Making the Grade: How to Navigate the CSBG Monitoring Process 2015 TACAA Annual Conference May 7, 2015 Allison Ma luf, Esq. Community Action Program Legal Services, Inc. (CAPLAW) allison.maluf@caplaw.org 617.357.6915 www.caplaw.org Agenda Pre Monitoring Actions State s Obligation to Monitor and the Monitoring Process Legal Framework State s Monitoring Report State s Obligation to Provide T/TA and QIP Response to a State s Monitoring Report Additional State Obligations and CAA Options 2 Pre Monitoring Actions 3 4 1
Question One CSBG Contract The CSBG contract between a CAA and a state CSBG office may be negotiated and revised prior to being signed True False Review and negotiate, as necessary, CSBG contract Compare contract to prior years Engage executive staff in review Don t ignore boilerplate language Work with an attorney Use monitoring tool to develop internal procedures and processes 5 6 Monitoring Tool No national uniform monitoring tools and procedures exist Only language in federal CSBG Act that directly addresses the type of monitoring a state is to conduct requires a state to: Determine whether eligible entities meet the performance goals, administrative standards, financial management requirements and other State requirements 42 U.S.C. 9914(a) Monitoring Tool Common concerns about state monitoring tools: Questions not linked to legal requirements; Fail to clearly explain the legal effect of CAA s answers when question not linked to legal requirements and/or; Enable state to micromanage a CAA s operations 7 8 2
Monitoring Tool Monitoring Tool Ways to improve a monitoring tool: Implement comment process Maintain an open, ongoing dialogue Discuss and share concerns with peers Document discussions in writing 9 10 Monitoring Preparation 1. Regularly use and refer to monitoring tool 2. Ensure information about the following is available: Monitoring process Deficiencies Corrective actions Time lines Training and technical assistance Quality improvement plans (or corrective action plans) Reductions and terminations of funding Notice and hearing procedures Monitoring Preparation 3. Understand implications of not meeting a legal requirement 4. Management and staff should locate information and prepare responses 5. Make information easily accessible by organizing it in binders 6. Conduct mock interviews with board members and staff 7. Ensure board is regularly receiving reports from CAA management 11 12 3
Monitoring & Follow up Reviews A state CSBG office is to conduct the following reviews of a CAA: State s Obligation to Monitor Full on site review at least once every 3 years; On site review of newly designated entities after first year; Other reviews as appropriate; and/or A prompt follow up review 42 U.S.C. 9914 13 14 Texas Monitoring Process Frequency of Reviews Scheduled based on federal requirements and/or risk assessment Risk assessment factors: No. of contracts administered Amount of funds awarded and expended Length of time since last monitoring Prior monitoring findings Audit issues Complaints Fraud, waste and/or abuse TX Compliance Monitoring reg., 10 TAC 5.2101 15 Texas Monitoring Process Onsite vs. Desk Review Determined by risk assessment 30 day notice generally provided before either TX Compliance Monitoring reg., 10 TAC 5.2101 16 4
Texas Monitoring Process Records reasonably relevant to state s review must be made available, such as: Board/committee minutes Internal operating procedures Procurement documentation Operating budget Strategic plan TX Compliance Monitoring reg., 10 TAC 5.2101 Correspondence w/ indpt. auditor Financial records including general ledgers Applicable HR records Applicable client files 17 Legal Framework 18 Legal Parameters The federal CSBG Act sets forth parameters within which a state CSBG office must monitor an eligible entity: Performance goals; Administrative standards; Financial management requirements; and Other state requirements CSBG terms and conditions 42 U.S.C. 9914(a) Information Memoranda (IM) Guidance from federal OCS to CAAs Ex., OCS IM 82, tripartite boards Non binding Intended to help CAAs and states better understand the federal laws and how to apply them Available at http://www.acf.hhs.gov/programs/ocs/resource/csbg informationmemoranda 19 20 5
Performance Goals Purposes and Goals, 42 U.S.C. 9901(2) State Assurances, 42 U.S.C. 9908(b) Performance Measurement System, 42 U.S.C. 9908(b)(12) & 42 U.S.C. 9917 Drug and Child Support Services and Referrals, 42 U.S.C. 9919 Performance Reporting Requirements for Subgrantees, 45 C.F.R. 92.40(b)(4) Uniform Guidance, 2 C.F.R. 200.328 and HHS s codification, 45 C.F.R. 75.342 Administrative Standards Board Composition, 42 U.S.C. 9910 Board Composition and Governance Guidance, IM 82 Limitations on Use of CSBG Funds, 42 U.S.C. 9918 CSBG Terms and Conditions 21 22 Fiscal Management Requirements Fiscal Controls and Audits, 42 U.S.C. 9916 Corrective Action, Termination or Reduction of Funding Guidance, IM 116 Federal cost principles, OMB Circular A 122, 2 C.F.R. Part 230 (for nonprofit CAAs) and OMB Circular A 87, 2 C.F.R. Part 225 (for government CAAs) Single Audit Requirements, 45 C.F.R. 96.31; OMB A 133 Uniform Guidance, 2 C.F.R. Part 200 and HHS s codification, 45 C.F.R. Part 75 State Requirements A state may develop more detailed state requirements to implement the federal CSBG Act as long as the requirements do not conflict with federal or state law and comply with state laws for adopting legally binding requirements 23 24 6
