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Significant Changes Proposed in New Child Care Regulations

June 1, 2003

Author: Susan C. Antos

The Office of Children and Family Services (OCFS) has proposed a comprehensive set of regulations which make significant changes to the administration of child care subsidies in New York State. In particular, the regulations impose new budgeting rules and a child support cooperation requirement. Additionally, rules are clarified about district responsibility in the case of inter-district moves, rates to be paid for care provided outside the district and payment for breaks in activity. Two new requirements are imposed on legally exempt providers and the rules regarding payment for absences have been expanded.

These proposed regulations, which were published in the New York State Register on May 28, 2003, have a 45 day comment period which ends July 14, 2003. Comments should be addressed before that date to:

Public Information Office
New York State Office of Children and Family Services
52 Washington Street
Rensselaer, NY 12144

According to the Regulatory Impact Statement, the regulations were drafted in consultation with a work group composed of staff from over 40 Social Services districts.  Additionally, a draft of the proposed regulations was sent to every Social Services District Commissioner, who was then invited to a meeting which was attended by 57 participants representing 30 social services districts, as well as a representative from the New York Public Welfare Association. There was no indication that any input on these regulations was sought from child care providers, parents, or their advocates.

This article will highlight a number of the more significant changes in the regulations, and will include recommendations for change.

I. Budgeting Rules/Financial Eligibility

A. The Child Care Services Unit [415.1(l), 415.1(h)]

The “Child Care Services Unit” is a new term of art defining whose income in the household will be considered for the purpose of determining a family’s eligibility for child care services. For families who are receiving public assistance, the Child Care Services Unit is the caretaker, his or her children and any other member of the public assistance unit.

For families where no adult family member is in receipt of public assistance, the Child Care Services Unit will be comprised as follows:

  • Each adult, along with his or her children, will be considered a separate child care services unit unless the adults have a child in common;
  • When the adults reside together and have at least one child in common, the child care services unit will be comprised of the adults who have children in common, the children those adults have in common, and the other children of each such adult.
  • Where a custodial parent is under the age of 21 and residing with his or her parent, or residing with an adult who is an individual other than his or her parent, the child care services unit will be comprised of the custodial parent who is under 21 years of age, his or her children, and any other individual in the household with any legal responsibility for the custodial parent’s children.
  • When eligible children reside with only individuals who are not the children’s parents, stepparents, adoptive parent, or legal guardian with financial responsibility for the children, the child care services unit will be comprised of eligible children only. This means that most grandparent and other kinship relative caregivers will not have their income counted when determining child care eligibility.
  • Individuals who are temporarily absent will be counted as part of the child care services unit unless they are away from home as a result of foster care placement.

B. Treatment of 18, 19 and 20 Year Olds [415.1(1)]

The Social Services district has the option to include 18, 19 or 20 year old individuals in the same child care services unit as their parent(s) by indicating such option in its consolidated services plan (CSP) or integrated county plan (ICP). Districts have the options to include all 18, 19, or 20 year olds or to include only those 18, 19 and 20 year olds whose inclusion in the child care services unit would benefit the family.  The inclusion of an 18, 19 or 20 year old individual in the unit could either help or hurt any low income families. By including them in the unit, the household size increases, as does the financial eligibility level. However, if the 18, 19 or 20 year old has income, the inclusion could be detrimental to the household because that income is counted towards eligibility.

Recommendation: Allowing local districts to make this determination creates an inconsistent patchwork of eligibility rules across the state. The OCFS recognizes in its regulatory impact statement that many older teenagers live at home so that they can take advantage of educational opportunities and minimize expenses. As a practical matter these teenagers rarely, if ever, contribute to their household’s income. Rather than leave it to county option, there should be one uniform statewide rule, which requires that 18, 19 or 20 year olds only be included in the child care services unit when it would benefit the family.

C. Eligible Providers Within the Child Care Services Unit [415.1(h)]

No members of the child care services unit are eligible to provide subsidized child care unless they are the child’s siblings. Additionally, members of the child’s or caretaker’s public assistance unit are not eligible to provide subsidized child care. This latter restriction may need reexamination.

Recommendation: In three generation households where a grandparent is on public assistance, the grandparent should be permitted to meet her work requirement by providing child care to a grandchild.

II. Child Support Cooperation Requirement [415.3(c), (d), (e)]

These regulations would impose a new eligibility requirement upon child care recipients, requiring them to “actively pursue” child support from the non-custodial parent. The parent could either pursue support through the district’s child support enforcement program or through other legal means. 

