Albina Head Start provides free daycare and preschool for nearly 900 low-income children who qualify for the Head Start program at 20 locations across Portland. But the nonprofit is now at risk of losing nearly $50 million in funding after it was found to be “deficient” by the federal agency that administers the program. It must now also recompete for grant funds despite decades of serving thousands of infants and children enrolled in Head Start.
AHS has responded by filing a lawsuit against the Department of Health and Human Services. It claims the agency is incorrectly interpreting its own regulations and wrongfully labeled the organization as being “deficient” for the actions of one employee who no longer works there. The Oregonian first reported on the lawsuit and the circumstances leading to it.
Ron Herndon is the director of Albina Head Start and a former president and board chair of the National Head Start Association. He joins us to talk about the lawsuit and what’s at stake for his organization and other local Head Start programs.
This transcript was created by a computer and edited by a volunteer.
Dave Miller: This is Think Out Loud on OPB. I’m Dave Miller. Albina Head Start has been providing free daycare and preschool for children in low-income families in Portland for many decades. But the nonprofit’s future has some doubt right now. It was recently labeled “deficient” by the US Department of Health and Human Services. That’s the agency that manages the federal Head Start program. The nonprofit has sued the agency in response, arguing that its actions were arbitrary, capricious and unlawful.
Ron Herndon has been at the helm of the nonprofit for nearly 50 years. He joins us now. Welcome back to Think Out Loud.
Ron Herndon: Thank you, Dave.
Miller: Can you tell us first about the incident that is at the heart of this, something that happened at one of your sites in November of last year?
Herndon: Yes, an employee lost their temper and threw a small block at a child, hit them in the leg. We confirmed the incident happened, fired the employee within three hours, notified the parent, and then we notified the state and federal agencies responsible for childcare.
Miller: At that point, what was your assumption about any potential repercussions that would come from that incident? As you noted, there was a swift response, the individual was fired, and you reported this to government agencies at different levels. What did you think, if anything, was going to follow from that?
Herndon: Well, we thought that there would be investigations. The state came in, investigated, looked at what happened, and they determined that we took every appropriate and reasonable step. The feds on the other hand came to the conclusion that we had not taken reasonable steps, and that we should have been able to determine that this person was going to ignore state regulations, federal regulations, our personnel policies, our code of conduct. We should have known that this person would ignore all those things, commit this act, and done something to stop them. That then led to them declaring us a “deficient” agency, which means that we are a low performing agency.
Miller: Had there been any incidents in the past by that individual that would have led you to believe that they would break those various rules and protocols?
Herndon: None. The person passed state and federal background checks, went through hours and hours of Albina Head Start training. There’s no way in the world that we could have predicted that this would have happened, unless the federal government presumes that Albina Head Start and its staff are students of phrenology, that we could have looked at his head and seen certain bumps that would indicate that he would take part in this kind of nonsense.
Miller: What does it mean to be found deficient? And are there different levels of deficiencies under federal guidelines?
Herndon: Well, what it means is that they have deemed that you are a low performing program, and that you will have to recompete for your grant. And any agency, profit or nonprofit, in the entire country can also compete for your grant.
It’s demoralizing for our staff. We had a person yesterday that said that they were resigning because the future of Albina Head Start is [inaudible]. And people who work so very hard to give great services for children and families, to be told now that you’re part of a deficient, low performing agency is very, very demoralizing.
Miller: How much of your funding comes from this federal agency?
Herndon: Approximately half of our funding comes from the Office of Head Start. The other half comes from the State of Oregon.
Miller: One of the claims in your suit is that HHS’s decision caused you to have to expend scarce resources responding to the finding, and as you noted just now, recompeting for a Head Start grant. How much money are you spending to fight this designation?
Herndon: Well, already we’re estimating that it’s going to cost us well over $100,000. Because one, we have to hire the law firm in Washington D.C. They are the best at understanding Head Start policies and regulations, and I have worked with them before when I was in the leadership of the National Head Start Association. And those are not pro bono services. We have hired a grant writer to help us write this grant in case we’re not successful in getting this injunction.
Miller: Were you at all worried that in suing HHS, that top decision makers would see you as troublemakers, in a way jeopardizing your future funding, even if you end up winning the suit?
