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HomeMy WebLinkAboutMINUTES - 02061996 - C101 C.101 THE BOARD OF SUPERVISORS OF CONTRA COSTA COUNTY, CALIFORNIA Adopted this Order on February 6, 1996 , by the following vote: AYES: Supervisors Rogers, Bishop, DeSaulnier, Torlakson and Smith NOES: None ABSENT: None ABSTAIN: None SUBJECT: Correspondence The Board of Supervisors acknowledged receipt of the letter dated January 26, 1996, from John Kersey, Action Manager, Health Service Branch, Department of Health and Human Services, Region IX, 50 United Nations Plaza, San Francisco, CA 94102, sustaining the action of the Board of Supervisors to reject the application of the United Council of Spanish Speaking Organizations to perform as a Head Start Delegate Agency in 1996. IT IS BY THE BOARD ORDERED that the recommendation as noted (****! is approved. 1 hereby certify that this Is a true and correct copy of an action taken and entered on the minutes of the Board of Supervisca onthe date� st/, /'?9/.ATTESTED:=.�,� , PHIL BATCHELOR Cle6fof the Board of Supervisors and un'ttyiAdministrator Deputy c.c. Correspondents CAO Community Services TAN-26-1996 20=54 GENERAL COUNSEL REGION 9 C.10 10 41S 5569305, P.O? Administration for DEPARTMENT OF HEALTH 'R HUMAN SERVICES Child mn and FWnilie$ s� Refer 7b: Region Ix 50 United Nasions Pfaza January 26, 1996 San Fmxisw, CA 94102 Arnold Flores Chair, Board of Directors United Council of Spanish Speaking Organizations 837 Arnold Way, Suite 100 MartineZ, CA 94553 Bear Mr. Fl,oreS Y herein render my decision regarding the United Council of Spanish Speaking Organizations' (UCSSO) 10/31/95 appeal of the Contra Costa County Board of Supervisors' (the Grantee) 9/12/95 action to deny renewal of UCSSO's contract to operate a Head Start program .in 1996 as a delegate agency of Contra Costa County. The Grantee's denial was effected through the action of its Board on 9/12/95 by which it expressly rejected, pursuant to 45 CFR 1303.20(b) , .UCSSa's application to renew its contract with the Grantee for /1996 because of UCSSO's failure to perform as a delegate agency. Based on the written material submitted by UCSSO and the Grantee and on the information presented by them during the telephone conference call held on 12/14/95, for the reasons set forth below, I sustain the Grantee's action to reject UCSSO's application to perform as a delegate agency in 1996: - -The Grantee's decision to reject UCSSO's application and nonrenew its contract was soundly based on UCSSO*s failure, by 9/6/95 after a three-week extension beyond the original deadline to come into ccopliance on 24 Federal On Site Program Review Instrument (OSPRI) noncompliance findings that were identified by a Federal Head Start review team in January of 1995. --UCSSO received timely and adequate notice of the 24 Federal OSPRI noncompliance findings in early 1995 with sufficient time to bring itself into compliance hs required by 45 CFR 1303.20(e) (1) and (3) . ---The Grantee's 9/13/95 notice of its decision to reject UCSSO's application for 1996 and nonxenew its contract contained a statement of the reasons, as required by 45 CFR 1303.20(b) , for these actions as to the 24 Federal OSPRI noncompliance items which constituted the primary and essential basis for the Grantee's action. I ander 45 CFR 1303.20(b) the grantee's notice of rejection/nonrenewal must contain "a statement of the reasons for the decision.,' :.TAN-2671996 20=54 GENERAL COUNSEL REGION 9 -- --- 415 5568305 P.03 Arnold Flores - page 2 ---The grantee fully met .its obligation under 45 CFR 1303.2 (e) (2) to provide or provide for technical assistance to assist UCSso in coming into Compliance on the 24 Federal OSPRI noncompliance items. --UCSSO's arguments that it was treated more harshly than the Grantee's other Head Start delegate agencies on similar noncompliance issues are convincingly rebutted by the Grantee's detailed response. --Given the above, pursuant to 45 CFR 1303. 22(b) I must sustain the Grantee's 9/12/95 action because I cannot find that the Grantee acted arbitrarily, capriciously, or otherwise contrary to law, regulation, or other applicable requirement. I. Ten of the 34 Ytems CTed in the G antee's 9/13/95 Rejection/ Nonrenewal Notice Package Dp Not Consti Taking that Action tute Viable Bases for The Grantee's rejection/nonrenewal notice "package" to UCSSO of 9/13/95 references UCSSO as still being out Of compliance on 26 osm issues and, it appears, eight rather inadequacies as well. Theme other referenced inadequacies included three "corrective action notice" (CAN) issues (one of the original five cAN's was rescinded by the Grantee and another was apparently redundant with OSPRI i.temsz) and five miscellaneous items relating to two "Questioned and Disallowed Costs," UCSSO's failure to make timely "Reizbursement Demands" and two "Constitution of UCSSO Board" items which concerned insufficient UCSSO board -members and an alleged conflict of interest of one of the seated UCSSO board members_ After careful review of the record I have determined, for various reasons indicated in the summary that follows, that of the 34 individual items described above, I can consider only 