SUBJECT: Union Township Community Action Organization, Inc.

DECISION

Union Township Community Action Organization (Union Township CAO or UTCAO) appealed a January, 14, 2004 determination by the Administration for Children and Families (ACF) to terminate federal funding for a Head Start program under 42 U.S.C. § 9831 et seq. ACF found in a June 2003 review that Union Township CAO had failed to correct numerous deficiencies in meeting federal requirements first identified in a January 2002 review. ACF filed a motion to dismiss the appeal based on the standards for summary judgment or, alternatively, for summary disposition.

For the reasons discussed below, we grant ACF's motion for summary disposition because the written record amply supports the determination to terminate federal funding for the Union Township CAO Head Start program, and Union Township CAO has not shown a genuine dispute of material fact requiring an evidentiary hearing. In particular, we base our conclusion on the failure of Union Township CAO to submit documentation it was required to have to demonstrate compliance with requirements to provide ongoing care based on children's needs, to individualize the program to meet each child's needs, to develop a curriculum based on input from parents that addresses needs, to provide supportive training and education to parents, to have procedures to resolve parent complaints, to properly adopt organizational policies, to regularly monitor compliance by itself and its delegate agencies, and to ensure that staff files contain required information on staff backgrounds.

Factual and Procedural Background

Union Township CAO is a non-profit social services agency that provides day care, Head Start and senior services in Union County, New Jersey.

From January 28, 2002 to February 1, 2002, ACF conducted an on-site monitoring review of Union Township CAO's Head Start program using a standardized format known as the Program Review Instrument for Systems Monitoring (PRISM). The review report for this 2002 PRISM review identified a number of serious deficiencies. By letter dated May 13, 2002, ACF transmitted this report and indicated that it was requiring Union Township CAO to correct the program governance deficiencies by September 1, 2002, and to submit a quality improvement plan (QIP) to address correction of all other deficiencies. ACF Ex. 1. ACF also indicated that the QIP must identify specific corrective actions that would be taken to eliminate deficiencies and a timetable for those actions. ACF stated that "[i]n no event can a deficiency remain uncorrected for longer than one year from the date you receive this letter." Id. at 3. On October 2, 2002, Union Township submitted a QIP for approval. ACF indicated that revisions would be necessary, and Union Township CAO submitted a revised QIP on November 8, 2002 that was approved on November 27, 2002.

ACF conducted an on-site follow-up review during the week of June 9, 2003. The 2003 review report indicates uncorrected deficiencies in numerous areas. By letter dated January 14, 2004, ACF issued the notice of termination at issue. Union Township CAO timely filed an appeal and requested documents from ACF that would identify files reviewers had examined and relied on in reaching their conclusions.

ACF filed a motion to dismiss the appeal or, alternatively, for summary disposition. In support of its motion to dismiss, ACF asserted that Union Township CAO had failed to specifically identify disputed material legal or factual issues in its appeal submission, as required by the appeal regulations at 45 C.F.R. § 1304.14(d). In support of its motion for summary disposition, ACF asserted that Union Township CAO failed to raise any genuine issue of material fact, and that ACF was entitled to judgment as a matter of law.

The Presiding Board Member ⁽¹⁾ issued a ruling on ACF's motion to dismiss on August 16, 2004, concluding that dismissal was not appropriate in light of the grantee's need for further information on the factual basis for a number of ACF's findings of continued deficiency in order to have a meaningful opportunity to respond and identify disputed legal or factual issues. The ruling also contained an order for ACF to produce the requested documentation. Following that order, ACF submitted responsive material, Union Township CAO supplemented the record, and both parties submitted additional briefing. ⁽²⁾

Legal Background

Head Start is a national program that provides comprehensive child development services. 42 U.S.C. § 9831; 57 Fed. Reg. 46,718 (October 9, 1992). The program serves primarily low-income children, ages three to five, and their families. Id. The Department of Health and Human Services (HHS) through ACF awards grants to community-based organizations that assume responsibility for delivering Head Start services -- including education, nutrition, health, and social services -- to their communities. Id. A community Head Start program is required to provide for the direct participation of parents of enrolled children in the development, implementation, and management of the program. 42 U.S.C. § 9837(b).

To ensure that eligible children and their families receive high quality services responsive to their needs, Head Start grantees must comply with the Head Start Program Performance Standards codified in 45 C.F.R. Part 1304. Head Start Performance Standards (final rule), 61 Fed. Reg. 57,186 (Nov. 5, 1996). These performance standards cover the entire range of Head Start services and constitute the minimum requirements that a Head Start grantee must meet in three areas: Early Childhood Development and Health Services; Family and Community Partnerships; and Program Design and Management. Id.; 45 C.F.R. Part 1304.

HHS is required to conduct a periodic review of each Head Start grantee at least once every three years. 42 U.S.C. § 9836a(c)(1)(A). If as a result of the review the "responsible HHS official" finds that a grantee has one or more "deficiencies" -- "deficiency" is a regulatory term whose definition we discuss shortly -- the official must "notify the grantee promptly, in writing, of the finding, identifying the deficiencies to be corrected and, with respect to each identified deficiency, . . . inform the grantee that it must correct the deficiency either immediately or pursuant to a Quality Improvement Plan." 45 C.F.R. § 1304.60(b).

Not every instance of noncompliance with a Head Start requirement is a "deficiency" warranting termination pursuant to sections 1304.60(f) and 1303.14(b)(4). A grantee's noncompliance with a program performance standard or other Head Start requirement constitutes a "deficiency" if it meets one of the definitions of that term in 45 C.F.R. § 1304.3(a)(6). The definitions in sections 1304.3(a)(6)(i)(C) and 1304.3(a)(6)(iii) are relevant here. Sections 1304.3(a)(6)(i)(A) and (C) provide that a deficiency is, among other things:

An area or areas of performance in which an Early Head Start or Head Start grantee agency is not in compliance with State or Federal requirements, including but not limited to, the Head Start Act or one or more of the regulations under parts 1301, 1304, 1305, 1306 or 1308 of [title 45 C.F.R.] and which involves:

(A) A threat to the health, safety or civil rights of children or staff . . .

(C) A failure to perform substantially the requirements related to Early Childhood Development and Health Services, Family and Community Partnerships, or Program Design and Management . . . .

