Part XX.
Texas Workforce Commission
Chapter 800.
General Administration
Subchapter B. Allocations and Funding
40 TAC §800.58
The Texas Workforce Commission (Commission) adopts new §800.58,
concerning allocation of child care funds to local workforce development areas
(workforce areas) without changes to the proposed text as published in the
November 13, 1998 issue of the
Texas Register
(23 TexReg 11567). The adopted text will not be republished here.
The purpose of the rule is to allow local workforce development boards
(Boards) to have more flexibility in the use of funds for child care services
at the local level and to allocate the funds in the most effective manner
based on the child care needs of the workforce areas. It is the Commission's
intent to allocate funds to workforce areas for the purpose of meeting and
exceeding statewide performance measures to support working families or those
participating in employment and training activities.
The new rule shall be applicable to all fund distributions for child care
allocations beginning with allocations for fiscal year 2000. The current child
care allocation rule at Title 40, Texas Administrative Code §800.56,
shall remain applicable to the funds allocated for fiscal year 1999.
The new rule sets forth the provisions for budgeting and expending funds
for child care services to the extent permitted by statutory and regulatory
provisions related to the funding sources.
The new rule specifies the method the Commission will employ in carrying
out the allocation of funds to the workforce areas and the use of those funds
for certain child care services. The child care services are provided under
Texas Human Resources Code, Chapter 44.
If a Board fails to comply with the provisions contained in the rule, the
Board shall be subject to the sanctions as detailed in Title 40, Texas Administrative
Code, Chapter 800, Subchapter E, Sanctions.
The Commission held a public hearing on the proposed rule at 1:30 p.m.
on November 20, 1998, in Room 644 of the Texas Workforce Commission Building
at 101 East 15th Street in Austin, Texas.
The Commission received comments on the rules from local workforce development
boards, businesses, and organizations. Some comments supported the rule, and
others did not state whether they supported or were opposed to the rule, but
had concerns and questions about the rules as proposed and suggested changes.
The names of interested groups or associations offering comments on the
rules are as follows:
The Coastal Bend Workforce Development Board;
The East Texas Career Center;
The State Child Care Advisory Committee; and
The El Paso YWCA.
Following each comment or group of related comments is the Commission's
response.
Comment: One commenter asserted that the policy of requiring local areas
to provide funds to match federal funds penalizes poor communities and recommends
taking into account conditions such as unemployment, per capita income levels,
and other poverty indicators when determining match requirements. The commenter
further recommends incorporating a sliding scale or allowing for in-kind matches
rather than strictly cash to allow poor communities to compete on a level
playing field.
Response: Regarding in-kind match, the federal regulations require a cash
match in order to access the federal matching funds; in-kind match is not
permitted. The state matching rate is also federally mandated. As there is
insufficient state general revenue appropriations to match all of the available
federal funds, some local funds are required to access the additional funds.
The Commission believes that the benefit of sending the matched funds to the
area that generated the local match is integral to motivating the local communities
to soliciting the local match. At present, preliminary reviews have not proven
a direct correlation on which to justify an allocation formula change and
the Commission believes that a change to a sliding-scale may result in lower
overall matching being generated.
Comment: One commenter asserted that the use of regional market surveys
to determine the child care allocation rewards areas that charge more and
penalizes those that charge less. The commenter recommended: 1) use of regional
market surveys only to arrive at a statewide average and substate allocations
based on the statewide average; 2) if regional market surveys continue to
be used, identify markets in which the state reimbursement rate is a major
factor and not decrease the disbursement in those regions so long as the statewide
market average is increasing; and 3) automatically include cost of living
adjustments and increases in the minimum wage into the allocation formula.
Response: The market rate survey is not a factor in the formula for allocating
funds to local workforce development areas for FY 2000, but can be used by
Boards to establish reimbursement rates for child care service providers.
Cost of living adjustments would be similar to market rate adjustments and
also are not included. As minimum wage is uniform throughout the state, it
is also not a factor in the formula for allocations, but could be a factor
in boards' determinations of reimbursement rates paid.
Comment: One commenter asserted that the potential exists for local boards
to use money intended for child care for other purposes and recommends setting
limits so that any funds allocated for child care are used for that purpose.
Response: Child care funds can be used only for the purpose of providing
child care as prescribed by federal and state statutes and regulations, particularly
the Child Care Development Fund. The Commission believes the local boards
understand this restriction and will not violate financial management regulations.
Nevertheless, fiscal monitoring will ensure that funds are used appropriately
and take necessary steps to recoup misspent funds to prevent fraud and to
ensure funds are not spent in a manner contra to the intent of the applicable
legislation.
Comment: One commenter recommended that, if a region does not use all of
its child care money, the Commission be required to redistribute it to other
regions with children on waiting lists.
Response: The Commission agrees that redistributing funds in other areas
is necessary where funds are not being utilized efficiently and the Commission
has a deobligation/reobligation rule and policy to address such situations
should they arise. The Commission disagrees that the waiting lists should
be the only factor in determining whether to deobligate/reobligate funds,
because the Commission does not wish to encourage spending funds to recruit
more people than can be served.
Comment: One commenter expressed interest in the opportunity to improve
the quality of child care and the option for increasing the amount of funds
expended on quality activities beyond the 4% requirement.
Response: The Commission agrees that the regulations do not limit the expenditure
of funds for quality activities to only 4%. The rule facilitates the use of
Boards' discretion at the local level to determine the percentage of funds
used for quality, provided that the other criteria set forth in the federal
regulations and this rule are met, including, but not limited to, subsection
(f), paragraph (4), of §800.58. Paragraph (4) provides that the percentage
of the total expenditure of the funds allocated for child care that is expended
in direct child care services in FY 2000 and all succeeding fiscal years,
shall equal, or exceed, the percentage of the total expenditure of funds allocated
for child care that was expended for direct child care services in FY 1999.
Comment: One commenter asserted the rule would dramatically impact the
available funds for the rural areas and give the majority of funding to the
metropolitan areas where more people live. The commenter recommends having
a base level of funding, somewhere around the FY 99 level, and then applying
the proposed rule. Another commenter asserted this will result in a reduction
of available funds and recommended a base line of funding before applying
the rule.
Response: The Commission agrees that the allocation rule will provide greater
funding to areas that demonstrate the greater need for services based on the
populations. However, the Commission disagrees that a provision in the rule
is necessary to provide for a base level of funding somewhere around the FY99
level because of the population distribution and the level of funding anticipated
being available for FY99. The net effect of the allocation will be to provide
a proportional amount of funds to areas that have the respective populations.
The Commission disagrees that a base level of funding continues to be needed
given the various efficiencies Boards are expected to develop in the Boards'
management of service delivery in the workforce area, particularly if a Board
incorporates the child care management with the one-stop centers or other
board administered programs.
Comment: One commenter supported this rule with the assumption that it
states that Transitional and Choices clients receive priority without qualifications.