24 of them --all OSPAI items----ars viable bases for the Grantee's action to reject UCSSO-'s application and nonrenew its contract for 1996: --UCSSO addressed the three CAN-related issues (Nos. 2, 4 and 5) at pages 7-11 of its 10/17/95 ,Appeal Brief, The Grantee in its 11/16/95 Response at pages 33-34 registers surprise that UCSSO felt it necessary to respond to CAN item Nos. 4 and 5 in the context of this appeal rather than directly with the Grantee, but oddly does not make any comment at all in its Response about CAN z This overlap is indicated at both page three of the Grantee board*s "agenda packet" enclosed with the Grantee's 9/13/95 notion of rejection/nonrenewal and at page ten of Ucsso's 18/17/95 Appeal Brief. r JAN-26-1996 20=55 GENERAL COUNSEL REGION 9 415 5560305 P.04 r Arnold Flores - Page 3 item No. 2. While it appears that the Grantee may well not have intended to include these items as a basis for its rejection/ nonrenewal action, its failure to say this coupled with its summary allusion in its 9/13/95 notice package to the unresolved CAN's was enough to make UCSSO take no chances. To eliminate any lingering doubt on these items, I find that the Grantee's summary and ambiguous reference to the CAN's in its 9/13/95 notice of rejection/nonrenewal would not, in any event, have met the minimal notice requirements of 45 CFR 1303.24(b) . ---As for the "Questioned and Disallowed Costs" which relate to a classroom "closure" issue involving $24,922 and $13,213 of unauthorized accounting expenses, UCSSO notes appropriately at pages 6-7 of its Appeal Brief that there does not appear to be any real potential disallowance at issue in the $24,922 item and that it did not receive a disallowance notice on the $13,213 item until 10/6/95. in its ll/i6/95 Response, the Grantee states only that the classroom "closing" issue is under "further investigation" and fails to make any reference at all to the $13, 213 item_ Therefore, I conclude that thecae items cannot be viewed as valid bases for the Grantee's 9/12/95 rejection/nonrenewal action because the Grantee had not made any final determination on them at the time of that action. --an the remaining three miscellaneous items, UCSSO has also appropriately noted at pages 4-7 of its Appeal Brief that it was notified by the Grantee about these alleged defects too late for there to be any meaningful opportunity. to correct them prior to the Grantee"s 9/12/95 action as contemplated under 45 CFR 1303.20(e) (3) . Where, as here, the initial notice of defect from Grantee to UCSSO was dated 8/1/95 for the "Reimbursement Demands" item, 8/17/95 for the insufficient board members item and 8/18/95 for the conflict of interest item, I must concur in UGSso"s argument and find that these items are also not valid basses for the Grantee's 9/12/95 action, --As to the 02611 OSPRI "non-compliance" items' referenoed in the Grantee's 9/13/95 rejection/nonrenewal notice package, I note that two, numbers 185 and 187, unlike the other 24, fall under the Federal OSPRI report's 1tdefi0i0ncy'e finding for UCSSO in the area of "Administration." .As SdCh, OSPR1 items 185 and 187 were to be dealt with separately as a part of a Quality Tmgrovement Plan (QIP) under v'hich there would be up to a year from the 5/17/95 rederal o9PRI Report for correction - see generally, the nry95 Head Start {Federal) Program 'Review Report" and the 3 page cover letter dated 5/17/95 ("5/17/95 OSPRI RepOrt") at Exhibit P to UCSSO's 1.0/31/95 Appeal Brief. By contrast, under the Pie.deral review and corrective action protocol, all the other 24 non- "Administration" 09PRI items for which UCSSo was cited by the Grantee as not having met on 9/13/95 were to have been corrected and accounted for as "compliance" issues within 90 days of JAN-26-1996 20:56 GENERAL COUNSEL REGION 9 -- ------ -__ -._ 415 5568305 p.05 Arnold Flores -- gage 4 . receipt of the 5/17/95 Federal OSPRT report. since OSPRI items 185 and 187 were clearly earmarked as 'ldet�ciency't items for UCSSO in the 5/17/915 Federal OSPRI Report, it was .inappropriate for the Grantee to have included these two items in its 9/13/95 rejection/nonrenewal action which, as to the OSPRI issues, was premised solely on UCSSO's failure to meet the 90-day corrective action "compliance" issues. --As UCSSO notes at page 17 of its 10,/31,/95 Appeal Brief, the above-described two-tiered scheme (compliance items with 90-day deadline and deficiency items with one-year deadline) is clearly laid out in the 5/17/95 Federal OSPRI Report. Also acknowledged by UCSSO at page 17 as clearly laid out in that Report is the fact that for UCSSO only the area of "Administration" was, cited as being in deficiency. In this regard, see Item B(4) (a) in Attachment 11, "Summary of Deficiencies," as set forth in the 5/17/95 OSPRI Report. Strangely, UCSSO also asserts at page 17 that 9 OSPRI "Fiscal" items cited by the Grantee with numbers between 217 and 256 are part of the "administration" area or an "accounting" area. This is clearly in error. There is no "accountingtt category in the pertinent "Summary Fable of Non-- Compliances" in the 5/17/95 Federal OSPRI Report. Moreover, the 9 OSPRI "compliance's items between 217 and 256 cited in the Granteers 9/13/96 notice of rejection/renewal are not delineated under the "Administration" category found at page 13. of the Summa7ry Table which includes items 180 through 200. On the contrary, the 9 OSPRI compliance items between 217 and 256 are each specifically notated with an "N" (far noncompliance) in the appropriate boxes under the "Fiscal" category--whicb includes items 216 through 244--set forth at page 13 of the Summary Table. Given the above, UCSSO"s argument at page 17 of its brief that it is entitled to 'up to a year to correct its s identified shortcomings in the "Fiscal" area is completely without foundation. 