Answers to Questions relating to Management Bulletin (MB) 13-04 on Parent Appeals
Notice of Action (NOA)
- What should be included in the “basis for action” on the NOA?
The “basis for action” should be a clear and factual explanation of why the action is being taken. The contractor should include the statutory or regulatory authority that supports the NOA. When services are denied, the NOA must specify the basis for the denial. When changing or terminating services, the NOA must include a description of the action and a statement of the reason(s) for the change or termination. Title 5 California Code of Regulations (5 CCR) sections 18094 and 18095.
- Some families are using the NOA as their “bill” and we are sending termination NOAs every month. Can an agency limit the number of times that parents may be delinquent paying their monthly fees?
The regulations require that each agency adopt a policy for the collection of fees in advance of providing services. It is acceptable for such policy to include a reasonable limit on the number of times a parent can be delinquent in paying monthly fees. The written policy must be provided to families at the time of initial enrollment. In addition, agencies must explain their fee policies and possible consequences for delinquent payment of fees to parents. As with any written policy, policies for delinquent fees should be board approved and included in the parent handbook. 5 CCR sections 18109 (c) and 18114 (a).
- After issuing a NOA, the agency determines it will not proceed with the proposed action. How is the parent informed? What documentation should be included in the family data file?
When an agency decides to rescind a NOA, they must communicate this to the parent. The California Department of Education (CDE) recommends that the same communication method used to issue the NOA be used to rescind the NOA. In any event, the agency must document the reason for the rescission and keep a copy of the documentation in the family data file. For example, if the NOA is issued due to missing need, eligibility or other documentation and the parent subsequently provides the missing documentation, the agency may rescind the NOA, but must ensure that the family’s file includes the documentation required by the need, eligibility or other regulations. 5 CCR sections 18081 (a), (b) and (d), 18084 – 18093, 18100, 18067(a) and (b).
Authorized Representative
- I know that parents are allowed to have an authorized representative when appealing a NOA for termination. Are parents also allowed to have an authorized representative for other types of NOAs?
Yes. Parents always have the right to a hearing and an authorized representative any time that a NOA is issued. 5 CCR sections 18120 (a) and 18120 (e).
- How can an agency ensure that parents are aware they can have an authorized representative?
Agencies should include information regarding the authorized representative in their parent handbook which should be provided at certification and recertification. Moreover, every NOA must contain instructions on how to request a hearing. Those instructions should include information on the use of an authorized representative. Agencies may wish to provide a blank authorization form (such as the sample Authorized Representative for Local Appeal Hearing Form (PDF), included in Management Bulletin 13-04) with the NOA to enhance parent awareness of authorized representatives and to facilitate the appeal process. 5 CCR sections 18094 (c) (2), 18095 (k).
Requesting a Hearing
- Are parents required to use the form on the reverse side of the NOA to request a hearing?
The regulations do not require the parent to make their request for a hearing on any specific form, so agencies must accept any reasonable request. Agencies should accept any request for a hearing made via any communication method used by the contractor, e.g. mail, in person, telephone, fax, and e-mail. 5 CCR Section 18120 (a).
Scheduling a Hearing
- How soon after receiving a hearing request must an agency conduct a hearing? Is there a time requirement?
The regulations require that agencies notify the parent of their hearing time and location within 10 calendar days of receiving the parent’s request. The time and place of the hearing shall be convenient for the parent(s), to the extent possible, so agencies must take the family’s schedule into consideration when setting the hearing. 5 CCR Section 18120 (c).
- How many times can a parent request a postponement or continuance of a hearing?
The regulations do not address postponements or continuances, but do require that the time and place of the hearing shall be convenient for the parent(s), to the extent possible. Thus, agencies may establish reasonable policies which impose reasonable limits on requests for postponements or continuances. Any policies must comply with the due process requirements and should, like all policies, be board approved and provided to the parent in advance of any attempt to enforce the policies. 5 CCR Section 18120 (c).
Conducting the Hearing
- Management Bulletin 13-04 states that “an appropriate record” of the hearing must be made. What is an appropriate record?
The record should be sufficient to establish that the agency provided the parent(s) with due process and made a correct decision, in the event the decision is appealed to the CDE. The CDE recommends that the record accurately reflect in sufficient detail what actually occurred in the local hearing. An appropriate record of the hearing could be a number of different things, including a decision letter that includes a detailed summary of the hearing, an audio recording, a video recording, a transcript, minutes of the hearing, etc. An appropriate record should include the explanation of the legal, regulatory or policy basis for the action provided by the hearing officer to the parent(s) during the hearing, the explanation provided by the parent(s) during the hearing explaining why they think the agency’s decision was incorrect, and any staff presentation made during the hearing. 5 CCR Section 18120.