Response: The Commission agrees that there is a priority for Transitional
and Choices clients, but states that the only qualifications are those as
mandated by the federal and state statutes and regulations. For example, at
least 4% of the funds must be spent on quality improvement, thus necessitating
that quality improvement is a priority until at least 4% of the funds are
expended. Likewise, funds for children in protective services, which are funded
through a separate allocation as determined by the Texas Department of Protective
and Regulatory Services, may only be used for child care for children in protective
services. The Transitional and Choices client priority, should not be applied
in conflict with any other obligation imposed by the federal or state statutes
or regulations, including the program rules contained in 40 TAC Chapter 809.
Comment: One commenter questioned if the Commission would supply local
boards with the statewide totals for the formulas for child care allocations.
Response: This information will be available when the FY 2000 allocation
is received.
The new rule is proposed under Texas Labor Code, Title 4, which
provides the Texas Workforce Commission with the authority to adopt, amend,
or repeal such rules as it deems necessary for the effective administration
of the Commission programs.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on January
21, 1999.
TRD-9900388
J. Randel (Jerry) Hill
General Counsel
Texas Workforce Commission
Effective date: February 10, 1999
Proposal publication date: November 13, 1998
For further information, please call: (512) 463-8812
40 TAC §§800.301-800.307
The Texas Workforce Commission (Commission) adopts new §§800.301
- 800.307, 800.351 - 800.353, and 800.357 - 800.359, concerning monitoring
without changes to the proposed text as published in the November 13, 1998,
issue of the
Texas Register
(23 TexReg 11569).
The adopted text will not be republished here.
The Commission adopts new §§800.354 and 800.355, concerning monitoring
with changes to the proposed text as published in the November 13, 1998, issue
of the
Texas Register
(23 TexReg 11569). The
adopted text will be republished here.
Proposed §800.356 is deleted.
The purpose of the new rules is to consolidate into a general location
in Chapter 800, the rules pertaining to monitoring of local workforce development
Boards (Boards), Board contractors, and subrecipients.
The Commission recognizes the important role that Monitoring serves in
ensuring the fiscal and program accountability of the programs administered.
The consolidation of these rules serves to highlight this importance while
also clarifying the roles, responsibilities, and expectations for the participating
parties.
The Commission held a public hearing on the proposed rules at 1:30 p.m.
on November 20, 1998, in Room 644 of the Texas Workforce Commission Building
at 101 East 15th Street in Austin, Texas.
The Commission received comments on the rules from local workforce development
Boards, and other entities regarding monitoring. Some comments were for the
rules, and others did not state whether they supported or opposed the rules.
Others had concerns and questions about the rules as proposed, and suggested
changes.
The names of interested groups or associations offering comments on the
rules are as follows:
The Concho Valley Workforce Development Board;
The North Central Texas Workforce Development Board;
The West Central Texas Workforce Development Board;
The Panhandle Regional Planning Commission;
The East Texas Council of Government (COG);
Catholic Charities Diocese of Beaumont;
Neighborhood Centers, Inc.; and
The State Child Care Advisory Committee.
Following each comment or group of related comments is the Commission's
response.
Comment: One commenter asks when the Commission will make its child-care
monitoring policies and procedures available to the Boards.
Response: The Commission's Contract Monitoring policies and procedures
are reproduced in the Financial Manual for Grants and Contracts (FMGC) published
by the Commission's Grants Administration Department. Revisions to the policy
manual based on the new child care rules will be sent as soon as feasible.
Comment: One commenter expresses concern that the rules provide contradictory
direction concerning who and what to monitor.
Response: The proposed rules serve to document and clarify expectations.
Subchapter G summarizes the monitoring work to be done by the Commission.
Specifically, §800.303 identifies both the parties subject to monitoring
and an overview of the monitoring to be done. Additionally, Subchapter I summarizes
the monitoring work to be done by Boards, subrecipients, and contract service
providers. Specifically, §800.353 identifies both the parties subject
to monitoring and an overview of the monitoring to be done.
Comment: One commenter requested clarification of the term subrecipient
and questions whether this definition includes colleges, universities, and
proprietary schools.
Response: The term subrecipient refers to any entity receiving federal
funds through a Board. If receiving federal funds through a Board, a college,
university, or proprietary school would be a subrecipient. If the college,
university, or proprietary school were engaged to provide services as a result
of a procurement action, it may also be a contract service provider. In either
event, both as a subrecipient or a contract service provider, the monitoring
responsibilities prescribed in Subchapter I would apply.
Comment: One commenter suggested that the definitions of "contract service
provider" and "subrecipient" are somewhat unclear, and could be interpreted
to overlap.
Response: The Commission agrees that these terms can and will often times
overlap. The term subrecipient refers to any entity receiving federal funds
through a Board. If receiving federal funds through a Board, and engaged to
provide services as a result of a procurement action, a subrecipient may also
be a contract service provider. In either event, both as a subrecipient or
a contract service provider, the monitoring responsibilities prescribed in
Subchapter I would apply.
Comment: Two commenters suggested that this section should include review
of the LOP (List of Providers).
Response: The Commission disagrees that LOP should be named in the rule
but agrees that documents necessary to determine compliance and performance
may include review of LOP's.
Comment: One commenter suggested that the term "authoritative pronouncements"
is vague and recommends specific language be substituted.
Response: The term authoritative pronouncements is used to refer to the
vast array of guidance, interpretations, and information provided by the many
oversight , administrative, and/or regulatory bodies who govern the more than
28 programs administered by the Commission. Although desired, more specific
language would not encompass this broad universe of information.
Comment: One commenter recommended the Commission develop reporting timelines
that would ensure timely information is reported and used to improve decision
making.
Response: The Commission agrees that reporting timelines are necessary.
Existing Monitoring policies and procedures already provide for a 30 day timeline
for release of draft monitoring reports.
Comment: Two commenters suggested that this section include procedures
for preparing a draft report that the Board and Contractor can respond to
before it becomes final and subject to the Open Records Act. In addition,
the commenter recommends that monitors prepare findings.
Response: Existing procedures call for a draft report to be issued for
Board and/or contractor response prior to public release of the final report.
All final reports include the Board's and/or contractor's response to findings.
The monitoring team conducting each site visit prepares the related findings
and draft report.
Comment: One commenter suggested adding language to require the Commission
to issue reports within 30 working days after completion of each monitoring
visit.
Response: The Commission agrees that reporting timelines are necessary.
Existing Monitoring policies and procedures already provide for the 30 day
timeline being recommended.
Comment: One commenter indicated that it is unclear when a Board would
submit a written response to the Commission's Resolution Section and questions
whether this would be done each time the Board responds to a monitoring report
or only in special circumstances.
Response: Monitoring findings not successfully resolved during the monitoring
process are turned over to the Resolution Section. Each Board, subrecipient,
or contract service provider is notified of the issues being reviewed and
allowed reasonable timeframes to provide responses and additional information
and/or documentation.
Comment: One commenter suggested adding language to require Boards, subrecipients,
or contract service providers to submit written responses to draft monitoring
reports within 30 working days of their receipt of the Commission's draft
report.