11 Notice Reatkirements and thr? 24 OSPRI Noncompliance Items Still at issue --The record in this appeal reflects a diligent effort by the Grantee to alert its four delfagate agencies (including UCSSO) at the earliest possible time of their inadequacies (both noncompliance and deficiency items) which had been identified in the Federal oSPRI review in late January of 1995. To this end Grantee took steps to ensure that all, of its delegates we're immediately provided copies of the written notes taken during the. 1/27/95 exit conference with the Federal OSPRI review team and 3 See Attachment II, "Summary of Deficiencies,' item B(4) (a) and Attachment IV, "Summary Table of Non-compliances, pp. 11 and 13 in the 5/17/95 Federal OSPRI Report. JHN-26-1996 20:56 GENERAL COUNSEL REGION 9 415 5568305 P.06 Arnold Flores - Page 5 given audio tapes of the exit conference more than two months before the 5/17/95 Federal OSPRI Report was even issued and distributed to the Grantee's delegate agencies. See Exhibit E to the Grantee's 11/16/95. Response Brief. As noted by Scott Tandy for the Grantee in the 12/14/95 telephone conference, issuance of this Report meant that there was a due date of 8/17/95 on the Grantee for accountability to the Federal Head Start program for all compliance items and the Grantee accordingly set an 8/15/95 compliance submission deadline for its delegates. In addition, I nate that the Grantee also subsequently gave UCSSO a three-week extension to 9/6/95 before it finally determined that It had to reject UCSSO's 1995 delegate agency application for 199£ or face potential adverse action by the Federal Head Start granting agency. Grantee 11/16/95 Response, p. 8. Given the above, I find that the defect notice and opportunity to correct requirements of 45 CFR sections 1303.20(e) (1) and (3) were met by the Grantee as to the 24 OSPRI items still at issue because UCSSO clearly had sufficient advance notice of the particulars of these items so as to have had ample time to make appropriate corrections. --tYCSSO repeatedly contends that the Grantee's 9/12/95 action to reject its applicatiop to be a delegate agency in 1996 on the basis of defects in the operation of UCSSO's Head Start program should fall within the ambit of 45 CFR 1303.20(c) . As indicated at the beginning of this decision, that contention is incorrect. Sdction 1303.20(c) pertains to "termination" actions where a grantee seeks to end its contractual relationship with a delegate agency In mid-contract. The Granteets 9/12/95 rejection/ nonrenewal action and 9/13/95 notice package clearly fall under 45 CFR. 1303.20(b) , which covers situations where a grantee seeks to reject a delegate agency's application to continue as such for another year. Section 1303.20(b) requires that when a grantee takes such action, it shall, in its notice to the delegate of such action, provide a "statement of the reasons for the decision-" UCSSO contends as to the nine "Fiscal"-related OSPRI compliance items --those which it improperly attempted to convert into deficiencies---that the Grantee's rejection/nonrenewal package to UCSSo dated P/13/95 did not give the notice required by Federal regulations. In the Grantee's 9/13/95 application rejection/contract nonrenewal notice package, Grantee individually describes each of the nine OSPRI nF'iscal" items by number and by summary of Federal finding, giving UCSSO's proposed completion date for each and noting as to UCSSO's response on 4 UCsSO does not make this contention as to the other 15 of the 24 OSPRI items which provide the basis for the rejection/ nonrenewal action transmitted to UCSSO on 4/13/95. JAN-26-1996 20=57 GENERAL COUNSEL REGION 9 415 5568305 P.07 Arnold Flores -- Page 6 each of these items, fIDA [delegate agency) response not acceptable-v' Accordingly, I find that the Grantee's notice to UCSSO in its 9/13/95 rejection/nonrenewal package meets the minimum requirements set forth in 45 CFR 1303.20(b) , i.e. , a "statement of reasons for the decision. " This finding is further reinforced when it is noted that UCSSO's final subMission on each and every one of these nine fiscal items contained proposed completion dates which were after the Grantee's already extended deadline dates with seven of these past the Federal deadline dates for these items by several months. UCSSO admits that it had been made aware by the Grantee of these deadline issues at least as early as August 15, 1995--see page 17 of UCSSO's 10/31/95 Appeal Brief--but for some inexplicable reason went ahead and put the unacceptable