Implementation of the new competition requirements from the 2007 amendments to the Head Start Act have begun. The new Head Start regulation on competition, 45 C.F.R. Part 1307, became effective on December 9, 2011. In mid-December 2011, the Office of Head Start released a list of 132 grantees that would be required to compete for continued funding and sent notification letters to those grantees. The letters informed the grantees that the competition decision was based on HHS’s determination that they had at least one “deficiency” since June 2009. The list included a number of very large public grantees, such as New York City, Los Angeles, and Detroit, and over 50 Community Action Agencies. A number of the deficiencies related to health and safety issues, such as a child left on a bus or facilities maintenance issues.
In January 2012, HHS issued funding forecasts projecting that it would post Notices of Funding Opportunities for these service areas on March 23, 2012 and applications would be due on May 22, 2012. It appears, however, that the Office of Head Start may be delaying that posting date by at least several weeks.
A lawsuit has recently been filed in federal court attempting to stop implementation of the Head Start competition regulation. The parties bringing the lawsuit are the Ohio Head Start Association, the Ohio Association of Community Action Agencies, and the Massachusetts Association for Community Action. The suit claims that the regulations are invalid and should not be enforced because the new system does not reflect the expressed intent of Congress that only those grantees that are not providing “high quality” and “comprehensive” Head Start services should be required to compete for continued funding.
The complaint alleges that the regulation arbitrarily departed from the recommendations of the required expert panel by setting just one deficiency as a trigger, that the retroactive implementation of the rule (by looking at deficiencies going back to June 2009) was illegal, and that the regulation did not have a rational basis. It claims that by publicly labeling those grantees as not “high quality” they will be at a disadvantage in any competition.
The lawsuit asks the court to rule that the regulation is invalid and to require HHS to go back to the drawing board to draft a new regulation that complies with the statute. The court has not yet taken any action on the lawsuit.