Response: The Commission agrees that response timelines are necessary.
However, a rule requiring such action within strict timeframes would be overly
restrictive by not recognizing the individual circumstances that may be required
of Boards, subrecipients, or contract service providers to adequately respond
to monitoring findings.
Comment: One commenter suggested that sections §800.353 and §800.355
conflict with one another: one section asking that Board's monitoring activities
be planned to focus on areas of greatest risk; and the other requiring a schedule
or timetable for monitoring all funded activities.
Response: The Commission agrees and changes rule §800.355 (a) to reflect
the value of risk assessment tools in determining the funded activities to
be monitored.
Comment: One commenter requested clarification of the term high-risk.
Response: The term "high-risk" does not refer to a specific Board, subrecipient,
or contract service provider, but is a term meant to describe the relative
risk of one provider to the others. The results of an effective risk assessment
will compare the relative risk of all subrecipients and contract service providers.
Those rated with a high risk factor would rate higher than those with a low
risk factor, and therefore would be more likely to warrant monitoring coverage.
Comment: One commenter suggested that this section is a duplication of
§800.353(c) which requires the use of risk assessment in determining
monitoring focus.
Response: The Commission agrees and §800.354(d) is deleted.
Comment: Two commenters suggested that the estimated time budgeted to perform
each review would vary for each review and recommended deleting this provision
from Monitoring Plans.
Response: Although the time required to complete each review may vary,
the Commission believes it is important for each Board, subrecipient, or contract
service provider to estimate the time required to perform needed monitoring
activities. In addition, this information should also be used to plan and
schedule the monitoring activities of the Board, subrecipient, or contract
service provider.
Comment: One commenter asserted that this Section is overly prescriptive
in establishing local chains of command, requiring separation of monitoring
and technical assistance, and assignment of the monitoring function to a specific
person or group. The commenter recommends that this section be deleted and
any additional legislative requirements be included in §800.355.
Response: The Commission agrees that overly prescriptive rules are not
helpful. Accordingly, §800.356 has been deleted.
Comment: Two commenters suggested that the provision requiring separate
monitoring and technical assistance functions would not be economically feasible
for mid to small size child care managers.
Response: The requirements included in this section describe the functions
needed to help ensure effective monitoring. Monitoring activities are more
effective in identifying issues and recommending solutions when conducted
by independent staff who are not also involved in service delivery.
Comment: One commenter noted the Commission's identification of monitoring
responsibilities, but requested the Commission provide specific training on
monitoring of Child Care Programs.
Response: The Commission agrees that appropriate training is critical to
ensuring programs are effectively managed, operated, and monitored. A training
curriculum will be developed that incorporates child care monitoring policies
and procedures. A schedule of training will then be distributed to all Boards,
child care program administrators, and contractors.
Comment: One commenter suggested that in the case of child care providers
with provider agreements, comprehensive reviews seem unnecessary and costly.
Response: The Commission believes in the concept of accountability to help
ensure funds are used for authorized purposes, and that programs achieve expected
results. Although burdensome at times, monitoring efforts help ensure fiscal
and program accountability, while also ensuring that accurate and reliable
information is captured and used for decision-making.
Comment: One commenter suggested that the provision requiring separate
monitoring and technical assistance functions could increase the costs by
requiring outside staff or consultants.
Response: The requirements included in this section describe the functions
needed to help ensure effective monitoring. Monitoring activities are more
effective in identifying issues and recommending solutions when conducted
by independent staff who are not also involved in service delivery.
Comment: One commenter expressed concern that small child care centers
will experience financial difficulty complying with the rules. This commenter
recommended that additional funding be provided for compliance.
Response: The Commission agrees that overly prescriptive requirements could
increase the cost of compliance. However, the monitoring rules being proposed
do not create additional responsibilities for Boards, subrecipients, or contract
services providers. The requirements identified in these rules serve to summarize
those already found in specific program rules, contracts, or agency policy.
Comment: One commenter believed the cost for the monitoring requirement
will be greater than the amount estimated. Specifically, the commenter expressed
concern that the analysis does not address the requirement that both the administrative
entity and the subcontractors perform monitoring activities, thus resulting
in greater administrative expenditures. In addition, the commenter requested
clarification as to whether the estimated cost is considered an annual cost
or a cost per monitoring visit.
Response: The estimated costs included in the preamble are estimates for
small businesses as defined by TGC §2006.001. They are defined as legal
entities (including partnerships, corporations, or sole proprietorships) that
are: formed for the purpose of making a profit; independently owned and operated
(non-public and/or non-governmental entity); and have less than 100 employees
or less than $1 million in annual gross receipts. Because the proposed rule
does not create additional responsibilities for Boards, subrecipients, or
contract service providers, there should be no additional costs required to
comply with the proposed rules. The estimated costs are expected annual costs.
Comment: One commenter expressed concern that the cost analysis is faulty
because it would require more full-time equivalent positions to monitor all
of the programs, conduct the detailed monitoring work, develop and implement
appropriate written policies and procedures, and adequately train monitoring
staff.
Response: The estimate included in the preamble represents the estimated
costs applicable to a small business as defined by the Texas Government Code.
The estimated costs for "non-small" businesses could be expected to be higher.
The increase would be relative to the number of programs administered and
the volume of activity within each program area.
The new rules are adopted under Texas Labor Code, Title 4, and
particularly §301.061, which provides the Commission with the authority
to adopt, amend, or repeal such rules as it deems necessary for the effective
administration of the Commission programs.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on January
21, 1999.
TRD-9900386
J. Randel (Jerry) Hill
General Counsel
Texas Workforce Commission
Effective date: February 10, 1999
Proposal publication date: November 13, 1998
For further information, please call: (512) 463-8812
40 TAC §§800.351-800.355, 800.357-800.359
The new rules are adopted under Texas Labor Code, Title 4,
and particularly §301.061, which provides the Commission with the authority
to adopt, amend, or repeal such rules as it deems necessary for the effective
administration of the Commission programs.
§800.354.Risk Assessment.
(a)
Boards, subrecipients, or contract service providers shall
include a risk assessment tool in their monitoring functions.
(b)
The risk assessment tool shall identify high-risk subrecipients
or contract service providers and high areas of risk within an individual
subrecipient or contract service provider. The entity responsible for including
the risk assessment tool in their monitoring functions shall be responsible
for determining what constitutes high-risk or a high area of risk.
(c)
Boards, subrecipients, or contract service providers shall
establish monitoring schedules and customizing monitoring programs that best
utilize monitoring resources. Boards, subrecipients, or contract service providers
shall quantify, as much as possible, areas of risk identified for assessment.
§800.355.Monitoring Plan.
(a)
Boards, subrecipients, or contract service providers shall
develop their own local-level monitoring plan based on the results of the
risk assessment. This monitoring plan shall incorporate all of the following:
(1)
a schedule or timetable for monitoring funded activities,
subrecipients, and contract service providers based upon risk assessment results;
(2)
the type of review planned for each subrecipient or
contract service provider, such as on-site review, comparative financial analysis,
desk review, or other type of appropriate review; and
(3)
the estimated time budgeted to perform each review.
