August 22, 2006

> **Control Number**
>
> **ED-OIG/A06F0016**

## T. Kenneth James, Commissioner

Arkansas Department of Education

4 Capitol Mall

Little Rock, AR 72201

Dear Commissioner James:

This **Final Audit Report**, entitled *Arkansas Department of
Education's (Arkansas) Migrant Education Program (MEP)*, presents the
results of our audit. The purpose of the audit was to determine if
Arkansas implemented systems that accurately count the children eligible
to participate in the program. Our review covered the period September
1, 2003, through August 31, 2004. We found that 114 of the 119 migrant
children in our sample were ineligible. Based on the sample results, we
project that Arkansas had 3,127 ineligible migrant children in the
districts we reviewed, and we estimate that Arkansas inappropriately
spent about \$877,000 in MEP grant funds for those children.

We provided a draft report to Arkansas on February 3, 2006. Arkansas
provided both preliminary and supplemental responses to that report on
March 9, 2006 and April 5, 2006. We have summarized those responses at
the end of the finding in this final report, and have included them as
Attachment 4 to this report. Arkansas's preliminary response also
included its migrant handbook as a large attachment. Because of the
voluminous number of pages in that attachment, we have not included it
with this report. Copies of that attachment are available upon request.

BACKGROUND

The MEP is authorized under Title I, Part C of the Elementary and
Secondary Education Act of 1965, as amended. Federal regulations define
a MEP eligible migratory child as a child who is, or whose parent,
spouse, or guardian is, a migratory agricultural worker, including a
migratory dairy worker, or a migratory fisher, and who, in the preceding
36 months, has moved from one school district to another, to obtain
temporary or seasonal employment in agricultural or fishing work. The
goal of the MEP is to ensure that all migrant students reach challenging
academic standards and graduate with a high school diploma or its
equivalent, a General Education Development (GED) certificate that
prepares them for responsible citizenship, further learning,

and productive employment. Federal funds are allocated by formula to
state education agencies, based on each state\'s per pupil expenditure
for education and counts of eligible migratory children, aged 3 through
21, residing within the state. Arkansas\'s MEP authorized funding for
Award Year 2003-2004 was \$5,183,388. A total of 18,479 migrant children
were counted in the MEP during the award year.

On July 6, 2004, the U. S. Department of Education's Office of Migrant
Education (OME) requested that each State complete a re-interview of the
migrant child count for the year 2003-2004. This was voluntary but
highly recommended. Arkansas elected to perform the re-interview
process, and attempted to contact about 800 families. Many of the
families could not be interviewed because they were no longer at their
given addresses.

AUDIT RESULTS

Arkansas did not implement systems that accurately counted the migrant
children eligible to participate in the migrant education program. In
its comments to the draft report, Arkansas did not concur with the
finding or recommendations. Arkansas's comments are summarized at the
end of the finding, along with the OIG's response. Details of Arkansas'
preliminary and supplemental comments and our detailed responses are
presented in Attachment 3. The full text of Arkansas's comments is
presented in Attachment 4.

FINDING NO. 1 -- Arkansas Department of Education Included Ineligible
Migrant Children in Its 2003-2004 Count

Arkansas did not implement systems that accurately counted children
eligible to participate in the MEP. Specifically, 114 of 119 children
(96%) we reviewed in three districts (Searcy, Rogers, and Springdale)
were ineligible to participate in the MEP. We selected an unbiased
random sample for each of the three districts---19 in Searcy, 50 in
Rogers, and 50 in Springdale. We reviewed the Certificates of
Eligibility (COEs)[^1] for the 119 migrant children, and conducted
interviews with family members. Based on those reviews and interviews,
we determined that 114 of the sampled children were ineligible and an
additional 206 siblings were also ineligible. We determined that five
migrant children in our sample and eight siblings were eligible because
the migrant activity was seasonal work. Based on the combined results of
our sampling in the three districts, we project that 3,127 children, out
of a universe of 3,191 migrant children, were ineligible. At a
calculated rate of \$280.50 per child, we estimate that Arkansas spent
about \$877,000 on ineligible children. [^2]

[Migrant Eligibility]{.underline}

Pursuant to 34 C.F.R. § 200.81(d)(1), "Migratory child means a child who
is, or whose parent, spouse, or guardian is, a migratory agricultural
worker . . . and who, in the preceding 36 months, in order to obtain, or
accompany such parent, spouse, guardian in order to obtain, temporary or
seasonal employment in agricultural or fishing work -- has moved from
one school district to another."

To determine whether Arkansas had adequate systems in place to correctly
identify and count eligible migrant children, we selected an unbiased
random sample at the three districts audited---Searcy, Rogers, and
Springdale. We reviewed the COEs for 119 children identified as migrant
children in those three school districts. Based on the COE reviews and
re-interviewing families that we could locate, we determined that 114
children were ineligible migrant children because the families did not
meet the basic requirements set forth in 34 C.F.R. § 200.81(d). We
interviewed families for 67 of the 119 children, and noted from the COE
that one other child was ineligible because of being too young for the
MEP. We actually conducted 63 interviews; some of the families had more
than one migrant child in our sample. We relied on COE reviews only for
the families that we were not able to interview. For 68 of the 114
children, the families either did not move with the intention of
obtaining qualifying employment in temporary or seasonal agricultural
jobs (59), did not make a qualifying move (5), or were ineligible due to
the age of the child (4). During our work in one district, a parent told
us that the qualifying worker had always lived in that district. The
COEs for the 68 children that we reviewed also listed the names of 121
siblings that we determined to be ineligible. As a result, Arkansas
inappropriately spent \$53,015 in migrant funds for 189 ineligible
migrant children. Attachments 1 and 2 present a breakdown of our finding
for each school district.

### Temporary versus Permanent Work

In addition to the 68 children identified as not meeting migrant
eligibility requirements for the reasons stated above, we also
identified 46 ineligible migrant children whose families worked in
positions that were not temporary or seasonal as required by 34 C.F.R. §
200.81(c)&(d). The positions were permanent and available year-around at
processing plants or in livestock farming.

Based on the type of work activity indicated on the COEs, we identified
46 ineligible migrant children in our sample, and an additional 85
siblings who also were ineligible migrant children. We also determined
that 31 children whose parents work at processing plants have been
enrolled in the districts for at least four years. Other than the move
dates on the COE, we found no other evidence indicating a qualifying
move during the enrollment periods. Although continuous enrollment may
not be determinative by itself, in the absence of contrary evidence, we
concluded that the families had not made a qualifying move in the last
36 months. Some of the children were ineligible for more than one
reason. In Attachment 1 to this report, the 31 children are included in
these categories: Ineligible Intent (20) and IneligiblePermanent Jobs
(11). Although the Department's guidance allows a State to complete an
industrial survey to establish permanent positions as temporary
positions, Arkansas did not complete an industrial survey that the
Department determined would be sufficient evidence of temporary
employment, nor did Arkansas have any adequate alternative documentation
to show how permanent jobs were

considered to be temporary for MEP purposes. The industrial survey data
provided to us was inadequate because it was from 1996 and no recent
industrial survey had been completed. Arkansas did not provide any other
documentation that would serve the same purpose as an industrial survey.

Additionally, the jobs at the processing plants and livestock farms do
not meet the definition of temporary. According to 34 C.F.R. § 200.81(c)
a "Migratory agricultural worker means a person who . . . has moved in
order to obtain **temporary** or seasonal employment in agricultural
activities (including dairy work) as a principal means of livelihood."
Although the regulation does not define temporary, Black's Law
Dictionary defines temporary as "that which is to last for a limited
time only, as distinguished from that which is perpetual, or indefinite,
in its duration; opposite of permanent." Arkansas's own handbook defines
temporary as lasting "for a short time frame, usually no longer than 12
months." The enrollment records that we reviewed for the migrant
children in our sample showed that many of the children were enrolled in
the districts for three or four years. Therefore, employment at the
processing plants and livestock farming are not for a limited time.

On October 23, 2003, OME issued Draft Non-Regulatory Guidance, Section
L, which allows States to classify permanent positions as temporary
positions if an industrial survey is conducted. The guidance states: "An
industrial survey is an alternate way to establish that work that is
available year-round is 'temporary' for purposes of the MEP because of a
high degree of turn over, frequent layoffs without pay, or few or no
opportunities for permanent full-time employment. An industrial survey
may only be used for specific job categories in which workers are
engaged in qualifying work. Furthermore, SEAs may only rely on an
industrial survey if the survey meets all of the requirements in this
section."

Some of the significant requirements of the Industrial Survey are as
follows:

-   Analyze the data to determine if the turnover rate is sufficiently
    high for the job to be considered temporary.

-   Prepare a summary report that documents the process of the
    industrial survey and the findings regarding each job category.

-   Description of how turnover information was obtained.

-   The date the survey was conducted, the survey's expiration date, and
    pertinent explanatory comments.

-   The Draft Guidance also provides the formula of how to calculate the
    turnover rate.