In addition, section 1304.3(a)(6)(iii) provides that a deficiency can be "any other violation" of the Head Start Act or regulations which "the grantee has shown an unwillingness or inability to correct within the period specified by the responsible HHS official, of which the responsible HHS official has given the grantee written notice of pursuant to section 1304.61." 45 C.F.R. § 1304.3(a)(6)(iii). Under this provision, a violation of the Head Start Act or regulations that does not constitute a deficiency under sections 1304.3(a)(6)(i)(A)-(D) or 1304.3(a)(6)(ii) is deemed to be a deficiency only after the grantee has demonstrated an inability or unwillingness to correct it within the time frame specified by the responsible HHS official. At that point, the grantee has another opportunity to correct (immediately or pursuant to a Quality Improvement Plan, as discussed below) the deficiency before funding can be terminated pursuant to section 1304.60(f) and section 1303.14(b)(4). 45 C.F.R. § 1304.61(b); The Human Development Corp. Of Metropolitan St. Louis, DAB No. 1703, at 8 (1999).

If the responsible HHS official permits the grantee to correct a deficiency pursuant to a QIP, the grantee must submit a QIP that specifies, for each identified deficiency, "the actions that the grantee will take to correct the deficiency and the time frame within which it will be corrected." 45 C.F.R. § 1304.60(c). The QIP must be approved by the responsible HHS official. See 45 C.F.R. § 1304.60(d). The period for correcting deficiencies under an approved QIP may not exceed one year from the date the grantee is notified about them. 42 U.S.C. § 9836A(d)(2)(A); 45 C.F.R. § 1304.60(c). The requirement that deficiencies be corrected within one year ensures that families receive the full benefits of the Head Start program and that grantees have sufficient incentive to take prompt action to improve their programs. Target Area Programs for Child Development, Inc., DAB No. 1615 (1997).

If a grantee fails to correct its deficiencies immediately or in accordance with the timetable specified in an approved QIP, then ACF may terminate funding. 42 C.F.R. § 1304.60(f); First State Community Action Agency, DAB No. 1877 (2003) at 9. A single uncorrected deficiency is sufficient to warrant termination of funding. 45 C.F.R. § 1303.14(b)(4) (authorizing termination for failure to correct "one or more deficiencies"); see The Human Development Corp. of Metropolitan St. Louis at 2.

The Head Start regulations at 45 C.F.R. § 1303.14(b) authorize ACF to terminate a grantee's funding based on any one of nine grounds. In its motion for summary disposition, ACF sought affirmance of its termination decision based on sections 1303.14(b)(4),(6),(7) and (9). Section 1303.14(b)(4) authorizes ACF to terminate funding if a grantee "has failed to timely correct one or more deficiencies as defined in 45 C.F.R. Part 1304" (emphasis added). Section 1303.14(b)(6) authorizes termination if a grantee "fails to comply with Head Start grants administration requirements set forth in 45 C.F.R. § 1301. Section 1303.14(b)(7) authorizes termination if a grantee "has failed to comply with the requirements of the Head Start Act." And section 1303.14(b)(9) authorizes termination if a grantee "fails to abide by any other terms and conditions of its [grant] award . . . or any other applicable laws, regulations, or other applicable Federal or State requirements or policies."

The responsible HHS official initiates a termination action by issuing a notice of termination that sets forth, among other things, the legal basis for termination, the factual findings on which the termination is based, and citations to appropriate legal authority. 45 C.F.R. § 1303.14(c). The grantee may appeal the termination action to the Board, which is authorized to conduct a hearing on the matter on behalf of the Secretary. 45 C.F.R. § 1303.14; Mansfield-Richland-Morrow Total Operation Against Poverty, Inc., DAB No. 1671 (1998). A grantee's appeal must, among other things: "[s]pecifically identify what factual findings are disputed"; "identify any legal issues raised, including relevant citations"; and "include . . . each document the grantee believes is relevant and supportive of its position." 45 C.F.R. § 1303.14(d)(2-4).

Standard for Summary Disposition

In arguing for summary disposition, ACF sets forth the standard for granting summary judgment. Summary judgment is appropriate when there is no genuine dispute as to any material fact, and the moving party is entitled to judgment as a matter of law. Lebanon Nursing and Rehabilitation Center, DAB No. 1918 (2004). The party moving for summary judgment bears the initial burden of showing the basis for its motion and identifying the portions of the record that it believes demonstrate the absence of a genuine factual dispute. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If a moving party carries its initial burden, the non-moving party must "come forward with 'specific facts showing that there is a genuine issue for trial.'" Matsushita Elec. Industrial Co. v. Zenith Radio, 475 U.S. 574, 587 (1986) (quoting Fed. R. Civ. P. 56(e)). To defeat an adequately supported summary judgment motion, the non-moving party may not rely on general denials in its pleadings or briefs, but must furnish evidence of a genuine dispute concerning a material fact ---- a fact that, if proven, would affect the outcome of the case under governing law. ⁽³⁾ Id. at 586, n.11; Celotex, 477 U.S. at 322. In deciding a summary judgment motion, a tribunal must view the entire record in the light most favorable to the non-moving party, drawing all reasonable inferences from the evidence in that party's favor. Madison Health Care, Inc., DAB No. 1927 (2004).

In Head Start termination cases, pursuant to 45 C.F.R. § 1303.14(d)(4), appellants are required to submit "copies of each document the grantee believes is relevant and supportive of its position." To the extent that compliance with Head Start performance requirements can be established only through documentary evidence, ⁽⁴⁾ a genuine dispute of fact thus is present only when the dispute is supported by documentary evidence (absent an allegation that the documentation is not available because of circumstances beyond the grantee's control). Thus, the absence of supportive documentation may be a basis for summary judgment adverse to the appellant. Moreover, summary judgment is appropriate when there is a genuine dispute of fact, but that fact is not material because it would not affect the outcome of the case. Campesinos Unidos, Inc., DAB No. 1518, at 3 (1995)(disputes of fact related to some noncompliance findings were not material where 55 undisputed noncompliance findings supported denial of refunding).

As indicated in the factual background presented above, the termination at issue was based on the 2003 follow-up review finding numerous deficiencies previously identified in the earlier 2002 PRISM review that remained uncorrected. We review below the individual deficiency findings to determine if there was a basis for termination for which summary disposition is appropriate.

As noted above, under the regulations at 45 C.F.R. § 1304.60(f), failure to correct even one deficiency either immediately or within the time specified in the QIP can be a basis for termination. As we discuss below, we uphold the termination because we find that summary disposition is warranted on the record before us. Although we find some review findings for which a hearing might be warranted to resolve disputed material facts, the termination is amply supported by the remaining grounds.

While some of the review findings discussed below may appear to be technical in nature, as a whole the review findings describe a grantee whose serious organizational problems interfered with the grantee's ability to ensure that staff furnished educational and health services in a manner to best meet the needs of the individual children and their parents. Deficiencies involving documentation, organizational structure, or program management issues are not merely technical errors or omissions. Instead, these deficiencies are evidence that the staff, the governing board, and the Policy Council are not communicating and working together effectively. Although we consider below each review finding separately, the review findings set forth a consistent pattern of Union Township CAO failing to grapple in a timely manner with the serious issues raised in the 2002 PRISM review.