(b)
Boards, subrecipients, or contract service providers may
perform monitoring reviews either formally or informally, but shall incorporate
the risk assessment results in scheduling decisions.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on January
21, 1999.
TRD-9900387
J. Randel (Jerry) Hill
General Counsel
Texas Workforce Commission
Effective date: February 10, 1999
Proposal publication date: November 13, 1998
For further information, please call: (512) 463-8812
The Texas Workforce Commission adopts the repeal of §§809.1-809.4,
809.21-809.33, 809.41-809.48, 809.61-809.77, 809.81-809.93, 809.101-809.111,
809.121-809.124, and 809.141-809.155, regarding the Child Care and Development
Program without changes to the proposed text published in the November 13,
1998, issue of the
Texas Register
(23 TexReg
11573).
Because of the number of amendments recently proposed to the Child Care
Program rules, these changes are better facilitated by the repeal of the majority
of the current rules and adoption of new rules. The preamble to the new adopted
rules is incorporated herein by reference as it contains comments, responses
and additional information related to the repeal as well as the new rules.
The preamble to the new adopted rules is published in this same issue of the
Subchapter A. General Provisions
40 TAC §§809.1-809.4
The repeals are adopted under Texas Labor Code §301.061
and §302.002 which provides the Commission with the authority to adopt,
amend, or repeal such rules as it deems necessary for the effective administration
of Texas Workforce Commission programs, and under Texas Human Resources Code
§§31.010, 31.0035 and 44.002.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on January
22, 1999.
TRD-9900443
J. Randel (Jerry) Hill
General Counsel
Texas Workforce Commission
Effective date: February 11, 1999
Proposal publication date: November 13, 1998
For further information, please call: (512) 463-8812
40 TAC §§809.21-809.33
The repeals are adopted under Texas Labor Code §301.061
and §302.002 which provides the Commission with the authority to adopt,
amend, or repeal such rules as it deems necessary for the effective administration
of Texas Workforce Commission programs, and under Texas Human Resources Code
§§31.010, 31.0035 and 44.002.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on January
22, 1999.
TRD-9900444
J. Randel (Jerry) Hill
General Counsel
Texas Workforce Commission
Effective date: February 11, 1999
Proposal publication date: November 13, 1998
For further information, please call: (512) 463-8812
40 TAC §§809.41-809.48
The repeals are adopted under Texas Labor Code §301.061
and §302.002 which provides the Commission with the authority to adopt,
amend, or repeal such rules as it deems necessary for the effective administration
of Texas Workforce Commission programs, and under Texas Human Resources Code
§§31.010, 31.0035 and 44.002.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on January
22, 1999.
TRD-9900445
J. Randel (Jerry) Hill
General Counsel
Texas Workforce Commission
Effective date: February 11, 1999
Proposal publication date: November 13, 1998
For further information, please call: (512) 463-8812
40 TAC §§809.61-809.77
The repeals are adopted under Texas Labor Code §301.061
and §302.002 which provides the Commission with the authority to adopt,
amend, or repeal such rules as it deems necessary for the effective administration
of Texas Workforce Commission programs, and under Texas Human Resources Code
§§31.010, 31.0035 and 44.002.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on January
22, 1999.
TRD-9900446
J. Randel (Jerry) Hill
General Counsel
Texas Workforce Commission
Effective date: February 11, 1999
Proposal publication date: November 13, 1998
For further information, please call: (512) 463-8812
40 TAC §§809.81-809.93
The repeals are adopted under Texas Labor Code §301.061
and §302.002 which provides the Commission with the authority to adopt,
amend, or repeal such rules as it deems necessary for the effective administration
of Texas Workforce Commission programs, and under Texas Human Resources Code
§§31.010, 31.0035 and 44.002.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on January
22, 1999.
TRD-9900447
J. Randel (Jerry) Hill
General Counsel
Texas Workforce Commission
Effective date: February 11, 1999
Proposal publication date: November 13, 1998
For further information, please call: (512) 463-8812
40 TAC §§809.101-809.111
The repeals are adopted under Texas Labor Code §301.061
and §302.002 which provides the Commission with the authority to adopt,
amend, or repeal such rules as it deems necessary for the effective administration
of Texas Workforce Commission programs, and under Texas Human Resources Code
§§31.010, 31.0035 and 44.002.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on January
22, 1999.
TRD-9900448
J. Randel (Jerry) Hill
General Counsel
Texas Workforce Commission
Effective date: February 11, 1999
Proposal publication date: November 13, 1998
For further information, please call: (512) 463-8812
40 TAC §§809.121-809.124
The repeals are adopted under Texas Labor Code §301.061
and §302.002 which provides the Commission with the authority to adopt,
amend, or repeal such rules as it deems necessary for the effective administration
of Texas Workforce Commission programs, and under Texas Human Resources Code
§§31.010, 31.0035 and 44.002.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on January
22, 1999.
TRD-9900449
J. Randel (Jerry) Hill
General Counsel
Texas Workforce Commission
Effective date: February 11, 1999
Proposal publication date: November 13, 1998
For further information, please call: (512) 463-8812
40 TAC §§809.141-809.155
The repeals are adopted under Texas Labor Code §301.061
and §302.002 which provides the Commission with the authority to adopt,
amend, or repeal such rules as it deems necessary for the effective administration
of Texas Workforce Commission programs, and under Texas Human Resources Code
§§31.010, 31.0035 and 44.002.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on January
22, 1999.
TRD-9900450
J. Randel (Jerry) Hill
General Counsel
Texas Workforce Commission
Effective date: February 11, 1999
Proposal publication date: November 13, 1998
For further information, please call: (512) 463-8812
40 TAC §§809.1, 809.2, 809.4
The Texas Workforce Commission (Commission) adopts new §§809.1,
809.2, 809.4, 809.11-809.20, 809.41-809.49, 809.61, 809.62, 809.71-809.77,
809.91-809.93, 809.101-809.105, 809.121-809.124, 809.221-809.235, 809.251-809.253,
809.271-809.273, and 809.281-809.288, regarding the Child Care and Development
Program.
New §§809.1, 809.14, 809.15, 809.41-809.44, 809.48, 809.49, 809.61,
809.62, 809.73, 809.92, 809.101, 809.102, 809.105, 809.123, 809.124, 809.221,
809.223-809.225, 809.228, 809.229, 809.231, 809.235, 809.271, 809.285 and
809.288 are adopted with changes to the proposed text as published in the
November 13, 1998, issue of the
Texas Register
(23 TexReg 11580).
New §§809.227, 809.230 and 809.234 are withdrawn.
New §§809.2, 809.4, 809.11-809.13, 809.16-809.20, 809.45-809.47,
809.71, 809.72, 809.74-809.77, 809.91, 809.93, 809.103, 809.104, 809.121,
809.122, 809.222, 809.226, 809.232, 809.233, 809.251-809.253, 809.272, 809.273,
809.281-809.284, 809.286 and 809.287 are adopted without changes and will
not be republished.
