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Montana Administrative Register Notice 37-420 No. 2   01/31/2008    
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BEFORE THE DEPARTMENT OF PUBLIC

HEALTH AND HUMAN SERVICES OF THE

STATE OF MONTANA

 

In the matter of the amendment of ARM 37.80.101, 37.80.201, 37.80.205, 37.80.206, and the repeal of ARM 37.80.601, 37.80.602, 37.80.603, and 37.80.604 pertaining to the child care assistance program
 
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NOTICE OF AMENDMENT AND REPEAL

 

TO: All Interested Persons

 

1. On November 8, 2007, the Department of Public Health and Human Services published MAR Notice No. 37-420 pertaining to the public hearing on the proposed amendment and repeal of the above-stated rules, at page 1758 of the 2007 Montana Administrative Register, issue number 21.

 

2. The department has amended ARM 37.80.101, 37.80.205, and 37.80.206 and repealed ARM 37.80.601, 37.80.602, 37.80.603, and 37.80.604 as proposed.

 

3. The department has amended the following rule as proposed with the following changes from the original proposal. New matter to be added is underlined. Matter to be deleted is interlined.

 

37.80.201 NONFINANCIAL REQUIREMENTS FOR ELIGIBILITY AND PRIORITY FOR ASSISTANCE (1) through (10)(b) remain as proposed.

(11) Any licensed or registered child care provider is not eligible for child care assistance while a child attends a public or private school, including kindergarten in any circumstance. The department will not pay for care while a child who is of legal school age attends a private or public school or kindergarten. The department will not pay for a child to be home schooled. Any licensed or registered child care provider is not eligible for child care assistance for children who fall within the age groups traditionally serviced by the public school system, or alternately a private or home school and who are attending said school for educational purposes during traditional school hours are not eligible for child care payments. The department will not pay for a child during normal school hours when a child is home schooled.

 

AUTH: 52-2-704, 53-4-212, MCA

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, 53-4-601, 53-4-611, MCA

 

4. The department has thoroughly considered all commentary received. The comments received and the department's response to each follow:

 

Comment #1: Regarding MAR Notice No. 37-420, reasonable necessity is not stated for changes to ARM 37.80.201(4) and (11).

 

Response: Regarding ARM 37.80.201(4), the reasonable necessity for this rule is to allow families to demonstrate they are in the process of CSED compliance. This is an important change because of deadlines involved or the compliance confirmation with CSED, or the details of the case within CSED determination. Many times, cases are held up at CSED in processing. In order to ensure consistency in child care scholarship eligibility regarding cooperation with CSED, this rule is modified to allow parents to prove they have submitted all necessary information to CSED to determine compliance and therefore, are recognized as being in cooperation.

 

Regarding ARM 37.80.201(11), the reasonable necessity for this rule centers around prioritizing of available dollars for child care services. While the anticipated fiscal impact isn't directly known, children who fall within the age groups traditionally serviced by the public school system or alternately a private or home school and who are receiving such schooling for educational purposes during traditional school hours are not eligible for child care payments. If payment were allowed for this population, the potential obligation for costs of private, public, or home school that choose to be licensed or registered according to the state of Montana would exceed greatly the funding authority of the Best Beginnings Scholarship program. Additionally this proposed rule provides needed clarification of the intent of the federal Child Care & Development Fund to provide payments for child care to eligible families. According to 45 CFR 98.2, "an eligible child care provider means: (1) a center-based child care provider, a group home child care provider, an in-home child care provider, or other provider of child care services for compensation that- (i) is licensed, regulated, or registered under applicable State or local law as decribed in 98.40…" Further, child care services are defined federally as the "care given to an eligible child by an eligible child care provider." Additional rationale from 45 CFR 98.54 (3)(c) related to restricted use of funds for tuition provides, "Funds may not be expended for students enrolled in grades 1 through 12 for: (1) Any service provided to such students during the regular school day; Any service for which such students receive academic credit toward graduation; or (3) any instructional services that supplant or duplicate the academic program of any public or private school."