1. Threshold Issue on Compliance Standards.

While Union Township CAO concedes that it must correct deficiencies to avoid termination, it asserts that to "correct a deficiency" it is not required to demonstrate full compliance, but only substantial compliance. UTCAO Appeal Request at 17. In contrast, ACF asserts that regulatory requirements for timely correction contemplate full compliance with program performance requirements. ACF Motion for Summary Disposition at 12.

The Board has previously found ACF's reading of the regulations to be reasonable. DOP Consolidated Human Services Agency, DAB No. 11689 (1999). In two subsequent cases, the issue arose of whether grantees had notice of that reading, but we did not address the notice issue because we found the grantee was neither fully nor substantially in compliance. Saginaw County Community Action Council, DAB No. 1953 (2004); First State Community Action Agency, Inc., DAB No. 1877 (2003). In this case, Union Township CAO does not raise notice issues.

Union Township CAO argues that ACF's reading is unsupportable for two reasons. First, Union Township CAO argues that ACF's reading is inconsistent with Department-wide grant regulations at 45 C.F.R. §§ 74.61 and 74.62 providing for termination only when a grantee "materially" fails to comply with grant requirements. UTCAO Appeal Request at 17. Second, Union Township CAO incorporates by reference an argument made by the grantee in First State that ACF's reading is inconsistent with the Head Start regulations because "if the grantee is substantially performing the requirements, the remaining noncompliance would no longer meet the definition of 'deficiency' in the regulation." UTCAO Reply Brief at 25-26, quoting a summary of the grantee's argument from First State at 13. ⁽⁵⁾

The Board has previously found that the Department-wide termination provisions at 45 C.F.R. §§ 74.61 and 74.62 apply to Head Start grants and limit agency termination authority to a "material" failure to comply with the terms and conditions of a grant. See Rural Day Care Association of Northeastern North Carolina, DAB No. 1489 (1994). Those prior cases predate a significant revision to the Head Start regulations, at 45 C.F.R. § 1304.60(f), providing that failure to timely correct a deficiency is considered a material failure to comply within the meaning of 45 C.F.R. § 74.61(a)(1). The issue before us now is whether ACF permissibly interprets 45 C.F.R. § 1304.60(f) to require full compliance even if substantial performance would be sufficient to avoid an initial deficiency finding. ⁽⁶⁾

In reviewing whether ACF's interpretation is permissible, we start by recognizing that Head Start grantees are required to comply with all regulatory requirements, even if the noncompliance does not rise to the level of a deficiency. 45 C.F.R. § 1304.2. Moreover, Head Start regulations permit ACF to identify noncompliance that does not rise to the level of being a deficiency. 45 C.F.R. § 1304.61(a). If a grantee fails to timely correct such noncompliance, it is "judged to have a deficiency." 45 C.F.R. § 1304.61(b). In that context, it is reasonable to judge failure to fully correct an identified deficiency as a further deficiency which could constitute a material failure to comply with the terms and conditions of an award (even though the level of noncompliance might not rise to the level of a deficiency on its own).

Even so, in our discussion of individual deficiency findings below, it would not have affected the outcome regardless of whether the evidence was assessed based on a substantial or full compliance standard. Because this is a decision on ACF's motion for summary disposition and we draw all inferences in favor of the grantee, to the extent that we found that Union Township CAO had not established a genuine issue of material fact, we considered whether it had demonstrated compliance substantial enough to warrant closer review. We did not find substantial compliance, or any level of compliance warranting further review, on those uncorrected deficiencies for which we conclude below that ACF is entitled to judgment as a matter of law.

2. Child Health and Developmental Services: Ongoing Care.

ACF cited an uncorrected deficiency in complying with 45 C.F.R. § 1304.20(d), which provides that:

Grantee and delegate agencies must implement ongoing procedures by which Early Head Start and Head Start staff can identify any new or recurring medical, dental, or developmental concerns so that they may quickly make appropriate referrals. These procedures must include: periodic observations and recordings, as appropriate, of individual children's developmental progress, changes in physical appearance (e.g., signs of injury or illness) and emotional and behavioral patterns. In addition, these procedures must include observations from parents and staff.

In the 2002 PRISM review, ACF found staff were unable to explain procedures relating to identifying individual needs and referring children for ongoing care. In the 2003 follow-up review, ACF found, based on a random sampling of children's records, that 28% of enrolled children did not receive necessary referrals and follow-up for new or recurring medical concerns. UTCAO Ex. I at 2. ACF specifically observed that the grantee was unable to complete speech and hearing screening until May 2003 and that speech services were delayed because of the absence of contracts with providers. Id. ACF also found that, because of the staff's lack of training, children were not referred for evaluation services. Id.

Union Township CAO generally denies any noncompliance with this requirement at the time of the 2003 follow-up review, but does not respond to specific findings by ACF that particular children did not receive needed referrals appropriate for obesity, hearing, vision, speech, and anemia issues, and that one child was not referred for an appropriate immunization. ACF Response to Board Order at 4; UTCAO Supplemental Reply at 5. Union Township CAO disputes ACF findings related to mental health services, disabilities services, and speech screening. UTCAO Supplemental Reply at 5. Neither mental health services nor disabilities services were a basis for the deficiency (mental health services were separately reviewed and the grantee was found to be in compliance). UTCAO Ex. I at 2; ACF Response to Board Order at 4. With respect to the speech screening and referral services, Union Township CAO asserts only that all appropriate services had been furnished by June 2003, but does not deny that speech screening services were not furnished for much of the ongoing school year (since contracts were not in place with speech service providers), and that appropriate referrals were not made "quickly" consistent with the requirements of 45 C.F.R. § 1304.20(d) cited above.

Nor does Union Township CAO dispute that it had not achieved compliance by the time frame set forth in the approved QIP, which appears to set a target date for compliance of August, 2002 (or, at latest, November, 2002) for this corrective action. UTCAO Ex. D at 20.

Because Union Township CAO does not dispute that speech screening and referral activities did not take place until on or after May, 2003, which was neither consistent with the regulation nor the approved QIP, we conclude that there is no material dispute of fact related to this deficiency.

Union Township CAO's principal argument is that this deficiency did not exist at the time of the 2002 review, and thus was not properly a basis for termination since Union Township CAO did not have an opportunity for correction. UTCAO Reply Brief at 7. The problem with this argument is that the 2002 PRISM review did, in fact, cite this specific provision and included findings related to it. ⁽⁷⁾ UTCAO Ex. C at 8. ACF's letter transmitting the 2002 PRISM review report also included reference to these findings. ACF Ex. 1, at 2. Union Township CAO does not suggest that it had previously objected to the 2002 review findings in any way, so it clearly had notice that compliance with this requirement was at issue.