deadlines in its final 9/6,195 submission to the Grantee anyway. III. Grantee's Extensive Provision and Offers of JMhni.cal As istance TQ UCSSO Met Its Responsibilities Under the Federal Head Start_Regglations --45 CFR 1303.20(e) (2) prohibits a grantee from taking action to reject a Head Start delegate agency's application for renewal of its contract on the basis of defects in the delegate's operation without first: "Providing, or providing for, technical assistance so that defects . . . can be corrected by the delegate agency_ . . ." The record before me an this appeal is replete with evidence that the Grantee made extensive and ongoing eff*rto; to provide and provide for technical assistance to UCSSO (and the Grantee's other delegate agencies) which began an 2/1/95 in an intensive fashion within a few days after the Federal OSPRI Review Team exit conference. --The Grantee's effort continued an a sustained basis thereafter with twice-monthly meetings and provision of and efforts to provide technical assistance to UCSSO through numerous training sessions and various consultants in the main areas of UCSSO's inadequacies (i.e. , fiscal:, parent involvement, education, etc.) . See, e.g. , description of 2/1/95 meeting between Grantee and its delegate agencies (including UCSSO) in which detailed notes of the 1/27/95 Federal OSPRI Review exit conference were handed out and discussed and the delegates were urged to begin 5 Even assuming, which I do not find to be the case here, that the Grantee's notice on the nine "Fiscal" OSPRI items would . not meet the standard in 45 CFR 1303.20(b) , it is clear, and I so find here, that the rather 15 OSPRI items on which Grantee's 9/1.2/95 rejection/nonrenewal action is based (as to which Ucssa made no analogous notice objection) , taken by themselves, would provide a separate, complete and independent basis for upholding the Grantee's 9/12/95 rejection/nonrenewal action. TAN-26-1996 20:57 GENERAL COUNSEL REGION 9 415 5568305 P.08 i Arnold Flares - Page 7 j I i resolving findings immediately, at Exhibit E to Grantee's 10/17/95 Denial of UCSSO's Appeal; see also references to twice- monthly meetings between Grantee and delegates to deal with corrective action necessitated by the Federal OSPRI findings at Exhibit F to Grantee's ' ll/16/95 Response; see further descriptions of technical assistance provided on-site and/or offered UCSSO by Grantee in form of consultants in the fiscal area (GPA Susan Hanson) , parent involvement area (by the Grantee's experienced Parent Policy chairperson, Mary Shavies) , and educational area (Marie Poe, Grantee Educational Coordinator) , etc. , respectively at Exhibit x to Grantee's 11/16/95 Response, pp. 4 and 43 of Grantee's 11/1.6/95 Response, and Exhibit F to Grantee's 11./16/95 Response. These examples are illustrative and not an exhaustive description of the Grantee's efforts. --The Grantee bad a strong incentive to help unable UCSSO and the Grantee's other delegates to undertake effective corrective action because it is ultimately held directly accountable to the Federal Mead Start granting agency for the shortcomings of its delegate agencies. It succeeded in helping its other three delegates come into compliance, two of which had more extensive noncompliance findings ,in the 5/17/95 Federal OSPRI Report than [UCSSO. See the table of "Total Won-compliances" at p. 13 in Attachment IV to the 5/17/95 Federal OSPRI Report. The Grantee's earnest and extensive effoxts, to provide technical assistance to its delegates clearly show through UCSSO's numerous attempts to negate then. See I]CSSO's 10/31/95 Appeal- Brief, pp. 6-7 and 17- 27. At one point UCSSO even blithely admits that it rejected an offer of technical assistance as late as 7,/11/95. VCSSO's 10/31/95 Appeal Brief, p. 23. U4CSS01's patently inappropriate attempt, at page 17 of its 10/31/95 Appeal Brief, to blame the Grantee for the delegate's own careless misreading and misapplication of the clear terms of the 5/17/95 Federal OSPRI Report says it all. . UCSSO has failed to take adequate responsibility for its own non--compliance. --Based on the discussion and analysis above, I find that Grantee clearly met its duty under 45 CFR 1303.20(e) (2) to provide or provide for technical assistance to UCSSO. Iv. Grantee Was Neither Arbitrary Nor Capricious In Finding, UQ%So's Regp¢nsas to the 24 OSPRY Non-CMPl lance Items Un�.cceptable For the reasons presented below, I find that the Grantee had a reasonable basis for concluding that UCSSO failed to take appropriate corrective action on the 24 OSPRI compliance items identified in the 5/17/95 Federal OSPRI Report, and that UCSSO's 10/31/95 Appeal Brief continued to reflect the Delegate's overall inability to achieve compliance with applicable program JAN-26,1996 20-58 GENERAL COUNSEL REGION 9 415 5568305 p.09 Arnold Flores - Page 8 requirements. Each OSPRI compliance stem is addressed separately below: --OSPRr Item No. 015 - -Lack of Individualized Lesson Plans UCSSO asserts in its 10/31/95 Appeal grief at page 12 that a one-day training session by a consultant who developed a specific curriculum ("Creative Curriculum") fully addressed the need for individualizing