The processing plant positions held by the children's parents were
permanent because they were available on a year-round basis. One migrant
official told us that work in chicken plants was not seasonal. The
results of our audit support that statement. Because the jobs held by
the children's parents were not temporary jobs, and because Arkansas did
not complete an industrial survey or provide adequate alternative
documentation, we determined that 46 students and 85 siblings were
ineligible for MEP services. As a result, Arkansas inappropriately
expended about \$36,746 in migrant funds for 131 ineligible migrant
children. This occurred because the Arkansas Department of Education did
not implement adequate controls to ensure that all children counted as
eligible migrants met the regulatory requirements.

Based on the results of the random sample, we project that 3,127 of
3,191 migrant children in the three districts were ineligible. As a
result of the high error rates in each of the three districts reviewed,
we estimate that Arkansas inappropriately expended about \$877,000[^3]
in migrant education funding on ineligible children in the three audited
districts. Additionally, because the migrant count in those districts
was overstated, the Department has no assurance that other Arkansas
districts accurately counted migratory children for 2003-2004 or
subsequent years. Based on our review, we concluded that Arkansas did
not have sufficient internal controls in place to ensure an accurate
migrant child count.

## Recommendations  {#recommendations .RptSubcaption}

We recommend that the Assistant Secretary for the Office of Elementary
and Secondary Education require the Arkansas Department of Education
to---

1.  Conduct a State-wide migrant child count for the \$5,183,388 of MEP
    funds allocated to Arkansas in Fiscal Year 2003-2004, as well as for
    subsequent years, and return to the Department any funds expended
    for ineligible children. For the three districts we audited, we
    estimate that \$877,000 should be returned for the period covered by
    the audit.

2.  Establish adequate internal controls to ensure Federal requirements
    are followed by migrant officials when identifying and recruiting
    children into the program and future migrant child counts are
    accurate.

**Arkansas's Comments**

Arkansas's General Counsel provided comments on the draft report dated
March 6, 2006. In those comments, Arkansas also requested additional
information related to the documentation we reviewed and the interviews
we conducted, and asked for the opportunity to submit additional
comments after its review of the requested information. We provided
Arkansas with the requested information and Arkansas's General Counsel
submitted additional comments dated April 5, 2006. Arkansas strongly
disagreed with our audit approach and our finding that a substantial
proportion of other children were otherwise ineligible and requested
that we withdraw that finding.

**OIG's Response**

After reviewing Arkansas's comments, we have not changed our basic
finding or recommendations. For the purpose of clarification, we have
eliminated the separate non-qualifying job category, and have reported
these students in the category of not moving with the intention of
obtaining qualified employment. Three of these students were ineligible
for more than one reason and are now reported in the no qualifying move
or ineligible due to the age of the child categories. We were not
persuaded by Arkansas' arguments, and Arkansas did not submit evidence
to contradict the results of our review, which showed that families did
not move with the intention of obtaining qualifying employment or were
ineligible for other reasons. We summarized and responded to Arkansas's
comments in detail in Attachment 3. With the exception of a voluminous
handbook included with the March 6, 2006 comments, copies of the full
text of Arkansas's comments are included in Attachment 4.

OBJECTIVE, SCOPE, AND METHODOLOGY

The objective of our audit was to determine whether Arkansas implemented
systems that accurately counted the children eligible to participate in
the migrant education program.

To accomplish the audit objectives, we interviewed Arkansas MEP
officials and MEP directors and recruiters in the audited districts that
had migrant programs. In addition, we interviewed parents of MEP
participants to verify information included in the COEs. We performed
our fieldwork at the Arkansas Department of Education's offices in
Little Rock, Arkansas from June 6 to June 10, 2005, and we held an exit
conference with Arkansas on November 4, 2005.

To verify the information included on the COEs, we interviewed parents
of 67 MEP participants at their homes within the school districts of
Searcy, Rogers, and Springdale. The interviews were conducted in Searcy
from July 11 to July 14, 2005; in Rogers from August 22 to September 1,
2005; and in Springdale from September 19 to September 23, 2005. For the
remaining 52 migrant children in our sample, we made the determination
based on the COE.

From data provided by Arkansas, covering the audit period September 1,
2003, through August 30, 2004, we selected an unbiased random sample of
MEP participants from the two largest migrant school districts and from
the largest school district without a migrant program. The child count
included children from across the State, whether or not they lived in
school districts that had migrant programs. At Searcy, we randomly
selected 19 migrant children out of a universe of 158. At Rogers, we
randomly selected 50 migrant children out of a universe of 1,541. At
Springdale, we randomly selected 50 migrant children out of a universe
of 1,492.

We relied on computer-processed data provided by Arkansas. To test the
reliability and completeness of the data, we verified that each student
had the required COE and that migrant students were enrolled in the
school districts in 2003-2004. We also attempted to interview parents of
the children in our sample. We concluded that the data provided by
Arkansas was sufficiently reliable to use in meeting the audit's
objective. However, our testing disclosed instances of non-compliance
with Federal regulations that led us to conclude that internal control
weaknesses existed in each of the three districts audited.

Our audit was performed in accordance with generally accepted government
auditing standards appropriate to the scope of the review described
above.

ADMINISTRATIVE MATTERS

Statements that managerial practices need improvements, as well as other
conclusions and recommendations in this report, represent the opinions
of the Office of Inspector General. Determinations of corrective action
to be taken will be made by the appropriate Department of Education
officials.

If you have any additional comments or information that you believe may
have a bearing on the resolution of this audit, you should send them
directly to the following Education Department official, who will
consider them before taking final Departmental action on this audit:

Henry Johnson

Assistant Secretary

Office of Elementary and Secondary Education

400 Maryland Avenue SW

FOB -- 6, Room Number 3W314

Washington D.C. 20202

It is the policy of the U. S. Department of Education to expedite the
resolution of audits by initiating timely action on the findings and
recommendations contained therein. Therefore, receipt of your comments
within 30 days would be appreciated.

In accordance with the Freedom of Information Act (5 U.S.C. § 552),
reports issued by the Office of Inspector General are available to
members of the press and general public to the extent information
contained therein is not subject to exemptions in the Act.

Sincerely,

/s/

> Sherri L. Demmel

Regional Inspector General

for Audit

Attachments (4)

Attachment 1

Ineligible Migrant Students Per District

A summary of our results at the three audited districts is as follows:

+-------------------------------+--------+---------+---------+-------+
| ##### Arkansas                | **Se   | **R     | **Sprin | **To  |
|                               | arcy** | ogers** | gdale** | tal** |
+-------------------------------+--------+---------+---------+-------+
| ###### Sample Size            | 19     | 50      | 50      | 119   |
+-------------------------------+--------+---------+---------+-------+
| # 200.81(d) B                 |        |         | #       | #     |
| asic Eligibility Requirements |        |         |         |       |
+-------------------------------+--------+---------+---------+-------+
| # No Qualifying Move          | 2      | 3       | # 0     | # 5   |
+-------------------------------+--------+---------+---------+-------+
| # Ineligible Intent           | 9      | 29      | # 21    | # 59  |
+-------------------------------+--------+---------+---------+-------+
| # Age Ineligible              | 0      | 3       | # 1     | # 4   |
+-------------------------------+--------+---------+---------+-------+
| #                             | 4      | 14      | # 28    | # 46  |
|  Ineligible -- Permanent Jobs |        |         |         |       |
+-------------------------------+--------+---------+---------+-------+
| # Total Ineligible            | 15     | 49      | # 50    | # 114 |
+-------------------------------+--------+---------+---------+-------+
| #                             |        |         | #       | #     |
+-------------------------------+--------+---------+---------+-------+
| # Siblings                    |        |         | #       | #     |
+-------------------------------+--------+---------+---------+-------+
| # Sample Size                 | 31     | 105     | # 79    | # 215 |
+-------------------------------+--------+---------+---------+-------+
| # 200.81(d) B                 |        |         | #       | #     |
| asic Eligibility Requirements |        |         |         |       |
+-------------------------------+--------+---------+---------+-------+
| # No Qualifying Move          | 2      | 4       | # 2     | # 8   |
+-------------------------------+--------+---------+---------+-------+
| # Ineligible Intent           | 15     | 65      | # 25    | # 105 |
+-------------------------------+--------+---------+---------+-------+
| Age Ineligible                | 1      | 3       | # 4     | # 8   |
+-------------------------------+--------+---------+---------+-------+
| #                             | 6      | 31      | # 48    | # 85  |
|  Ineligible -- Permanent Jobs |        |         |         |       |
+-------------------------------+--------+---------+---------+-------+
| # Total Ineligible            | 24     | 103     | # 79    | # 206 |
+-------------------------------+--------+---------+---------+-------+
| #                             |        |         | #       | #     |
+-------------------------------+--------+---------+---------+-------+
| # Total Children Reviewed     | 50     | 155     | # 129   | # 334 |
+-------------------------------+--------+---------+---------+-------+
| # Total Ineligible            | 39     | 152     | # 129   | # 320 |
+-------------------------------+--------+---------+---------+-------+
| # Error Rate (                | 79%    | 98%     | # 100%  | # 96% |
| Total Ineligible/Sample Size) |        |         |         |       |
+-------------------------------+--------+---------+---------+-------+

Attachment 2

Questioned Costs Per District

We questioned costs at the rate of \$280.50 per ineligible migrant
child. We calculated that per-child amount by dividing the State's
2003-2004 funding amount (\$5,183,388) by the reported 2003-2004 child
count (18,479). We then calculated the questioned costs by multiplying
the per-child funding amount (\$280.50) by the estimated number of
ineligible children in each district.

