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| Montana Administrative Register Notice 37-531 | No. 5 03/10/2011 | |
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BEFORE THE DEPARTMENT OF PUBLIC HEALTH AND HUMAN SERVICES OF THE STATE OF
TO: All Concerned Persons 1. On December 23, 2010, the Department of Public Health and Human Services published MAR Notice No. 37-531 pertaining to the public hearing on the proposed amendment of the above-stated rules at page 2925 of the 2010 Montana Administrative Register, Issue Number 24. 2. The department has amended ARM 37.80.101, 37.80.102, 37.80.201, 37.80.205, 37.80.301, and 37.80.305 as proposed. 3. The department has amended the following rules as proposed, but with the following changes from the original proposal, new matter underlined, deleted matter interlined: 37.80.202 FINANCIAL REQUIREMENTS FOR ELIGIBILITY; PAYMENT FOR CHILD CARE SERVICES; PARENT'S COPAYMENT (1) through (10) remain as proposed. (11) The child care authorization and corresponding certification plan sets limits for child care benefits. Authorization and corresponding certification plans may change. The most recent authorization and corresponding certification plans are the effective plan. No further notice (12) and (13) remain as proposed. IMP: 52-2-704, 52-2-713, 52-2-721, 52-2-722, 52-2-723, 52-2-731, 53-2-201, 53-4-211, 53-4-212, 53-4-601, 53-4-611, MCA 37.80.306 LEGALLY CERTIFIED PROVIDERS: CERTIFICATION REQUIREMENTS AND PROCEDURES (1) Application to provide child care under this chapter as a legally certified provider may be made at the child care resource and referral agency handling the legally certified provider services. (2) through (7) remain as proposed. AUTH: 52-2-704, MCA IMP: 52-2-704, 52-2-713, 52-2-721, 52-2-722, 52-2-723, 52-2-731, MCA 37.80.316 REQUIREMENTS AND PROCEDURES FOR CHILD CARE PAYMENTS (1) Except as provided in (2) and (3), the provider will receive payment for child care services when the care is provided outside the child's home. (2) through (6) remain as proposed. AUTH: 52-2-704, MCA IMP: 52-2-704, 52-2-711, 52-2-713, MCA 37.80.501 TERMINATION OF CHILD CARE ASSISTANCE (1) remains as proposed. (2) When child care assistance is terminated due to the household's loss of eligibility, as specified in (1)(b), (c), (f), (g), or (i), notice of termination must be sent to both the parent and the provider at least 15 calendar days prior to the effective date of termination, except for (1)(f) in which a ten-calendar-day notice is required. No notice is required from the state when child care is terminated by the parent or provider, or for the other reasons specified in (1)(a), (d), (e), or (h). (a) through (4) remain as proposed. AUTH: 52-2-704, MCA IMP: 52-2-704, MCA 4. The department has thoroughly considered the comments and testimony received. Most of the comments related to the Montana Child Care Manual which has been adopted and incorporated by reference. A summary of the comments received and the department's responses are as follows: COMMENT #1: Regarding ARM 37.80.101(5), commenter states that: (1) Needs to clarify case open under parent/guardian since children can be on more than one open case in Child Care Under the Big Sky (CCUBS). (2) This would allow families to circumvent certain eligibility issues and receive multiple periods of child care assistance without following through on meeting requirements. The presumption of eligibility includes meeting child support guidelines. If found that the child support guidelines are not met, a case closes, but if there is no limit to the number of presumptive periods allowed, families could continue to avoid meeting child support requirements while receiving assistance for repeated spans of presumptive eligibility. This could be prevented by not permitting presumptive eligibility unless eligibility requirements that caused a previous case closure can be verified. RESPONSE #1: "Households may benefit from 30 calendar days of presumptive eligibility, which is an option at any time an application is submitted and a case is not already open". 