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MEMORAi'iDUM OF UNDERST A.t.~DING
The State or Colorado Department or Human Services
and
The Board or County Commissionen or Eagle County, Colorado
This Memorandum of Understanding (or "MOU") is made this 20th day
of June 2006 , between the State of Colorado Department of Human Services
(the .. Department") and the Board of County Commissioners of
Eagle County, Colorado (the "County").
WHEREAS, the Department is the sole state agency having the responsibility to
administer or supervise the administration of the human services programs set forth in
CRS 26-1-201; and
WHEREAS, the Colorado General Assembly enacted Senate Bill 97-120 in
response to the passage of the federal "Personal Responsibility and Work Opportunity
Reconciliation Act of 1996" and thereby adopted the Colorado Works Program (the
"Works Program") and the Colorado Child Care Assistance Program (the "Child Care
Program"); and
WHEREAS, CRS 26-2-715 requires the Department and the County to enter into
an annual performance contract identifying the County's duties and responsibilities in
implementing the Works Program and the Child Care Program; and
WHEREAS, nothing in this MOU shall create a legal entitlement in any person to
assistance provided pursuant to the Works Program or the child care assistance provided
pursuant to the Child Care Program; and
WHEREAS, the parties understand and agree that the services and assistance
contemplated in this MOU are subject to available appropriations by the General
Assembly and the County, and neither party shall be obligated to provide services or
assistance if adequate appropriations have not been made; and
WHEREAS, the State Controller has approved execution of this MOU without
State Controller examination pursuant to the State fiscal rules.
NOW, THEREFORE, it is agreed that:
1. MOU MEETS PERFO~'\1ANCE CONTRACT REQUIREMENT.
The parties hereto specifically agree that the provisions of this MOU in their entirety
constitute compliance with the provisions ofCRS 26-2-715.
2. TER'\1.
The tenn of this MOU will be from July 1,2006 to and including September 30, 2006.
3. DUTIES OF THE COUNTY.
Subject to the other limitations set forth herein, including without limitation those
contained in subsections 4(b.5) and 4(d):
a) The County shall administer and implement the Works Program and the Child
Care Program using fair and objective criteria and in compliance with federal
law; and
b) The County shall not reduce the basic assistance grant administered pursuant to
CRS 26-2-709, except as otherwise provided by law; and
c) The County shall not restrict eligibility or the provisions of services, nor shall it
impose sanctions, in a manner inconsistent with Part 7 of Article 2 of Title 26,
C.R.S., or the State Plan submitted by the Department to the federal government
pursuant to CRS 26-2-712; and
d) For the tenn of this MOU from July I, 2006, to September 30, 2006, the County
shall achieve work participation rates equal to the federally required participation
rate minus any employment credit, case load reduction credit, or other credit
against such rate for a fiscal year that may be subsequently adopted by the
federal government under federal reauthorization, and the County will also
achieve a participation rate for two-parent families that is equal to the required
federal participation rate minus any employment credit, caseload reduction
credit, or other credit against such rate for a fiscal year that may be subsequently
adopted by the federal government under federal reauthorization. The
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percentages contained in this paragraph (d) represent the maximum work
participation rates to which the County may be held during the term of this
MOU. By agreeing to these rates, the Department acknowledges that, to the best
of its knowledge or ability to know at the time this MOU is executed,
achievement of these rates will allow the Department to meet any work
participation rates imposed on the Department by the federal government; and
e) The parties acknowledge that the work participation rate is, as of the signing of
this MOU, the only performance goal identified pursuant to CRS 26-2-712(4);
and
t) The County shall maintain the records, and shall permit the Department, its duly
designated agents and/or appropriate representatives of the federal government,
to inspect the records and shall make such records available to the Department as
specified in CRS 26-2-717. The County shall also continue to report to the
Department as required by CRS 26-2-716, 717, and shall report to the
Department in the future as required by law; and
g) The County agrees to provide the Department with written information as
specified herein. The County may, in its sole discretion, change the way in
which it implements the Works and Child Care Programs in any manner
consistent with state and federal law. The County agrees to provide the
Department with updated written information, when or if changes to these
Programs are made. At a minimum, the County agrees to provide information to
the Department as requested in the County Plan, and the County agrees to
provide the County policies adopted by the County as required by CRS 26-2-716
(2.5). The County agrees to provide the information and policies specified in this
paragraph (g) to the Department within thirty (30) days of their adoption by the
County, and agrees to submit amendments to its plan in accordance with this
paragraph (g); and
h) The parties expressly agree and understand that information and policies
provided by the County to the Department as set forth in paragraph (g) above are
for informational purposes and are provided to assist the Department in
discharging its responsibilities with respect to these Programs. Nothing in this
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MOU gives the Department the authority to approve, deny or require any County
policies. The County acknowledges the Department's right to review, comment
upon or request reasonable additional information or clarification of any such
County policies or records. Such requests shall be made in writing and directed
to the County department of social services director. The County asserts that it
will consider such comments in its implementation of these Programs without
being obligated to incorporate in its Programs any Department comments or
suggestions.