**[Searcy:]{.underline}**

Based on our review of the 2003-2004 migrant child count for the Searcy
School District, we determined that 39 children were ineligible.
Arkansas received \$10,940 in ineligible migrant funds for those
students. Based on the audited results of our unbiased random sample, we
project that out of a universe of 158 migrant children we can consider
125 migrant children ineligible based on the 79% error rate. At a
calculated rate of \$280.50 per child, we estimate that Arkansas
expended \$35,062.50 in ineligible migrant funds.

**[Rogers:]{.underline}**

Based on our review of the 2003-2004 migrant child count for the Rogers
School District, we determined that 152 children were ineligible.
Arkansas received \$42,636.00 in ineligible migrant funds for those
students. Based on the audited results of our unbiased random sample, we
project that out of a universe of 1541 migrant children, we can consider
1,510 children to be ineligible based on the 98% error rate. At a
calculated rate of \$280.50 per child, we estimate that Arkansas
expended \$423,555 in ineligible migrant funds.

**[Springdale:]{.underline}**

Based on our review of the 2003-004 migrant child count for the
Springdale School District, we determined that 129 children were
ineligible. Arkansas received \$36,184.50 in ineligible migrant funds
for those students. Based on the audited results of our unbiased random
sample, we project that out of a universe of 1,492 migrant students we
can consider all 1,492 migrant ineligible based on the 100% error rate.
At a calculated rate of \$280.50 per child, we estimate that Arkansas
expended \$418,506 in ineligible migrant funds.

Attachment 3

**Auditee Comments and OIG Response**

# [Arkansas's Comments on OIG Use of Re-interviews]{.underline}

Arkansas objected to use of re-interviews to question determinations it
had made regarding the eligibility of students and their families.
Arkansas stated that it was entitled to rely on the reasonable good
faith judgment of its recruiters applying subjective criteria, and that
it was inappropriate for OIG to make an independent judgment based on
re-interviews several years after the original interviews by Arkansas
recruiters. Arkansas maintained that draft guidance from the Department
established that "there is room to make a judgment as to the purpose of
a move and whether the job is temporary or seasonal." Arkansas also
questioned the reliability of the OIG re-interviews due to the passage
of time, change in family circumstances or recollections, the fact that
OIG interviewers were outsiders to the community, and that some
interviews were conducted by OIG translators and not OIG auditors.
Arkansas also stated that the OIG re-interviews were not probative of
what the families originally told its recruiters and formed the basis of
their reasonable good faith judgments. Arkansas also stated that OIG
could not rely on re-interviews unless it also interviewed the
recruiters. Arkansas stated that the test of compliance was whether it
had a reasonable system for making the required judgments in good faith
at the time they must be made; repayment can be sought only where there
is an abuse of discretion.

Arkansas also stated that it is unclear whether OIG interviewers asked
appropriate follow-up questions, as its recruiters are trained to do,
particularly if a parent indicated that the family moved because another
relative or friend lived in the area. Arkansas stated that it was
inappropriate to rely on a statement that a family moved to an area to
join family and friends, without probing further to determine if the
family had another purpose in moving, such as seeking migrant
employment. Arkansas stated that reasons given were not necessarily
inconsistent with seeking temporary or seasonal agricultural employment.
Arkansas stated that OIG improperly relied on a "sub-conclusion" in
interviews and did not pursue whether there were other qualifying
reasons for a family's move.

# [OIG's Response]{.underline}

In our judgment, as well as that of OME, re-interviews are an
appropriate method to test the validity of eligibility determinations
made by agencies participating in MEP. We disagree with Arkansas
assertion that "there is room for judgment" to make a child or family
eligible for MEP. That phrase does not appear in the Department's
guidance. A participant must have a reasonable basis to determine
eligibility; there is no "room" or discretion to make a child eligible
if statutory criteria are not met. While some difference in interview
results can be expected due to the passage of time, change in
recollection, or difference in interviewers, widespread differences
would not be expected if an agency had a reliable and reasonable system
in place. Our results show that Arkansas's system was not reliable, at
least with respect to the districts we reviewed.

Our interviewers used open-ended questions to ask why and when a family
moved to an area. Open-ended questions, as opposed to leading questions,
are a more reliable method of testing the validity of interview results
reported by Arkansas. We agree that seeking qualifying employment need
not be the exclusive motivation for a move, but, as required by law,
that motivation must be the primary purpose. If a family did not
voluntarily state that it moved to seek qualifying employment, we did
not seek to elicit that response with further questions.[^4] We reject
Arkansas's suggestion that migrant parents are not capable of or willing
to answer these basic questions. The probative nature of our questioning
was sufficient to meet our audit objectives. We acknowledge that our
interviewers were outsiders to the community; Arkansas's recruiters were
also strangers to the people being recruited. We saw no indication that
the parents we interviewed were less than forthcoming or not truthful in
their answers. Contrary to Arkansas's suggestion, we did interview
recruiters in the audited districts that had migrant programs. Those
interviews confirmed our audit conclusions.

Generally accepted government auditing standards fully anticipate and
authorize the use of specialists, such as translators, as part of the
audit team. We utilized the services of a qualified, bilingual
Department staff member to translate and interview parents. The staff
member worked under the personal supervision of the auditor-in-charge
who evaluated the staff member's work and found it to be reliable.
Arkansas presented no contrary evidence to suggest that interviews by a
non-auditor are not reliable.

# [Arkansas's Comments on Incorrect Standard]{.underline}

Arkansas stated that we improperly concluded that children were
ineligible if the parent assumed non-qualifying employment or was
unemployed after a move. Arkansas stated that such children would be
eligible if a parent moved with the intention of obtaining qualifying
employment.

# [OIG's Response]{.underline}

We agree that intent at the time of the move determines MEP eligibility.
For the category of students in the draft report where we reported a
parent working in a non-qualifying occupation, we found no evidence
either on the COE, prepared by Arkansas recruiters, or in the answers
provided during our interviews that the family moved with the intention
of securing qualifying employment. For the final report we have
eliminated the separate non-qualifying job category, and have reported
these students in the category of not moving with the intention of
obtaining qualified employment.

# [Arkansas's Comments on Poultry Processing Plants]{.underline}

Arkansas disagreed with our conclusions concerning parents who either
sought employment or were employed in poultry processing plants.
Arkansas stated that it was entitled to rely on the Department's draft
guidance, which stated that employment that is available year-round
could be considered temporary if working conditions or periods of slack
demand make it unlikely that a worker will remain at the job
permanently. Arkansas asserted that we imposed post hoc standards with
respect to use of an industrial survey to establish the temporary nature
of the position or time limits on how long a position could be
considered temporary. Arkansas stated that an industrial survey it
conducted in 1996, while not meeting all the elements of the survey
prescribed by the Department as acceptable evidence of temporary
employment, did show that processing jobs involved adverse working
conditions, and very high turnover rates, typically in excess of 50
percent over a 12-month period, and in some cases over 100 percent.
Arkansas stated that the conclusions of its recruiters as to the
temporary nature of these positions were reasonable given their direct
knowledge of the jobs, informal communications with the companies, and
constant newspaper advertisements for the jobs.

# [OIG's Response]{.underline}

Contrary to Arkansas's comment, we are not imposing "post hoc
standards." We recognize that the Department has provided guidance that
employment available year-round could nevertheless be considered
temporary for purposes of MEP. However, Arkansas did not complete an
industrial survey that the Department determined would be sufficient
evidence of temporary employment, nor did Arkansas have any adequate
alternative documentation to show how permanent jobs were considered to
be temporary for MEP purposes. The 1996 industrial survey data provided
to us was inadequate because of its age; no recent industrial survey had
been completed. In the absence of a current survey, we could not
conclude that jobs in 2003-2004 that on their face were not seasonal or
limited in duration should nevertheless be considered temporary. Since
Arkansas did not provide evidence to support the other statements made
in its comments on the temporary nature of the processing jobs, we could
not evaluate whether Arkansas has alternative, adequate documentation
that would demonstrate the temporary nature of the positions. During the
course of our audit we gave Arkansas several opportunities to provide
records to support its position. Arkansas can provide any evidence it
has to the Department for consideration during resolution of this audit.

# [Arkansas's Comments on Specific Students]{.underline}

Arkansas provided specific comments with respect to 12 students and
stated that it was unclear why we reached our conclusions. Arkansas also
stated that our questionnaires for the Searcy School District were
ambiguous.