lesson plans. UCSSO's assertion is in sharp contrast to the Mitten agenda for the day, which made no reference to individualizing lesson plans, but appeared instead to be training on how to use the Creative Curriculum generally_ Trainee evaluation sheets for that day, provided at Exhibit E to UCSSO's 10/31/95 Appeal Brief, evidenced no expectation of being trained on individualizing lesson plans (with the possible exception of one teacher --- who did not indicate whether her expectations for the day were met) . Further the Grantee indicates it was informed by the trainer (Jean Monroe) that her session should not be considered training on individualizing. See Grantee's 11/16/95 Response at page 16. --OSPRI Item No. 027 - Hazardous Conditions UCSSO does not deny that the cited hazardous conditions existed or needed to be eliminated. Nor does UCSSO claim that it informed the Grantee in UCSSO's CP or QIP or- otherwise rotherwise that the hazards had been eliminated. Grantee notes that neither the CP nor the QIP indicated the hazards were corrected. While UCsSO now claims at page 13 of its 10/31/95 Appeal Brief that the hazards were eliminated as of 5/25/95, it was reasonable for the grantee to assume UCSSO's failure to address this item in its CP or its QIP meant that UCSSO remained out of compliance as of the date the Grantee rejected UCSSO's application for renewal. OSPRI Item No. 028 -- Potential for children Leaving Results in Non-Use of Playground UCSSO states that the repairs at issue in item 27 above addressed this issue. UCSSO 10/31/95 Appeal Brief at page 13. As noted, there is no indication UCSSO informed the Grantee that repairs had been timely made_ Nor has UCSSO even represented that the playground was, in fact, in use. --oSFRI Item No. 068 - Lack of Organized Health Curriculum with Developmentally Appropriate Goals UCSSO admits in its 10/31/95 Appeal Brief at page 1.3 that its health curriculum is still only in draft form. 4n this basis alone- it was appropriate for the Grantee to conclude JRN-26-1996 20:59 GENERAL COUNSEL REGIOtJ 9 415 5568305 P,10 Arnold Flores - Page 9 that -UCSSO remained out of compliance. i3CSSO attempts to otherwise show compliance by reference to lesson summaries which listed various broadly-stated health and safety topics ' as having been discussed with children on given days. Exhibit G to UCSSO's 10/31/95 Appeal Brief. The summary listing of health related topics makes no reference to goals, which was a critical element of the compliance item. Igor was it unreasonable for the Grantee to view as unacceptable an "organized health curriculum" that failed to include such minimal details as some description of the full breadth of health issues to be addressed, the timelines for introducing these issues into the classroom, or the manner in which these issuess, would be presented. --OSPRI Item Nos. 73 , 74, and 75 - Lack of Staff to Plan Mental Health Program, Observe, or Assist in Conducting Developmental Screenings/Assessments UCSSO addresses these three compliance items together. UCSSO 10/31/95 Appeal Brief at pages 13-14. It begins with an assertion that the Grantee was "petty" when it noted UCSSO'Z failure to specify a year for achievement of compliance. Time is of the essence in any OSPRI-related compliance plan. Hence the 90--day deadline set forth in the 5/17/95 Federal 05PRI Report. Failure to indicate a year for compliance created some ambiguity as to whether I3CSS0 might be claiming that nothing needed to be corrected because UCSSO was already in compliance prior to the OSPRI review, asserting that it came into compliance during 1995, or planning to complete its corrective actions in 1996. Xbreover, even putting aside the above ambiguity, the Grantee addresses the substance of UCSSO's response. UCSSO states in this appeal that mental health staff were available for consultation and provided training to other T3CSSO staff on making classroom observations. UCSSO 14/31/95 Appeal Brief at pages 13-14. UCSSO's CP also indicated that mental health staff observe and provide nates on classroom activities. Attachment H to UCSSO 10/31/95 Appeal Brief at pages 5 and 6. The Grantee notes the material difference between providing training on .observation in general or making notes on classroom observations available to teaching staff, versus actually observing ,and consulting on individual cases. These differences are far from superficial and provide a rational basis for Substantively rejecting UCSSO's response to these items as well. JON-26-1996 20:59 GENERAL COUNSEL REGION 9 415 5-968305 P. 11 Arnold Flares - page 10 --OSPRI Item. No. 133 - No 'Written 1-30/74. 