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Home My WebLink About20181071.tiffBEFORE THE STATE BOARD OF HUMAN SERVICES DEPARTMENT OF HUMAN SERVICES STATE OF COLORADO In the matter of the Colorado Works/Child Care Assistance Program Annual Performances Contract POSITION STATEMENT In the matter of the Colorado Works/Child Care Assistance Programs Annual Performance Contract, set for hearing on May 4, 2018, please see the following information: FACTUAL BACKGROUND: In August 2016, Weld County submitted a letter to CDHS outlining significant concerns with the annual MOU, including: antiquated content, lack of clear, equitable and binding expectations and the lack of clear expectations for collaboration between CDHS and Counties to meet performance outcomes. Between August 2016 and October 2017, all efforts were made to collaborate with CDHS to ensure the MOU was updated to make it clear, relevant and robust. After several meetings, numerous updates and multiple versions of the MOU in circulation, Counties and CDHS agreed on all but three items. CDHS conceded to one of the three items, and on October 17, 2017, submitted their final draft of the MOU, with the following statement included: "If counties agree to the attached version, then CDHS will work with counties to get the agreement put in place. If counties reject the attached version, then the matter will go before the Human Services Board on November 3, in Grand Junction." CDHS ceased all negotiations with Counties at this time and, subsequently, Counties have not had the opportunity to resolve technical issues between the two documents. In addition, Counties maintain that the MOU must include the two remaining unresolved issues: Federal Preemption and Improper guidance language. ISSUES (a) Procedures to be employed during the hearing; Whether the State Administrative Procedure Act should apply. The Administrative Procedure Act should not govern this hearing. This should not be a quasi- judicial proceeding. The general statutory purpose of the Human Services Board is to promulgate rules for the Colorado Department of Human Services under Section 26-1-107, 2018-1071 UT\s-v\A PcrasK- N-z-zit$ CO2 4-1,-Eaoe9 C.R.S. It is not a quasi-judicial body and should not act in this way. Although, the Human Services Board has authority to hear this matter under Section 26-2-715 and 26-1-107, C.R.S., neither of these sections give it quasi-judicial powers. (b) The binding or nonbinding nature of the Board determination. The State Board decision should not be binding because a binding decision violates common law contract principals; assumes the State Board has jurisdiction over County Commissioners; and ignores the intent in which the Counties entered into the negotiations with CDHS as further described below. (1) Common Law Contract Principals: Section 26-2-715, C.R.S., Performance Contracts, states that if a party asks for Board review, the decision will be binding, however, the statute conflicts with common law contract principals. A court may enforce an agreement between two parties, but enforcement, first requires the two parties to reach an agreement. There must be a meeting of the minds to get to an agreement or at least an offer and acceptance. These two parties never had a complete meeting of the minds or full acceptance and common law principals do not allow a party to be forced to enter into a contract it finds unreasonably biased to its best interest. The statute section is titled "Performance Contracts." This title along with the initial language of the statute indicates the parties will come to an agreement on the terms of the MOU. Forcing a party to agree to specific terms of an agreement it does not find appropriate goes against basic principles of contact law. (2) Authority over County Commissioners: If the Board decides the "final" terms of the agreement and holds its decision is binding, it still has no authority to require an independently elected official to enter into the agreement under those required terms. Additionally, making a determination over the terms of the agreement will not move this negotiation forward. A County Commissioner is not required to enter into the agreement. The terms may be settled, but the Counties can still refuse to sign an agreement that is not in the best interest of the Counties and the program will be at an impasse. (3) Prior MOU Language and Negotiation Strategy: The Counties entered into the MOU negotiation under the pretense the Board decision would not be binding. For years, Counties have operated under agreements that stated if a Board review was necessary it would not be binding on the parties. The provisions of the previous MOUs, saw the State Board as an instrument of mediation between