Based on the undisputed facts related to this deficiency, we conclude that ACF is entitled to judgment on this deficiency as a matter of law.

3. Child Health and Developmental Services: Development and use of information for individualization of programs.

ACF cited uncorrected deficiencies related to 45 C.F.R. § 1304.20(f)(1), which requires that:

Grantee and delegate agencies must use the information from screening for developmental, sensory, and behavioral concerns, the ongoing observations, medical and dental evaluations and treatments, and insights from the child's parents to help staff and parents determine how the program can best respond to each child's individual characteristics, strengths and needs.

In the 2002 PRISM review, ACF found staff did not follow the procedures that Union Township CAO had adopted for Child Development Plans; specifically, ACF found that overall record keeping was inadequate and non-uniform and records did not contain individualized goals, daily efforts and observations. UTCAO Ex. C, at 8. In the 2003 follow-up review, ACF found that initial home visits were not fully documented and home visit reports did not contain substantive information needed to develop individualized plans for children. UTCAO Ex. I at 3. ACF also found that daily plans reviewed at three centers had little documentation of individual progress, strengths and needs, and that children's records lacked a plan of action using all documented screening information. Id.

In response, Union Township CAO asserts generally that it was in compliance at the time of the review and specifically challenges the accuracy of the ACF review of home visit records and the records of specific children. ⁽⁸⁾ While Union Township CAO does not challenge the overall methodology used by the reviewers, Union Township CAO submitted certain records that the reviewers had relied upon, and argues that those records do not support the reviewers' conclusions. ⁽⁹⁾

The records Union Township CAO submitted address only three of twelve children identified by ACF as the basis for its findings. Compare UTCAO Exs. A-2 to A-4, Letters from Ms. Kozak to Ms. Hatfield, dated September 21, 2004 and October 1, 2004, and ACF File #1. ⁽¹⁰⁾ For these three children, there was a report of an initial home visit for each child and there were also substantial notes and observations that could be used to develop individualized programs. And there were at least some individualized written plans prepared for use during the relevant school year for two of the three children (the individualized education plan in UTCAO Exhibit A-2 was not prepared until June, 2003, when the local school district was involved). While the initial home visit reports were not very detailed, we cannot determine from these reports alone that the individualization for these children did not meet the regulatory requirement. ⁽¹¹⁾ Thus, we conclude that Union Township CAO raised issues of disputed fact with respect to the sufficiency of individualization efforts for these three children.

But disputed facts with respect to three children are not material when Union Township CAO does not submit documentation to contest the absence of individualization with respect to the other nine children whose records ACF reviewed. Applicable regulations specifically require that an appellant submit "each document the grantee believes is relevant and supportive of its position." 45 C.F.R. § 1303.14(d)(4). By not submitting any supportive documentation, the grantee has not placed in dispute the findings for those nine children. Nor does Union Township CAO dispute ACF review evidence that teachers did not complete daily lesson plans that included individualization. ACF Response to Board Order at 2, ACF Ex. A-1.

Lacking any genuine dispute with respect to the absence of individualized plans for six of the twelve children reviewed, or any dispute with respect to the absence of teachers' individualized lesson plans, we conclude that Union Township CAO has not documented compliance with the individualization requirement, and that ACF is entitled to judgment as a matter of law on this deficiency.

4. Child Development and Education: Curriculum Approach for Preschoolers.

ACF cited uncorrected deficiencies related to 45 C.F.R. § 1304.21(c)(1), which requires that "[g]rantee and delegate agencies, in collaboration with the parents, must implement a curriculum" that meets certain requirements, such as supporting "each child's individual pattern of development and learning" and helping children "develop emotional security" and an "understanding of self as an individual and a member of a group." A "curriculum" is defined as a "written plan" that includes "goals" for children's development and learning, planned "experiences" to achieve these goals, staff and parent input needed to achieve these goals, and materials needed. 45 C.F.R. § 1304.3(a)(5). ACF also cited uncorrected deficiencies related to 45 C.F.R. § 1304.21(c)(2) requiring that "[s]taff must use a variety of strategies to promote and support children's learning and developmental progress based on the observations and ongoing assessment of each child."

ACF found two deficiencies related to these regulatory requirements. First, ACF found little evidence that the curriculum was individualized for children. UTCAO Ex. I at 3. Second, ACF found that parents interviewed had not been involved in the selection of curriculum, or consulted in setting goals. Id. at 4. ACF also submitted evidence that its reviewers had directly observed classes and found limited attempts to support cultural diversity, and little teacher understanding of the different strategies for supporting child development and individual learning styles. Id. ACF reviewers also found no evidence in teachers' lesson plans that teachers adjusted the curriculum to address individual developmental and learning needs, and provided the identity of six teachers who were interviewed on curriculum issues. Id. ACF reviewers specifically questioned whether the curriculum supported the cultural diversity in the classroom. Id.

Union Township CAO argues that these findings were placed in dispute by the same evidence of individualization discussed above with respect to the individualization of children's programs. UTCAO Reply to ACF Response to Board Order at 4. This argument, and the accompanying evidence from children's records, addresses only the deficiency related to individualization, and not the deficiency related to selection of the curriculum. The curriculum is an overarching structure for the subject and content of classroom activity. 45 C.F.R. § 1304.3(a)(5). With respect to the curriculum, Union Township CAO proffered no evidence to dispute ACF's specific evidence that reviewers found that parents were not consulted on selection of the curriculum (based on interviews with identified parents) and that teacher lesson plans showed no evidence that teachers adjusted the curriculum. ⁽¹²⁾ UTCAO Ex. I at 3-4. While Union Township CAO asserted that ACF's findings were "vague and unspecific," it did not dispute any of the specific evidence offered by ACF. Instead, Union Township relied solely on its argument that all ACF evidence was placed into dispute by the evidence contained in individual children's records.

Based on the undisputed specific evidence submitted by ACF that parents were not involved in the selection of curriculum, that teachers did not integrate individualized curriculum approaches into lesson plans, and that the curriculum did not support cultural diversity in the classroom, we conclude that ACF is entitled to judgment on this deficiency as a matter of law.

5. Family and Community Partnerships: Parental Involvement in Child Development and Education.

In the 2002 PRISM Review, UTCAO Exhibit C at 15-16, ACF found that Union Township CAO lacked a formalized system to assure that parents were given opportunities consistent with the requirement at 45 C.F.R. § 1304.40(e)(3) that:

Grantee and delegate agencies must provide opportunities for parents to enhance their parenting skills, knowledge, and understanding of the educational and developmental needs and activities of their children . . . .