State Requirements State CSBG Act and regulations, TX Administration of Block Grants statutes, Tex. Gov't Code 2105.001, et seq. CSBG Organizational Standards Final version issued by federal Office of Community Services (OCS) in IM# 138 in January 2015. TX CSBG regulations, 10 TAC 5.201, et seq. TX Community Affairs Programs General Provisions, 10 TAC 5.1, et seq. TX Community Affairs Programs, Compliance Monitoring, 10 TAC 5.2101 State CSBG plan; and State CSBG contract with CAA May incorporate by reference other requirements Purposes: Strengthen the organizational capacity of local CAA s to serve low income communities. Increase accountability of the CSBG network. 58 standards (non profit entities) / 50 standards (public entities) developed by CSBG Organizational Standards Center of Excellence (COE). 25 26 CSBG Organizational Standards Maximum Feasible Participation Consumer input and involvement Community engagement Community assessment Organized into three thematic groups Vision and Direction Organizational leadership Board governance Strategic planning Operations and Accountability Human resource management Financial operations and oversight Data and analysis 27 CSBG Organizational Standards CAAs to conduct self assessment and prepare to adopt Standards States to (2015) establish final Standards (2015) States to submit CSBG State Plan with final Standards (Sep 1, 2015) OCS publishes IM 138 with recommended Organizational Standards (Jan 2015) States begin to monitor and assess CAAs on Standards through established oversight procedures and report performance on Standards in Annual Report (Federal FY 2016) 28 7
CSBG Org. Standards Resources Self Assessment Tool Nonprofit CAAs: http://www.communityactionpartnership.com/s torage/cap/documents/oscoe/feb%202015/os coe_self_assessment_private_caas.pdf CAA Boards and the Organizational Standards: http://www.communityactionpartnership.com/s torage/cap/documents/oscoe/standards_and_ boards_final.pdf CSBG Org. Standards Resources Glossary of Terms: http://www.communityactionpartnership.com /storage/cap/documents/oscoe/feb%202015 /oscoe_glossary_2_13_2015.pdf Additional resources, including archived webinars: http://www.communityactionpartnership.com /index.php?option=com_content&task=view& id=96&itemid=291 29 30 Question Two If a state finds a deficiency, it is not required to inform the CAA and may proceed with reducing or terminating the CAA s funding based on the deficiency finding True State s Monitoring Report False 31 32 8
State s Obligation to Inform CAA Must inform of deficiency and give opportunity to correct it OCS recommends that state CSBG office: Document basis for a performance deficiency or failure to comply with a state requirement Maintain records of correspondence or other communications relating to actions taken, including enforcement actions OCS Information Memorandum (IM) 116; TX CSBG reg. 10 TAC 5.206(a)(1)(2) Texas Post Monitoring Procedures Conduct exit briefing with CAA Send written monitoring report w/in 30 days of last day of monitoring visit Emailed and mailed to board chair and executive director Describes monitoring assessment and corrective actions, if applicable TX Compliance Monitoring reg., 10 TAC 5.2101(f) 33 34 Deficiency Deficiency is not defined by the federal CSBG Act State may, within parameters of federal CSBG Act, establish when a monitoring finding rises to the level of a deficiency Federal CSBG Act only defines the cause a state must determine exists to initiate a reduction in or termination of funding Question Three Which of the following reasons are NOT listed in the federal CSBG Act as cause for a state to terminate or reduce a CAA s CSBG funding? A. A CAA s failure to comply with the terms of its CSBG contract with the state or the state plan B. Termination of a CAA s funding under another federal program C. A CAA s failure to meet appropriate requirements established by the state D. A and C E. None of the above 35 36 9
Cause Under Federal CSBG Act The federal CSBG Act explains that cause for which a state CSBG office may initiate a reduction in or termination of a CAA s funding includes: The failure of a CAA to comply with the terms of its CSBG agreement with the state, the state plan or to meet a state requirement Cause Under Federal CSBG Act A state CSBG office may also initiate a reduction in funding for cause if: A statewide redistribution of CSBG funds is needed to respond to one of the following: The results of the most recently available census or other appropriate date, The designation of a new CAA, or Severe economic dislocation 37 38 Sample Monitoring Report 39 Who Should Be Involved in Developing an Approach? Executive director and senior staff Review report and make recommendations Provide information to the board Facilitate corrective actions Board of directors Review monitoring report Make recommendations on how to address findings and deficiencies Consider forming a committee to help facilitate the review and response process 40 10
