Subject: Parent Appeals
Date: June 2013
Expires: Until Superseded
Authority: California Code of Regulations, Title 5, Chapter 19, Subchapter 3, Article 6
Attention: Executive Officers and Program Directors of All Child Care and Development Programs
The purpose of this Management Bulletin (MB) is to provide clarification on the process that child development contractors should use to conduct their parent appeal process as required in regulations.
The California Code of Regulations, Title 5 (5 CCR), Chapter 19, Subchapter 3, Article 6 requires that contractors mail or deliver a Notice of Action (NOA) to inform parents of specific actions. If a parent disagrees with the contractor action, the parent has the right to appeal and request a hearing. The contractor must conduct the hearing, and specific actions must take place during and following the hearing.
5 CCR sections 18118 and 18119 require a child development contractor to mail or deliver a completed NOA (DOC) when a parent applies for services or when a change is made to the service agreement including, but not limited to, reduction or termination of services. The NOA must contain the information specified in the regulations, including a complete description of the proposed action to be taken by the contractor, the basis or reason(s) for the action and instructions for the parent(s) on how to request a hearing if they do not agree with the NOA. In particular, NOAs should:
- Use language that clearly indicates the factual basis for the action;
- State the statutory or regulatory basis for the action;
- Specify the parent’s right to a hearing and the deadline for requesting a hearing; and
- Specify the deadline to file an appeal of the hearing result to the Early Education and Support Division (EESD).
If the action is one the parent can correct, such as providing a specific piece of documentation or paying family fees, the NOA should specify that the parent can correct the NOA by completing the action.
Contractors are responsible for ensuring effective communication with and a meaningful opportunity for parents who have Limited English Proficiency to participate in its child care programs.
The EESD recommends that the NOAs should be in the home language of the parent. Translations of the NOA are available, created by the California Department of Education (CDE), Clearinghouse for Multilingual Documents. If the CDE has provided a translation, contractors may use that translation.
The EESD urges contractors to work with other agencies such as county welfare departments, local school districts, or community based organizations where languages other than English are used for assistance in translating any NOA not translated by the EESD.
If it is not possible to have the NOA in the home language of the parent, the EESD recommends that the following information be provided in a flyer or other communication in the home language of the parent indicating:
- The notice is extremely important, and it is imperative the parent find someone who can translate the information.
- The notice affects the family’s ability to receive or continue to receive child development services.
5 CCR Section 18120(e) allows for a parent to have an authorized representative (AR) attend the hearing on behalf of or with the parent. When a parent has an AR who attends the hearing, the parent is not required to attend his or her hearing.
Contractors should ensure the parent is aware that they can have an AR at the time the parent is approved for services. This information should be in the parent handbook and be available at other informing opportunities for the parent. This information should be provided every time a parent receives a NOA, and NOAs should include information on how to inform the EESD contractor of who the parent(s) has authorized as his/her/their representative.
A parent authorizing an AR should notify the EESD contractor in writing. Attached to the MB is a sample of an authorization form (PDF) contractors and parents can use for this purpose. However, any written or oral notice that an AR has been duly authorized by a parent, even if not on this form and even if not in writing, should be sufficient.
5 CCR Section 18120(a) provides a parent may file a request for a hearing within fourteen (14) days of the date the NOA was received if he or she disagrees with a proposed action. The regulations do not require the request be made in any specific way and, thus, EESD contractors should accept any request that is made via any communication method used by the contractor. Such methods should include a request in writing, in person, by telephone, by fax, and by e-mail. If a hearing request is not in writing (i.e., made in person or by telephone), it is important to have a written record of the request. The contractor should log the requests on a numbered log to confirm a hearing has been requested and as evidence a request has been made.
The various methods by which a parent can request a hearing and the phone and fax numbers and the physical, mailing and e-mail addresses should be in the parent handbook as well as clearly noted on the NOA.
Since parents have the right to appeal any EESD contractor decision, an appropriate record of the hearing must be made. Video recordings, audio recordings, or transcripts are preferred over written summaries. The NOA should indicate the method to be used and provide reasonable options to accommodate the parent(s) request for the hearing to be audio recorded.