# [OIG's Response]{.underline}

We found all 12 students discussed by Arkansas to be ineligible,
primarily because the intent of the move was to work in poultry
processing plants. One was ineligible because the child was underage
when the COE was signed; one was ineligible because the intent of the
move was to get away from high rent in other places; another was
ineligible because the intent of the move was to be near family. We
reviewed the results of our Searcy interviews, and the results support
our findings.

[Arkansas's Comments on its Re-interview Effort]{.underline}

Arkansas asserted that we ignored the results of Arkansas's own
extensive re-interview effort.

[OIG's Response]{.underline}

We did not ignore Arkansas's re-interview effort. We reviewed Arkansas's
effort and found that we could not rely on Arkansas's results in our
audit. We concluded that the sampling process used was not statistically
valid and Arkansas's results could not be statistically projected.
Arkansas's re-interview samples were drawn on a biased non-random basis,
and the exact size or student-specific composition of the universe was
undefined.

[]{.mark}

[]{.mark}

# [Arkansas's Comments on OIG's Audit Approach]{.underline}

In a footnote to its March 6, 2006 comments, Arkansas questioned the
"validity and objectivity" of the OIG's audit approach based on comments
allegedly made by OIG auditors at an exit conference. According to
Arkansas, OIG auditors expressed the view that the standards were vague,
the Department's guidance might not be in harmony with the law, that OIG
findings reflected OIG's interpretation, and that they had been
instructed by their superior to give the worst-case scenario for these
audits.

# [OIG's Response]{.underline}

[]{.mark}

Regarding alleged auditor statements about standards for the MEP, in
preparing our audit findings and this report, we have used as criteria
the requirements of the MEP statute and regulations. We have referred to
the guidance issued by the Department for appropriate application of
those MEP requirements, and have not developed a separate OIG
interpretation. We have not questioned an Arkansas practice or
individual determination that was consistent with the Department's
guidance.

Arkansas misconstrued comments made about a "worst-case scenario." OIG
auditors simply received instruction to convey clearly the full extent
of potential liability at the exit briefing so that Arkansas would not
be surprised by the numbers that would appear in the draft report, in
particular the numbers that would be derived from statistical
projections. This instruction did not affect the objectivity or validity
of our audit approach, and served to insure that Arkansas was fully
informed about the potential scope of our findings.

**Arkansas**![](media/image3.png){width="1.179861111111111in"
height="1.2in"}

## 

##  DEPARTMENT OF EDUCATION

4 STATE CAPITOL MALL • LITLE ROCK, ARKANSAS 72201-1071 • (501) 682-4475
• **http://arkedu.state.ar.us**

# Dr. Kenneth James, Commissioner of Education

OFFICE OF GENERAL COUNSEL

March 6, 2006

Ms. Sherri L. Demmel

Regional Inspector General for Audit

United States Department of Education

1999 Bryan Street, Harwood Center, Suite 1440 Dallas, Texas 75201-6817

Dear Ms. Demmel:

This letter responds to your draft audit report, entitled, \"Arkansas
Department of Education\'s (Arkansas) Migrant Education Program (MEP),\"
transmitted to Commissioner James in a letter of February 3, 2006.
Because the central proposed conclusions of your audit involve a
determination that a significant percentage of migrant education
students in three Arkansas school districts were ineligible under the
Migrant Education Program (MEP) for award year 2003-04, based on a
review of individual student documentation and re-interviews with
individual families, we need complete information on specific children
and families that form the basis for your conclusions in order to
respond to the draft audit report. Please send that information to us --
whether in the form of audit work papers or otherwise -- so that we can
respond fully to your draft report. We respectfully request a reasonable
period of time after receiving that information to analyze it and
respond to your draft conclusions.

Pending receipt of the additional information, we are providing this
letter as an interim, preliminary response to the basic approach taken
in the draft audit report. We reserve the right to supplement this
response with additional information and analysis. In summary, we
strongly disagree with the approach taken, and in particular with the
conclusions that almost all children in the three Arkansas school
districts reviewed -- Searcy, Rogers, and Springdale -- were ineligible
and that Arkansas needs to repay \$877,000 to the U.S. Department of
Education (USDE).

Although the issue of student eligibility under the MEP involves
particular objective elements \--related to the move of a student or the
student\'s parent within the prior 36 months to obtain agricultural or
fishing employment -- virtually all of the proposed findings of
ineligibility in the draft audit relate to subjective elements of the
eligibility definition. First, under the statute and regulations,
eligibility is determined not according to whether students or their
parents in fact held temporary or seasonal jobs in agriculture or
fishing, but rather whether they moved for the

STATE BOARD OF EDUCATION: Chair - Dr. Jeanna Westmoreland, Arkadelphia,
Vice Chair - Diane Tatum, Pine Bluff Members: \*Sherry Burrow, Jonesboro
\*Shelby Hillman, Carlisle \* Dr. Calvin King, Marianna \*Randy Lawson,
Bentonville \*MaryJane Rebick, Little Rock \*Dr. Naccaman Williams,
Springdale

> An Equal Opportunity Employer

purpose of obtaining such jobs. 20 U.S.C. § 6399; 34 C.F.R. §
200.81(c)-(e); *Title I, Part C Education of Migratory Children Draft
Non-Regulatory Guidance* at Dl-D4, p. 14 (October 23, 2003). Second,
USDE non-regulatory guidance --- which is binding on USDE and may be
relied upon by the State of Arkansas as a permissible way to meet the
law, but is not binding on the State of Arkansas^\'^ \-- recognizes that
the application of this standard involves a reasonable judgment by state
interviewers or recruiters, based on an interview with the family at the
time that judgment is made, and that there is room to make a judgment as
to the purpose of the move and whether the job is temporary or seasonal
based on a number of factors, even if the job itself is not ordinarily
defined as limited in duration.^2^

Given the subjective nature of the eligibility determination and the
absence of statutory or regulatory standards for making that judgment,
the test of compliance must be whether a state has a reasonable system
for making these judgments in good faith at the time they must be made.
We believe Arkansas clearly meets that standard, both for the state as a
whole and for the particular districts in which this audit was
conducted. That is especially the case when taking into account the
communication challenges of eliciting reliable information from families
that may have limited English proficiency and that, based on poverty and
in many cases concerns over immigration status, maybe distrustful of
interviewers.

We believe strongly that it is inappropriate for USDE auditors, years
after these determinations were made, to re-interview families and seek
to make an independent judgment of what the intent of the student or
parent worker may have been several years earlier when they were
interviewed by the state recruiter. The family\'s circumstances and
intent may have changed during this period, and their recollection of
what their circumstance may have been at a previous time is in any case
irrelevant to the appropriateness of the state\'s determinations based
on interviews in 2003-04 or preceding years. Indeed, such re-interviews
and the questions that Office of Inspector General (OIG) auditors asked
(as provided to the Arkansas Department of Education) do not elicit
information that answers the question of whether state recruiters had
made good faith, reasonable eligibility determinations We also have
serious concerns that many of the re-interviews with Spanish-speaking
families were conducted not by auditors but by translators and that
auditors were not even present for many of these re-interviews. We
question the validity and accuracy of information obtained in this way,
especially by interviewers who

\"Compliance with the guidance in this document will be deemed by
departmental officials, [including the Inspector]{.underline}
[General,]{.underline} as compliance with the applicable Federal
statutes and regulations. This guidance does not impose requirements
beyond those in the ESEA and other Federal statutes and regulations that
apply to the MEP. While States may wish to consider the guidance, they
are free to develop their own approaches that are consistent with
applicable Federal statutes and regulations. The guidance in this
document is not intended to be prescriptive or exhaustive.^\"^ *Title L
Part C Non-regulatory Guidance, supra* at 7.

^2^ \"A recruiter must use sound and reasonable judgment to determine
whether the particular facts and circumstances support a determination
that the worker moved with . . .\" the \"intent to seek or obtain
qualifying work.\" *Id.* at D1, p. 14; *see also* answer to question K3,
\"May work that is available year-round be considered temporary?\":
\"Yes. Employment that is available on a year-round basis may be
considered temporary if working conditions or periods of demand make it
unlikely that the worker will remain at the job permanently.\" *Id* at
26. OIG auditors at the November 4, 2005 exit interview stressed that
the audit raised no issue of fraud in the making of the subject
eligibility determinations.