1) Presumptive eligibility is based on household eligibility and not children's need for care. If a child is on more than one case in CCUBS, one case may be closed for any reason, and it will not affect the child's standing on the other case. 2) Presumptive eligibility requirements do not include meeting child support guidelines (Section 2-1, page 4 of 8). However, serial spans of presumptive eligibility are not acceptable. The department recognizes the need for additional language to prevent such occurrences. Therefore, the policy will also include the following language: "Should the Eligibility Specialist determine that the reason for not completing the application process is repeated in subsequent application submissions, the CCR&R Eligibility Specialist has the option of denying presumptive eligibility based on the apparent misuse of the benefit". COMMENT #2: In ARM 37.80.102(15), "'In loco parentis' means a person who lives with the child and has assumed the care and control of the child". Must this be recognized by authorities as a legal relationship? If so, how will it be verified? RESPONSE #2: The applicant or participant must provide documentation such as those outlined in Section 2-2 "Household Requirements" as they pertain to the person designated "in loco parentis" in a court order, military, or other type of parenting plan. This definition and the subsequent procedures around its use has not changed from the prior policy; only its location in the list of definitions. COMMENT #3: In regard to ARM 37.80.101(13)(b), a commenter asked, "The way this reads is mailed at least 15 days before the termination date, so a general correspondence that won't be mailed until the next business day would have to include extra days. For example, a notice created 1/14/11 before the 3-day weekend, would have to be dated for 2/2 to give 15 days from 1/18 when it should be mailed out of RESPONSE #3: The comment addresses a section of policy that is not a part of the current revisions submitted. However, the department agrees that the term "mailed" is inconsistent with other areas of the policy regarding the 15-calendar-day time frame. The policy wording "must be mailed" has been replaced with "will be given...". COMMENT #4: The reference to Common Law Marriage in Section 2-2, on page 3, states "holding themselves out as 'marred'". I believe they intended to mean "married". RESPONSE #4: The department recognizes the typographical error and it has been corrected. COMMENT #5: Regarding Section 2-2a of the manual, if compliance is not met after the 30 calendar day period, the case is closed until compliance is verified. A ten calendar day notice is required. All other notices have been changed to 15 calendar days. Is the ten day correct here? RESPONSE #5: The department recognizes the error in not changing the working in this part of Section 2-2a to be in agreement with other areas of policy that the 15-calendar-day time frame is required. Therefore, the language has been changed to "15 calendar day". COMMENT #6: Regarding Section 2-3 of the manual, students are not eligible for Best Beginnings Child Care Scholarship during in-home study time. Beginning Child Care Scholarships to complete out-of-home lab work. Verification of this need will be necessary. RESPONSE #6: The department has corrected the language to read as follows: Students are not eligible for Best Beginnings Child Care Scholarships during in-home study time. Students may use the Best Beginnings Child Care Scholarship to complete out-of-home lab work. The need for out-of-home lab work must be verified. COMMENT #7: Why are we rounding down for bi-weekly factoring and not for the others? RESPONSE #7: The department has not made a change to the prior use of 2.15 as the number used as part of the formula for figuring bi-weekly income. This figure is also used by the CCUBS database system in determining income eligibility. The effect of the difference between 2.15 and 2.17 has no detrimental effect on eligibility. COMMENT #8: Section 2-5 the paragraph under the chart says "the last formula in Table (semi-monthly 13 week calculation should be used for the following". In the commenter's current manual it says the 13-week cannot be used for these. The commenter wonders if this is a typo or a policy change. RESPONSE #8: The department recognizes the typographical error and it has been corrected to read "The last formula in Table 1 [Semi-monthly 13-week calculation] cannot be used for the following….". COMMENT #9: Regarding Section 2-5, page 3, #1 on chart "Wage stubs must be consecutive". If consecutive wage stubs are not available, may year-to-date difference be used to determine missing stubs or are we denying families for this? RESPONSE #9: The department has determined that, while year-to-date information may prove useful if only one consecutive wage stub is missing in determining what amount it was issued for, year-to-date information does not yield correct information if more than one wage stub is missing. Clarifying language has been added as follows: "If the applicant is unable to secure copies of wage stubs from their employer and more than one wage stub is missing, Eligibility Specialists should certify the applicant for 30 days until additional wage stubs can be produced. Consecutive