Sample Monitoring Report How to Think about a State s Monitoring Report Findings? Do you understand what it means to have a compliance issue vs. a deficiency? Are you sure that the legal basis noted for each of the findings is applicable to a CAA? Has the state CSBG office accurately set forth the facts? Is there a legal basis for each of the findings? 41 42 Sample Monitoring Report How to Think about a State s Monitoring Report Deficiency? Has the state CSBG office accurately set forth the facts? Has the state CSBG office interpreted the federal CSBG Act correctly? Whom should you contact to help you better understand the law and its application to your facts? 43 44 11
Sample Monitoring Report How to Think about a State s Monitoring Report Best Practice? Do you understand the effect of choosing not to follow a best practice? If you choose not to follow a best practice, do you have a documented reason why not? 45 46 How to Think about State s Monitoring Report Logistics? Do you understand your options for responding to the state CSBG office s monitoring report? Do you know the time frame within which you are required to respond? Have you designated someone in your CAA to monitor any responses and/or actions you may take? State s Obligation to Offer Training & Technical Assistance and Quality Improvement Plans 47 48 12
Training & Technical Assistance State CSBG office is required to offer T/TA, if appropriate, to help correct a deficiency If provides T/TA, must prepare and submit a report to OCS describing T/TA offered If does not provide T/TA, must prepare and submit a report stating reasons for its determination Training & Technical Assistance T/TA may not be appropriate when: CAA has internal expertise and skills State already provided T/TA and CAA failed to institute corrective actions Multiple, widespread and/or repeated deficiencies Fraud or criminal wrongdoing involved 42 U.S.C. 9915(a)(3)(A), (B); TX CSBG reg. 10 TAC 5.206(a)(1)(2) OCS Information Memorandum (IM) 116 49 50 How to Challenge State s Decision Not to Provide T/TA Obtain a copy of the report the state sent to OCS explaining why T/TA not appropriate See state public record acts and federal FOIA Send letter to state CSBG office that: Clearly outlines why T/TA is appropriate Show how your situation differs from the scenarios OCS describes in IM 116 as inappropriate for T/TA Sets forth T/TA sought Copies OCS TX Subrecipient Response Subrecipient given 30 days to respond to findings of noncompliance requiring corrective action May apply for extension for good cause State CSBG office will approve/deny extension w/in 3 business days of receiving request TX Compliance Monitoring reg., 10 TAC 5.2101 51 52 13
Opportunity to Submit a QIP QIP Timeframe Within state s discretion to give CAA opportunity to develop and implement a QIP to correct a deficiency State must take into account the seriousness of a deficiency and the time required to correct If state grants CAA opportunity to submit a QIP, must: Give CAA 60 days to develop and implement it Approve/not approve within 30 days of receiving QIP from CAA 42 U.S.C. 9915(a)(5)&(b); 9908(b)(8); 45 C.F.R. 96.92; IM 116; TX CSBG reg. 10 TAC 5.206(a)(4) Prepare to implement QIP as soon as you submit it to the state for approval Keep state informed of intention to submit a QIP 53 54 Opportunity to Submit a QIP QIP Submitted State CSBG office may deny a CAA the opportunity to submit a QIP when: If state does not approve a QIP, must specify reasons why A QIP has already been submitted and CAA has repeated findings A CAA may challenge a state s decision not to approve a QIP by: Fraud or criminal wronging doing involved Obtaining state s reasons as to why QIP not approved A CAA may challenge a state s decision not to grant the CAA an opportunity to submit a QIP by: Sending a letter to the state outlining reasons why an opportunity to submit a QIP should have been granted Coping OCS on the letter 55 Sending a letter to state responding to its reasons why it did not approve the QIP and outlining reasons why a QIP should have been granted Providing documentation, if available, to support position Copying OCS on the letter IM 116; TX CSBG reg. 10 TAC 5.206(a)(5) 56 14
Possible Responses How to Respond to a State s Monitoring Report Phone conversation, proceeded by written followup Letter to state CSBG office explaining why you disagree with certain findings Corrective action plan/qip addressing the findings accepted by CAA 57 58 Sample CAA Response Letter Sample Monitoring Report 59 60 15
Sample CAA Response Sample Monitoring Report 61 62 Sample CAA Response Sample CAA Response See Uniform Guidance, 2 C.F.R. 200.439; 45 C.F.R. 75.439 63 See Uniform Guidance 2 C.F.R. 200.452; 45 C.F.R. 75.752 64 16