2

were strangers to these families and communities and could not be
expected to establish the rapport and trust needed in these kinds of
interviews.^3^

It appears that a significant percentage of the migrant students who
were found in the draft audit to be ineligible were temporary workers or
the children of temporary workers in poultry processing plants. Many of
these jobs are not seasonal, and the OIG draft audit in effect treats
them as non-temporary jobs. However, the draft audit report would impose
post hoc standards as a basis for a substantial repayment claim against
the State where no such standards exist in applicable law or
regulations:

> • First, the draft report makes much of the fact that the State failed
> to perform an industrial survey, but neither the statute nor the
> regulations require or even mention an industrial survey. USDE
> non-regulatory guidance provides for the option of conducting an
> industrial survey, but emphasizes that this is, as a matter of
> \"administrative convenience\" to the State,^4^ a non-required
> \"alternate way to establish that work that is available year-round is
> \'temporary\' for purposes of the MEP because of a high degree of
> turn-over, frequent lay-offs without pay, or few or no opportunities
> for permanent full-time employment,^\"5^ It is only one of several
> options for the state to use in determining whether migrant workers
> were seeking temporary work, and whether work that is available
> year-round is \"temporary work,\" including judgments made by
> recruiters in interviewing workers. And, as noted above, the guidance
> itself is not legally binding, but merely guidance that states may
> choose to follow or not, at their option.
>
> • Second, the draft report resorts to a dictionary definition of the
> word \"temporary,\" ignoring the fact that USDE\'s non-regulatory
> guidance itself defines the term loosely without imposing a hard and
> fast definition. In fact, Arkansas violated neither the cited
> dictionary definition, \"lasting for a limited time,\" which provides
> no enforceable standard, nor the non-binding definition in the
> non-regulatory guidance: \"Temporary employment is employment in
> agriculture or fishing that lasts for a short time frame,
> [usually]{.underline} no longer than12 months.\" (emphasis supplied)

The key point is that there is no standard and no limit for what
constitutes temporary employment in either the statute or regulations.
Of perhaps equal significance, the draft audit report misses the point
that even if there were a specific, enforceable time limit for what
constitutes temporary employment, it simply does not follow from the
fact that a job is technically available beyond that time limit -- or
from the fact that a worker may wind up staying in a job beyond that
time limit -- that the worker could not be found to have been seeking
qualifying, temporary work. As USDE\'s non-regulatory guidance
indicates, work that is

3 We have additional concerns about the validity and objectivity of the
approach taken in this audit, based on comments by the OIG auditors at
the November 4, 2005 exit interview. The auditors expressed the view
that USDE\'s non-regulatory guidance might not be in harmony with the
law, and that their proposed findings reflected their interpretation of
the law. That view is wrong on two counts. First, the non-regulatory
guidance is not inconsistent with the law. Second, as noted in footnote
*1, supra,* as a matter of law, Arkansas and other states may rely on
the non-regulatory guidance and may not be subject to adverse action by
USED for following the guidance. The auditors also acknowledged
vagueness in the standards, but indicated that they had been instructed
by their superior to give the worst-case scenario for these audits.

^4^ *Id.* at L2, p. 27.

*^5^ Id.* at Ll, p. 27.

3

available year-round may be considered temporary if working conditions
make it unlikely that a worker will remain at the job permanently.^6^
That is precisely the determination that was made by recruiters for many
of the migrant workers in question. Recruiters also determined that many
of these workers had a history of moves that made it likely that the
work would be temporary. Both the MEP regulations and USDE\'s guidance
specifically refer to poultry processing jobs as qualifying work under
the MEP,^7^ and the non-regulatory guidance includes factors for
determining whether a job is in fact temporary that necessarily involve
the exercise of reasonable judgment by the recruiter.^8^

The judgments that were made as to the temporary nature of these jobs
were reasonable and consistent with the law and USDE\'s non-regulatory
guidance. Arkansas recruiters, unlike the OIG staff who performed this
audit, have direct personal knowledge of the food processing jobs for
which migrant students or their parents moved. The working conditions
for these jobs are extremely poor and result in constant job turn-over.
As acknowledged by the poultry companies in an industrial survey
conducted by the Arkansas Department of Education in 1996, the working
conditions of these processing jobs involve a cold, wet working
environment with strong odors; fast, repetitive work; frequently long
and unpredictable hours; heavy dust; and uninterrupted standing on
concrete floors to perform work. The survey documents very high
turn-over rates in these positions, typically well in excess of 50% in a
12 month period, and in some cases over 100% for that period.^9^ That
industrial survey may not meet all of the specific elements for the
non-required industrial survey described in the subsequently-issued USDE
non-regulatory guidance, but it clearly supports the reasonableness of
the judgments made by recruiters that the processing jobs in these
poultry factories were qualifying, temporary work under the MEP. Based
on informal communications with the companies, other indicia such as
constant newspaper employment advertisements for these jobs, and the
direct knowledge of local recruiters, it is clear that this situation
has not changed.^10^

We also note that while States are not required to prepare certificates
of eligibility by any statute or regulation, Arkansas complied fully
with USDE\'s non-regulatory guidance both as to the form and completion
of its certificates of eligibility in order to document its eligibility
determinations.^\"^ We believe that all or substantially all of the
certificates reviewed in the audit cited the specific basis for the
recruiter\'s judgment. Arkansas\' certificates of eligibility for the
year in question closely adhered to the model certificate provided in
USDE\'s non-regulatory guidance, and they have subsequently been amended
to require more detail than required in the USDE model.^12^ In sum,
completed certificates of eligibility documenting the interview and
citing

> *6 Id* at K3, p. 26.
>
> *See* 34 C.F.R. § 200.81(a); *Title I, Part C Non-Regulatory Guidance,
> supra,* at H1, I1, I7 at 20-21. *See Id.* at Kl-K-3, p. 26.
>
> *^9^ See Id,* at L8, p. 29: \"As a rule of thumb, a 50 percent
> turnover rate in a 12-month period is a sufficiently high turn-over
> rate to consider work temporary.\"
>
> \'9 The Arkansas Department of Education has not conducted a more
> recent industrial survey because of the difficulty of obtaining the
> cooperation of food processing plants, which are not generally
> forthcoming in volunteering information about their workforce.
>
> \'\' USED guidance suggests that states use certificates of
> eligibility as one acceptable way to document the basis for the
> judgment that a student or his/her parent moved for the purpose of
> finding a temporary job. *Id.* at Ml-Ml 1, pp. 34-38.
>
> ^12^ *Id.* at 38.

4

a proper basis for the determination that the student or parent moved
for the purpose of obtaining a seasonal or temporary job fully meet the
State\'s legal obligations to maintain records that show the basis for
its eligibility determinations.

Let us be clear: Arkansas is prepared to reimburse the Department for
MEP allocations received based on any students if they or their parents
did not make a move to seek employment within 36 months before being
found eligible; if the jobs for which the moves were made were outside
the fields of agriculture or fishing; or if the certificates of
eligibility include information that contradicts any basis for a
reasonable judgment that the move was made to seek temporary or seasonal
employment. But there is no proper basis for a repayment claim here for
the good faith judgments made by recruiters in 2003-04 or prior years
concerning both the intent of students and their families who moved
within the 36 month period to obtain agricultural or fishing work and
the temporary nature of that work. Those judgments were consistent with
the law, program regulations, and the Department\'s own non-regulatory
guidance. We cannot stress enough our conviction, from both a legal and
policy standpoint, that those judgments resulted in funding vital
services for children who clearly represent the very needy, migratory
children that Congress meant to serve in enacting the Migrant Education
Program.

Consistent with the recommendation in the draft audit report, Arkansas
is prepared to work with USDE\'s Office of Migrant Education in
considering strengthening controls in identifying eligible children. We
are always looking for ways to improve our administration of federal and
state programs, and are prepared to implement further controls that
would be reasonable and cost effective. We should note, however, that we
have already taken steps to strengthen administration of the program.
Although not required to do so, Arkansas was one of the first three
states to re-interview migrant education students for 2003-04.^13^ Our
re-interview process showed an error rate of 5.6%. We have adopted a
migrant education program manual which closely tracks and elaborates on
USDE\'s own guidance; provide training for recruiters; and have a
quality control system to review the determinations of recruiters. *See
Tab A.* As noted above, we have also revised our certificates of
eligibility to require additional information, including specific
check-off boxes for the reasons that work is judged temporary. *See Tab
B.* The recommendation that we conduct a statewide migrant child count
for 2003-04 and more recent years would be redundant of the re-interview
process and other improvements noted above, and a waste of limited state
resources. However, we are prepared to discuss with USDE\'s Office of
Migrant Education further steps to ensure the accuracy of our counts --
especially as part of any program-wide accountability initiatives that
Office may undertake.

Thank you for considering these comments. We look forward to receiving
the additional information requested above so that we may provide a full
response to your draft audit.

^13^

The draft audit\'s dismissive reference to our re-interview process for
failing to interview many families that were no longer at their given
addresses is, frankly, perverse. The fact that many families had moved
would only seem to confirm their migratory status.