2 Implementation Plan UCSSO does not dispute the Grantee's determination that the CP was inadequate on this item as of the time the Grantee rejected UCSSO's application for renewal. Rather, UCSSO's response to this item complains of inadequate notice and technical assistance. As noted in sections II and III above, the Grantee fully met its obligations as to notice and technical assistance. I note that the two parties appear to agree that as of 10/31/95 compliance with OSPRI item number 133 is no longer an issue. This has no bearing, however, on the question of whether the Grantee acted appropriately in this matter as of .the time it made its determination to reject UCSSO's application for renewal. --oSPRI Item No. 137 - Lack of Parent Involvement in Decision-- Making UCSSO maintains that training for its Local. (parent] Policy Council (the 4"LPC"} on Robert's Rules of order and the Brown Act resolved this issue. UCSSO 10/31/95 Appeal Brief at page 14. The Grantee's 11/16/95 .Response at page 19 correctly notes that the fundamental issue is assuring that UCSSO has a process in place that enables parents to have meaningful input into key decisions regarding the nature and Operation of UCSSO's Head Start Program, I agree with the Grantee that training in how to conduct meetings simply does not address the issue. I further agree that UCSSO's continued practice of treating fundamental policy and procedural issues as LPC "consent items" requiring no discussion or deliberation indicates a grave failure by UCSSO to comprehend the nature of the compliance problem. I note particularly the Grantee's discussion at page 19 in its 11/16/95 Response concerning the 10/17/95 LPC meeting, the agenda for which listed the following critical issues as consent items: adoption of personnel policies, election of LPC officers, and selection of community representatives. See Attachment o to Grantee's 11/16/95 Response. --oSPRI Item Nos. 139 - Parents not Informed of Role of LPC in the Classroom, and 144 - No Documentation of Presentations to Encourage Continued Educational opportunities UCSso addresses these two items together and indicates that the role of the LPC is repeatedly explained to parents, that LPC members give reports at center meetings, and that parents are encouraged to puirsue continued education_ UCSSO 10/31/95 Appeal Brief at pages 14-15. The Grantee again notes UCsSo's lack cf understanding of the rule of the LPC, TOTAL P.11 JAN-26-1996 20=47 GENERAL COUNSEL REGION 9 415 5568305 P.02 .Arnold. Flares - Page 11 as evidenced by VCSSa's response to items 133 and 137, and questions UCSSD's• abi.lity to provide appropriate training or guidance on this issue. The Grantee also nous that UCSSO's referenced documentation once again deals with training in how to conduct meetings rather than the role of the LPC in shaping the character of UCSSo's Head Start Program. Finally, the Grantee appropriately points to the absence of any response by UCSSC addressing the lack of parental training in personal growth or documentation of attempts to encourage parents to pursue continued educational opportunities. Grantee 11/16/95 Response at pp. 19-20. I conclude that UCSSO's narrow focus on logistics, its failure to respond to the personal growth or the continuing education aspects of this item, and its apparent lack of commitment to meaningful parental involvement (as discussed under item 133 above) provided adequate justification for the Grantee to reject UCSS01s response to this item. --OSPRI .Item No. 160 - Disabilities Component Confidentiality/ Need to Lack Files This finding in the 5/17/95 Federal OSPRI Report concerning confidentiality was that the clients' files were not locked. WSW's final CP submission failed to address whether UCSSO had a policy of locking the files or whether the files were In fact locked. The CP stated only that it had "reviewed confidentiality with staff." See page 15 at Exhibit H to UCSSO's 10/31/95 Appeal Brief. This response provides no support for UCSSO's statement at page 15 of its 10/31/95 Appeal Brief that its response showed that it had reviewed with staff the importance of locking the files. Exhibit L to UCSSO's 10/31/95 Appeal Brief contains, as the only apparent reference to the need for locked files, the following handwritten statement: "advice how important keeping the files locked is for the protection of child's records." See Exhibit L to UCSSO's 10/31/95 Appeal Brief. I find that the Grantee was justified in requiring something more than this desultory response, such as documentation of written policies concerning who has access to files, procedures for recording when files are removed and by whom, what records are to be kept concerning who removes the files, or how internal monitoring of staff compliance with these procedures will be effected. ---oSPRI Item No. 165 - Need for Health staff Participation in Health Azsessments/Need to Foster Participation of Parents of Children with Disabilities As with most, if 'not all, other compliance items cited in ,JON-26-1996 20:47 GENERAL COUNSEL REGION 9 415 5568305 P.03 Arnold Flores - Page 12 the OSPR1 report, this one concerned the lack of a systematic approach by UCSso to meeting the relevant performance standards. UCSSO's CP did not address the systematic inadequacy. Rather, it briefly indicated at page 16 that it had "held case conferences, " had '•[i]ncluded and documented participation of health staff, " and had "contacted parents to offer support and encourage them to become involved . . " That is, UCSSO appeared to deal with the non-compliance citations as episodic problems that had been fully resolved by engaging in a given set of meetings or contacts. UCSSo's CP made no reference to how it