Purpose: The purpose of the rules is to fully integrate child care for
low-income families with the system of workforce training and services under
the administration of the local workforce development boards (Boards). Child
care services are subsidized for families seeking to become independent of
or who are at risk of becoming eligible for public assistance, either while
parents are working or participating in educational or training activities.
The revisions to the rules incorporate changes necessitated by the recently
adopted federal regulations set forth in 45 Federal Register Parts 98 and
99 at page 39936 and provide flexibility for the Boards to fulfill their responsibilities
in meeting the needs of parents and children residing in the local workforce
development areas.
Description of changes from the repealed rules to the adopted rules: The
majority of the changes can be described as modifications to incorporate more
explicitly and specifically the Boards' role in the management of child care
delivery. The changes allow the Boards more flexibility in tailoring delivery
to best meet the needs of the residents and employers in the local workforce
development areas. The Commission has previously set prescribed methods for
compliance with federal and state statutes. The changes make it feasible for
the Boards to develop procedures for administering child care services that
best fit the local needs.
Flexibility: The level of state median income for eligibility has been
changed to match the criteria contained in the federal regulations at 45 Federal
Register Parts 98 and 99. The federal regulations set the income limit as
that which does not exceed 85% of the state median income for a family of
the same size. The Commission encourages the Boards to use the funds in the
most effective manner to assist people transitioning off of public assistance
or who are at risk of becoming dependent on public assistance, and the Boards
may set a lower percentage for eligibility.
Unchanged Rules: Because of the number of amendments, these changes are
being facilitated by repeal of the majority of the current rules and being
proposed as new rules. Furthermore, reorganization of the eligibility rules
makes them easier to read. The unchanged program rules listed below required
no technical or substantive changes and remain applicable to the program:
§809.5. Child Care State Advisory Committee;
§809.78. Parent Responsibility Agreement;
§809.79. Parent Responsibility Agreement, Sanctions and Exceptions;
§809.171 - 809.174. Regarding Subchapter I, Child Care Training Center
Pilot Programs; and
§809.201 - 809.205. Regarding Subchapter J, School-Linked Child Care
Program.
Program Goals: Child Care services are provided to low-income families
to create and promote long-term self-sufficiency by enabling parents to work,
attend skills training for work, or increase educational levels by offering
affordable, accessible, and quality child care that supports the physical,
social, emotional, and intellectual development and safety of children. Recognizing
that parents best understand the needs of their children, these services empower
parents to make informed choices regarding child care that best suits the
family's needs. The Commission also advocates improvements in the availability,
affordability, and quality of child care while supporting health, safety,
licensing, and regulatory standards for child care providers.
Board Responsibilities and Policy Development: As the Boards have become
operational, the need to integrate child care more fully with other workforce
support services has become apparent. The chief elected officials of the local
workforce development areas are required, through state law, to appoint to
the Board a permanent child care representative with expertise in child care
to address child care issues consistently. To assist the Boards in adapting
to the increased flexibility provided under state law and rules, the Commission
offers continued training to the Board members regarding child care services.
In addition, a child care services manual will be available to assist the
Boards in implementing these rules and making informed local decisions. The
Boards must assess the need for child care in their individual local workforce
development areas, tailor a unique plan for service delivery, and oversee
the delivery of this vital support service to ensure families' steady transition
to self-sufficiency. Further, the Boards must evaluate services provided to
help low-income families as they move toward self-sufficiency by providing
child care subsidies to parents to support work, training, or education. The
Boards will manage the delivery of child care subject to the provisions of
Texas Government Code, Chapter 2308 as implemented by the Commission through
40 TAC Chapter 801 relating to Local Workforce Development Boards.
In designing their plans for service delivery, the Boards must ensure access
to child care services in their networks of one-stop centers. The Boards may
choose to integrate intake and eligibility with the services handled by career
center operators. Alternatively, they may choose to obtain separate contractors
to perform the activities associated with eligibility determination. Telephone
access at the career centers to intake and eligibility contractors will meet
the law's requirements. Similarly, child care training may be incorporated
within other contractors' activities or separated to be performed by a different
contracting entity.
These revisions to the rules are intended to provide the Boards with maximum
flexibility, in accordance with state and federal law and regulation, to design
a service mechanism that will assist the greatest number of families in accessing
the most affordable, quality child care in each local workforce development
area. The Boards must establish individual policies on several subjects, ranging
from absence policies to reimbursement rates. In their role as policymakers,
the Boards are subject to all the requirements of the Texas Open Meetings
Act, thus ensuring that parents, providers, contractors and potential contractors,
employers, and the public in general will have ample opportunity to participate
and comment on proposed child care administrative policies.
The enhanced flexibility afforded to the Boards ensures that policies maximize
the use of funds by tailoring the management of child care delivery to meet
the specific needs of each local workforce development area. The Boards must
incorporate into their service delivery plan procedures for implementing policies
for child care delivery. Matters that will need to be addressed include, but
are not limited to: parent co-payments, absence policies, eligibility verification
procedures, service priorities, provider reimbursement rates, and other methods
to utilize the funds in a manner to address the needs of the local workforce
development area efficiently and effectively. Where applicable, the Boards
must also develop the consequences and the procedures for reducing or ending
care should the parent fail to uphold the eligibility and participation requirements.
Some methods of developing these policies involve examining the past practices
of the Commission, examining recommended best practices, or independently
tailoring policies to meet local needs.
In developing these policies and plans for delivery of child care services,
the Boards will seek input from the local entities as indicated in 45 Federal
Register Parts 98 and 99. They will also follow the procedures for making
changes to the Boards' strategic and operational plans consistent with Texas
Government Code, Chapter 2803 and 40 TAC Chapter 801 relating to Local Workforce
Development Boards.
Information Management: To ensure compliance with state and federal reporting
requirements, the Commission anticipates continued use of a statewide automated
system to manage the functions of client services, vendor and provider management,
and financial management until alternative methods of managing information
are developed and approved by the Commission.
Effective Date: The effective date of the rules in this Chapter 809 relating
to Child Care and Development shall be twenty days after the date of filing
the adoption in the Office of the Secretary of State; however, until September
1, 1999, the Boards shall continue to comply with the rules in effect on January
1, 1999.
In the period between January and September 1, 1999, the Boards are expected
to receive training, set local policies, and submit a revised local plan for
child care to the Commission to prepare to implement the new rules on September
1, 1999. The Commission is required to submit the revised State Plan to the
U.S. Department of Health and Human Services by July 1, 1999; therefore, local
policies should be developed and set in order for the Board policies to be
incorporated into the State Plan by approximately April 15, 1999. The Commission
expects to hold a public hearing regarding the State Plan in early June, 1999.
This will provide the Boards with time to exercise local discretion to design
procedures for administering the services, procure contractors, as needed,
and transition to their unique plan for delivery of child care services in
each local workforce development area.
