the
testimony of its staff as to contacts with other
community agencies is not supported by logs of contacts,
letters confirming the meetings, discussions, or
agreements alleged by the witnesses, or any other paper
record. The only documentation provided actually
substantiates the reviewer's finding, since it consists
of notices of meetings and agendas for the Local Farm
Worker Committee dated after the relevant period. See
TAP ex. 8 at 494-497.

We therefore conclude that TAP has not demonstrated
compliance with the regulation underlying this Item.

Conclusion for the Social Services Component

TAP was out of compliance with several significant
performance standards in this component area. These
deficiencies -- failure to maintain a waiting list with
children ranked by priority, failure to implement written
criteria for selection of children, and failure to
complete applications -- combined with its failure to
take necessary steps to recruit children with
disabilities, demonstrate that TAP did not meet this
performance standard, which is directed towards assuring
that scarce Head Start dollars were spent providing
services to the neediest of eligible children.

PARENT INVOLVEMENT

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 for
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.


144 Identification of opportunities for continuing
education that may lead toward self-enrichment and
employment

ACF contended that TAP was out of compliance with the
regulation that this Item repeats verbatim, 45 C.F.R.
§ 1304.5-3, which states, "The [Parent Involvement] plan
shall provide methods and opportunities for involving
parents in: (f) Identification of opportunities for
continuing education which may lead towards self-
enrichment and employment." The ACF reviewer indicated
on the OSPRI instrument and in his testimony that the
reason he marked TAP out of compliance was that, although
TAP made efforts to inform parents of resources and
opportunities, there was no documentation showing
referrals or individualized assistance provided to
parents in the area of self-enrichment. The reviewer
testified that, based on his experience with migrants,
referrals or distribution of information about class
availability were not enough because the migrant
population needs to get follow-up and encouragement.
Guerra testimony at 8-9.

TAP maintained that the regulation required only that TAP
have and implement a plan for offering such opportunities
to its parents, and that TAP provided documentation and
testimony showing that it fulfilled this requirement.
For example, TAP documented that it distributed to
parents a list of employment and education resources (TAP
ex. 8, at 502-506) and a flyer for English as a Second
Language classes (Id. at 507); and invited parents to
inservice training that included a presentation on "Adult
Learners" (TAP supp. ex. J at 124). TAP's parent
involvement coordinator also testified about TAP's
efforts to inform parents of community resources and to
provide opportunities for training, and he named two
parents who had succeeded in achieving the requisite
credentials in child development to work at TAP. Alford
testimony at 9-10. TAP argued that it would be
unreasonable to hold it responsible for the parents'
failure to take advantage of the opportunities offered.

Thus, once again the parties are disputing the correct
interpretation of the regulation, rather than what
efforts TAP made to bring itself into compliance with it.
In analyzing whether TAP's interpretation was reasonable
and whether it had notice of ACF's interpretation, we
note that, in marking TAP out of compliance with this
Item (numbered 140 in 1993), this same reviewer wrote,
"There is no system in place to indicate that the center
staff are assisting migrant parents to pursuit [sic] a
GED, etc." ACF ex. 18 at 847. We find it reasonable for
TAP to have read this as a finding that TAP's
noncompliance was due to its lack of a system,
particularly given that the reviewer also strongly
emphasized TAP's need for a full-time coordinator to
bring TAP into compliance with this component. Moreover,
the provisions of TAP's CAP were directed towards the
provision of information rather than individual
encouragement. ACF has not provided any evidence of a
contrary interpretation through official policy
issuances. We therefore conclude that ACF's finding that
TAP was out of compliance with 45 C.F.R. § 1304.5-3(f) is
not supported by this record.

148 There is a system for the regular provision of
information to members of policy groups. The purpose of
such communication is to enable the policy groups to make
informed decisions in a timely and effective manner, to
share professional expertise, and generally to be
provided with staff support. At a minimum, information
provided will include: A. timetable for planning,
development, and submission of proposals; B. Head Start
policies, guidelines, and other communications from ACF;
C. financial reports and statements of funds expended in
the Head Start accounts; D. Work plans, grant
applications, and personnel policies for Head Start.