 

Comment #2: Regarding ARM 37.80.201(11), legal school age should be defined in this rule as there is some confusion among staff members and the public and law exists that specifically defines legal school age. Additionally, the final sentence reads "the department will not pay for a child to be home schooled." As this rule is specifically about child care, the agency believes the rule would be clearer as well as more equitable if it read "the department will not pay for child care during the normal school hours when a child is home schooled." This meets the intent of not paying for child care Monday through Friday, 8:00 a.m. - 3:30 p.m. A parent may chose to home school and also be employed nights and weekends. In such a case, if other eligibility requirements are met, the family should be eligible for child care scholarships during nonschool hours while the parent(s) works.

 

Response: The department agrees the proposed rule is unclear and has modified the rule to read as follows, "Any licensed or registered child care provider is not eligible for child care assistance for children who fall within the age groups traditionally serviced by the public school system, or alternately a private or home school and who are attending said school for educational purposes during traditional school hours are not eligible for child care payments. The department will not pay for child care during normal school hours when a child is home schooled."

 

Comment #3: I support the clarification of ARM 37.80.201(11) that a licensed or registered child care provider is not eligible to be reimbursed for child care services provided while a child attends a public or private school, including kindergarten.

 

Response: The department appreciates the comment and the support.

 

Comment #4: ARM 37.80.205(6)(a) strikes the language that allows for the higher reimbursement to Star Quality programs if private pay families do not pay at the same rate. The Missoula region is home to the most Star Quality programs of any region in the state. Many of these programs do not charge an hourly or daily rate to private pay families, they charge a monthly rate. Private pay families pay when the child is not in care, which is not always the case for scholarship families. But, an hourly rate and a monthly/slot rate are not comparable; therefore, this would be difficult to interpret and some high quality facilities may lose Star Quality incentive pay.

 

Response: As stated in the rationale for the language repeal in the proposal notice, this language is duplicated in the child care policy manual, which is incorporated into administrative rule by reference pursuant to the Montana Administrative Procedure Act (MAPA), therefore this does not constitute a substantive change.

 

Comment #5: The proposed change to ARM 37.80.206(4) eliminates the possibility of a ten day closure payment unless the provider informs the Child Care Resource & Referral Agency within five days of the child's unexpected absence from the facility. Department rule precludes payment at more than one facility. The family may have switched enrollment to another facility. This rule would be strengthened by rephrasing "the department is not required when applicable, to pay for any care from the date the child last attended the facility."

 

Response: The department believes the intent of this rule is clear and concise without modification.

 

Comment #6: In regard to ARM 37.80.101(13), Section 1-3 of the Child Care Policy Manual dealing with court ordered child support payments, the language regarding the necessity of providing documentation of receipt of court ordered child support payments is needed to implement this change.

 

Response: The department agrees and will add similar language to this definition in the Child Care Policy Manual as follows:

 

"In-Compliance with Child Support-the parent has an open case and maintains an open case while receiving a Best Beginnings Child Care Scholarship with the Montana Child Support Enforcement Division (CSED) or has complied with all requests by CSED to open a case, the parent is receiving child support through a court order and this can be verified by documentation of receipt of court ordered child support payments, or the parent must have appropriate reasons and documentation to apply for good cause not to pursue child support as outlined in the Child Care Policy Manual, Section 2-2."

 

Comment #7: Comments were in support of the proposed change regarding Child Care Policy Manual Section 2-6, related to the Income Table.

 

Response: The department appreciates the comments and the support.

 

Comment #8: Regarding Child Care Policy Manual Section 6-6, comments received were in support of this proposed change.

 

Response: The department appreciates the comment and the support.

 

Comment #9: Regarding Child Care Policy Manual Section 6-7, comments were in support of this proposed change.

 

Response: The department appreciates the comments and the support.

 

Comment #10: Regarding Child Care Policy Manual Section 7-5b, related to Higher Education Merit Pay, there were four comments in relation to this section. Comments were not in favor of this policy change. Those who commented felt the policy on higher education merit pay being available to only provider services staff is not desirable.

 

Response: The department agrees and repeals the proposed language.

 

 

 

/s/ Francis X. Clinch               /s/ John Chappuis for                                 

Rule Reviewer                       Director, Public Health and Human Services

 

Certified to the Secretary of State January 22, 2008.

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