This proposal was first made in 99 ADM-5 four years ago, but the effective date was delayed until OCFS had the regulatory authority to impose such a requirement. The cooperation requirement creates a host of administrative and legal problems, which are not addressed in this proposed regulation. These problems need to be firmly resolved before any child support cooperation requirement is imposed.

Low-income parents should be encouraged and given every opportunity to obtain child support to benefit their children. However, unless significant changes have been made to the proposal from when it was original conceived in 1999, this proposal is little more than a cost recovery mechanism, which primarily benefits local social services districts.

The following problems are raised by this proposal:

 

1.  Parents pursuing child support are not entitled to assigned counsel. Family Court Act §262. Nevertheless 99 ADM-5 at page 21 requires that an applicant for or recipient of child care services who is not a client of the Support Collection Unit must demonstrate that they are pursuing child support by presenting a letter from a representing firm or organization which attests to a laundry list of information. Many petitioners in family court support proceedings proceed pro se.  Most child support enforcement units do not provide legal representation without charging a fee to non-public assistance recipients. The verification requirements are difficult for some and impossible for non-represented persons, and have the potential to delay applications for child care services and thus disrupt employment.

Recommendation: Pro se petitioners should be permitted to provide a self-attestation to verify cooperation (date petition filed, return date, etc.) The regulation should clearly state that no application for child support shall be delayed pending verification of child support cooperation.

2.  The Administrative Directive makes clear that a person with a child support order must cooperate in modifying the order to address child care costs. 99 ADM-5 at page 18. The Family Court Act permits an “add-on” for child care costs. Family Court Act §413 (l)(c)(4). A parent who is required to pursue an add-on for child care costs may likely incur expenses for legal representation that do not ultimately benefit her but instead benefit the social services district.

The child care add-on provided to a recipients of child care services does not go to defray the custodial parent’s cost of child care but instead reduces the subsidy paid by the Social Services District. Additionally, when a non-custodial parent ceases to pay the child care add-on, it is the custodial parent who must pay the non-custodial parent’s share to retain her slot (an amount that was formerly paid by subsidy), until there has been one month of non-payment and the custodial parent has gone to family court and filed a violation petition against the non-custodial parent.  OCFS has indicated that districts do not have to resume paying the noncustodial share until a violation petition has been filed. Once that petition is filed, OFCS has not made clear who is liable for the non-custodial’s share which accrues between the default and the filing of the petition.

To complicate matters, it is unclear whether Courts will hold respondents in violation of orders where the add-on goes to the county. One Family Court hearing examiner held that: 

  • The fact that the action of an agency has significantly reduced the cost of child care should not be to the detriment of the non-custodial parent. The essence of the Child Support Standards Act is that the parents share proportional to their income, the burden of raising the child. Petitioner’s eligibility for a government subsidy should not be to Respondent’s detriment. The cost to the petitioner is the relevant amount. Anonymous v. Anonymous, Chenango County Family Court (3/3/00), citing Bronstein v. Bronstein, 203 A.D. 2d 703, 610 N.Y.S. 2d 638 (3rd Dep’t 1994).  (Anonymous is on file at the Greater Upstate Law Project, Inc.)
  • This proposal creates an accounting nightmare for providers who will have to collect from three sources: the custodial parent, the non-custodial parent and the county. When the non-custodial parent defaults, providers become the collector of first resort (instead of the child support enforcement unit) for the unpaid child care add-on.

Recommendation: A parent with a child support order should not be required to seek a child care add-on as a condition of eligibility. However, if the Office of Children and Family Services is intent on requiring parents to seek a child care add-on they should:

a) Guarantee counsel to such parents;
b) Provide that the add-on defray the parent share of the subsidy for the custodial parent;
c) Require that the child care add-on be paid to the child support collection unit and be transmitted directly from the child support collection unit to the county;
d) Make the child support enforcement unit the enforcer in the event of a default.

In response to inquires from Legal Services programs when the rule was first proposed in 1999, the OCFS answered a number of questions with respect to the interface between child support collection and child care. 

First, OCFS indicated that the child support cooperation requirements would not apply for those receiving preventative or protective day care.

Recommendation: If this is still the case it should be made clear in the regulations.

Additionally, if a recipient of child care services has two children with different fathers and mom cooperates in establishing paternity for one but not the other, neither child is eligible for child care assistance. This is a harsher penalty than the one applied in the Family Assistance program, which imposes a 25% sanction in such cases. Social Services Law §131 (16).
Recommendation: If OCFS must impose a penalty, it should not be more harsh than the penalty imposed upon public assistance recipients.