Again the OSPRI Item and the underlying regulation, 45
C.F.R. § 1304.5-4(b)(1-4), are virtually identical.

The ACF reviewer marked "no" for Items A and C and also
indicated in the comment section: "There is a system in
place, but PPC [parent policy council] and parents could
not respond with knowledgeable information to indicate
they truly comprehend their role." ACF ex. 7 at 582.
The reviewer testified that he based his determination to
find this Item out of compliance, based on his finding
two of four indicators out of compliance, on his
interviews with parents. "Basically they were giving
some information but parents were not trained adequately
in how to use that information. A lot of material was
given to the parents with no instructions. Parents
couldn't tell me what their major role in the program
was, in shaping the future of their program." Guerra
testimony at 9.

TAP responded that it had a system for providing
information to its policy groups and noted that, it had
included in its appeal file a timetable for planning,
development and submission of proposals. TAP also
contended that its Policy Council minutes for 1993
through 1995 provided evidence of that system, including
evidence that financial reports and statements of funds
expended in the Head Start accounts were provided to the
Policy Council on a regular basis. TAP argued that the
reviewer did not find that TAP lacked a system for
providing information to policy group members, but made a
qualitative judgment that parents did not seem to be as
informed as they should be.

Based on the record before us, we conclude that TAP was
not in substantial compliance with this regulation. Our
examination of the 1995 Policy Council minutes for the
period prior to the reviewer's visit showed that
financial information was provided to the Policy Council
only on a sporadic basis. Moreover, it appears that only
summary or partial information may have been presented.
Thus, the record supports the reviewer's finding of
noncompliance with indicator 148C.

In addition, while the Policy Council minutes revealed
that the Policy Council was presented with component
plans, budgets, personnel policies, etc. for approval,
there was no indication that Policy Council members had
been consulted in formulating those documents. This
pattern was followed in the two timetables provided by
TAP with its initial submission. These documents were
not, strictly speaking, applicable to the relevant period
-- one had an initial deadline that fell after the review
(TAP ex. 8 at 549-553) and one was dated 1996 (Id.
at 512) -- but both timetables show that neither the
Policy Council nor any subcommittees of the larger body
were included among those responsible for development of
TAP's migrant Head Start grant application. A later
documentary submission also included a timetable for 1994
that likewise had no indication that the Policy Council
was involved in development of the grant proposal beyond
approving a finished product. In fact, the only mention
of the Policy Council was that its approval was required,
and the timetable called for that approval to take place
at the last minute. See "Administrative Time Line - TAP
Migrant Head Start Program," 9/10/94 Policy Council
attendance sheet, attachment 1 at 6(unnumbered).
Thus, not only does the record support the reviewer's
determination that TAP was out of compliance with
indicator 148C, but these documents confirm his
conclusion that TAP did not understand the requirements
of the parental involvement standard.

Consequently, we conclude that TAP has failed to
demonstrate compliance with the performance standards
underlying this OSPRI Item.


150 Effective procedures are established by which
parents and area residents concerned will be enabled to
influence the character of programs affecting their
interests.

The ACF reviewer also found TAP out of compliance with
OSPRI Item 150, which examines whether "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(a). The reviewer commented,
"Procedures are in place, but parents do not comprehend
the scope of their role in decision making." ACF ex. 7
at 600. In its Motion, ACF stated that this Item "calls
for review of plans establishing procedures to help
parents and area residents influence the program as it
affects their interests." ACF Motion at 31.

TAP contended that the evidence which it provided in
connection with its responses to Items 144 and 148 showed
that it had in place the requisite procedures for parents
and area residents to influence programs affecting their
interests. In addition, TAP stated that during its 1994
Community Needs Assessment (CNA) and 1995 CNA update, it
conducted surveys soliciting comments from the community
regarding migrant families. TAP supp. ex. Q at CNA 1994,
page 2. Furthermore, TAP pointed out that the Policy
Council Minutes for August 11, 1995 and August 31, 1995
show approval of grievance procedures for parents and
community residents.