wage stubs mean those which show earned income for the previous 60 days of work". COMMENT #10: In Section 6-6, in Grace Period, last bullet under When a parent is approved: "The CCR&R Eligibility Specialist completes the Change Report form". This was edited, originally said to mail the form to ECSB when we had used a different form. There is nothing for the Eligibility Specialist to complete on the current form. RESPONSE #10: The department recognizes that the Change Report form has changed and the following language has been stricken from the policy: "The CCR&R Eligibility Specialist completes the Change Report form". COMMENT #11: In ARM 37.80.202(11), "No further notice is provided when benefits expire at the end date…" This should read: "No further notice must be provided…". It should be acceptable to send a courtesy notice. The proposed amendment appears to prohibit it. RESPONSE #11: The department agrees with the comment and the phrase "must be provided" will replace "is provided" as suggested. COMMENT #12: In ARM 37.80.201(6)(a)(ii), is Child Care Certification Plan a Child Care Service Plan? This may cause adverse affect on families living far away from R&R where mailing in paperwork is their only option. RESPONSE #12: The Child Care Certification Plan is not the same as the Child Care Service Plan. The distinction is clearly outlined in the CCUBS manual. The department only modified this rule to stipulate ten calendar days which is in coordination with TANF policy. Therefore, the department is making no additional modifications to this rule. COMMENT #13: In ARM 37.80.306(1), "Application to provide child care under this chapter as a legally certified provider may be made at the nearest child care resource and referral agency". Early Childhood Services Bureau (ECSB) has chosen to centralize this service. Therefore, application should be made to that agency which was awarded the contract for services. RESPONSE #13: The department agrees with the suggestion and will revise the wording as follows: "Application to provide child care under this chapter as a legally certified provider may be made at the child care resource and referral agency handling the legally certified provider services". COMMENT #14: In ARM 37.80.316(1), does this mean any care provided by an In-Home Relative Caregiver can choose LCP payment status instead of LCI payment status, regardless of relationship to child? RESPONSE #14: The provider term "In-Home Relative Caregiver" no longer exists in ARM or policy. ARM 37.80.316(2) of the rule stipulates: "Payment will be made to the parent when a care giver, who does not live with the parent or child, provides child care in the child's home". The department acknowledges that the rule is not in agreement with policy. Revision to the rule is as follows: "The provider will receive payment for child care services when the care is provided outside the child's home. When the care is provided by a great-grandparent, grandparent, step-grandparent or step-great-grandparent, aunt, or uncle who resides in the parent or child's home or the care is provided in the parent or child's home, payment will be made to the parent". COMMENT #15: In ARM 37.80.501(2), although 15 days is much better than ten, this will impact TANF sanctions. Are all programs changing to a 15 day notice in order to streamline work between agencies/department? RESPONSE #15: The department acknowledges the error by including (2)(f) with the list of subsections to which the 15-calendar-day notice will now apply. Therefore, revisions to this section are as follows: "When child care assistance is terminated due to the household's loss of eligibility, as specified in (1)(b), (c), (f), (g), or (i), notice of termination must be sent to both the parent and the provider at least 15 calendar days prior to the effective date of termination, except for (f) in which a ten-calendar-day notice is required. No notice is required from the state when child care is terminated by the parent or provider, or for the other reasons specified in (1)(a), (d), (e), or (h)". COMMENT #16: In Section 1-3, #5 of the manual, "Authorization of Service" means the span of time, number of hours per week, and schedule that an eligibility child is approved for care at a particular provider's facility. In addition, it indicates the monthly payment amount that the family is approved to receive for the indicated child at the indicated facility. The authorization of services is used to create the certification plan. This is confusing. The certification plan is the document that indicates the time span, hours, schedule, etc. for which a participating family has been approved for assistance.