- What is the retention period for local hearing records?
Local hearing records may consist of a number of different items. The general record keeping requirements of the regulations state that “all records shall be retained for a minimum period of five (5) years.” To the extent the agency seeks reimbursement for costs associated with the hearing, the agency must provide auditable records sufficient to establish reimbursement for such five year period. Also, any documentation required to be maintained in the family data files, such as the NOA and the decision letter, would also have to be maintained for five years. However, a typical audio recording of a local hearing that is not subsequently appealed to the Early Education Division (EED) (Formerly known as the Early Learning and Care Division [ELCD]) would not likely be considered a record subject to this provision by the CDE auditors. Except in cases of unusual circumstances, agencies need to retain audio recordings of the local hearing only as long as necessary to serve their intended purpose (at a minimum for the duration of the appeal process including the EED appeal and review time frame). Many agencies may, nonetheless, choose to retain audio recordings of local hearings for longer periods of time by downloading the audio files onto a computer hard drive or other storage device. 5 CCR sections 18067, 18081, 18094, and 18095.
- Management Bulletin 13-04 recommends agencies use alternative methods for conducting local hearings that do not require parents to attend in person, e.g., telephone, Skype, FaceTime. What if the agency does not have the technology available to offer parents these types of hearings?
The alternative methods for conducting local hearings are recommendations and not required by regulations. However, the technological requirements for such alternative methods are quite minimal and provide convenient and effective ways for agencies and parents to participate in the local hearing process in cases where such technology is available to both parties.
- If a parent attends the hearing and decides to withdraw from the program, can the parent appeal to the Early Education Division (EED) (Formerly known as the Early Learning and Care Divsion [ELCD])?
Any time a hearing is conducted, the hearing officer must issue a written hearing decision letter to the parent. The parent may disagree with any hearing decision letter and may choose to appeal the decision to the EED. 5 CCR sections 18120 (j), 18121 (a) and 18121 (d).
Hearing Decision Letters
- What is the effective date of action for the local hearing decision letter? How long does an agency continue to provide services after a local hearing decision letter is issued? Do agencies have to provide services until the Early Education Division (EED) (Formerly known as the Early Learning and Care Divsion [ELCD]) appeal timeline is exhausted?
The action specified in the NOA may be implemented upon the earlier of (1) receipt of the EED decision letter upholding the local action, or (2) upon confirmation by the EED that the parent(s) did not appeal to the CDE prior to the deadline for appeal (19 calendar days following the local decision letter upholding the action). Until then, the agency must continue to provide services. The regulations provide that upon the parent(s) filing of a request for local hearing, the action specified in the NOA shall be suspended until the review process has been completed. The review process is complete when the appeal process, including the CDE appeal process, has been exhausted or when the parent(s) abandons the appeal process. Because the EED accepts appeals received within 19 calendar days from the date on the decision letter (five calendar days from mailing to receipt by the parent, plus 14 calendar days from receipt for the parent to appeal), the parent(s) will be deemed to have abandoned the appeal process if an appeal is not filed with the EED by the 19th calendar day. Therefore, the action specified on the NOA may be implemented the next day, the 20th calendar day following the decision letter, if the parent(s) fail to appeal by then. The EED will notify agencies when a parent has appealed to the EED. Agencies may contact the EED to confirm whether or not the CDE has received a particular parent appeal. When the parent(s) submit a timely appeal to the EED, services continue during the EED appeal process and until receipt of the EED decision letter. 5 CCR sections 18120 (b), 18121 (a) and (b), 18122 (a) and (c), 18419, 18434, and Cal. CCP section 1013.
- In the hearing decision letter, can agencies simply refer parents to the NOA for instructions about how to appeal to the Early Education Division (EED) (Formerly known as the Early Learning and Care Divsion [ELCD]) (i.e., the second level appeal process) or must the decision letter contain the second level appeal information?
In order to assure due process, agencies need to provide parents with information on how to appeal to the EED and may include a copy of the NOA with the hearing decision letter.
Other
- Do parents have recourse for appealing after the second level appeal to Early Education Division (EED) (Formerly known as the Early Learning and Care Divsion [ELCD])? If so, does the agency need to continue services after receiving the ELCD decision letter?
The EED decision is the final administrative action. If the EED decision is to uphold termination, services shall end when the contractor receives the EED decision letter, unless a court issues a stay or order that supersedes the regulations and directs that services continue. 5 CCR Section 18122 (a) and (c).