the two parties but not as a final arbitrator of the agreement. When the negotiation with CDHS began many Counties still had MOUs containing this language in place governing their agreements with CDHS. After months of negotiation and movement, CDHS unexpectedly moved for Board review without any further communication to the Counties of its intent. This assumption by the Counties affected the openness of negotiation and the ability to compromise. That assumption should not be ignored in this review and decision upon its binding effect. (c) Whether a county may be sanction if it fails to meet a state rule that conflicts with or exceeds federal regulation. The Counties should not be sanctioned for not complying with a state rule which conflicts or exceeds requirements of the federal regulations governing this program. Federal pre-emption is a basic constitutional concept. The Counties certainly should not be sanctioned for something in conflict with requirements of the federal agency charged with implementing this program. Whether the rule has been legally challenged should not be required. If CDHS knows a rule conflicts with federal law it should be working diligently to amend or repeal the rule. Moreover, the federal requirements of the program are sufficiently onerous that even additional requirements should not be enforced. CDHS opposition to this language is unreasonable. The language should affect a very narrow group of rules if any at all. Additionally, the language specifically targets sanctions. Sanctions should only be imposed on Counties for failing to satisfy rules that comply with federal law. (d) Whether a county may be sanction if the Department provides inaccurate guidance, training or data with regards to the performance agreement. The Counties should not be sanction for relying on improper guidance, poor training or inaccurate or incorrect data provided by CDHS which results in the State being sanctioned. The Counties are administering this program for CDHS. CDHS is in charge of communicating with the federal government and communicating the priorities of the program to the Counties. Counties have previously relied on guidance given by CDHS for which elements of the program should be a priority and that guidance now appears to be incorrect and could result in sanctions to the State for not meeting certain standards. The Counties admit this guidance was not provided in bad faith, however, it was still relied on by the Counties in implementing their programs. The Governor's budget now includes a mention of the sanction that could be imposed on the State for not meeting certain benchmarks. With this in mind, the Counties do not feel they should be held financially responsible if they rely on guidance from CDHS and they can prove the guidance provided was improper. (e) Any other disagreement between the parties regarding the performance agreement. The Counties believe language in the MOU that governs general contract conduct should remain. These sections include: Discretionary Matters, Severability, Integration of Understanding, and No Third Party Beneficiary clauses. These are good contracting or agreement standards that protect both parties to the agreement and clarify the scope of the agreement. These are not meant to be the "teeth" of the agreement. Both parties in the negotiation previously agreed this language would be left in the agreement, however, in the CDHS draft it is now removed. CDHS has offered no reason for reversing its decision and taking the language out. This is an improper action of not honoring what was previously agreed to and the language should remain in the document. CONCLUSION The Counties ask the Board to determine that its decision is not binding on the parties. If the Board makes recommendations as to which disputed terms should be included in the agreement, the Counties request the Board recommend that both the improper guidance term and federal preemption term be added to the MOU and that the general contract provisions also remain in the agreement. Submitted by Weld County Board of County Commissioners and Weld County Department of Human Services and Supporting Counties: Steve Moreno Chair, Weld County Board of County Commissioners Also Supported by the following Counties: Montezuma County Rio Blanco County Moffat County Broomfield County Prowers County Mesa County Gunnison County Park County Judy Grieg Director for Weld County Department of Human Services CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of this POSITION STATEMENT was served on the following parties via email, this 29th day of March, 20.18. Colorado Department of Human Services Board Conflicts Counsel Ki'i Kimhan Powell Skippere Spear .nQ\' ll@st{it,c .eo us skip.speQ .'