Description and Purpose of New Rules: Subchapter A contains rules regarding
the general provisions applicable to the chapter. The purposes of §§809.1-809.2
and 809.4 are, respectively, to set forth the provisions relating to the following:
the short title and purpose of the chapter, definitions applicable to the
chapter, and waiver request procedures.
Subchapter B contains the Board responsibilities regarding child care.
The purposes of §§809.11-809.20 are, respectively, to set forth
the provisions relating to the following: Board responsibilities, Board policies
and plans for child care services, ensuring parent choice, promoting consumer
education, quality improvement activities, procurement, management of finances,
information management and reporting requirements, performance standards,
and local donations.
Subchapter C contains the rules regarding the requirements to provide child
care. The purposes of §§809.41-809.49 are, respectively, to set
forth the provisions regarding the following: the general requirements applicable
to providers of child care, the minimum requirements for providers, provider
agreements, provider general liability insurance requirements, collection
of parent fees and subsidies, assessing parent fees, reduction of assessed
parent fees, attendance tracking, and provider advisory groups.
Subchapter D contains the rules regarding the requirements for persons
or entities providing self-arranged care. The purposes of §§809.61
and 809.62 are, respectively, to set forth the provisions regarding the qualifications
to provide self-arranged care and the provisions regarding reimbursement for
self-arranged care.
Subchapter E contains the rules regarding the provisions on parent rights
and responsibilities. The purposes of §§809.71-809.77 are, respectively,
to set forth the provisions regarding the following: parental choice, general
parent rights, responsibilities regarding eligibility documentation, rights
and responsibilities regarding enrollment agreements, parent reporting requirements,
parent appeal rights, and a parent's right to withdraw or refuse care.
Subchapter F contains the rules regarding the general eligibility requirements
for child care. The purposes of §§809.91-809.93 are, respectively,
to set forth the provisions regarding applicable definitions, general eligibility
requirements, and calculating income for determining eligibility.
Subchapter G contains the rules regarding the provisions for child care
for children of people transitioning off public assistance. The purposes of
§§809.101-809.105 are, respectively, to set forth the requirements
relating to transitional child care, children of parents participating in
the Choices Program, Texas Workforce Commission applicant child care, children
of parents participating in the Food Stamps Employment and Training Program,
and children receiving or needing protective services.
Subchapter H contains the rules regarding the provision of child care to
children of parents at risk of becoming dependent on public assistance. The
purposes of §§809.121-809.124 are, respectively, to set forth the
requirements relating to children living in families with very low incomes,
children with disabilities, children of teen parents, and children served
by special projects.
Subchapter K contains the rules regarding funds management. The purposes
of §§809.221-809.226, 809.228-809.229, 809.231-809.233, and 809.235
are, respectively, to set forth the provisions relating to the following:
general funds management, effective utilization of funds, eligibility verification,
custody and visitation arrangements, continuity of care, provider billing
requirements, units of services of child care, provider payment based on child
care enrollment, provider reimbursement rates, provider reimbursements for
transportation, reduction of parent fees and child care subsidies, and billing.
Subchapter L contains the rules regarding fraud investigation. The purposes
of §§809.251-253 are, respectively, to set forth the provisions
relating to the following: general fraud investigation procedures, suspected
fraud, and action to prevent or correct suspected fraud.
Subchapter M contains the rules regarding the appeal procedure. The purposes
of §§809.271-809.273 are, respectively, to set forth the provisions
relating to the following: child care during appeal, Board review, and appeals
to the Commission.
Subchapter N contains the rules regarding corrective and adverse actions.
The purposes of §§809.281-809.288 are, respectively, to set forth
the provisions relating to the following: contractor agreement violations,
provider agreement violations, corrective and adverse actions, noncompliance
with other state or federal programs, reapplication for provider status after
termination or nonrenewal of the provider agreement, recovery of overpayment,
recovery of overpayment to a provider or parent, and failure to meet performance
standards.
Public Hearing: The Commission held a public hearing on the proposed rules
at 1:30 p.m. on November 20, 1998, in Room 644 of the Texas Workforce Commission
Building at 101 East 15th Street in Austin, Texas.
The Commission received comments throughout the comment period as well
as during the public hearing. The public comments on the rules were from two
Texas state legislators, Boards, state agencies, providers, contractors, a
private attorney, and two members of The State Child Care Advisory Committee.
Some comments supported the rules, some were against the rules and others
did not state whether they were for or against the rules. Several commenters
expressed concerns and questions about the rules as proposed, and suggested
changes.
The names of interested groups or associations that offered comments on
the rules were as follows:
two Texas state legislators;
Amarillo, Lubbock, and Odessa areas and Concho Valley Workforce Development
Board;
Capital Area Workforce Development Board;
Coastal Bend Workforce Development Board;
East Texas Workforce Development Board;
Gulf Coast Workforce Development Board;
North Central Texas Workforce Development Board;
Southeast Texas Workforce Development Board;
Tarrant County Workforce Development Board;
West Central Texas Workforce Development Board; and
two members of The State Child Care Advisory Committee.
Other groups or associations, which commented included:
Catholic Charities Diocese of Beaumont;
Child Care, Inc., Wichita Falls;
El Paso YWCA;
The Child Care Group;
East Texas Career Center Operator;
Neighborhood Centers, Inc., Houston;
Southeast Texas Regional Planning Commission; and
West Texas Opportunities, Inc.
The following state agencies commented:
The Child Care Licensing Division and Child Protective Services Division
of the Texas Department of Protective and Regulatory Services (TDPRS); and
The Texas Department of Human Services.
As a result of comments, the following changes were made to the proposed
text.
New §809.1 Short Title and Purpose. Add: "(c) The effective date of
the rules in this Chapter 809 relating to Child Care and Development shall
be twenty days after the date of filing the adoption in the Office of the
Secretary of State; however, until September 1, 1999, the Boards shall continue
to comply with the rules in effect on January 1, 1999."
New §809.14 Promoting Consumer Education. Replace the language in
(a) with the following: "(a) A Board shall make available to parents a consumer
guide to child care providers who have Provider Agreements to provide Commission-funded
child care in the local workforce development area and shall represent the
name, address, and phone number of each provider and shall represent whether
each provider:" Delete (a)(3) and renumber the paragraphs accordingly. Replace
the language in (b) with the following: "(b) The consumer guide shall set
forth the requirements to be licensed and registered with the Texas Department
of Protective and Regulatory Services as set forth in Texas Human Resources
Code, Chapter 42 and applicable administrative rules and a description of
the types of facilities or homes, which may be licensed or registered including,
but not limited to, the following: day-care centers, group day-care homes,
and family homes." In (c), replace "list of providers" with "consumer guide,"
add "obtain or" after "may," and add at the end of the sentence "and check
compliance history." In (d), replace "list of providers" with "consumer guide."
New 809.15 Quality Improvement Activities. In (c), add at the end of the
sentence, "except the Boards may not provide loans." In (d)(1), replace "is"
with "are."