We note that the reviewer's comment on this Item is
nearly identical to that which he made for Item 148, even
though this Item pertains to a different regulation. In
his testimony, the reviewer stated that all three Items
are interrelated, but he did not specifically explain why
the plan that he found in place did not satisfy the
regulatory requirement underlying this particular OSPRI
Item. Unlike the situation for OSPRI Item 148, where
there were particular documents required by the
regulation that were missing, while other documents
showed that TAP had adopted procedures that left parents
out of the planning process, in this instance there is
evidence that TAP actually established and implemented
procedures required by the regulations. We are left to
guess in what fashion those procedures allegedly fell
short of the regulatory requirements because ACF has not
explained what significance the parents' understanding of
their role had to TAP's compliance with the particular
regulation. Consequently, we find that the record does
not support ACF's determination that TAP was out of
compliance with the regulation measured by this Item.

Conclusion for Parental Involvement Component

TAP failed to comply with the parental involvement
standards in this component area in several important
respects. While it had made progress since the 1993
review (at which time it did not even have a functional
Policy Council), it still did not provide for parents to
have an active role in the formulation of program
policies.

MATERIALITY OF TAP'S DEFICIENCIES

We have determined above that TAP failed to comply with
the Head Start program standards measured by 19 OSPRI
Items in five component areas. ACF argued in general
that most, if not all, of these deficiencies were alone
sufficiently material to justify termination. ACF Motion
at 36. TAP addressed materiality only on a limited
basis, since it maintained that it had demonstrated
compliance with the standards.

The Board has previously held that a single violation of
program standards could be so material as to warrant
termination. Lonoke Economic Development Agency, DAB
No. 1568 (1996); and Franklin County Community Action
Agency, DAB No. 1609 (1997). In the present case, we
have found 19 deficiencies encompassing five different
component areas. Our discussion above demonstrates the
seriousness of each of these deficiencies. Taken
together, these deficiencies so clearly constitute a
material failure that we need not address whether one or
more would individually constitute a material failure.


CONCLUSION

Based on our analysis of the record, as reflected in the
discussion above, we conclude that TAP materially failed
to meet Head Start program standards. Thus, termination
of TAP's grant is warranted based on 45 C.F.R.
§ 1303.14(b)(4).