4. DUTIES OF THE DEPARTMENT.
a) The Department shall oversee the implementation of the Works Program
statewide, and in connection therewith, shall develop, in consultation with the
Counties, standardized forms that shall streamline the application process,
delivery of services, and tracking of participants; and
b) The Department will monitor the County's provision of basic assistance grants,
and if necessary, perform those duties set forth in CRS 26-2-712(5)(e); and
b.5) The Department shall oversee and is responsible for the development,
implementation, maintenance, and enhancement of the Colorado Benefits
Management System (CBMS) and its application relative to the Colorado Works
Program. As CBMS is a "smart system" utilizing decision tables run by a rules
engine for determining eligibility and amount of benefits the counties shall be
held hannless for erroneous decisions made by CBMS. Without limitation, this
applies to erroneous eligibility decisions, erroneous determinations of amount of
benefits, erroneous decisions resulting in overpayments and subsequent claims,
and erroneous decisions resulting 10 underpayments and subsequent
supplemental payments or restorative benefits. This hold hannless also applies
to any legal or recovery actions resulting from erroneous, inaccurate, or
inadequate CBMS controlled noticing to Colorado Works households. This hold
hannless does not apply to errors caused by the entry of inaccurate data into the
system or failure to follow program rules formally adopted by the Board of
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Human Services. This hold hannless does apply to CBMS training and data
entry rules and/or any rules that are part of the CBMS rules engine.
c) The Department shall develop and provide training for Works Program staff as
required by CRS 26-2-712(7); and
d)(i) Actions subiect to sanction or remediation. Subject to the other
limitations set forth herein, including those contained in subsection 4(b.5) of this
section, the Department may impose sanctions or develop a remediation plan as
provided in this MOU if the actions of the County result in the County:
(A) Failing to maintain the minimum cash assistance grant to a family in which
the single caretaker of a child under six years of age has not complied with work
requirements due to an inability to obtain needed child care as determined by the
County or in violation of federal law.
(B) Misusing federal or state Works Program or Child Care Program funds,
including receipts or recoveries that are not reported, where a federal or state law
or regulation enacted before the use of the funds requires the funds to be spent in
a different way. County Works Program and Child Care Program funds that are
misused will not qualify toward meeting the County maintenance of effort or
County share requirements.
(C) Failing to satisfy work participation rates as contained in this MOV.
(D) In violation of state or federal law, reducing the basic assistance grant,
restricting eligibility or the provision of services, or imposing sanctions in a
manner inconsistent with state law or a state plan, which is in compliance with
federal law.
(E) Failing to comply with any other provision of the Colorado Works Program if
such failure causes the Department to incur a federal fiscal sanction.
(ii) Limitations on Sanctions for Failure to Meet Work Participation Rate.
(A) If the Department is sanctioned by the federal government for failing to meet
the state work participation rate, the Department may impose a sanction on the
County as provided in paragraph 4( d)(iii) of this MOU. However, if the federal
government does not sanction the Department and the County fails to achieve the
negotiated work participation rate for the County, then the provisions for a
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remediation plan contained in paragraph 4(d)(iv) apply. In any case in which the
Department is considering a sanction or remediation plan for the County due to
the County's failure to achieve its work participation rate, the Department shall
first follow the procedures for determining whether the County made a good faith
effort to achieve its work participation rate as outlined in paragraph (B) of this
paragraph (ii).