New §809.42 Minimum Requirements for Providers. Delete (a)(3) and
renumber accordingly. In (b), delete (b)(2), add "and" at the end of (b)(1);
and change "(3)" to "(2)." Replace the language in (c) with the following:
"(c) When a Board or the Board's contractor, in the course of fulfilling its
responsibilities, gains knowledge of any possible violation regarding regulatory
standards, the Board or its contractor shall report the information to the
appropriate regulatory agency."
New §809.44 Provider General Liability Insurance Requirements. Replace
the language in the section with the following: "The Boards shall determine
whether general liability insurance, including transportation insurance, will
be required of providers in their areas and, if so, the amount."
New §809.48 Attendance Tracking. Replace the language in (a) with
the following: "(a) A Board shall set the attendance standards for eligible
children in the local workforce development area, including provisions consistent
with §809.224 of this Chapter (relating to Custody and Visitation Arrangements).
Providers and self-arranged providers shall document and maintain a record
of each child's attendance and submit such documents to the Board's designated
contractor upon request." In (c), add "in" after "result."
New §809.49 Provider Advisory Groups. Add "that are licensed centers,"
after "Providers."
New §809.61 Qualification to Provide Self-Arranged Care. In (d), add
after the first sentence, "Boards may choose to not allow "listed" providers
as self-arranged providers."
New §809.62 Reimbursement for Self-Arranged Care. Replace the language
in the section with the following wording:
(a) A Board shall ensure that reimbursement for self-arranged care is paid:
(1) to the self-arranged provider; and
(2) after the Board or its contractor receives a complete Declaration of
Services Statement (Declaration) verifying that services were rendered.
(b) The Declaration shall contain:
(1) the name, age, and identifying information of the child;
(2) the amount of care provided in terms of units of care;
(3) the rate of payment;
(4) the dates services were provided;
(5) the name and identifying information of the self-arranged provider,
including the location where care is provided;
(6) verification by the self-arranged provider that the information submitted
in the Declaration is correct; and
(7) additional information as may be required by the Boards.
New §809.73 Eligibility Documentation. In (a), delete everything after
the first sentence. Delete (c).
New §809.92 General Eligibility Requirements. Replace the language
in (c), including (c)(1) and (2), with the following: "For purposes of this
chapter, child care is needed to support participation in education for a
limited time as determined by the Board."
New §809.101. Transitional Child Care. Rename the section "Transitional
Child Care" and replace with the following language:
(a) A Board shall ensure that transitional child care services will be
provided for children of parents who have been denied TANF because of:
(1) employment and an increase in earnings which results in being ineligible
for TANF payments, or
(2) expiration of TANF time limits.
(b) Transitional child care is available for a period of up to 12 months
except in the case of an exempt TANF client who voluntarily participates in
the Choices program. For these individuals, transitional child care is available
for a period up to 18 months.
(c) TANF clients who are not employed when TANF expires may receive up
to 4 weeks of transitional child care, in order to allow these individuals
to search for work.
(d) TANF clients who are engaged in an education or training component
that extends beyond the date that TANF expires may receive transitional child
care in order to complete the component.
New §809.102. Children of Parents Participating in the Choices Program.
Delete (e).
New §809.105. Children Receiving or Needing Protective Services. Replace
the title with "Children Receiving or Needing Protective Services." In (b),
add "and funded" after "authorized." Add: "(c) In cases where the Child Protective
Services (CPS) case is closed and child care will no longer be funded by Texas
Department of Protective and Regulatory Services, the Board shall continue
the child care by using other funding for the child care slot for up to six
months after they are no longer eligible for Texas Department of Protective
and Regulatory Services funds if the CPS worker or other Texas Department
of Protective and Regulatory Services staff states that the child needs to
receive protective services and child care is an integral factor of those
services.
New §809.123 Children of Teen Parents. Replace the title with "Children
of Teen Parents" and replace the language in (a) with the following: "(a)
A teen parent (teen) is an individual 18 years of age or younger, or 19 years
of age and attending high school or the equivalent, who has a child."
New §809.221 General Funds Management. Add "(a)" before the first
paragraph and add: "(b) Children referred by Child Protective Services (CPS)
workers, for which care shall be provided through Texas Department of Protective
and Regulatory Services funds, shall also receive priority for available child
care openings. When Texas Department of Protective and Regulatory Services
funding stops and the CPS worker indicates that the child continues to need
protective services, the Boards shall continue the child care using the Child
Care and Development funds up to six months after they are no longer eligible
for Texas Department of Protective and Regulatory Services funds, so long
as the provision of care to the child does not result in another child being
removed from care."
New §809.223 Eligibility Verification. Replace the language in (b)
with the following: "(b) Eligibility for child care shall be redetermined:
(1) any time there is a change in family income or other information that
could affect eligibility to receive child care, and (2) on an established
frequency, at the Board's discretion."
New §809.224 Custody and Visitation Arrangements. Replace the language
in (b) with the following: "(b) A Board may encourage parents of other children
to temporarily utilize the space the child under court-ordered custody or
visitation arrangement has vacated until the child returns so that he or she
can return to the same provider."
New §809.225 Continuity of Care. At the end of (a), add: "Children
who no longer receive Texas Department of Protective and Regulatory Services
funded care shall also continue receiving child care funded through the Commission
if eligible to receive care based on other eligibility criteria or if the
Texas Department of Protective and Regulatory Services or its CPS worker indicates
that the child is in need of protective services."
New §809.227 Provider Payments. Delete the entire section.
New §809.228 Units of Service of Child Care. In (a), add to the beginning
of the first sentence, "Unless otherwise determined by the Board and approved
by the Commission for automated reporting purposes," and replace "The" with
"the."
New §809.229 Provider Payment Based on Child Care Enrollment. Replace
the language in (a) with the following: "(a) Enrollment in child care begins
the first day the child is scheduled to attend child care as authorized by
the contractor." Replace the language in (b) with the following: "(b) A Board
or its contractor shall ensure that providers are not paid for holding spaces
open except as consistent with attendance policies as established by the Boards."
New §809.230 Inclusion Assistance Rates. The proposed section is deleted
and the language will be incorporated into 809.231.
New §809.231 Provider Reimbursement Rates. The provisions regarding
Inclusion Assistance Rates are added as (c) as follows:
(c) A Board or its contractor shall ensure that providers who are reimbursed
for additional staff needed to assist in the care of a child with disabilities
are paid a rate up to 190% of the provider's reimbursement rate for a child
of that same age.
(1) The higher rate, which may be called an inclusion assistance rate,
is an increased provider reimbursement rate to provide for additional staff
to assist in the care of a child with disabilities, which shall take into
consideration the estimated cost of the additional staff needed by a child
with disabilities.
(2) The Board shall ensure that a professional, who is familiar with assessing
the needs of children with disabilities, certifies the need for the inclusion
assistance rate.
New §809.234 Payment for Operating Expenses. Delete the section.
New §809.235 Billing. Delete all except the first sentence of (a)
and remove the "(a)."
New §809.271 Child Care During Appeal. In (b)(5), move the "or" to
(b)(6), add "(7) non-payment of parent fees" and punctuate accordingly.