5

> Sincerely,
>
> Scott Smith
>
> General Counsel
>
> SS:law
>
> cc: T. Kenneth James, Ed.D., Commissioner of Education
>
> Thomas A. Carter, Deputy Inspector General, Office of the Inspector
> General
>
> Attachments

**Arkansas**![](media/image4.png){width="1.1833333333333333in"
height="1.1965277777777779in"}

###  DEPARTMENT OF EDUCATION

4 STATE CAPITOL MALL • LITLE ROCK, ARKANSAS 72201-1071 • (501) 6824475 •
**http://arkedu.state.ar.us**

**Dr. Kenneth James, Commissioner of Education**

April 5, 2006

Ms. Sherri L. Demmel

Regional Inspector General for Audit

United States Department of Education

199 Bryan Street, Harwood Center, Suite 1440 Dallas, Texas 75201-6817

Dear Ms. Demmel:

This letter supplements my response of March 6, 2006, to your draft
audit report, entitled, \"Arkansas Department of Education\'s (Arkansas)
Migrant Education Program (MEP),\" transmitted to Commissioner Dr. T.
Kenneth James in a letter of February 3, 2006. This supplemental
response is based on a review of documents provided by your office to
Arkansas\' Migrant Education Unit Leader William Cosme on February 2,
2006, and transmitted to me on March 9, 2006, as well as additional
documents that we had requested and that were provided to me on March
30, 2006. All of these documents were provided in response to my request
for complete information on specific children and families that form the
basis for your conclusions in order to be able to respond fully to the
draft report. The documents that you provided consist of blank
questionnaires used in the audit; draft summary charts for the Searcy,
Rogers, and Springdale school districts purporting to cite the reason or
reasons for ineligibility determinations for each student in the audit
sample found to be ineligible; and completed questionnaires prepared by
U.S. Department of Education (USDE) Office of Inspector General (OIG)
representatives in conducting the audit in these school districts.^1^

We reaffirm and incorporate each of the points made in our March 6,
2006, letter and add the following supplemental responses. The documents
that you provided reinforce our concern that the approach taken in this
audit is flawed and does not generally provide a proper basis for
seeking a repayment of funds from the State of Arkansas. We believe that
an interview with a migrant family conducted by an auditor (or a
translator on behalf of an auditor) two or more years after-the-fact may
not be very probative of what that family\'s intent was when it in fact

> \' Although the draft audit report indicates that the parents of 67
> MEP participants were interviewed, you sent us only 63 completed
> questionnaires. Should we assume that the other interviewed families
> were determined to be eligible? Please let us know if that is not the
> case. Of the 63 questionnaires sent to us, 21 did not indicate an
> eligibility conclusion or the reason for that conclusion. It is
> unclear to us if we should assume that all of these questionnaires
> reflect determinations of ineligibility, although the aggregate
> determinations in your draft report suggest that is probably the case.

STATE BOARD OF EDUCATION: Chair - Dr. Jeanna Westmoreland, Arkadelphia,
Vice Chair - Diane Tatum, Pine Bluff Members: \*Sherry Burrow, Jonesboro
\*Shelby Hillman, Carlisle \* Dr. Calvin King, Marianna \*Randy Lawson,
Bentonville \*MaryJane Rebick, Little Rock \*Dr. Naccaman Williams,
Springdale

> An Equal Opportunity Employer

moved.^2^ More importantly, it is not at all probative of what was said
by the family to the responsible Arkansas recruiter or of whether that
recruiter had made a reasonable good faith judgment as to the intent of
the family and the nature of the qualifying work in applying subjective
statutory eligibility criteria at the time the eligibility determination
was made. As our March 6, 2006, letter explains and as the USDE\'s
*Title I, Part C Non-regulatory Guidance* makes clear, both statutory
eligibility elements on which your audit focuses --- the intent of the
family in moving and whether a qualifying job was involved, even in
poultry plant jobs that were technically available on a year-round basis
--- required subjective judgments by the state recruiters.^3^ The legal
issue of whether these children were eligible under the MEP turns
primarily on whether Arkansas recruiters applied the correct statutory
standard and whether they made a good faith subjective judgment in doing
so.^4^ We believe USDE should assert a financial claim for repayment
against the State of Arkansas in this circumstance only if it concludes
that Arkansas recruiters abused their discretion in making these
statutory eligibility judgments based on the information that was before
them at the time.^5^ To have an OIG interviewer render a different
judgment based on a separate interview with a family years
after-the-fact does not address this issue, and without interviewing the
Arkansas recruiters, the audit could not do so.^6^

We have the following additional responses based on the audit
questionnaires that you sent to us. To the extent OIG used analyses
consistent with that reflected in these questionnaires in determining
ineligibility for families that were not interviewed, our concerns apply
with equal force to those determinations.

> 2 As noted in our March 6 letter, the insufficient probative value of
> information obtained in this way is aggravated by the fact that these
> interviews were conducted by strangers to these families and
> communities who could not be expected to establish the rapport and
> trust needed to elicit accurate information in these kinds of
> interviews. Arkansas^\'^ own re-interview process confirmed the
> challenges of obtaining reliable information from migrant families,
> particularly through a subsequent re-interview process. *See Report on
> the OME Re-Interviewlnitiative,* Arkansas Migrant Education Program
> (2005).
>
> *5 Title I, Part C Education of Migratory Children, Draft
> Non-Regulatory Guidance,* October 23, 2003, U.S. Department of
> Education, at II-D1, II-D7.

4 As our March 6 letter acknowledged, certain of the statutory
eligibility requirements, such as whether the children had made a move
within the prior 36 months, turn on objective facts. We conceded that
failure to meet these conditions triggers a repayment obligation.

^5^ As noted in our March 6, 2006, letter, Arkansas complied fully with
USDE\'s non-regulatory guidance as to the form and completion of
certificates of eligibility in order to document its eligibility
determinations, and we believe that all or substantially all of the
certificates reviewed in the audit cited the specific basis for the
recruiter\'s judgment. The bases cited conformed to the law and the
non-regulatory guidance and properly implemented Arkansas\' obligation
to maintain records documenting its eligibility determinations. *See,*
footnotes 11 and 12 and accompanying text of our March 6 letter.

^6^Nor does the draft audit report fully analyze the substantial
Arkansas re-interview process for 2003-04, which Arkansas undertook
voluntarily at considerable cost and effort. The draft casually
dismisses that process on the basis that many families had moved and
could not be located. Although many families had moved, the re-inteview
process reached many families and generated important findings that
logically would be central to any OIG audit, but were essentially
ignored in the OIG audit report. *See Report on the OME Re-Interview
Initiative, supra.*

> 2

1.  The questionnaires that you sent us state a conclusion that a child
    is eligible or ineligible based on stated sub-conclusions on
    elements of eligibility such as the intent of the move and the
    occupation of parents when they moved to the school district.
    However, it is unclear to us whether OIG representatives asked any
    more specific or follow-up questions beyond the very general
    conclusory categories in the questionnaire. Also, both the
    questionnaires and the draft report err in assuming that a
    determination on eligibility flows from the stated sub-conclusions.
    For example, many of the questionnaires indicate, in the \"intent of
    move\" box, that the child and one or both parents moved to the
    school district because the other parent, other relatives, or
    friends lived there. Based on this sub-conclusion, the OIG
    questionnaires conclude that the intent of the move was ineligible
    under the MEP. That conclusion is unwarranted. **Neither the statute
    nor regulations require that a child, parent, or spouse who moves
    for the purpose of seeking temporary or seasonal agricultural or
    fishing work have no other intent in mind. As** the *Title I, Part C
    Non-regulatory guidance,* at II-D5, indicates, the recruiter needs
    to make a judgment as to whether the primary purpose of a move was
    to seek such work, but the prospective worker may also have other
    purposes in mind.

Migrant workers typically learn of opportunities for migrant work by
word-of-mouth from family members and friends. It is not surprising that
migrant workers commonly seek temporary or seasonal work in places where
their family and friends are located. When Arkansas recruiters interview
a family, an indication by a family member that he or she moved to the
school district to join his or her family is not the end of the inquiry,
but appropriately the beginning of a series of questions to elicit
information on whether the opportunity to seek temporary or seasonal
work was in fact a primary intent of the move. Consistent with guidance
and training provided over time by USDE\'s Office of Migrant Education,
questions are asked, for example, as to whether family or friends had
discussed such opportunities and whether the individual would have moved
to the school district in the absence of such opportunities. All of our
recruiters are expected to ask these questions. See the enclosed \"Basic
Interview Pattern\" that has been used to train all of our recruiters
since 2003. Family relationships and friendships are inextricably tied
to a significant proportion of migrant employment moves. An audit
conclusion that a child\'s, parent\'s, or spouse\'s intent to be with
family or friends disqualifies an otherwise eligible child under the MEP
would represent a serious misunderstanding of the law and the realities
of migrant employment. This problem appears to apply to at least 19 of
the questionnaires.

2.  Similarly, many of the OIG-completed questionnaires cite other
    non-work-related reasons as the intent of the move and conclude from
    these sub-conclusions that the moves did not make the children
    eligible under the MEP. For example, some questionnaires indicate
    that the child, parent, or spouse moved because he/she preferred to
    live in a small town; because of the cost of living or the
    availability of a doctor; to buy a home; to get closer to town,
    school, or employment; or to get a better education. Some
    questionnaires indicate

In response to the question that our representatives asked at the
audit^\'^s exit interview concerning what questions were asked in the
interviews with migrant families, OIG simply gave us a copy of the
questionnaire.

