Register for the next session in CAPLAW's Conquering Employment Law Conundrums webinar series.
Managing the Changing Face, Risk and Cost of Discrimination
This webinar will help participants sort out which EEOC matters pose real risk and which ones do not, based on the EEOC’s recently released 2012-2016 strategic plan. Learn more and register today!
February 13, 2013, 2 p.m.- 3 p.m. Eastern Time
Introducing CAPLAW's newest interactive training module! The module contains 12 chapters on topics ranging from the guiding principle of procurement to creating your own procurement policy and procedure.
CAPLAW is dedicated to providing the legal and financial resources necessary to sustain and strengthen the national Community Action Agency (CAA) network, thereby enhancing CAAs' ability to provide the nation's poor with opportunities to improve their quality of life and achieve their full potential. Through its in-house legal and financial staff and its network of private attorneys and financial consultants, CAPLAW provides legal and financial consultations, training, and publications on a wide variety of topics, enabling CAAs to operate legally and fiscally sound organizations.
OMB Proposes Broad Revisions to Circulars
The Office of Management and Budget (OMB) last week proposed broad revisions to OMB circulars that govern federal grants and other types of federal financial assistance. The proposed revisions seek to merge eight circulars (Circulars A-50, A-102, A-110, A-21, A-87, A-122, A-89, and A-133) into one uniform set of cost principles, audit and administrative requirements for all types of entities that receive federal financial assistance.
CAPLAW is analyzing the proposed changes and plans to submit comments on them. Please contact Cara Loffredo at email@example.com if there are particular issues on which you would like us to comment. If you would like to submit comments yourself, you must do so electronically at www.regulations.gov by midnight Eastern Standard Time on May 2, 2013.
OMB issued the proposed revisions after reviewing hundreds of comments on its February 2012 publication of potential grant reform ideas in the Federal Register. The materials released by OMB include: an explanation of the proposed changes and of OMB’s response to comments received, the full text of the proposed uniform guidance and various documents comparing the proposed revisions to the currently existing circulars:
OMB’s proposal includes suggestions for some significant changes to existing rules. One example is the rules concerning the tracking of employee compensation through personnel activity reports (pages 93-96 of the proposed rule) . The proposed rule creates broad principles and consolidates the reporting requirements for how a grantee may establish internal controls to validate, track and report salaries and wages Although after-the-fact documentation of the distribution of employee’s compensation is still required, there is no mention of the “personnel activity reports” currently required by the cost principles for nonprofit grantees. Instead, the proposed rule requires electronic or paper “certifications of the consistency of charges with the work executed,” which can cover a period of up to 12 months (budget estimates may be used for interim accounting purposes). Alternatives to this system, such as reporting based on outcomes and milestones for program performance, may also be permitted if approved by the funding agency. CAPLAW will provide additional analysis of this proposed rule change in the future.
Also of note is revised language regarding lobbying. The proposed guidance specifies that “no federally appropriated funding made available under a Federal award may be used, either directly or indirectly, to support the enactment, repeal, modification, or adoption of any law, regulation, or policy, by any government, without a specific determination by the Federal awarding agency that such use is expressly authorized by statute.” This prohibition is much broader than that contained in the current OMB circulars.
The Office of Head Start (OHS) has selected a new cohort of 122 grantees to compete for continued Head Start funding. According to a press release from the Office of Head Start, the grantees were chosen for competition because they: received one or more deficiencies; had legal or fiscal management issues preventing them from properly managing federal funds; had their licenses revoked; or scored in the lowest 10% on the Classroom Assessment Scoring System (CLASS™) of grantees reviewed in FY2012. In FY 2012, the average grantee-level scores received by Head Start programs during CLASS™ reviews were 5.90 in Emotional Support, 5.45 in Classroom Organization, and 2.98 in Instructional Support. Funding announcements have not yet been issued for this round of competition.
Decisions on the first round of competition, which were to have been released in December, are not expected until spring. OHS received over 500 applications for the 200-plus funding announcements it issued in that round. According to a December 2012 blog post by OHS Director Yvette Sanchez Fuentes, “In the new year, OHS will begin to reach out to applicants who pass both phases of the review process. At that time, we will engage in negotiations to make final determinations about awards in each of the competitive service areas. In the spring of 2013, when the negotiation process is complete, OHS will release the names of the awarded applicants, an abstract of their application and the summary of panel comments for their awarded application.”
Earlier this week, OHS announced the launch of a pilot funding opportunity in five communities to provide a comprehensive birth-to-five Head Start and Early Head Start program, including services for expectant families. The pilot will take place in five communities where Head Start and Early Head Start are slated for competition: Detroit, MI; Baltimore, MD; Washington D.C.; Jersey City, NJ; and Sunflower County, MS. Grant applications are due May 2, 2013. For more information, see the HHS Administration for Children and Families’ funding opportunities site (these new announcements are at the bottom of the page).