Herndon: You know what, Dave, I personally don’t care. They are wrong as two left shoes. They’ve been getting away with this for many, many years. Most programs don’t have the resources to go after them. We do. And I think that for Albina Head Start, our reputation is far more important to us than somebody sitting in their Office of Head Start who decides to make this kind of unfair decision, and how they feel. I could care less.
Miller: What do you mean when you say that this has been going on for too long?
Herndon: Well, the Office of Head Start has ignored the will of Congress. When Congress wrote the legislation in 2007 about these acts, they said very clearly that there has to be systemic acts, there has to be substantive acts, that indicate weaknesses in programming. A one-time occurrence is not systemic. And the Office of Head Start has chosen to misinterpret that, and say a one-time occurrence is an indication of systemic failure.
Dave, there is no other part of the federal government that contracts and says to contracting agencies “one incident is indication of systemic failure, and your funding can be in jeopardy.” A recent example – they haven’t said that to Boeing. They’ve got astronauts that are stuck up in space, and no one has said because of that failure, that incident, that’s an indication of systemic failure. They never do this with the Department of Agriculture, they never do this with the fraud that’s going on in Medicare, Medicaid. They never say one incident is an indication of systemic failure. That’s only reserved for Head Start.
Miller: We told the agency we would be talking with you and asked if they wanted to provide a comment. As is the norm with basically every federal agency we’ve ever encountered, they say they don’t comment on pending lawsuits. But do you have a theory about what happened? About why it is that they are pursuing a kind of one-strike and you’re out reading of their rules?
Herndon: I’m only guessing here – this goes back to when George W. Bush before he became president, while he was governor of Texas. He said, “If I am elected to be president of the United States, I’m going to advocate that Head Start be moved to the Department of Education,” and thereby basically destroy Head Start. The Department of Education only block grants funding to entities.
So the national Head Start Association, we fought against that and won. But there was this lingering thought among some of the decision makers that maybe this program is not as good as it’s touted to be. And they began to put in these, in my opinion, draconian regulations based upon this myth, that now many of them agreed upon. And it carried over into the Obama administration. And unfortunately, the Obama administration put this on steroids. They actually came up with a proposal that said that each year, 10% of all Head Start programs would have to recompete for their grant. And we fought against that.
Unfortunately, they went back and said, “There is an assessment that’s being used now to determine the quality of performance between teachers and students. We will use that to determine if programs are not quality.” That’s not what the assessment was set up for. They gleefully said in some of their papers that we got that “if we use this, it will almost guarantee that 30% of the programs will have to recompete for their grants each year.”
So this idea, I think, has been stuck into the minds of some of the civil servants who are in the Office of Head Start. As well as, we’ve learned that this comes from the White House also. There’s something called Domestic Policy Council, and the Office of Management and Budget. Many of these focuses that are designed, in my opinion, to hurt Head Start emanate from those parts of the government. A lot of people don’t know it. I wouldn’t have known unless I saw the papers that we were able to get from them.
So I think that, unfortunately, this is again a myth agreed upon that’s been perpetuated by the Office of Head Start.
Miller: What have you heard from other head start providers around the country about your particular case?
Herndon: “Thank you. We wish that someone had stood up and done this many years ago. We aren’t able to do it. We wish you all the luck in the world.” As a matter of fact, there are several that have said to us, “Would you please get in touch with us? Because we’ve gone through the same nonsense, and if our experiences can help you in your lawsuit, we want to share them.”
Miller: What is the timing right now? It seems like, unless I’m mistaken, that there are parallel tracks right now. Are you both currently working on recompeting for a grant, and fighting the lawsuit about the determination that said you have to recompete for the grant?
Herndon: Yes.
Miller: So what’s the timeline of each of those?
Herndon: Well, the feds have, I think, approximately 60 days to respond. They have yet to announce when programs can compete for the grant. We don’t know the date. We don’t know when they’re going to make that announcement.
Miller: Ron Herndon, thanks very much.
Herndon: Thank you, Dave. Take care.
Miller: You too. That’s Ron Herndon. He is the director of Albina Head Start. He’s been in charge since 1975. From 1991 to 2013, he was the president and board chair of the National Head Start Association. He joined us to talk about the Portland-based nonprofit’s lawsuit against the federal government – the Department of Health and Human Services – over that agency’s recent finding that the nonprofit was “deficient” in the way it’s running its programs.
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