3

> that the worker came to visit relatives and decided to stay.^8^ As
> noted above, the problem with using these sub-conclusions to draw a
> conclusion of ineligibility is that neither the statute nor the
> regulations require the move to have been made for the sole or
> exclusive reason of obtaining temporary or seasonal agricultural
> employment. The *Title I, Part C Non-regulatory guidance,* at II-D5,
> acknowledges this point and indicates that obtaining temporary or
> seasonal agricultural or fishing work should be the primary reason,
> not necessarily the exclusive reason, for the move. Generally, the
> reasons cited in these questionnaires are not inconsistent with a
> primary goal of seeking temporary or seasonal agricultural employment.
> (Contrary to the OIG-stated conclusion on the questionnaires, these
> reasons do not necessarily suggest an intent to make a permanent
> move.)^9^ Again, given answers such as these, Arkansas recruiters
> would be expected to ask additional questions to determine whether a
> primary intent of the move was to obtain temporary or seasonal
> employment. *See* enclosed \"Basic Interview Pattern.\" Consistent
> with guidance and training provided over time by USDE\'s Office of
> Migrant Education, Arkansas interviews of possible migrant workers
> probe the intent of their move at considerable depth. This approach
> appears to be lacking in the subject audit. It appears that problems
> involving unwarranted conclusions regarding the intent of the move, as
> described in this paragraph, apply to at least 29 of the
> questionnaires.
>
> 3\. Many of the questionnaires conclude that children were ineligible
> under the MEP on the basis that one or both parents assumed
> non-qualifying positions at the time of the move or did not in fact
> have a job. However, as indicated in the *Title I, Part C
> Non-regulatory guidance,* at II-D1 to D4, and as explained in our
> March 6, 2006, letter, assumption of a non-qualifying job by the
> child, parent, or spouse -- or the failure to obtain a qualifying job
> -- does not per se mean that the child is ineligible. The question is
> whether the child, parent, or spouse moved with the intent to take a
> qualifying agricultural (or fishing) job, a question that requires the
> exercise of judgment by a state recruiter and is best answered at

8 A worker who merely visits or is on vacation in a given location has
not made a qualifying move. *See* II-D13 of *Title I, Part C
Non-regulatory guidance.* Indeed, a visit or vacation is not a move at
all. It is in fact not uncommon for migratory workers to visit relatives
or friends to see if work is available in the area. If a worker on a
trip or vacation decides to make this more than a trip or visit and to
remain in the location to seek a temporary agricultural job in the
location, it is at that point that a move is made, and it would be a
qualifying move. For example, a family that came to the Rogers school
district on a one month visit, but decides to make this more than a
brief visit and to stay in Rogers in order to seek temporary or seasonal
agricultural work at that point has made a qualifying move with the
requisite intent. Nothing in the statute, regulations, or non-regulatory
guidance requires the intent of the move to be fully formed before the
worker sets foot in the school district to which the move is made.

^9^ Even if they did indicate such an intent, nothing in the statute or
regulations renders a child ineligible on this basis if the child,
parent, or spouse moved with the intent of obtaining temporary or
seasonal agricultural work within the prescribed, preceding 36-month
period. The *Title I, Part C Non-regulatory guidance,* at II-D6, states:
\"If the recruiter finds that the primary purpose for the move was to
permanently relocate to a new area, the move does not qualify, even if
the worker is engaged in qualifying work.\" On the other hand, II-C12 of
the *Non-regulatory guidance* provides that an SEA may recruit a child
after he or she \"settles out,^\"^ meaning that a child who became
eligible during the preceding 36 month period would retain eligibility
even if the child\'s family had settled permanently in their current
place of residence. Apart from the fact that this distinction is not
legally binding (and was not included in prior iterations of the
*Non-regulatory guidance),* it is a nuanced distinction that is
difficult to apply and that may lead to different conclusions depending
on the questions asked by the recruiter, the recruiter\'s ability to
elicit information from the family, and the timing of the interview.
Again, this issue reinforces our concern that OIG cannot reliably make
these determinations based on separate interviews with families years
after-the-fact and without interviewing the responsible recruiter.

4

> the time the eligibility determination is made. We believe that
> Certificates of Eligibility for every one of these prospective
> employees, and for employees in families that were not interviewed,
> indicated specifically that the employee either had a specific
> temporary agricultural job or was seeking such a job with particular
> agricultural employers or particular types of agricultural employers
> based on the original recruiter interviews. That satisfies the
> statutory and regulatory standard. We note also that it is not
> uncommon that migratory workers move to obtain temporary or seasonal
> agricultural work, but do not obtain that work for temporary or even
> significant periods of time. For example, many prospective workers
> face immigration issues, including a lack of required immigration
> papers that may impede their employment, may be daunted by
> employment-related drug tests, or may not promptly find available
> agricultural employment. Audit determinations based on the
> sub-conclusions in the completed audit questionnaires would be based
> on incomplete information and fail to apply the correct statutory and
> regulatory standard of eligibility. This problem appears to apply to
> at least 27 of the questionnaires.

4\. In some cases, it is not at all clear why the OIG interviewer
concluded that the worker did not have the requisite intent or there was
no qualifying job. For example:

