BEFORE THE Department of Public
health and human services of the
STATE OF MONTANA
TO: All Concerned Persons
1. On November 25, 2011, the Department of Public Health and Human Services published MAR Notice No. 37-570 pertaining to the public hearing on the proposed amendment of the above-stated rules at page 2489 of the 2011 Montana Administrative Register, Issue Number 22.
2. The department has amended ARM 37.80.101, 37.80.102, 37.80.205, 37.80.206, and 37.80.315 as proposed.
3. The department has amended the following rules as proposed with the following changes from the original proposal. Matter to be added is underlined. Matter to be deleted is interlined.
37.80.306 LEGALLY CERTIFIED PROVIDERS: CERTIFICATION REQUIREMENTS AND PROCEDURES (1) and (2) remain as proposed.
(3) The applicant and any adult who resides in the applicant's home
who might come in contact with children to whom care is provided must provide authorization for criminal, FBI, state and national sexual/violent offender registry, and child protective services background checks for the period of time from the present date back to the date of the individual's 18th birthday.
(a) If an individual required to have a background check has lived outside the state of Montana at any time after the individual's 18th birthday
and is unable to obtain the necessary out-of-state background checks, the individual must complete a Montana Department of Justice criminal justice information network an FBI fingerprint background check and will be required annually thereafter at the applicant's expense.
(4) through (4)(e) remain as proposed.
(f) has not been convicted or adjudicated of a crime involving child endangerment, including misdemeanor or felony convictions;
(g) has not been convicted or adjudicated of a crime involving the unlawful possession of a weapon, including misdemeanor or felony convictions
(h) is the principal responsible for providing child care and is not acting as an agent for another.
(5) and (6) 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
37.80.502 CHILD CARE UNDERPAYMENT, OVERPAYMENT, AND OVERCLAIM: CRIMINAL PROSECUTION (1) through (7) remain as proposed.
(8) Overpayments issued to program types whose business structure is sole proprietorship, partnership, or corporation and the business dissolves or otherwise becomes defunct and the department is unable to collect monies owed, the principals, shareholders, officers, or other individuals involved with the business at the time of dissolution are disqualified from receiving Child Care and Development Fund (CCDF) funds under any other business name or entity. Any shareholder, officer, partner, owner, or other individual involved in the management of a child care business that does not reimburse the department for overpayments made to the child care business is disqualified from receiving Child Care and Development Fund (CCDF) funds or being certified as a provider.
AUTH: 52-2-704, 53-4-212, MCA
IMP: 52-2-704, 52-2-713, MCA
4. After further review of the proposed rule, the department is adding language to ARM 37.80.306(4) and 37.80.502(8). This change to the proposed rules does not make a substantive change in the intent of the rules as proposed. The additional language is added to clarify that an application to act as a legally certified provider must be made in the name of the person responsible for the provision of child care. This change in language is not a change from current department practice. Adding language to the rules will ensure they more clearly state the department's current requirements.
5. The department has thoroughly considered the comments and testimony received. A summary of the comments received and the department's responses are as follows:
COMMENT #1: Regarding ARM 37.80.205, a commenter stated that it supports the rule change if it is necessary to minimize a waiting list for child care.
RESPONSE #1: The department appreciates the feedback.
COMMENT #2: Regarding ARM 37.80.206, a commenter stated that it supported the change in certified enrollment hours if it is necessary to minimize a waiting list for child care.
RESPONSE #2: The department appreciates the feedback.
COMMENT #3: Regarding ARM 37.80.306(3), a commenter stated that the phrase "who might come in contact with children" is too vague and might allow this provider type to declare that other adults in the household would never come in contact with children in care and that declaration would not hold up in the fair hearing process.
RESPONSE #3: The department agrees and has removed the phrase "who might come in contact with children to whom care is provided."
COMMENT #4: Regarding ARM 37.80.306, a commenter stated that the rule requires individuals who have lived outside the state of Montana to have annual Montana Department of Justice fingerprint background checks if out-of- state background checks are unable to be obtained. However, procedures 6-2 page 6/8 item 5a states that all individuals (regardless of always being in Montana or not) will have to do FBI background checks. The procedures were created by the Early Childhood Services Bureau (ECSB) to guide child care providers and may change based on this rule change. The commenter wants to be sure about the processes and is concerned that the reference to FBI background checks may no longer apply.
RESPONSE #4: The department agrees with the comment and is adding language to make it clear that FBI background checks are required annually.
COMMENT #5: Regarding ARM 37.80.315, a commenter asked how information about the provider rights and responsibilities will be distributed to providers and parents. Is a provider defined as LCP, family, group, and center? Will there be a form?
RESPONSE #5: Procedures are addressed in the ECSB procedure manual posted on the bureau's SharePoint web site.
COMMENT #6: Regarding ARM 37.80.502, a commenter questioned how this change in underpayment, overpayment, and overclaim rule will be tracked and expressed support for the rule change.
RESPONSE #6: The department is adopting ARM 37.80.502 with new language to more clearly state who is disqualified from continuing to participate in the program if the department is unable to collect overpayments. Underpayment and overpayment will be tracked as stated in the ECSB procedure manual posted on the bureau's SharePoint web site.
COMMENT #7: Regarding ARM 37.80.306, a commenter inquired as to whether there will be a form associated with this change. What will the procedure be if the form is not completed online or providers claim they do not have access?
RESPONSE #7: The department appreciates feedback about its forms. The department's forms will be updated to be consistent with these rule changes. The department will continue to monitor and to improve its online access for the public and contractors.
COMMENT #8: Referring to Section 1-8 of the manual, a commenter asked if there will be a difference in the online process between LCP and registered/licensed providers with respect to the rights and responsibilities form.
RESPONSE #8: The department appreciates feedback about its rights and responsibilities form. The department's forms will be updated to be consistent with these rule changes. The department will continue to monitor and to improve its online access for the public and contractors.
COMMENT #9: Referring to Section 2-1 of the manual, a commenter asked about the effective date of the application.
RESPONSE #9: Procedures are addressed in the ECSB procedure manual posted on the bureau's SharePoint web site.
/s/ Geralyn Driscoll /s/ Mary E. Dalton acting for
Rule Reviewer Anna Whiting Sorrell, Director
Public Health and Human Services
Certified to the Secretary of State January 17, 2012