In 1999 OCFS indicated that they would apply the child support cooperation requirement to grandparents unless they had good cause. This makes no sense in light of the fact that their income is not counted in determining the eligibility for children in their care. Proposed regulation 415.1(l)(1)(iv).
 
Recommendation: The regulations should expressly exclude the nonlegally responsible caregivers from the cooperation requirement.

III. Application Issues

A. Funding Set Asides, Waiting Lists and Denial of Services [415.2(d)(2)(2),(3)]

The regulations make clear that local social services districts may set aside portions of their child care block grant allocations or their Title XX allocations to serve particular priority populations. These funding set asides must be described in the district’s CSP or ICP along with a rationale for the set aside. These amounts may be adjusted up or down by 10% without the prior written approval of the OCFS provided that such adjustments are reported to OCFS within 30 days of adjustment. Prior approval is needed for adjustments in excess of 10%.

In the event that the district has set aside funds to serve one or more priority populations and all the available funds that are not set aside are projected to be needed for open child care cases, a district may choose to deny services to a family that does not fall with in the priority population for the set asides. In the alternative, the district may place the family on a waiting list for subsidies. A district that has not established set asides but otherwise has available funds committed to open child care cases may deny services to a family which is not eligible for a child care guarantee or place the family on a waiting list for subsidies.

Recommendation: The regulations should make clear that a family denied child care services for lack of funding must receive a denial notice in writing. If child care need is to be accurately assessed, the social services district should be required to report the number of these denials accrued in each calendar year, as well as data regarding the numbers of children on waiting lists, to OCFS.

B. Transitional Child Care [415.2(a)(1)(iv)(d)]B.

The regulations make clear that transitional child care eligibility may be requested in any month during the twelve month period after the family leaves the assistance. The regulations specifically state that the start date for eligibility may precede the date services were requested and cover any period during the twelve months of the guarantee. 

C. Parent Fee/Family Share [415.4(f)]

The Parent Fee provisions are now called “Family Share”. The regulations make clear that a family share may now include an overpayment amount for child care services. Logistically this seems somewhat confusing in as much as part of the family share would then go to the provider and part to the social services district. Failure to timely pay the family share can result in the termination or suspension of child care services.

D. A Seamless System? [415.4(b)(1)]D.

The regulations expressly state that “a social services district may not require the submission of a new application merely because an applicant is not longer eligible for public assistance or no longer eligible for child care guarantee.” Since transitional child care is guaranteed, this would seem to require that the application requirement between transitional child care and income eligible child care is no longer required.

E. Interdistrict Moves [415.4(d)]

The child care regulations now adopt a rule similar to the rule for interdistrict moves in public assistance cases. When a recipient of child care services moves from one district to another, the former social services district is obliged to continue to pay for child care services during the month that the family moves from one district to the other and the following full month. The new social services district of residence is responsible for child care thereafter. This provision does not apply in situations where the former social services district has continuing responsibility for providing public assistance such as when the parent or caretaker relative is required to attend a substance abuse program, nor does it apply in foster care situations.

Recommendation: Unfortunately, this provision only applies to families in receipt of public assistance and transitional child care. This regulation should be expanded to include families who receive income eligible child care to allow for a smooth transition to the new district of residence. The Office of Children and Family Services should request that a small amount of money be set aside in next year’s state budget for people who move to new districts of residence to assure that their child care may continue despite their move. Local districts could then claim against this amount so they would not disrupt their projected spending patterns. Child care should be a statewide program; the fact that a person moves should not affect eligibility.

F. Child Care Provided Outside the District [415.9(k)]

When a social services district pays for child care services provided by a provider located in another district, the applicable market rate is the rate for the district in which the child care provider is located.

IV. Programmatic Rules

A. Child Care for Sleeping Parents [415.4(c)(3)]

The regulations make clear that up to eight hours of child care services may be provided to enable an employed caretaker who works a second or third shift to sleep. This provision is particularly helpful for parents who work the night shift and who are unable to sleep during the day because their young children are not yet in school.

Recommendation: Unfortunately this is a county option. The regulations should make this a requirement for all parents regardless of county of residence, who need such care. Parents who work the night shift with children who are too young to be in school have no time to sleep without endangering their children. This danger is real regardless of county residence and should not be a county option.

B. 24-Hour Care [415.1(a)(1) thru (3)]

The regulations as they currently exist, provide that child care services cannot be provided for more than a 24-hour period. The new regulations allow exceptions to this in certain circumstances such as when services are provided on a short term emergency basis or when the caretaker’s approved activity necessitates care for 24 hours on a limited basis, so long as the social services district chooses this as an option in their consolidated services plan or integrated county plan.