RESPONSE #16: In Section 1-3, #5, the definition for Authorization of Service is correct. 1) Authorization of Services is a screen set up in the Child Care Under the Big Sky database system which authorizes child care services and stipulates the span of time, number of hours/week, and schedule that an eligibility child is approved for care at a particular provider's facility. In addition, it indicates the monthly payment amount that the family is approved to receive for the indicated child at the indicated facility. 2) Then, a certification plan is generated from the CCUBS system using the information from the Authorization of Services and distributed to the parent and provider. There is no certification plan without an Authorization of Services completed. The wording is to clarify the relationship between the two. COMMENT #17: In Section 1-3 #19, authorization plan should be based on the schedule of the parent applying for and receiving assistance since this parent's activities hours are used for eligibility determination and child care would only be covered while child is in custody of eligible parent. A majority of absent parents are not in the same area, region, city or state as the custodial parent. Authorizing child care should be based on each situation from case to case, depending on the situation. Payment can be adjusted to meet the parenting plan split of child care costs but the authorizations may differ. RESPONSE #17: The department believes this definition is clear and provides the support needed for parents meeting the criteria stipulated in the definition. COMMENT #18: In Section 1-3 #26 of the manual, "Significant Other" means domestic partner, a person, not necessarily a spouse, who is in a co-habitating relationship. Is there a definition of co-habitating? Do roommates count or must it be a romantic relationship? Are best friends eligible? Cousins? Siblings? RESPONSE #18: The department did not change this definition from previous versions of the manual. There is currently no definition for co-habitating. COMMENT #19: In Section 1-4a, for consistency's sake, the commenter feels all notices and requests should be 15 days. Not only would it take care of the possibility of weekend and holiday issues but it would be easier for all workers involved to have one time limit to remember, no matter the program. RESPONSE #19: The department appreciates the feedback and will take this under advisement as policy continues to be clarified or updated. COMMENT #20: In Section 1-6 of the manual, "Needs to clarify verification" is for adults in household. Is it required for all adults in household or only the head of household/applicant? RESPONSE #20: The department recognizes that clarification is needed. Therefore, additional language is added as follows: "All adults in the household who are identified as household members to establish eligibility for the Best Beginnings Child Care Scholarship must meet the residency requirements outlined in the policy". COMMENT #21: Commenter was pleased with the added language to help prevent the fraudulent alteration of documents. Commenter would like to see more protections to help prevent collusion between scholarship recipients and child care providers. RESPONSE #21: The department thanks the commenter and continues to look at provisions to assure proper use of funds and will take this under advisement as we continue to update and clarify policy. COMMENT #22: In Section 1-10, there is a need to assure there are no TANF sanctions issued with the change from 10 to 15 day notices. RESPONSE #22: The department agrees. ARM 37.80.501(2) has been revised back to the original language to keep the ten-calendar-day notice for TANF as follows: "When child care assistance is terminated due to the household's loss of eligibility, as specified in (1)(b), (c), (f), (g), or (i), notice of termination must be sent to both the parent and the provider at least COMMENT #23: In Section 2-1 of the manual, language has been added to ensure that completed application documents will be reviewed with three days of submission as part of the timely processing policy and, presumably "with" is a typographical error and "within" is the intended word. RESPONSE #23: The department recognizes the typographical error and it has been corrected to read "within…". In addition, the department is revising the days of submission from three days to seven calendar days in order to allow for challenges with weekend and holiday scheduling not originally accounted for when the department proposed this change. COMMENT #24: In Section 2-4a, more clarification is needed. It is a hardship to clients starting new businesses to not be eligible for assistance because they have no income. There needs to be a grace period for start-up. This program is meant to help parents become self-sufficient; not allowing a grace period for business start up is setting them up to fail. In addition, although it is very easy to take