_____________________________
Cecilia Sparks Ford


_____________________________
Donald F. Garrett

_____________________________
M. Terry Johnson
Presiding Board Member


* * * Footnotes * * *

1. ACF also filed a Motion to Exclude certain
documents which ACF alleged were submitted by TAP in
violation of deadlines set by the Board. See ACF Motion
to Exclude Documents (December 20, 1996). In addition,
ACF contended, without explanation, that Policy Council
minutes submitted by TAP "are not part of the record
before the Board and therefore may not be considered by
it." ACF Response at n. 15. We have nevertheless
considered all documents submitted by TAP because we have
concluded that, even if we agree with ACF's
interpretation of the deadlines, good cause exists for
permitting TAP a full opportunity to make its case.
Consequently, we deny ACF's Motion to Exclude.
2. We have not addressed the additional OSPR
Items raised by TAP's Motion, since we find sufficient
grounds for termination within the scope of the OSPR
Items raised by ACF's Motion.
3. OSPRI items generally reflect the statutory
and regulatory requirements of the program. In most
instances, the language of the OSPRI item is
substantially similar to the language of the
corresponding statute or regulation. Although both
parties in this case frequently referred to complying or
not complying with an OSPRI item, we always measured
compliance in terms of the statutory and regulatory
requirements. 4.
5. TAP asserted that case law establishes that,
in ruling on a Rule 56 motion, a judge should consider
the evidence in the light most favorable to the non-
moving party. TAP Motion at 3-4, citing Adickes v. S.H.
Kress & Co., 398 U.S. 144, 157 (1970). However, that
principle is inapposite because, as we discussed above,
the parties have effectively requested that the Board
proceed to judgement on the record before it. Moreover,
TAP has not argued that any further proceedings are
necessary to develop evidence on disputed issues of fact
and, indeed, filed its own Motion asserting that the
record before us is sufficient to resolve most of the
disputed material facts in its favor. Thus, the legal
standards discussed in the text as generally applicable
to Head Start terminations are the applicable standards
for this case.
6. The procedure established by the Board for
these Motions had not included an opportunity for TAP to
reply to ACF's Response, since that Response was to be
limited to the new OSPRI items included in TAP's Motion.
TAP did not seek leave to reply to this new argument in
ACF's Response.
7. Moreover, the status of the November 3, 1993
CAP in this case was unclear because: (1) ACF never
responded to TAP's assertion, in its initial notice of
appeal, that ACF never actually approved or accepted
TAP's CAP (TAP ex. 3), despite ACF's contention that the
CAP was a sort of enforceable contract between the
parties; (2) there is a June 1994 letter in the record
stating that ACF was disapproving a "program improvement
plan" submitted by TAP that could be referring to the
November 1993 CAP (Id. ex. 4, at 3-4); (3) despite ACF
testimony (Kolb testimony at 12) and argument that the
CAP was a condition for continuing TAP's grant, a cover
letter for the grant award that was submitted into this
record contains no reference to the CAP (TAP ex. 4,
at 84).
8. TAP did not reference any professional
publication, text, or journal, or even obtain testimony
from the dentist who provided services to TAP's children,
to support its assertion that providing dental services
to children younger than two years old was unproductive.
9. If we subtract the five two-year-olds from
the universe of 38 sampled records, and subtract the two
two-year-olds who were missing records from the 15
overall that were missing records, the percentage is 13
out of 33 or 40 percent.
10. The regulations require that each child
receive a medical examination within 45 days after
entering a Head Start program. 45 C.F.R. § 1304.3-3(b).
11. Mr. Bermea reviewed TAP's disabilities and
mental health components, and ACF provided his written
direct testimony in two corresponding parts, both of
which start at page 1. We therefore cite this testimony
as Bermea D (disabilities) testimony and Bermea MH
(mental health) testimony.
12. Even in a general sense, not all of these
contacts appeared to involve recruitment, as some were
identified as relating to food deliveries.
13. TAP also submitted a similar contract with
the Bakersfield City School District SELPA, not signed
until December 8, 1995 or effective until February 1,
1996. See TAP ex. 8 at 462-473. As with the 1996
Disabilities Contact Log referenced above, the timing of
this document renders it irrelevant.
14. TAP's supplemental exhibit K also included
an agenda for a July 19, 1995 HSAC meeting and an undated
page of minutes identical to the second page of the
July 18, 1995 minutes provided in an earlier submission.
15. TAP cited this document as Notice of Appeal
exhibit page 369, but ACF said it could not find any such
document there. In examining the record we found that
TAP exhibit 8 at 369 was apparently the last page of a
four-page document that was apparently scrambled during
copying. The first page of this document appears at 371.
It is a document entitled, "Historia de Salud para
Preadmision del Nino," and it is a form written in
Spanish that solicits information from a child's parents
concerning her health history, nutritional habits, and
developmental history. Since this document merely
confirms the ACF's reviewer's finding that TAP obtained
health histories, we will not exclude it, even though the
Presiding Board Member had ruled early in this proceeding
that TAP must supply English translations for any Spanish
language document that it relied on.
16. Since TAP did not show compliance with its
own, more lenient interpretation, certainly it could not
have shown compliance with the ACF's more stringent
interpretation.
17. TAP cited HELP as holding that no waiting
list was required when a program was underenrolled. In
that case, however, there were no centers that were
oversubscribed. Moreover, the Board found that HELP had
exerted extraordinary efforts to recruit eligible
children for its program but had been hindered by late
funding and poor crop conditions in meeting its
enrollment goals. HELP at 79-82.

(..continued)