C. Breaks in Activity [415.2(c)]C.

The Seamless Funding Bill (Ch. 569 of the Laws of 2001) amended Social Services Law § 410-w(5), to make it mandatory for social services districts to provide child care for families on public assistance who were between breaks in activity, for families in work activities, or community service.  Such interim care could be for a period of up to two weeks and renewed for a period of up to one month total if child care arrangements would be lost if the services were not continued. These regulations make clear that social services districts have the option to provide such interim care for nonpublic assistance families.

Recommendation: The expansion of this rule is a great improvement, but OCFS should seek legislation to provide this protection for all recipients of child care subsidies.

V. Provider Issues

A. Legally Exempt Providers [415.4(f)(7)

Two new requirements are being imposed upon legally exempt providers, also known as “informal” child care providers. Such providers must answer two questions. First, whether or not they have ever been denied a license or registration to operate a day care program or group or family day care home or had such a license or registration suspended or revoked.  Additionally, legally exempt providers must attest to whether or not they have ever had their parental rights terminated or had a child removed from their care pursuant to Article 10 of the Family Court Act. If either of these questions are answered in the affirmative, the social services district may choose to enroll or refuse to enroll such a caregiver as a legally exempt child care provider.

B. Absences - [415.6(e)(4),(5)]

The regulations make several important changes with respect to payments for absences. The requirement that payments for absences be made only to contracted providers is now abolished. The districts must now adopt their absence policies in their consolidated services plan. Social services districts may choose to continue to only allow contracted providers to be paid for absences. Alternatively, they may provide them to all subsided child care services except for informal or legally exempt child care providers. Payment for absences is not allowed to providers who are paid on daily or part-time rate.
 
The regulations also permit licensed, registered or legally exempt group programs to claim an additional 5 days of reimbursement in the case of natural disasters, severe weather and closures due to state, federal or nationally recognized holidays.

Comment and Recommendation: GULP supports this change but would recommend that payment for absences be required whenever it is required for private pay parents.

VI. Miscellaneous

A. Multi-Year Consolidated Services Plan/Integrated County Plans/Implementation Reports - [415.4(e)(6)]

The regulations make clear that each social services district must submit a multi-year consolidated services plan or an integrated county plan and any implementation reports as required by OCFS.

Recommendation: The regulations do not state how these plans are made available to the public. The regulations should require that all current plans be made available either upon request to the local services district, or to the Office of Children and Family Services, within 5 business days after the request. Additionally, these plans should be available on line on the OCFS website as well as the county or local district website. Easy access to these plans are critical due to the multitude of characteristics that are particular on a county by county basis. In order for parents to clearly understand their rights, or if they are attempting to enforce them through the fair hearing process, it is important that these plans be readily available.

B. Recovery of Overpayments [415.7(i),(j)]

The regulations make clear that an overpayment may only be recovered from a caretaker relative or provider who is responsible for such overpayments, whether the result of acts of omission or commission. A parent who promptly reports a change in circumstances but is overpaid as a result of the district’s failure to act promptly, shall not be required to repay said overpayment. In such case neither federal nor state reimbursement can be claimed for such an overpayment.

Applicants who have not repaid past overpayments for previous child care services must agree to and comply with a plan to make full payment of such overpayments as a condition of being eligible for new child care services. Recipients who fail to agree to such plans will have their child care benefits suspended or terminated. A recipient or former recipient of child care services who has voluntarily admitted to fraudulently receiving child care services will not be eligible for a period of time in accordance in the penalties under the intentional program violation rules in 18 NYCRR 359.9.

This penalty will be suspended if the recipient is being required to participate in activity for which child care services are necessary. Overpayments for child care services which result from aid continuing for a caretaker who loses a fair hearing, will be recovered in the same manner as other overpayments.

Comment: We support the provision that bars repayment for overpayments caused by the agency’s failure to promptly budget changes.

C. Case Closings for Lack of Funds [415.2(d)(4)]

When districts run out of money, social services districts are permitted to discontinue funding to families that are not eligible for a child care guarantee. The regulations state that the length of time used to close cases may be based on either the shortest or longest time a family has received child care services, but must be consistent for all families with in the district. The county option must be specified in the local district’s consolidated services plan or integrated county plan.

Recommendation: The state should develop one consistent rule for the use of this primarily federal funding stream so that all citizens of the State of New York are treated equally.

D. Waivers [415.10]

The regulations permit social services districts to request a waiver of any non-statutory provision of this part.

E. Reports [415.2(d)(5)]

Social Services districts will be required to submit reports in a “form and manner and at time specified” by OCFS “showing the geographic distribution” of children receiving child care services from the district.  

 





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