advantage of the Best Beginnings Child Care Scholarship through claiming self-employment, there are many instances where it is not being taken advantage of. For instance, a stylist may be renting a booth in a salon. If the stylist is not available to take walk-in clients, she will never be able to build a client base and become successful and self-sufficient. However, it is not feasible to keep her child(ren) with her while she waits for walk-in business. RESPONSE #24: The department recognizes that a hardship may exist for those just starting. In Section 2-4a, page 4 of 8, it states: "If self-employment is too new for business records, a statement of estimated income and expenses must be submitted with the scholarship application. Eligibility will be determined for no more than a three month period to allow actual income and expense receipts to be gathered". COMMENT #25: In Section 6-2, the original policy has this wording as well but it was 60 days from license approval. Which will it be, application date or approval date? I would also like to see policy regarding resuming LUP applications when a parent's case has closed but re-opened a couple months later. Policy is also needed regarding re-opening licenses due to failure to attend orientation. Does the provider need to re-apply or can they be re-opened with the orientation date as the effective date? RESPONSE #25: The department has determined that the wording is misleading and will clarify that the 60 days of orientation must occur within 60 days from the date of approval. In addition, current policy states: "The CCR&R staff must offer the applicant the opportunity to attend orientation during the period background checks are being completed. This will allow time to complete background checks and reduce the incidence of certifications being terminated because an Legally Certified Providers (LCP) or Legally Certified In-home Provider (LCI) failed to complete orientation within 60 days of approval". Current policy also allows for LCP/LCI certifications to be issued for 12 months reducing the number of closures and re-openings. The department will continue to review and update policy as the centralization of the LCP/LCI certification process completes the transition period. COMMENT #26: Section 6-9 of the manual is not worded well. A case cannot be closed and then placed in pending closure status. Care may be terminated without closing the case. In addition, CCUBS does not required a case to be open, resumed, pending, or in pending closure status for overpayment payments to be recorded on the case event summary screen. A case may be closed in CCUBS and these payments can still be entered. Keeping cases in a pending closure status solely for the sake of entering overpayment payments skews stats and reports. RESPONSE #26: The department acknowledges that CCUBS currently does not have a "pending closure" status option which will streamline this procedure. Enhancements in CCUBS will allow for this option. Until then, the current policy language "If the case is to be closed and an overpayment balance remains, put the case in pending closure status to allow for entry of payments on the overpayment tab" will remain. COMMENT #27: In regard to Section 2-4a of the manual, as the Director of an agency that administers the child care assistance/scholarship program as a DPHHS ECSB contractor, I am concerned that the proposed rules related to self-employment which require that the self-employment wage equal the federal minimum wage may present a hardship for some families. Many businesses are not initially profitable and yet will be in time. This is not limited to business ventures started by individuals with low income. I encourage ECSB to consider alternatives while still seeking to streamline eligibility determination for self-employed individuals. RESPONSE #27: The department recognizes that the initial requirement to meet minimum wage may pose a challenge for some self-employed families. The following additional language has been added to ameliorate that challenge: "Self-employed applicants at the time of application may choose one of three expense options: 1) 35% of their gross income for expenses, 2) actual expenses as indicated on the Self-Employment Income Verification Form, or 3) no expenses. Only one option may be selected with the application. If option one (1) is selected by the applicant and they are determined to be ineligible, the applicant may request to submit expense receipts instead. If applicants select option two (2) or (3) and are found ineligible, they may not then request option one." 5. The department intends to make the revisions to the Montana Child Care Manual and to apply these rules retroactively to February 1, 2011. /s/ Lisa A. Swanson /s/ Anna Whiting Sorrell Rule Reviewer Anna Whiting Sorrell, Director Public Health and Human Services Certified to the Secretary of State February 28, 2011
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