Opinion No. ( 1996 )

The Honorable Percy Malone State Representative 518 Clay Street Arkadelphia, Arkansas 71923

Dear Representative Malone:

This official Attorney General's Opinion is issued in response to your recent request for an opinion regarding the Early Childhood Commission.

You indicate that your inquiry arises out of a scenario in which a not-for-profit child care agency received a grant under the Arkansas Better Chance program. (See A.C.A. § 6-45-101 et seq.) The grant was executed for the program year 1995-96 on July 1, 1995. Two of the five conditions for the grant were: (1) Progress on the Early Childhood Environment Rating Scale (ECERS) must be demonstrated for the month of November, 1995, as compared to the last monitoring visit in the 1994-95 program year; and (2) The program must score a 4.5 on the ECERS by the spring of 1996.

The grant recipient's last ECERS score for the 1994-95 program year was a 3.9, as reflected in an evaluation conducted on May 11, 1995. The evaluation that was conducted in November, 1995 reflected a score of 4.0. The Early Childhood Commission notified the grant recipient on November 27, 1995 that grant funding would be discontinued on January 1, 1996 due to the lack of progress on the ECERS scores.

On the basis of the above-described scenario, you have presented the following question:

Does the Early Childhood Commission have the discretion and authority to terminate an Arkansas Better Chance program grant under the circumstances described above?

It is my opinion that the State Department of Education acting through its Board, has the ultimate authority to terminate an Arkansas Better Chance program grant. However, the Early Childhood Commission has the authority to make recommendations to the Department regarding the allocation and expenditure of Arkansas Better Chance funds.

The question of whether any particular grant should be terminated (including the grant in the scenario that you described) will depend upon all of the facts and circumstances of each particular case. For this reason, I am unable to opine generally as to the appropriateness of grant terminations. Moreover, because I have not been presented with all of the facts and circumstances surrounding the situation about which you have inquired, I am unable to opine definitively as to whether that grant should have been terminated. I will, however, provide you with an overview of the procedure that the Early Childhood Commission and the Department of Education are required to follow in administering the Arkansas Better Chance program.

The Arkansas Better Chance program is governed by A.C.A. § 6-45-101 etseq. That chapter gives the Department of Education the ultimate authority for the administration of the program, with the advice of the Early Childhood Commission. A.C.A. § 6-45-105. (The Early Childhood Commission's authority to advise the Department is reiterated in the statutes that create and govern the Early Childhood Commission, see A.C.A. § 20-78-501 et seq., and in the rules and regulations that the Department of Education has adopted for the approval of early childhood programs. See Rule 5.0 of the Arkansas Department of Education's Rules and Regulations for the Arkansas Child Care Approval System.)

The Department of Education is charged with the responsibility of adopting standards and other rules and regulations that are necessary for the implementation of the Arkansas Better Chance program. See A.C.A. §6-45-105(a). Under the rules and regulations that the Department has adopted pursuant to that charge, each grant recipient must meet the criteria for becoming an "approved" early childhood program under the rules and regulations for the Arkansas Child Care Approval System. See Regulation 9.04 of the Arkansas Better Chance Program Regulations.

The Rules and Regulations for the Arkansas Child Care Approval System require that in order to attain "approved" status, each early childhood program must score 4.5 or above on the Early Childhood Environment Rating Scale. See Rule 7.0 of the Rules and Regulations for the Arkansas Child Care Approval System. An on-site evaluation of each program is conducted at least annually. See Rules 5.0 through 9.0 of the Rules and Regulations for the Arkansas Child Care Approval System.

Score deficiencies do not result in an automatic loss of "approved" status. See Rules 8.0 and 9.0 of the Rules and Regulations for the Arkansas Child Care Approval System. The Arkansas Early Childhood Commission has implemented a system under which the Commission works with programs whose on-site evaluations reflect score deficiencies, to develop program improvement plans that are designed to correct such deficiencies. Each such plan will be tailored to address the particular situation of the program in question. Under the program improvement plans, grant recipients are given multiple opportunities and time extensions to correct score deficiencies. Under the practice of the Commission, it is only after a program has repeatedly failed to correct score deficiencies that the Commission will recommend the termination of "approved" status (and therefore of funding). Such recommendations are made to the Department of Education. The Department, acting through its Board, is the body which has the ultimate authority the terminate a program's "approved" status and funding.

The foregoing is the procedure that is required and followed by the Arkansas Early Childhood Commission and the Department of Education in administering the Arkansas Better Chance program. Clearly, the facts of each case will bear upon the question of the appropriateness of the termination of funding. In any event, the final decision to terminate is made by the Department of Education, rather than by the Arkansas Early Childhood Commission.

The foregoing opinion, which I hereby approve, was prepared by Assistant Attorney General Suzanne Antley.

Sincerely,

WINSTON BRYANT Attorney General

WB:SBA/cyh