In the 2003 follow-up review, ACF found that the grantee did not include in its training and workshops topics that "would enhance parent skills, knowledge and understanding of the education and development needs and activities of their children." UTCAO Ex. I at 6. The reviewers also found that the grantee did not "take advantage of the audience of parents during monthly parent committee meetings to discuss such topics." Id.

In response to these findings, Union Township CAO stated that "[a]t the time of the review, however, the UTCAO had implemented a training program and a series of workshops addressing all topics related to child development, child abuse and neglect, health, disabilities, mental health, literacy and transition. Training has been ongoing since 2003." UTCAO Reply Brief at 10. This allegation does not specifically address whether Union Township CAO had achieved compliance by the dates set forth in its QIP or even within a year after the 2002 PRISM review. UTCAO Ex. D at 15 (mislabeled as addressing 1304.50). Moreover, Union Township CAO submitted no documentary evidence to support even the allegation that it was in compliance at the time of the 2003 follow-up review. Union Township CAO submitted written policies and procedures that refer generally to parental involvement, including references to training and workshops for parents. UTCAO Ex. J and M. But the only specific evidence documenting that any actual training was provided during the year following the 2002 PRISM review consists of references in Parent Meeting minutes to "meal planning" discussions at two meetings (at different centers). UTCAO Supplemental Ex. D. There were no other descriptions, calendar items, agenda or other documentary evidence to show training or workshop sessions for parents prior to the 2003 follow-up review. Although Union Township CAO asserted that ACF had conceded that there had been some training and workshops, that assertion is not supported by the cited reference to ACF's brief. UTCAO Reply Brief at 10 citing ACF Brief at 21; see ACF Reply Brief at 11. ⁽¹³⁾

The availability of parent training and educational opportunities would, by its nature, be reflected in documentary evidence indicating that training was scheduled and carried out. Absent a proffer of specific evidence of timely parent training and educational opportunities on the cited topics, we conclude that ACF is entitled to judgment on this deficiency as a matter of law.

6. Program Governance Issues: Policy Council or Policy Committee.

ACF regulations require that Head Start grantees establish and maintain a formal structure of shared governance through which parents can participate in policy making or other decisions that includes a Policy Council and (except in some instances) Policy Committees. Pursuant to § 1304.50(d)(1)(ii):

Policy Councils and Policy Committees must work in partnership with key management staff and the governing body to develop, review and approve or disapprove the following policies and procedures: . . . (ii) Procedures describing how the governing body and the appropriate policy group will implement shared decision making.

In the 2002 PRISM review, ACF reviewers found that Union Township CAO lacked written procedures describing how the Board of Trustees (the governing body) and the Policy Council and policy committees implemented shared decision making. ACF indicated that, as a result, there was a lack of a partnership between key management staff, the governing body and the Policy Council and policy committees. ACF provided some examples of conflicts between the Policy Council and the Board of Trustees. UTCAO Ex. C at 23-24. In the 2003 follow-up review, ACF found that written procedures for shared decision making had been developed, but had never been presented to the entire Policy Council for approval. ⁽¹⁴⁾ ACF reviewers then reviewed the structure and makeup of the Policy Council, and found that Policy Council elections had not been held at two centers, the Policy Council was operating with fewer members than required under the bylaws, and the Policy Council was not functioning as a partner in shared governance. UTCAO Ex. I at 7.

Union Township CAO argued first that the requirement for approval of shared governance policies by the Policy Council was not an appropriate basis for termination because ACF first raised the issue in the 2003 follow-up review and not in the earlier 2002 PRISM review. UTCAO Response Brief at 11. We disagree. In the 2002 PRISM Review, ACF focused on the absence of any written procedures for shared decision making, but noted the full regulatory requirement that those written procedures were one of the key elements that needed to be jointly developed, reviewed and approved. UTCAO Ex. C at 23. Thus, Union Township CAO was on notice that the failure to have written procedures that were jointly developed and approved was an integral part of the deficiency finding.

With respect to the specific flaws in the Policy Council structure and makeup that ACF reviewers identified, Union Township CAO generally indicated that "[d]uring the past 2 years, UTCAO has made significant improvements in its Program Governance which demonstrate that it is and has been in compliance with this requirement." UTCAO Response Brief at 11. But Union Township CAO did not submit any specific documentary evidence to place in dispute the findings that the Policy Council did not have the required number of members. (Although Union Township CAO submitted an undated list of "2003/2004" members of the Policy Council at UTCAO Ex. L at unnumbered page 7, that did not specifically draw into question the ACF finding as of June, 2003 that the Policy Council did not have the required number of members.)

Furthermore, while Union Township CAO asserts that it had a number of strategies to ensure shared decision making, it submitted no documentary evidence of either its shared decision making procedures or actions. Union Township argues that its shared decision making was shown in diverse documentation not submitted into this appeal record, including the "Parent Handbook, Policy Council Meeting Minutes, Parent Committee Meeting Minutes, Family Advocate Reports, Board of Directors Meeting Minutes, Training documentation, Governance Procedures, Letters, Memos, Flyers, email and Web Site." UTCAO Response Brief at 12-13.

In light of the requirement at 45 C.F.R. § 1303.14(d)(4) to submit all relevant and supportive documents for the record on appeal, the mere mention of supportive documentation does not raise a genuine issue of disputed material fact. Moreover, even if Union Township CAO had submitted some of the cited documentation, or explained why the documentation could not be submitted, Union Township CAO did not demonstrate that the documents would have placed in dispute ACF's finding. The cited documents appear to address the issue of whether there actually was some shared decision making, which is not inconsistent with ACF's finding of a deficiency. ACF reviewers expressly found in the 2002 PRISM review that the Policy Council is "selectively involved" in decision making. UTCAO Ex. C at 24. The deficiency related to the lack of approved, written procedures to ensure shared decision making as a routine practice.

Since Union Township did not dispute that procedures for shared decision making had not been approved by the Policy Council, and did not proffer evidence that the Policy Council had the required number of members, we conclude that ACF is entitled to judgment on this deficiency as a matter of law.

7. Program Governance Issues: Policy Council Procedures for Resolving Community Complaints.

Pursuant to 45 C.F.R. § 1304.50(d)(2)(v), the Policy Council (and Policy Committees if applicable) must "establish and maintain procedures for working with the grantee or delegate agency to resolve community complaints about the program."