-   The questionnaire for \-\-\--EDITED\-\-\-\-\-- of the Rogers School
    District includes the sub-conclusion in the \"intent of move\" box,
    \"work ended in Denver,\" concluding from this that the move was
    ineligible. The basis for this conclusion eludes us.

```{=html}
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```
-   The interview questionnaire for \-\--EDITED\-\-\-- concluded that
    \-\-\--EDITED\-\-\-- children were ineligible based on the intent of
    the move. The \"intent of move\" box on the form included the
    sub-conclusion: \"Work ended in Ks. \-\-\--EDITED\-\-- had lived in
    Rogers on and off since 1990 & located to Kansas in 1993. Moved to
    Rogers in 04 since he knew the area.\" The form indicates that
    \-\--EDITED\-- took a job at Tyson (poultry plant) when he moved to
    Rogers. Knowing an area where he moved to assume a qualifying
    temporary agricultural job does not suggest an intent other than
    finding qualified employment, nor does it disqualify
    \-\--EDITED\-\-\-\-- children under the MEP.

> The questionnaire for \-\-\-\-\-\-\-\-\--EDITED\-\-\-\-\-\-- concludes
> there was no qualifying job (as well as that there was no eligible
> intent to move, on a basis addressed in paragraph 1 above), but states
> that the father\'s principal occupation when he moved to the Rogers
> school district was, \"Divorced.\"

-   The questionnaire for \-\-\-\--EDITED\-\-\-- indicates that he has
    been in Arkansas and has been working at Tyson since 1993. If that
    work was uninterrupted since 1993 (and eligibility is not based on
    \-\-\-\--EDITED\-\-\-\-- intent to obtain qualifying work, and the
    form simply says N/A for \-\--EDITED\-\--, which is ambiguous),
    \-\--EDITED\-\-\-\-- children would not be eligible. However, it is
    not clear in the questionnaire if the work at Tyson was
    uninterrupted or whether \-\-\--EDITED\-\--lived in the Rogers
    school district without interruption since 1993, or whether these
    questions were asked by the OIG interviewers.

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```
-   The questionnaire for \-\--EDITED\-\-\-- indicates that she moved,
    \"for more work here\" and that she was a temporary hire. The form
    indicates that she has never worked at Tyson, but does not indicate
    the nature of her temporary work.

> 5

-   The questionnaire for \-\--EDITED\-\-\-\-- indicates that the father
    held various jobs when the family moved to Rogers and concludes,
    without indicating what those jobs were, that there was no
    qualifying job.

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```
-   The questionnaire for \-\--EDITED\-\-\-\-- (Rogers school district)
    concluded that the child was ineligible based both on the intent of
    the move (for reasons addressed in paragraph 2, above) and \"the
    non-qualifying job for person who signed COE.\" However, nothing in
    the statute, regulations, or non-regulatory guidance requires the
    qualifying job to be that of the person who signs the certificate of
    eligibility,^10^ and the questionnaire for \--EDITED\-\-- indicates
    that the father had a temporary job at Tyson when he moved to
    Rogers.

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```
-   The questionnaire for --EDITED\-\-- (Rogers school district) makes a
    determination of ineligibility based on both a non-qualifying job
    (for reasons addressed in paragraph 3, above) and ineligible intent
    to move. However, the intent of move box on the form simply says,
    \"Jobs.\" That statement does not resolve the issue of whether there
    was an eligible intent.

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```
-   The questionnaire for --EDITED\-\-- (Springdale school district)
    concludes there was no qualifying job (and that there was no
    eligible intent to move, on a basis discussed in paragraph 1 above),
    but gives no information under the box for \"principal occupation of
    parents when you moved to Springdale,\" and indicates that the
    mother\'s current occupation is \"poultry.\"

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```
-   The questionnaire for \-\-\--EDITED\-\-\-- indicates that he moved
    from Mexico to the Springdale school district in 2001, works at
    Tyson, and \"they go back to Mexico for 6 months or so for vacation
    and then come back to work.\" As any Arkansas recruiter can tell
    you, Tyson Foods, Inc. does not give 6 months of vacation to its
    workers. \-\--EDITED\-\-- clearly was a temporary worker who left
    his job at Tyson to return to Mexico and then came back to find
    another temporary job at Tyson, consistent with the eligibility
    provisions of the Migrant Education Program. Also, even if these had
    been vacations, the work appears to have occurred within the 36
    month period following the first qualifying move.

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```
-   The questionnaire for --EDITED\-- (Springdale school district)
    concludes that the child is ineligible because the \"qualifying
    person was already here.\" However, the form provides inconsistent
    information on which spouse worked for which employer. Also, both
    employers cited -- Tyson and Pinnacle Foods -- provide qualified,
    temporary or seasonal agricultural employment.

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```
-   The questionnaire for --EDITED\-\-- concludes that he is ineligible
    because the intent of the move was not temporary and the job was
    non-qualifying. However, the \"intent of move\" box provides no
    information or sub-conclusion, and the \"principal occupation\" box
    indicates maintenance at Tyson (poultry plant). Depending on its
    specific functions, a maintenance job may or may not have been a
    qualifying job, but Tyson commonly shuffles workers between
    maintenance and food processing jobs, and the fact that --EDITED\--
    took this position at Tyson is likely supportive of his intent to
    seek temporary agricultural work.

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```
-   The questionnaires for the Searcy school district are generally
    ambiguous and do not include express conclusions.

10 Indeed, nothing in the statute, regulations, or non-regulatory
guidance even requires that there be a certificate of eligibility or, if
there is one, that it be signed by a parent.

6

These and many of the other OIG-generated questionnaires do not provide
a basis for second-guessing the judgments of Arkansas recruiters.
Certainly, if the recruiter had no factual basis to conclude that
obtaining seasonal or temporary agricultural work was the primary reason
for the move, a move would not support the eligibility of the child in
question. However, the audit does not address the recruiters\' bases for
making these
determinations.![](media/image5.png){width="6.823611111111111in"
height="1.0798611111111112in"}

For these reasons, and for the reasons stated in our letter of March 6,
2006, we strongly recommend that OIG withdraw from the audit report its
draft findings that a substantial proportion of children in the audited
school districts were ineligible and its draft recommendations for
substantial repayments based on these findings. We would concur in audit
recommendations to repay appropriate amounts reflecting the very small
proportion of children who are found not to have made a move related to
agricultural employment within the prior 36 month period, as required by
the law. Also, as noted in our March 6 letter, we are prepared to work
with the USDE\'s Office of Migrant Education in making any appropriate
changes to further strengthen our process for determining and
documenting eligibility.

Thank you for the opportunity to comment on the draft audit and to
review and comment on the supplementary information that you sent. We
would be pleased to elaborate on or answer any questions you have
regarding our March 6, 2006, response and this supplemental response.

Enclosure SS:law

cc: T. Kenneth James, Ed.D., Commissioner of Education

> Thomas A. Carter, Deputy Inspector General, Office of Inspector
> General
>
> 7

**BASIC INTERVIEW PATTERN\
Determining Eligibility for The Migrant Education Program**

There are 2 questions that are essential to the eligibility of a migrant
Family/Youth that must be answered before one can continue the interview
process. These crucial questions are as follows:

1.  **Is there anyone in the household under the age of 22?**

2.  **Have you moved here in the last 3 years or has anyone moved in or
    out of the household in the last 3 years?**

If the answer to either of these questions is \"NO\", there is no need
to continue the interview other than the FINAL **QUESTION\*.**

If the answer is \"YES\" the interviewer must continue to verify
eligibility.

**3. Why was the move made? (Intent) If the one of the principal reasons
for the move was to seek qualifying work the interview should
continue.**

> **INTENT**

**The Intent of the Move can be for multiple reasons but one of the
principal reasons should be for qualifying work.**

Many times when directly asked why a move was made the response will be
because the worker had family or friends at the new location. A
well-trained interviewer must also determine if the Qualifying Work was
also one of the principal reasons for the move.

**Questions that could assist in determining that the work was a
principal reason for the move:**

*Did you hear of **the qualifying work before you made the move?***

***Would you have moved if the work were not available?***

***Have you worked in qualifying work in the past? Were you aware that
this work would be available if you moved here?***

*Did your family or friends tell you about the work?*

*What type of work does your friends or family have here? Did they tell
you that this work was available before you made plans to move?*

**Comments that could clarify the Intent of Move:**

*The worker has family members who are working at the plant that
informed him of work The worker heard of the work before he arrived.*

*The worker came to apply for work at the plant.*

*The family has worked in the same plant before and returned to seek
work again in the plant.*

*The worker indicated he made the move for the qualifying work*

**If the move was made for reasons that did not include seeking
qualifying work the interview is over except for the FINAL QUESTION.**

4.  **If the qualifying work is temporary you must document what
    indicates that the work is temporary?**

As the Non-Regulatory guidelines point out in section K2, #5 the
agricultural or fishing work may be permanent but if the interviewer has
reason to believe that the worker does not intent to perform the job
indefinitely the work could be considered temporary.

**Questions that could assist in determining if the work is Temporary:**

*Do you have plans for seeking other work? What work do you intend to do
after this?*

*Do you own a home (have a residence) elsewhere? When do you plan to
return there? Are you looking for a better (paying) job?*

*How long will you stay in this job?*

*Do you intend to look for other work soon? Will you look for a better
paying job after this? How long do you think you will do this work?*

*Have you done this type of work here or at other plants in the past?*

*Will you return to your home in (wherever) soon? Do you plan on moving
again? When?*

*Have you lived here in the past? When? What type of work did you do at
that time?*

5.  **When and from Where was the move made?**

6.  **Who made the move?**

7.  **Is the move permanent? Does the Family/Youth intend to stay
    permanently or will they move again in the future?**

This is a determination that should be made through questioning the
interviewee on his or her likelihood to remain. Many times the worker
will not know for sure if they will stay. The interviewer must make a
determination through careful questioning.

> **Questions that could be used as indicators in your determining
> permanency, along with the family/youth\'s history are as follows:**

*Do you **intend** to stay here permanently?*

*How many times have you moved in the past 3 years?*

> *Where will you move after this job is finished?*
>
> *Have you ever made a move here to do this type of work?*
>
> *Do you have/own a home elsewhere? Will you return to you home base?*

*Are you looking for a better place to live and work?*

> *Would you move if you found better paying work elsewhere?*
>
> *Will you remain in this town forever?*
>
> **Comments that could clarify the determination that the move was not
> permanent:** *Family\'s history of migrant moves indicate that this is
> not a permanent relocation. Family has a residence in Michoacan,
> Mexico and will return there.*
>
> *Family has a history of migrant moves.*
>
> *Family has moved 3 times in the past 2 years*

**8. Is the Qualifying Work an important part of the household income?
(PMOL)**

> **Questions that could assist in determining if the qualifying work is
> a primary means of livelihood:**
>
> ***Is this the only income for the family?***
>
> ***Is this income necessary to support the family?***
>
> ***Could you pay the bills without this income?***
>
> *Would you be able to get by without this income?*
>
> **Comments that could clarify the determination:**
>
> *Even though the family/youth has other income this job brings in
> income that is necessary to pay the bills.*
>
> *A family of this size needs this extra income from this **^2nd^**
> job.*
>
> *Mr. Smith works in construction but Mrs. Smith state that her income
> is needed to make ends meet.*
>
> *Mr. Rodriguez also works in the Tyson Plant but the family needs the
> extra income to get by.*
>
> *A family of this size needs this extra income.*
>
> *Worker indicated that this work is necessary for family to get by.*
>
> If the responses up to this point indicate that the Family/Youth is
> \"Migrant\" the Interviewer should begin the process of verifying in
> detail and documenting with the COE the final determination of
> Eligibility. Upon completion of the COE the Interviewer should always
> ask the FINAL **QUESTION.**
>
> **\*FINAL QUESTION: Do you know anyone else who might qualify for the
> MEP; anyone who has moved here in the last 3 years, is under 22 years
> of age and/or has children under the age of 22 years of age living
> with them?**

[^1]: A COE is a form to document migrant eligibility.

[^2]: We questioned costs at the rate of \$280.50 per child. We
    calculated that per-child amount by dividing the State's 2003-2004
    funding amount (\$5,183,388) by the reported 2003-2004 child count
    (18,479). We then calculated the questioned costs by multiplying the
    per-child funding amount (\$280.50) by the estimated number of
    ineligible children (3,127).

[^3]: The estimated questioned cost is calculated at a rate of \$280.50
    for 3,127 ineligible migrant children.

    \$280.50 \* 3,127 = \$877,123.50.

[^4]: Arkansas comments concerning sub-conclusions are misdirected. What
    Arkansas refers to as auditor "sub-conclusions" are actually the
    reasons given by parents for a move as recorded on the form we used
    to record the interview results.