(B) The Department shall not impose a sanction on the County for the County's
failure to meet its work participation rate if the Department determines that the
County made a reasonable and good faith effort towards meeting its work
participation rate. In making this determination, the Department, without
limitation, shall consider documentation of the following: Implementation of a
County defined and approved process for moving clients through the welfare to
work system using the full range of countable federal work activities,
implementation of a County procedure for encouraging participation at the
required number of hours, such as incentives for meeting individual responsibility
contract (IRC) hour commitments, an assessment and an IRC for all Works
Program participants, accurate and timely data entry in CBMS for all Works
program participants, including proper coding and work participation data
tracking, any other documentation which may demonstrate good faith effort, and
County identification of problems in performance and implementation of an
action plan to improve performance. In determining whether the County made a
reasonable and good faith effort toward meeting its work participation rate, the
Department shall also consider the operational capacity of CBMS. The County
shall be held harmless for any CBMS programming irregularities, missing or
incomplete functionality necessary to support work programs and work
participation documentation and/or implementation problems attributed to the
Department that affects documentation for work participation. The Department
shall investigate and make a determination as to whether the County has made
such a reasonable and good faith effort prior to imposing any sanction or
remediation plan for this reason. The Department shall not sanction or develop a
remediation plan for the County's failure to meet its work participation rate unless
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the Department has found that the County did not make a reasonable and good
faith effort towards meeting its work participation rate.
(iii) Sanction Procedures when Department has been Sanctioned. In any instance
where the Department determines that the County has failed in an obligation
specified in paragraph 4(d)(i) of this MOU, causing the Department to incur a fiscal
sanction and the Department is considering a fiscal sanction against the County, the
Department shall proceed as follows:
(A) The Department shall provide the County thirty (30) days written notice of
the proposed sanction before imposing any fiscal sanction. Such written notice
shall include: 1) All of the reasons for the imposition of the sanction; 2)
Docwnentation specifying how the sanction was calculated, and docwnentation
supporting the amount of the sanction; 3) A specific indication of what constitutes
a remedy or correction that will allow the County to avert the sanction, if any
remedy or correction is possible; and 4) An acknowledgement that if the County
remedies or corrects the sanctionable action as set forth in the notice, a sanction
will not be imposed by the Department. The corrective action contained in the
notice shall be specific to the action giving rise to the sanction, and shall not
extend beyond such violation. Upon receiving such notice, the County shall have
the opportunity within thirty (30) days to contest, explain, offer evidence of
mitigating factors, and/or submit a plan to correct the alleged failure before the
Department imposes the sanction.
(B) If the County corrective action plan has not eliminated the performance
problem, the Department shall negotiate a County remediation corrective action
plan (RCAP) with the board of County commissioners for the County. The
ReAP shall be designed not as a punitive measure, but, instead, as an effort to
further the mutual goal of the Department and the County to achieve successful
operation of MOU-related programs. The negotiated RCAP shall include a
sufficient deployment of resources, which may include fiscal resources, over a
specified period of time agreed to between the Department and the County to
meaningfully attempt to correct the performance problem. If the agreement
includes deployment of fiscal resources, the County shall determine the source of
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such fiscal resources. Such fiscal resources expended by the County shall not be
considered a "financial sanction" as contemplated by CRS 26-2-716(4 )(b). The
amount of the resources committed shall be: Mutually agreed upon, adequate to
meaningfully attempt to correct the performance problem, and shall not exceed
the amount for a fiscal sanction calculated by the Department in paragraph
4d(iii)(A). The RCAP shall be agreed to within thirty (30) days of failure of the
corrective action plan specified in paragraph 4d(iii)(A). In the event the
Department and County cannot agree to a RCAP, the Department shall be
authorized to proceed with the sanction against the County as identified in
paragraph 4d(iii)(A).
(C ) If the County fails to correct the action, and a sanction is imposed, the
Department may impose a sanction for the failure of the County in an amount no
greater than the fiscal sanction imposed by the federal government against the
Department. Additionally, the amount of said sanction cannot exceed the funds
spent by the Department for a sanction incurred because of the County's failure to
meet its obligation. If the Department has incurred a sanction due to the failure of
more than one County to meet its obligations, the County shall only be sanctioned
for its share of the sanction incurred by the Department.