In the 2002 PRISM Review, ACF found that the Policy Council had not established and maintained procedures for working with the grantee or delegate agency to resolve community complaints about the program. The 2003 follow-up review report states that ACF reviewers interviewed parents from various centers who indicated that, when complaints are made, no action or follow-up is done. The report also indicates that review of program records and files showed "little evidence that any complaints are acted upon." ACF submitted records of a family focus group that contained entries that supported the conclusion that procedures were not in place to effectively resolve community complaints. ACF Folder 5.

Union Township CAO asserts that the documentation ACF provided did not support ACF's findings. Union Township CAO asserts that the family focus group was not a representative sample. UTCAO Reply to ACF Response to Board Order at 6. More significantly, Union Township CAO asserts that the family focus group results showed that parent complaints were acted upon. Id. Union Township CAO also submitted announcements and minutes of Policy Council and Parent Committee meetings. UTCAO Ex. D.

Our review of the ACF documentation indicates some evidence that procedures were not in place to effectively resolve community complaints. While it is clear that there was some improvement in grantee procedures over the course of the year, and the ACF materials do not trace the timing of the unresolved complaints, the documentation is sufficient to call into question the grantee's compliance. Furthermore, the announcements and minutes of Parent Committee meetings indicate that parents expressed complaints and concerns, but there is no indication that those complaints and concerns were resolved or otherwise investigated. UTCAO Ex. D. This documentation does not, on its face, support Union Township CAO's assertion that parent complaints were acted upon.

While Union Township CAO asserts that the ACF methodology did not definitively establish noncompliance, Union Township CAO neither submitted nor proffered documentary evidence showing affirmative compliance, such as the number of complaints received and resolved, or any formal procedures for resolving complaints. Although for purposes of summary judgment we review the evidence drawing all inferences in favor of the non-moving party, we cannot find in favor of Union Township without any proffer of specific evidence indicating compliance with the requirement to have procedures to resolve community complaints.

In the absence of any proffer of specific evidence that might show compliance with this requirement, we conclude that ACF is entitled to judgment on this deficiency as a matter of law.

8. Management Systems and Procedures: Program Planning.

In the 2002 PRISM review, ACF reviewers found that written plans for implementing services had not been reviewed and approved by the Policy Council in accordance with 45 C.F.R. § 1304.51(a)(2). In the 2003 follow-up review ACF reviewers found that such plans had still not been reviewed and approved by the Policy Council, but instead had only been reviewed by the Policy Council Chairperson. UTCAO Ex. I at 8. Union Township CAO asserted, without specific documentary support, that "all written content area program plans have been presented to the entire Policy Council for approval." UTCAO Response Brief at 14. This statement does not place in dispute the ACF finding that the content area program plans had not actually been approved, since presenting plans for approval is not the same as having the plans approved. Since the lack of approval was not disputed, we conclude that ACF is entitled to judgment on this deficiency as a matter of law.

9. Management Systems and Procedures: Self-Assessment and Monitoring.

Pursuant to 45 C.F.R. § 1304.51(i)(2), "[g]rantees must establish and implement procedures for the ongoing monitoring of their own Early Head Start and Head Start operations, as well as those of their delegate agencies, to ensure that these operations effectively implement Federal regulations."

In the 2002 PRISM review, ACF found that Union Township CAO had "not developed a monitoring system that includes policies and procedures or outlines the types of monitoring tools, schedules, persons assigned responsibility, and how findings are utilized for follow-up." UTCAO Ex. C at 32-33. In the 2003 follow-up review, ACF found that the program did not have effective procedures for ongoing self-assessment in many content areas, and did not have procedures to monitor delegate agency operations. UTCAO Ex. I at 9. Union Township CAO generally denied this finding and included in its briefing discussion of specific self- assessment and monitoring procedures. UTCAO Response Brief at 14-16. But Union Township CAO provided no documentation to support these statements in its briefing. ⁽¹⁵⁾

An effective self-assessment and monitoring process would necessarily result in a paper trail of findings and supporting analysis. The approved QIP refers to "[w]ritten monthly reports" monitoring compliance. UTCAO Ex. D at 29. Union Township failed to proffer evidence that it took steps consistent with its own representations to correct the cited deficiency. Even assuming that the statements in the Union Township CAO briefing amounted to a proffer of testimony, absent any supporting documentation, we find that no rational trier of fact could find that Union Township had shown compliance with this requirement. As a result, we conclude that ACF is entitled to judgment on this deficiency as a matter of law.

10. Human Resources Management: Staff Training.

ACF reviewers found that Union Township CAO did not have "a system or plan to assure that staff and volunteers receive ongoing training opportunities" consistent with regulatory requirements at 45 C.F.R. § 1304.52(k) that detail specific training requirements. ACF reviewers indicated that this finding was based on a review of "plans, personnel files, Training Manual, policies and interviews with the Human Resource Director and Management Consultant." UTCAO Ex. I at 10. While ACF reviewers found some specific training was provided, UTCAO Exhibit I at 11, they nevertheless concluded that this training was not provided in accordance with an overall structured approach to training.

In response, Union Township CAO submitted policy documents showing policies stating that Union Township CAO would provide for a "structured approach for staff, consultant, and volunteer training and development." UTCAO Ex. K at 1. Union Township CAO provided no documentary evidence, however, to explain the nature of the structured approach to training and development. Specifically, in its response brief, Union Township CAO alleges that it had a structured approach to training without reference to any written documentation, and without a clear explanation of the nature of the structured approach. UTCAO Response Brief at 17. While ACF responds that these unsupported allegations were not credible absent documentary evidence, ACF points to no requirement that grantees must detail their structured approach in writing.

In sum, there is some evidence in the record that staff had received some training, and there is no requirement to detail the training strategy in writing (or to obtain formal approval for the strategy). Union Township alleged that it had a training strategy and, since a training strategy could be established through testimony, we accept those allegations as a proffer of testimony on the issue.

We conclude that there is a genuine dispute of fact as to this deficiency. A hearing could be useful in determining whether or not the grantee provided staff training using a structured approach. Thus we conclude that ACF is not entitled to judgment on this deficiency as a matter of law. ⁽¹⁶⁾

11. Human Resources Management: Organizational Structure.

In the 2002 PRISM review, ACF reviewers found deficiencies in meeting a number of requirements because of vacant staff positions, problems with the organizational structure, and a lack of clear definition of staff responsibilities resulting from the high number of vacant staff positions. UTCAO Ex. C at 35-38. In the 2003 follow-up review, ACF found that, in light of the numerous vacancies in staff positions, the grantee was not in compliance with the requirement to "establish and maintain an organizational structure that supports the accomplishment of program objectives" as required by 45 C.F.R. § 1304.52(a)(1). ⁽¹⁷⁾ UTCAO Ex. I at 10. In this appeal, Union Township CAO responds by stating that "[m]ost, if not all, of the vacant positions identified by the ACF were or have been filled." UTCAO Reply Brief at 18. Union Township, in its briefing, listed 11 specific positions. Of those listed positions, by its own account, some were filled subsequent to the review period. Id. Union Township CAO further states that the cited vacancies arose and were filled in the ordinary course of program operations and that this does not demonstrate a failure of the organizational structure. UTCAO Reply Brief at 18-19.