� c,otz c v Adams County Human Services Chris Kline c'klifl trr ad oggv.a' g Arapahoe County Human Services Cheryl Ternes Cterr es@arapahagnv.conl Baca County Social Services Ruth Wallace -Porter th.wa11 ape strato.ca.0 Boulder County Housing & Human Services Frank Alexander fealexan 11rtr laoulclv.o' Chaffee County HumanServices David Henson david.henson@state.co.us Clear Creek County Health & Human Services Cynthia Dicken ci dy.diek n st ite.co,u8 Costilla County Social Services Tommy Vigil Lo imii il@state.co.us Custer County Human Services Laura Lockhart laura.lackhart@statexa.us Alamosa County Human Services Catherine Salazar .atherine.salazar@state.co,.u.s Archuleta County Human Services Matthew Dodson matthew.dadsan@stato.co.us Bent County Social Services Jonna Parker J(Anna.pa a'keMho ntcounty.net Broomfield Health & Human Services Bonnie Steel bsteelegbroamfield.org Cheyenne County Human Services Jennifer Gribble jon fifer. ribble(nstat=e.co.us Conejos County Social Services Nicholas Barela nicholas.bflrela@state .us Crowley County Human Services Tonia Burnett tbur'nett ?crowleycounty.net Delta County Health & Human Services Chuck Lemoine lem°iner+?clel taco n ty.coin Denver County Human Services Donald Mares cionr ld nra es r= d vo rov.org Douglas County Human Services Dan Makelky dmakelkv@douglas.co.us El Paso County Health & Human Services Julie Krow juliekrow@olnasoco,cam Fremont County Human Services Stacie Kwitek-Russell stncic'.lcwi Ic@stato,co Gilpin County Human Services Betty Donovan elizabeth cionevanVstat:e co.us Gunnison County Health & Human Services Joni Reynolds jV110lds ) unni oncounty.oa°g, can revno Huerfano County Social Services Sheila Hudson-Macchietto shoda.hudson@staLex Jefferson County Human Services Lynn Johnson lj ahnsongeo.jeffea son..co,u Kit Carson County Human Services Tony Rodriguez tony.x,°oci°•uez@st,ito.eo.us Lake County Human Services Janeen McGee janeon.ara.cgecqstatc.co.us Dolores County Social Services Malynda Evans mulynda.evans@stato.co.us Eagle County Human Services Kendra Kleinschmidt kendra.kleinschmiclt@` eaglccotarty. u Elbert County Health & Human Services Jerri Spear jerri.spun a �t.tca.cc}.cas Garfield County Human Services Mary Baydarian Mb ay da:Clan@g`:arfield-countv.com Grand County Social Services Deb Ruttenberg deh.ru Cte n be rgsta te.co. us Hinsdale County Health & Human Services Joni Reynolds jeynolds@ gujnisoncountu.org iofi.rcvnolds2state.co.us Jackson County Social Services Deb Ruttenberg dcl).ruttonbcrg state.co.rrs Kiowa County Social Services Dennis Pearson dennis.pearsonstate.co.us La. Plata County Human Services Martha Johnson marthajobnson@coJaplata co.us Larimer County Human Services Laura Walker lvv Ike r@1arina er.oa 1. Las Animas County Human Services Arlene Lopez ark no, Ion oz@2stato.c taus Logan County Human Services Dave Long dave.lon;@sta to,co. us Mineral County Social Services Jody Kern lodv.kerrl staco.us Montezuma County SocialServices Josiah Forkner jpsi.a a.lirrkner@s .ra to, tts Morgan County Human Services Jacque Frenier jaccitie fro trio r@stato,co.u; Ouray County Social Services Carol Friedrich caro1.fried ricl st tte.co.rt s Phillips County Human Services Penny Verhoeff penny.verhoef'l 'stato.co.us Prowers County Human Services Lanie Meyers-Mireles cts iroctoirOprowerscousrtv.aott: Rio Blanco County Health & Human Services Barbara Bofinger harb,tr=a.iaofanr„er{@ state,ct,t Routt County Human Services Kelly Keith kkeith@co.routt.co.us Lincoln County Human Services Patricia Phillips patrieitr.t laillit s@statoco. z Mesa County Human Services Tracey Garchar tracey. ga rc h adkmesacounty its Moffat County Social Services Dollie Rose dollier oscr@sjaco us Montrose County Health & Human Services Stephen Tullos stullos 4montrosoeounty not Otero County Human Services Donna Rohde to.co.us Park County Human Services Susan Walton susan.waltonc(Sstate.co.us Pitkin County Health & Human Services Nan Sundeen nan.suodeera@piticiracOUntv.com Pueblo County Social Services Tim Hart tiin.ruadss.eo.pueblo.co.us Rio Grande Social Services Jody Kern jody.keru st.ate.co,us Saguache County Social Services Linda Warsh linda.warshstate.eo.us San Juan County Social Services Martha Johnson lUart:laia.jollas on@colaplata.co.s Sedgwick County Human Services Lisa Ault lisa.ault(r@siat-o.co.us Teller County Human Services Kim A. Mauthe kirn:man tiut(" S1,<lte.co.0 Weld County Human Services Judy Griego gria@WOgov.com San Miguel County Social Services Carol Friedrich carol. lried_l lchtrsta tt.co. us Summit County Human Services Joanne Sprouse joanne.sl)roUSe@state.co.us Washington County Human Services Rick Agan rick .ti gan@T s1Kltt',co.us Yuma County Human Services Phyllis Williams Phvllis.williams@state.co.us iKettc Hello