How to Prepare a QIP Sample QIP 1. Understand factual and legal basis for findings and deficiencies 2. List actions you will take to correct finding or deficiency 3. Set forth timeframe for completing actions 4. If need assistance from state CSBG office, be specific 5. If anticipate more time than allotted is needed, communicate this in plan and set forth a reasonable timeframe 65 66 Sample Monitoring Report Sample CAA QIP 67 68 17
Sample CAA QIP 69 70 TX Monitoring Close Out Letter TX Monitoring Close Out Procedures 71 Issued w/in 45 days after end of corrective action period Close Out options: Finding rescinded if evidence establishing continual compliance negates non compliance finding If response satisfies monitoring letter findings and concerns, noncompliance noted as resolved If unable to obtain documentation to resolve finding and mitigating circumstances exist, finding may be noted as not resolved but issue closed If all findings not corrected, letter will identify documentation that must be submitted TX Compliance Monitoring reg., 10 TAC 5.2101(h) 72 18
TX Option for Review If after corrective action submitted, Compliance Monitoring staff continues to find noncompliance, CAA may request or initiate review of the matter via: Federal program officer State CSBG Office Compliance Committee Alternative dispute resolution TX Compliance Monitoring reg., 10 TAC 5.2101(i) TX Option for Review If CAA not respond to monitoring letter or fail to provide acceptable evidence of compliance w/in 6 months of notification of issue, may be subject to: Administrative penalties, 3 rd party review, Full or partial cost reimbursement or Contract suspension TX Compliance Monitoring reg., 10 TAC 5.2101(i) 73 74 Question Four A state is required to take which of the following actions prior to initiating a reduction in or termination of funding: A. Provide CAA with notice B. Provide CAA with a hearing on the record C. Suspend a CAA s funding until a determination is made by the state at the hearing D. Determine if cause exists to reduce or terminate funding E. a, b, and d F. All of the above Additional State Obligations and CAA Options 75 76 19
State s Obligation if Deficiency Not Corrected Provide CAA notice and an opportunity for a hearing; Based on hearing record, determine if cause exists; If cause exists, initiate proceedings to terminate CSBG designation or reduce CSBG funding and Prior to reducing or terminating funding, permit CAA to seek federal review of state s determination 42 U.S.C. 9915(a)(5)&(b); 9908(b)(8); TX CSBG reg. 10 TAC 5.206(a)(5) 77 78 Federal Appeal Option Federal Appeal Timeframe CAA may request federal review of the state s decision if, after the hearing, the state finds cause to terminate or reduce federal funding A request for federal appeal must: Be in writing; Submitted by CAA within 30 days of being notified by state of its final decision to reduce or terminate funding; and Sent to the attention of the Division of State Assistance in the Office of Community Services OCS must complete appeal no later than 90 days after it receives from state all necessary documentation relating to state s determination 79 80 20
Question Five If a state discontinues or reduces a CAA s CSBG funding without following the proper reduction or termination steps, the only option for a CAA is to send the state a letter demanding that the proper steps be followed and the funding be reinstated. True False Direct Funding Request OCS has authority to provide funding directly to CAAs when state violates assurance in state plan to provide notice, an opportunity for a hearing and a federal review If direct funding granted, financial assistance from OCS to CAA will continue until the state s violation corrected 42 U.S.C. 9915(c) 81 82 Complaint Process * * * Federal CSBG block grant regulation allows grant recipients to file a complaint alleging that the state failed to follow the federal CSBG Act Includes failure to follow certification and assurances made by state OCS will defer to state s interpretation of the CSBG Act unless the interpretation is clearly erroneous 45 C.F.R. 96.50 83 84 21
Complaint must: Complaint Process Be submitted in writing to Director of OCS Identify the provision act, assurance or certification allegedly violated Specify the basis for the violations charged Include all relevant information know to the person submitting the complaint Complaint Process OCS s responsibilities include: Providing a copy of the complaint to the state Conducting an investigation where appropriate Responding to the CAA within 180 days of receiving the complaint If a final resolution is not obtainable within the 180 days, setting forth reasons why additional time is needed Upon receiving the complaint from OCS, state has 60 days to respond and may request additional time 85 86 Resources OCS Information Memorandum 116, http://www.acf.hhs.gov/programs/ocs/resource/no 116 corrective action termination or reduction of funding Monitoring Map for CAAs: A Guide for Navigating the CSBG Review Process, http://www.caplaw.org/resources/publications.html 87 88 22