(D) The Department agrees to provide the County with all documents received
from the federal government related to any proposed or imposed federal sanction
within twenty (20) days of receipt by the Department, together with all
Department documents related to the actions giving rise to that federal sanction,
or which relate to the sanction process.
(iv) Remediation Procedure. In any instance where the Department determines that
the County has failed in an obligation specified in paragraph 4(d)(i) of this MOD, the
Department has not incurred a fiscal sanction and the Department is considering a
corrective action for the County, the Department shall proceed as follows:
(A) The Department shall provide the County thirty (30) days written notice of
the proposed corrective action. Such written notice shall include: I) AJI of the
reasons for the corrective action; 2) Documentation specifying how the corrective
action was determined, and documentation supporting the justification of the
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corrective action; 3) A specific indication of what constitutes a remedy or
correction that will allow the County to avert the corrective action, if any remedy
or correction is possible; and 4) An acknowledgment that if the County remedies
or corrects the performance problem identified in the notice, a corrective action
-will not be imposed by the Department. The corrective action contained in the
notice shall be specific to the performance problem giving rise to the corrective
action, and shall not extend beyond such performance problem. Upon receiving
such notice, the County shall have the opportunity within thirty (30) days to
contest, explain, offer evidence of mitigating factors, and/or submit a plan to
correct the alleged failure before the Department imposes the corrective action.
(B) If the County corrective action plan has not eliminated the performance
problem, the Department shall negotiate a County remediation corrective action
plan (RCAP) with the board of county commissioners for the County. The RCAP
shall be designed not as a punitive measure, but, instead, as an effort to further the
mutual goal of the Department and the County to achieve successful operation of
MOU-related programs. The negotiated RCAP shall include a sufficient
deployment of resources, which may include fiscal resources, over a specified
period of time agreed to between the Department and the County to meaningfully
attempt to correct the performance problem. If the agreement includes
deployment of fiscal resources, the County shall determine the source of such
fiscal resources. Such fiscal resources expended by the County shall not be
considered a "financial sanction" as contemplated by CRS 26-2- 716(4 )(b ). The
amount of the resources committed shall be: Mutually agreed upon, adequate to
meaningfully attempt to correct the performance problem, and shall not exceed
the amount of resources identified in the corrective action notice specified in
paragraph 4d(iv) (A). The RCAP shall be agreed to within thirty (30) days of
failure of the corrective action plan specified in paragraph 4d(iv)(A). In the event
the Department and County cannot agree to a RCAP, the Department shall be
authorized to proceed with the corrective action for the County as identified in
paragraph 4d(iv)(A).
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(C) The Department agrees to provide the County with all documents received
from the federal government related to any performance problem within twenty
(20) days of receipt by the Department, together with all Department documents
related to the actions giving rise to the performance problem, or which relate to
the remediation process.
e) The Department (or its duly designated agent) may assume the County's
administration and implementation of the Works Program and the Child Care
Program if the County deliberately or consistently fails to meet its obligations
under this MOU or under federal or state law pertinent to the Works Program or
the Child Care Program. The Department shall provide the County thirty (30)
days written notice before assuming these duties. Upon receiving such notice, the
County shall have the opportunity to contest, explain, offer evidence of mitigating
factors, or to correct the failure before the Department assumes the duties; and
t) The Department shall allocate the amount of moneys that are provided to the
County as part of the County's block grant for the purpose of its administration
and implementation of the Works Program pursuant to the formulas described in
CRS 26-2-714. Payment of all money so allocated shall be made to the County in
accordance with CRS 26-1-122(3)(b); and
g) The Department will, in consultation and in conjunction with the County, develop
or modify automated systems to meet the reporting requirements of CRS 26-2-
717. However, if any automated system developed by the Department is
incompatible with any existing County system, and a reporting error or
discrepancy results, the Department shall not, for that reason, impose sanctions on
the County.
5. DISCRETIONARY MATTERS REMAIN THE SAME.
The parties agree that all portions of Senate Bill 97-120 that grant discretion to either
party regarding the administration of the Works or Child Care Programs in the County
shall not be affected by the execution of this MOU.