intended to meet the performance standards on an on-going basis_ UCSSO now indicates in this appeal that it does have a program in place to foster parent involvement. seer Exhibit M to UCSSO's 10/31/9.5 Appeal Brief, which sets forth the agenda for two meetings and the minutes of one meeting documenting outreach efforts to parents on 3/9/95 and 5/12/95. I view these supplemental materials as at least reflecting some understanding of the need to sustain an on- going effort and providing two examples of how UCSSO intends to Carry but its responsibilities -in this area. However, the supplemental materials add nothing to UCSSO*s response concerning the involvement of health professionals in the assessment process, nor could they properly be said to constitute a system or process for promoting parent involvement. --OSPRI Item No. 166 - No documentation of Routine (other Than Year-End Transition) Assistance to Parents UCSSO states that it has implemented a practice of documenting communication with parents at times other than the year-end or transition periods_ UCSSO's 10/31/95 Appeal Brief at page 15. However, among the 15 documents provided by UCSSO in its Exhibit N to that Brief, four deal explicitly with annual counseling (and are thus explicitly non-responsive to the cited problem) , nine provide no basis for determining whether or not they relate to annual counseling situations (and are thus ambiguous as to whether they are responsive or not) , ten do not indicate whether parents were involved in the process or discussion referred to, and six provide no indication whether they are part of the disabilities services component to which this compliance item relates. In short, the documents at Exhibit N appear to be an almost random collection of materials generally relating to individual education plans, free-floating boilerplate descriptions of parent's and children's rights, and a blank JAN-26-1996 20=49 GENERAL COUNSEL REGION 9 415 5560305 P.04 { CJ61 Arnold Flores - Page 13 assessment form. They certainly do not appear calculated to demonstrate OCSSO's commitment to regular, on-going assistance to parents at times other than year-end transition. The Grantee would have been justified in completely disregarding them. --OSPRI Item No. 205 - back of Plan to Recruit, Train, or Utilize Volunteers UCSSo essentially admits that, despite good faith efforts to do so, it has been unable to bring itself into compliance on this issue, in that it stall has only a draft volunteer plan. UCSSO's 10/31/95 Appeal Brief at page 16. While the development of a draft volunteer plan where none previously existed represents progress toward compliance, neither UCSSo's CP. nor its 10/31/95 Appeal Brief provide definitive timeframes for actually achieving full compliance. Moreover, the draft plan does not address how the Grantee will recruit volunteers_ As noted in Section 11 above, I consider UCSSO's failure to demonstrate compliance with the above 15 OSPAI items alone to be more than sufficient substantive basis to fully sustain the Grantee in this appeal. As discussed below, I find additional support for the Grantee's rejection/nonrenewal action in UCSSo's inadequate responses to the ['line remaining 0SPR.I-relat9d fiscal compliance problems at issue in this appeal. ---OSPRI Item Nos_ 217, 218, 219, 225, 226, 247, 252, 255, and 256 -- Lack of a Financial Management System and concomitant Lack of Procedures/Documentation I consider OSRPI finding number 218 --- lack of a financial management system -- to be at the heart of this series of financial compliance issues. As to this oSPRY item, the 5/17/95 Federal OSPRI Report found that UCSSO's accounting records were not consistently supported by source documentation, that what documentation there was did not conform to UCSSO's own stated policies, that claims were unreconcilable to financial statements, and that postings were not done timely, among other problems_ Clearly, these problems revealed a fundamentally flawed system. As noted above, UCSs4 inappropriately responded to this fiscal compliance issue (along with the others) in its QIP (set forth at Attachment X to UCSSO's 10/31/45 Appeal Brief) , indicating that the posting delays had been resolved by April 30, 1995 and that the source documentation and financial statement reconciliation problems had. heen resolved by July 28, 1995. However, the Grantee's fiscal review reports for the first and second quarters of 1995, 3GN-26-1996 20:49 GENERAL COUNSEL REGION 9 415 5568305 P.05 Arnold Flores - Page 14 dated 5/4/95 and 7/11/95, respectively, confirmed continued inadequacies fully consistent with the OSPRT-related Fiscal compliance findings. Grantee 11/16/95 Response pp. 22-23 - See also Grantee's reports at EXhibit G to its 11/16/96 Response. It is apparent from UCSSO's QIP submission that it believed -- the Grantee's quarterly fiscal review findings to the contrary -- that no further action was necessary as to OSPRI item 218. It is not surprising to me, nor should it have been to UCSSO, that the Grantee would find UCSSOOs posture on this issue unacceptable. This is particularly true given that many of the other financial non-compliance items at issue stemmed