The Community Action and Head Start associations challenging the Head Start recompetition regulations are appealing the federal district court’s dismissal of the suit last July. Oral arguments in the appeal are scheduled for April 5, 2013 at 9:30 a.m. at the U.S. Court of Appeals for the District of Columbia Circuit. A decision in the appeal is expected in the summer.
DOL Issues Final Rules Expanding FMLA Protections for Military Families
The U.S. Department of Labor (DOL) issued a final rule earlier this week expanding the Family and Medical Leave Act’s (FMLA) military caregiver leave and qualifying exigency leave. Military caregiver leave is now extended to eligible employees whose family members are recent veterans with serious injuries or illnesses. The final regulation expands the definition of a serious injury or illness to include injuries or illnesses resulting from preexisting conditions. The rule enables more military families to take Qualifying Exigency Leave for activities that arise when a service member is deployed by extending the leave to eligible employees with family members serving in the Regular Armed Forces. Also, the new rule requires that the military member be deployed to a foreign country for leave to meet the requirements of Qualifying Exigency Leave. DOL’website offers additional information about the new rule, including comparisons with the prior rules and FAQs about how the new rule will apply.
DOL Releases Interpretation Clarifying Leave to Care for Adult Children
The Department of Labor (DOL) recently released an Interpretation offering additional guidance regarding the definition of “son or daughter” as it applies to an employee seeking to take leave under the FMLA to care for a son or daughter with a disability who is 18 years of age or older. The Interpretation clarifies that the age of a son or daughter at the onset of a disability is not relevant in determining a parent’s entitlement to FMLA leave. It also provides guidance on the four factors that must be met for a parent to take FMLA leave to care for a son or daughter 18 years of age or older. In particular, the guidance discusses the impact of the Americans with Disabilities Act Amendments Act of 2008 (ADAAA) on a parent’s ability to take such leave. Lastly, the Interpretation discusses the impact of this guidance on the availability of FMLA leave for parents to care for a son or daughter who becomes disabled during military service.
As of January 27, 2013, many Community Action Agency and Head Start employees are no longer barred from running for public office in a partisan election. The change stems from the Hatch Act Modernization Act, which Congress passed in December 2012. The other Hatch Act restrictions, such as those on political fundraising, as well as the Community Services Block Grant (“CSBG”) Act’s other restrictions on political activities, remain in place.
The change in law means that only those CAA or Head Start employees whose salary is paid one hundred percent, directly or indirectly, from CSBG or Head Start funds, are subject to the ban on running for public office in a partisan election. Prior to this, CAA or Head Start employees were subject to the ban if they worked in connection with a program funded in whole or in part by CSBG or Head Start. CAPLAW recommends that CAAs review their current personnel and political activity policies and revise them in accordance with this change in the law.
Congress Passes New Whistleblower Protections for Employees of Federal Grantees
Many laws currently exist for the protection of whistleblowers. Congress has created a new set of protections in Section 828 (see page 206 in the PDF) of the Fiscal Year 2013 National Defense Authorizations Act (FY13 NDAA or the Act). The Act protects any employee of a federal grantee, contractor or subcontractor who discloses any information that the employee reasonably believes is evidence of gross mismanagement of a federal contract or grant, a gross waste of federal funds, an abuse of authority relating to a federal contract or grant, a substantial and specific danger to public health or safety, or a violation of law, rule, or regulation related to a federal grant or contract (including the competition for or negotiation of a contract). Under the FY13 NDAA, an employee may not be discharged, demoted, or otherwise discriminated against for disclosing such information to various individuals or bodies, including (among others): a management official or other employee of the grantee, contractor, or subcontractor who has the responsibility to investigate, discover, or address misconduct; and a federal employee responsible for grant or contract oversight or management at the relevant agency. For a discussion of whistleblower laws and suggestions for adopting an adequate internal whistleblower policy, see Section 6 of CAPLAW’s publication Tools for Top-Notch CAAs: A Practical Approach to Governance and Financial Excellence.
This e-News Bulletin and webinar series is part of the National T/TA Strategy for Promoting Exemplary Practices and Risk Mitigation for the Community Services Block Grant (CSBG) program and is presented free of charge to CSBG grantees. It was created by Community Action Program Legal Services, Inc. (CAPLAW) in the performance of the U.S. Department of Health and Human Services, Administration for Children and Families, Office of Community Services Cooperative Agreement – Grant Award Number 90ET0433. Any opinion, findings, and conclusions, or recommendations expressed In this material are those of the author(s)and/or presenter(s) and do not necessarily reflect the views of the U.S. Department of Health and Human Services, Administration for Children and Families.