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6. SEVERABILITY.
To the extent that this MOU may be executed and perfonnance of the obligations of the
parties may be accomplished within the intent of the MOD, the tenns of the MOD are
severable, and should any tenn or provision hereof be declared invalid or become
inoperative for any reason, such invalidity or failure shall not affect the validity of any
other tenn or provision hereof. The waiver of any breach of tenn hereof shall not be
construed as a waiver of any other tenn, or of the same tenn upon subsequent breach.
7. INTEGRATION OF UNDERST Ai'iDING.
This MOD is intended as the complete integration of the understanding between the
parties concerning the matters negotiated between them and incorporated in this MOD.
No prior or contemporaneous addition, deletion, or other amendment hereto shall have
any force or effect whatsoever unless embodied in writing. No subsequent notation,
renewal, addition, deletion, or other amendment hereto shall have any force or effect
unless embodied in a written amendment executed by the parties.
The parties, however, recognize the nature of the relationship between the County and the
State. This relationship is governed more broadly by pertinent provisions of the Colorado
Constitution and of state statutes and rules, including lawful rules promulgated by the
State Board of Human Services. The parties further recognize that this MOU is not
intended to supersede or change the relationship between the County and the State as
established by any legal authority.
8. NO THIRD PARTY BENEFICIARY.
Except as herein provided otherwise, this MOU shall inure to the benefit of and be
binding upon, the parties and their respective successors and assigns. It is expressly
understood and agreed that the enforcement of the tenns and conditions of this MOU, and
all rights of action relating to such enforcement, shall be strictly reserved unto the
Department and the County, to the extent pennitted by law. Nothing contained in this
MOU shall give or allow any claim or right of action whatsoever by any other third
person. It is the express intention of the Department and the County that any such person
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or entity, other than the Department or the County, receiving services or benefits under
this MOU shall be deemed an incidental beneficiary only.
9. DISPUTE RESOLUTION.
A. Disputes arising prior to the execution of the MOU
If the parties are unable to reach agreement concerning the inclusion of, or wording of,
provisions of the MOU, either party may refer the dispute to the State Board of Human
Services for resolution pursuant to the provisions of CRS 26-2-715(3).
B. Disputes arising after the execution of the MOU
The parties shall work in good faith to resolve a dispute arising from any provision of this
executed MOU. If the parties are unable to resolve such dispute, any of the following
options is available:
1. Either party may ask the Governor to review a disputed issue. Such
review must be initiated by notice provided to the Governor and other party by
certified mail. Such notice must indicate that the parties are deadlocked on the
dispute, and further negotiations between the parties are not likely to be
productive. Such notice shall also contain a copy of the executed MOU, an
outline of the issue(s) involved and a summary of the parties' respective positions.
The Governor may establish a review process, and shall provide a non-binding
resolution based on the actions and equities of each situation. The Governor has
the discretion to decide whether or not to review the dispute or whether to
delegate the review of the dispute to a third party not directly involved with the
dispute. The Governor need not state a reason for refusing to review a dispute or
for delegating it to a third party.
2. By agreement of both parties, the parties may refer the matter to a dispute
resolution panel for non-binding mediation. The dispute resolution panel will
consist of three members: One selected by the County, one selected by the
Department, and one selected by the other two members of the panel. The parties
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shall provide the panel with the infonnation necessary to consider the dispute.
Each party shall pay for its own costs and attorney fees, and shall share equally in
any fees paid to panel members. The panel's decision shall be made by a majority
vote of its members.
3. By agreement of both parties, the parties may request that the State Board
of Human Services mediate a dispute arising following the execution of the
MOU. If the State Board agrees to such non-binding mediation, the provisions of
CRS 26-2-715(3) concerning time limits and final effect of the State Board's
decision shall not apply.
None of these options shall be a jurisdictional prerequisite to legal action by either party.
.------------.----------------------------------------------------------------------------------------------
MARVA LIVINGSTON HAMMONS
STATE OF COLORADO
DEPARTMENT OF HUMAN SERVICES
Executive Director
COUNTY OF Eagle COLORADO,
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