The issue of whether staff vacancies demonstrate that a grantee is deficient in establishing and maintaining an appropriate organizational structure is an issue that cannot be appropriately resolved on the current documentary record. Thus, we find that there is a dispute of fact as to this deficiency. A hearing might be useful in developing the record to resolve this dispute. We conclude that ACF is not entitled to judgment on this deficiency as a matter of law.

12. Human Resources Management: Background Reference Checks and Declarations.

In the 2002 PRISM review, ACF reviewers found that nine of ten personnel files reviewed lacked background information required by 45 C.F.R. § 1301.31(b). UTCAO Ex. C at 36. In the 2003 follow-up review, ACF reviewed 11 personnel files and found that some required information was missing from each of these files. UTCAO Ex. I at 12. ⁽¹⁸⁾

Union Township CAO submitted no documentation in response to the ACF finding, but asserts in briefing that "[a]t the time of the 2003 Review, the UTCAO provided all personnel files showing evidence of reference checks and declarations." UTCAO Reply Brief at 20. Union Township CAO further indicates that, subsequent to the 2003 Review Report, Union Township CAO conducted an internal audit to verify compliance and put in place safeguards to ensure compliance. Id. Union Township also asserts that disputes as to its compliance could be resolved only by reviewing the personnel records, and offered to supply all records to show compliance. Id.

We find that Union Township CAO did not make a sufficient showing to raise a genuine dispute of fact. ACF provided evidence that its reviewers had examined actual personnel records for 11 employees and Union Township CAO did not explain why their review was not accurate. Moreover, as Union Township CAO itself recognized, the requirements are documentary in nature and compliance ultimately can be demonstrated only by documentation. UTCAO Reply Brief at 20. While it may have been burdensome to supply all personnel records, we are not saying that such an action was necessary to raise a genuine dispute of fact. As noted above, Union Township CAO did not challenge the ACF review findings for a sample of personnel records. Nor did Union Township enter into the record any other documentation that would support its allegations. For example, Union Township CAO asserts in its reply brief that it had conducted an "internal personnel audit" to verify compliance. UTCAO Reply Brief at 20. But Union Township CAO did not submit into the record any copy of such an audit, nor any auditor notes.

Because this requirement is documentary in nature and the grantee failed to submit documentation to demonstrate compliance, we conclude that ACF is entitled to judgment as a matter of law on this deficiency.

13. Fiscal Management: Financial Controls.

In the 2002 PRISM review, ACF reviewers found that the final financial report (SF-269) for the period ending June 30, 2001 could not be reconciled with the grantee's accounting records. ⁽¹⁹⁾ UTCAO Ex. C at 42. In the 2003 follow-up review, ACF found that the final financial report for the period ending December, 2002 did not agree with the grantee's accounting records. UTCAO Ex. I at 14. ACF reviewers specifically cited the omission of reporting of expenditures related to hail storm damage, but also cited the opinion of a Union Township CAO fiscal consultant indicating that he was not comfortable with the reported expenditures absent a complete reconciliation. Id. ACF concluded that there was an uncorrected deficiency in meeting the requirements at 45 C.F.R. § 1304.50(g)(2), which requires appropriate internal controls to safeguard federal funds, and 45 C.F.R. § 74.21(b), which requires that financial management systems provide for "accurate, current and complete disclosure of the financial results." UTCAO Ex. I at 12-13. ⁽²⁰⁾

Union Township CAO argues that the 2003 findings did not represent a failure to correct the deficiency set forth in the 2002 PRISM review, because the 2003 findings were largely based on hail storm damage expenditures that were unique to the later period. UTCAO Reply Brief at 21. Union Township CAO also asserts that there were indeed some documented expenditures in its final financial report related to the hail storm damage and explains that other hail storm budgeted amounts were accounted for as part of unobligated balances listed in the final financial report. Id.; UTCAO Ex. 0-3. Union Township CAO did not, however, provide any source documentation to trace hail storm damage expenditures reported in its final financial report. ⁽²¹⁾

We find unavailing Union Township CAO's arguments that ACF's finding was inappropriate because the precise problem with the accounting documentation was not cited previous to the 2003 follow-up review, since Union Township CAO was on notice from the 2002 PRISM review that its accounting processes and reports had been found deficient.

Nevertheless, Union Township presented sufficient documentation to raise a dispute of material fact related to the audit finding. The evidence presented does not squarely address the specific finding that the final financial report was not accurate and complete. On this motion for summary disposition, however, we draw all inferences in favor of Union Township CAO. In that light, we cannot definitively find that the information set forth in UTCAO Exhibits O-3 and O-5 would not be directly responsive if presented in context and explained more thoroughly. While accounting requirements are documentation requirements that should ordinarily be resolved on written documentation, accounting issues are very complex and in this instance we cannot rule out the possibility that further development of the meaning of the written documentation would be probative.

On the issue of the accuracy and completeness of Union Township CAO's financial controls, we conclude that there is a genuine dispute of fact, and thus ACF is not entitled to judgment on this deficiency as a matter of law.

Conclusion

For the reasons discussed above, we grant ACF's motion for summary disposition because the written record amply supports the determination to terminate federal funding for the Union Township CAO Head Start program, and Union Township CAO has not shown a genuine dispute of material fact requiring an evidentiary hearing.

Judith A. Ballard

Donald F. Garrett

Daniel Aibel
Presiding Board Member

1. Judith A. Ballard was the designated Presiding Board Member for this case at that time. This designation was subsequently shifted to Daniel Aibel.

2. The Presiding Board Member specifically requested that Union Township CAO clarify if it alleged that it took corrective action within the deadlines in its Quality Improvement Plan (QIP) or only by the time of the June 2003 review. As we discuss below, failure to meet such deadlines can be a basis for termination. Union Township CAO's Supplemental Response Brief at 5 indicates "the UTCAO's position that it took corrective action on each alleged deficiency by the June 2003 review." While this statement appears to concede that the QIP deadlines were not met, we are not specifically relying on those deadlines here, in part because ACF did not rely on the QIP deadlines as a basis for termination. We note in our discussion below, however, several areas in which Union Township CAO did not take the actions described in the QIP even by the time of the June, 2003 review.