Scheduling a Hearing
5 CCR 18120(c) provides that within ten (10) days of receiving a parent’s hearing request, the EESD contractor must notify the parent of the time and place of the hearing, which, to the extent possible, shall be convenient for the parent(s). Contractors should establish reasonable policies for accommodating a parent’s request for postponement or continuance and for preventing abuse of process through such requests; provided, however, that all such policies must comply with the due process requirements set forth in Article 6. Such policies should also be written in the parent handbook, placed on the contractor website and provided to the parent(s) with the notice of the time and place of the hearing.
Reviewing the Data File
At any reasonable time, including before a hearing, a parent or the parent’s AR has the right to review the data file, as required by 5 CCR Section 18117(b) and reiterated in MB 10-05.
Conducting the Hearing
The hearing officer must be a fair, unbiased and neutral arbitrator. 5 CCR Section 18120(d) specifies the hearing officer conducting a hearing be at a staff level higher in authority than the person who made the decision contained in the NOA. It is important that the hearing officer not only be at a level higher than the staff issuing the NOA, but the hearing officer must not have previously approved the NOA or have participated in the decision to issue the NOA.
Small agencies not having the staffing to meet the above requirements can designate an impartial board member to conduct the hearing, or work with other EESD contractors in the community to have them designate a staff person to provide assistance.
At the hearing, the hearing officer must explain the basis of the agency’s action. The parent or their AR must be given the opportunity to explain why they believe the proposed action is incorrect, pursuant to 5 CCR Section 18120(i). Staff shall present any material facts omitted by the parent(s).The EESD recommends the hearing be structured as a discussion between the parent and the staff as to the facts leading to the issuance of the NOA. The parent and/or their AR must be allowed to ask questions, and the staff at the hearing should answer the questions. The parent may submit supporting documentation to the hearing officer. The EESD recommends contractors conduct both on-site hearings at the agency and alternative methods of conducting local hearings that might include, but not be limited to, telephone and video conference calls (e.g., Skype, ooVoo, FaceTime, or Google Video) that do not require the parent attend the hearing in person. Given the work schedules of many of the families receiving services, it can be challenging to take off work and utilize available transportation to attend a hearing. Contractors should develop written policies outlining the process and requirements for conducting these alternative types of hearings. The process should include an authorization by the parent to participate in this type of hearing, and a way to ensure confidentiality by including a process by which the contractor calls the parent or AR to verify that the correct person(s) is on the phone. Such policies should also be written in the parent handbook, placed on the contractor website and provided to the parent(s) with the notice of the time and place of the hearing.
Hearing Decision Letters
5 CCR Section 18120(j) requires the hearing officer mail or deliver a written decision within 10 calendar days after the hearing. The decision should clearly state the facts of the case both generating the NOA and presented during the hearing. The letter should be written at an eighth grade reading level or a level the parent can comprehend, and as with the NOA, should, if at all possible, be in the home language of the parent. As with the NOA, if it is not possible to have the letter in the home language of the parent, the EESD recommends the following information be sent with the hearing decision and be provided in a flyer or other communication that is in the home language of the parent indicating:
- The notice is extremely important, and it is imperative that the parent find someone who can translate the information.
- The notice affects the family’s ability to receive or continue to receive child development services.
The written decision letter must contain information for the parent on how to file for a second level parent appeal with the EESD, as well as the deadline for filing such an appeal.
The EESD is engaged in several activities to support the direction in this MB. Staff is reviewing the current suggested NOAs both for Application for Services and for Recipient of Services to determine if revision or modification is necessary to assist the parent to understand the contractor action or proposed action. Staff is also in the process of developing pamphlets that contractors would have the option of using to assist in ongoing efforts to ensure parents understand their rights and responsibilities when receiving subsidized child care services.
Questions regarding the information in this MB should be addressed to your EESD Field Services Consultant or by phone at 916-322-6233.
This Management Bulletin is mandatory only to the extent that it cites a specific statutory and/or regulatory requirement. Any portion of this Management Bulletin that is not supported by a specific statutory and/or regulatory requirement is not prescriptive pursuant to California Education Code Section 33308.5.