from the overall lack of a viable deCounting systet. Without Such a system, any assertions ucsSo made that it had written procedures in place to address these other fiscal compliance issues necessarily lacked credibility, since the procedures would presumably be based on the underlying accounting system. Accordingly, any response in which TJCSSO claimed to have resolved OSPRI Items 217 (need to develop written accounting procedures} , 219 (need to develop written procedures to determine allowability, allocability, and reasonableness of costs) , 252 (lack of documentation for procurement actions/inability to substantiate conformity with procurement policies) , or 255 (no documentation of free and open competition) could be summarily dismissed. Similarly, any assertions that UCSSO had successfully resolved OSPRI item, numbers 225 (financial statements do not relate to demand claims) , 226 (backsliding toward old 1993 audit deficiencies) , or 247 (accounting records not properly set up to igentify Child Care Food Program) were suspect on their face. ng Tv t 4e Not SuRport ucssols, conten ion -Tha-tthO V. 'MM hies _%rd1Dt!!p,q_ ub ;EL__Ae gto I_t to-Di uCSso alleges that its corrective action subimission was subjected by the Grantee to higher approval standards than those of .another In this regard we particularly note ucssols assertion concerning OSPRI item number 247 at page 13 of its QIP that it had fully resolved the child care Food Program problems within two days following the close of the OSPRI review. This, in the face of the Grantee's own contrary first and second quarterly field review reports, was clearly not credible. SGN-26-1996 20:49 GENERAL COUNSEL REGION 9 415 5568305_ P,06 Arnold Flores - Page 15 delegate agency of the Grantee, First Baptist Church (FBC) . FSC was found by the Grantee to have met the OSPRI-related 90-day deadline for FBC's 46 non--compliance items. More specifically, UCSSO contends that it responded faster to OSPRI items 16, 17, 27, 68, 73, 75, and 76 than did FBC, that its response to OSPRI items 15 and 27 were identical to VSC's responses to those items; and that its response to OSPRI items 73, 75, and 76 were more specific than FBC's responses to those same items. After reviewing UCSSO's and the Grantee's submissions, I have concluded that it is apparent that the timeframes within which delegate agencies responded to oSPRi items -- other than meeting the ultimate response deadline set by the Grantee --- were not material to the Grantee's determination of adequacy of a given response. Thus, the timing of UCSSO's responses to OSPRI items relative to FBC's responses to those same items is irrelevant as to the question of disparate treatment of UCSSO as compared to FBC, The Grantee's basis for evaluating the adequacy of UCSSO's and FEC's responses to given OSPRI items, i.e.. , that the nature and extent of the inadequacies were different at the different sites, was a reasonable One. Taking the most extreme case, as alleged by UCSSO to have been present here, were two delegate agencies to propose identical corrective action strategies in a given non-. compliance area, the Grantee would be required weigh each response separately within the context of the underlying problem it purported to correct. As to the specific OSPRI items at issue here, the Grantee provides specific reasons for its determination that UCSSO's answers were not appropriate responses to correct UCSSO's particular inadequacies. The Grantee's rejection of UCSSO's responses was, therefore, proper. In support of its allegation that the Grantee was improperly biased against UCSSO, it cites the following statement, which it attributes to Joan Sparks of the Grantee's staff: "Richard Lujan cannot do anything this time to stop Community service Department from taking the contract from Ucsso because he will not have the political backing lake he did before. " The Grantee denies that Ms.. Spark made the above statement. see UCSSO's 1/31/95 Appeal Brief at page 28 and the Grantee's 11/16/95 Response at pp. 43- 44. Even accepting, for purposes of argument, that Ms. Sparks made the above statement, it Gould reasonably be viewed as an expression of frustration by the Grantee's Read Start staff person concerning prior renewals of UCSso's contract in spite of JON-26-1996 20:50 GENERAL COUNSEL REGION 9 415 5568305 P.O? A i Arnold Flores - page 16 a longstanding history of inadequate performance, because of the perceived political protection UCSSO had been receiving_ Thus viewed, I would not interpret the statement as an expression of impermissible bias against UCSSO. Conclusion Based on all the foregoing, I must, pursuant to 45 CFR 1303,22 (b) , sustain the Grantee's 9/12/95 decision to reject UCSSG's application to be a delegate agency for 1996 because I cannot find.that that action was arbitrary , capricious, or otherwise contrary to latii', regulation, or other applicable requirements. Sincerely, "u John Kersey Acting Manager Head Start Branch Office of Family Supportive: Services cc: Contra Costa County Head Start Director . Chairperson, Policy Council Chairperson, Board of Supervisors Executive Director County Administrative officer TOTRL P.O?