3. In this case, we did not specifically require the non-moving party (Union Township CAO) to submit written statements of anticipated direct testimony in response to the ACF Motion for Summary Disposition. Thus, we assume for purposes of summary judgment that Union Township CAO would present written direct testimony, as contemplated by 45 C.F.R. 1303.16(d), to support statements made in its briefing papers. As we discuss below, however, testimonial evidence may not be material or probative in resolving disputes concerning documentation requirements.

4. The regulatory performance requirements for Head Start grantees include express documentation requirements. See, e.g., 45 C.F.R. §§ 1304.3 and 1304.21(c) (requiring a curriculum, defined as a "written plan," that meets certain requirements). In addition, compliance with certain other requirements can only be demonstrated by documentation in records kept in the ordinary course of business. See, e.g., 45 C.F.R. § 1304.50(c) (approval of shared decision-making procedures by the Policy Council).

5. Union Township CAO does not address the point that the substantial performance standard is integrated into the definition of a deficiency only as it relates to requirements concerning Early Childhood Development and Health Services, Family and Community Partnerships, or Program Design and Management. 45 C.F.R. § 1304.3(a)(6)(C). Some of the deficiency findings we uphold below pertain to other types of requirements.

6. The prior regulations did not specifically define a deficiency or address failure to correct a deficiency. Under the prior regulations, in Home Education Livelihood Program, Inc., DAB No. 1598 (1996), the Board found that noncompliance was not material under 45 C.F.R. § 74.61(a) when it did "not compromise HELP's ability to provide quality Head Start services." That holding is not consistent with the current regulations, which clearly emphasize the importance of correcting identified deficiencies and noncompliance.

7. Although the precise evidence supporting the 2002 and 2003 review findings may not be the same, as we have previously indicated, all that is necessary is sufficient similarity in the findings to provide notice that the grantee needed to come into compliance with the requirement at issue. First State Community Action Agency, Inc., DAB No. 1877 (2003). In this case, there is sufficient similarity to provide such notice. In the 2002 PRISM review, ACF found a lack of documentation to demonstrate timely ongoing screening and care for children. Even if documentation had improved at the time of the 2003 review, that documentation did not demonstrate timely ongoing screening and care. Also, while the failure in the 2002 PRISM review was framed in terms of staff knowledge of the procedures, the regulation clearly requires that the procedures not only be communicated to staff, but be "implemented. 45 C.F.R. § 1304.20(d).

8. Union Township CAO also submitted a document that it identified as a Governance Training Document, but that document does not appear to be relevant to the issue of individualized programs for students; instead it discusses overall management issues including a self-assessment process for the entire program. UTCAO Exhibit A-1. Union Township CAO submitted a general program policy statement indicating that the program recognizes the requirement for individualized programs, UTCAO Ex. J at 8 (Policy ID HD06), but this general policy statement does not place in dispute ACF's specific evidence of noncompliance with the regulatory requirement.

9. Union Township CAO suggests that the documentation that ACF relied on was incomplete: for example, by noting that ACF did not cite to an Observation Instrument for the Roselle facility. UTCAO Supplemental Brief at 2, fn. 2. If so, Union Township CAO has the burden to supplement the record and submit relevant documentation supporting its position, pursuant to 45 C.F.R. § 1303.14(d)(4). The Board's August 16, 2004 Ruling and Order, which required ACF to produce information on the basis for its review findings, specifically provided Union Township CAO an opportunity to supplement the record for this purpose.

10. Union Township CAO also submitted records for four other children that were not reviewed by ACF. UTCAO Supplemental Reply at 3; UTCAO Exs A-5 to A-8.

11. There is a question as to whether Union Township CAO could meet its ultimate burden, even with a hearing, to establish compliance even for these children in the absence of uniform documentation of individualization. Union Township CAO did not deny the finding by ACF reviewers that its record keeping lacked uniformity in documenting individual observations and individualization of the program. While there is no regulatory requirement for such uniformity, Union Township CAO specifically committed in its QIP to develop a "uniform system for all Head Start children that will monitor individualized child development" and include an "integrated child/family portfolio" as a means to correct deficiencies in individualization. UTCAO Ex. D at 17. Absent uniform documentation, Union Township CAO would not be able to establish compliance under its own proposed system for assuring compliance.

12. In responding to another finding involving parental involvement in the UTCAO Supplemental Reply at 6, Union Township CAO asserted that ACF did not consult with enough parents to develop a meaningful basis for its finding. But Union Township CAO did not proffer any evidence that would more accurately document parental involvement.

13. ACF indicates in its Reply Brief at 11 that it does not concede this point. Moreover, as ACF points out in its Reply Brief at 11-12, Union Township CAO made specific representations in its QIP that it would furnish training on "family partnership findings and calculated family needs relevant to social, economic and educational growth." UTCAO Ex. D at unnumbered 16. Yet Union Township CAO failed to proffer specific evidence that it took timely steps consistent with its own representations to correct the cited deficiency.

14. ACF reviewers indicated that the procedures had been approved by the Policy Council Chairperson and the Board of Trustees Policy Council Liaison, and cited specific statements that the procedures had not been submitted to the entire Policy Council for approval. UTCAO Ex. I at 7.

15. Nor did Union Township CAO provide any explanation as to why it produced no responsive documentation.

16. Although we find a genuine issue of disputed fact and conclude that ACF is not entitled to judgment on this deficiency, (or on the deficiencies discussed in sections 11 and 13 of this decision), this dispute is not material for purposes of summary disposition. Only one uncorrected deficiency would be sufficient to support termination, and in this decision we uphold ACF's findings with respect to several other deficiencies.

17. In the 2003 follow-up review, ACF did not cite other deficiencies based on staffing levels.

18. declaration regarding pending and past arrests and criminal charges related to child sexual abuse and their disposition, convictions related to other forms of child abuse and neglect, and all convictions of violent felonies. 45 C.F.R. § 1301.31(b)(2). Failure to obtain such declarations places children at risk of harm.

19. In the 2002 Review Report, ACF did not definitively identify the precise reason for the discrepancy but explained that the person responsible for preparing the financial report was not available during the review. UTCAO Ex. C at 42.

20. ACF reviewers also questioned documentation that the grantee met matching requirements, and questioned the absence of an approved cost allocation plan, but ACF did not include these as a basis for the termination. ACF Brief at 33 and 35, n.10.

21. that the hail storm expenditures were included in its accounting records and accounting records that reflected the amounts discussed in the narrative (with no specific explanation of the purpose for each expenditures). UTCAO Exs. O-3 and O-5. These exhibits, however, did not address the 2002 final financial report and indicate whether the disputed hail storm expenditures were reflected in that report.