New §809.285 Reapplication for Provider Status after Termination or
Nonrenewal of the Provider Agreement. Replace the language in (a) with the
following: "(a) If a Provider Agreement has not been renewed or has been terminated
for violations of the terms of the Provider Agreement, the provider shall
wait for a period of time, to be determined by the Board, after the termination
or nonrenewal date of the Provider Agreement before reapplying."
New §809.288 Failure to Meet Performance Standards. Delete (b) and
(c) and remove the "(a)."
New §809.41 General Requirements, §809.43 Provider Agreements,
§809.61 Qualifications to Provide Self-Arranged Care, and §809.124
Children Served by Special Projects. Change "
Federal
Register
" to "
Code of Federal Regulations
" because the new citations are appropriate and incorporate the amendments
to Parts 98 and 99 published in the July 24 1998, issue of the
Federal Register
(63 FedReg 39936).
Following each comment or group of related comments is the Commission's
response.
809.2 Definitions.
Comment: One commenter requested a definition of "vendor" since a vendor
agreement has responsibilities that could be understood to create a subcontractor
relationship with the contractor.
Response: The term "provider agreement" is used in these rules rather than
"vendor agreement." The definition of "provider" is included in §809.2.
For purposes of determining the status of "vendor," the relationship should
not change, merely because of the name change.
Comment: One commenter asserted that the definitions of "parent" and "child"
are too limiting and only give parents and legal guardians the ability to
receive child care services for their children. The commenter recommended
the definitions should include TANF and SSI caretakers.
Response: The Commission disagrees with extending the definition of parent
to TANF and SSI caretakers because the Commission believes that the intent
of the federal regulations is to strengthen the role of the family. The Commission
believes that extending the definition beyond what was previously contained
in the child care rules may result in parents who are by blood relationship,
marriage, adoption, or legal guardianship not being the primary beneficiaries
of the workforce support service.
809.11 Board Responsibilities.
Comment: One commenter suggested that the rule needed to define career
development centers or be changed to reflect that a Board shall provide services
through full-service centers or at least one center. The commenter noted that
the word "all" may impose unreasonable hardships on Boards with a large number
of centers and recommended the word "all" be eliminated.
Response: As child care intake and eligibility information, as well as
services, can be arranged via telephone, access to a telephone for this purpose
would be in conformity with the rule; therefore, the Commission declines to
revise the rule.
Comment: One commenter questioned if access to child care at career centers
means eligibility determinations must be performed at career centers.
Response: Access to eligibility determination must be available at the
career center. Eligibility determination by the child care contractor is often
performed via telephone; therefore, access to the contractor via telephone
at the career center would satisfy the access requirement.
Comment: Two commenters requested a definition of "access."
Response: Access means that services are available to the client.
809.12 Board Policies and Plans for Child Care Services.
Comment: One commenter requested a definition of what entities are to be
identified by the Board for coordination in development of the child care
delivery plan and questioned if the Commission intends for the Board to have
direct contact with the federal agency responsible for administering the child
care and development fund. Another commenter questioned the requirement that
the Board service delivery plan contain evidence of coordination with the
federal level when the federal regulations state they will only interact with
the lead agency.
Response: Coordination should include any entity in the local area that
has a particular interest or expertise in regard to child care issues, such
as those entities indicated in the federal regulations. As these differ by
local area, the Commission declines to specify particular entities. The Board
would not necessarily contact the federal agency responsible for administering
the Child Care and Development Fund, but there may be federally funded organizations
in the local area, such as Head Start, that would be relevant for coordination
activities.
Comment: Two commenters requested clarification of "representatives of
local governments."
Response: Local government may be a city, a county, or a multi-county area.
The appropriate representative would be an individual designated through official
channels of the city or county administration.
Comment: One commenter recommended that the Child Care Management Services
Child Care Advisory Council be retained as a state requirement for child care
contractors as referenced in §809.29 of the repealed rules.
Response: The Boards will establish policies for the delivery of child
care services in the local areas and have the discretion to establish an advisory
council or an ad hoc committee for input related to child care issues if the
Boards so choose.
809.14 Promoting Consumer Education.
Comments and responses regarding persons or entities "listed" with the
Texas Department of Protective and Regulatory Services (TDPRS) are addressed
with comments to §809.42.
Comment: One commenter recommended adding a provision to the rule that
the Boards shall make available to parents information on where to find the
requirements to be licensed, registered, and listed with the TDPRS as well
as information about the types of facilities or homes, which may be licensed,
registered, or listed and whether or not the types of facilities and homes
are inspected by TDPRS. The commenter also recommended referencing the Texas
Administrative Code, §§720 and 725 in the rule.
Response: Information established by the Commission for the Boards to provide
to parents will include this information. The Commission declines to include
it in the rule because some of the information may be changed periodically
by other agencies or laws, and the complete rule process would have to be
followed to amend the rule.
809.15 Quality Improvement Activities.
Comment: One commenter asserted that the Designated Vendor criteria are
too restrictive in rural areas and recommended that the Boards be allowed
to set all of the criteria rather than being required to use Designated Vendor
criteria established by the Commission.
Response: The Boards may establish their own criteria, which may be applicable
to any provider. However, the Designated Vendor criteria established by the
Commission will continue to be used, because the percentage of providers that
reach Designated Vendor status, as defined by the Commission, is required
to be reported to the Legislative Budget Board for fiscal years (FY) 2000
and 2001. The Commission urges Boards to consider alternate performance criteria
that the Commission could suggest to the Legislative Budget Board and Governor's
Office in subsequent bienniums.
Comment: One commenter questioned the ability of the state, or the Boards,
to grant loans to child care providers as allowed as a quality improvement
activity in federal regulations. Another commenter questioned whether state
law allows loans to providers.
Response: Under the recently adopted federal regulations, loans are now
approved as means of improving quality. Although the present State Plan does
not provide for loans from the funds administered by the Commission and the
rules are clarified to exclude loans from this rule, the Commission is reviewing
this new concept for improving quality of care and strongly urges the Boards
to submit suggestions and comments on the possible implementation of such
a provision so that the appropriate changes may be incorporated into the State
Plan. The Commission also encourages Boards, contractors, and providers to
utilize other loan programs, such as the loans provided pursuant to Texas
Government Code §491.191, regarding the linked-deposit program through
the Texas Department of Economic Development to historically underutilized
businesses, businesses located in an enterprise zone, and to child care providers
for development of "child-care services provided by and activities engaged
in this state by nonprofit organizations; and quality, affordable child-care
services in this state."
Comment: One commenter recommended consideration for raising the Designated
Vendor's maximum rate by 15% to offer an incentive for vendors to become Designated
Vendors. The commenter further recommended allowing Designated Vendors who
maintained status to receive their full-published rate.
Response: The Commission declines to establish a fixed amount of increased
rate for Designated Vendors, because the Boards may determine additional incentives,
including higher reimbursement rates, for vendors engaged in such quality
improvement activities, consistent with the intent of the federal regulations
at 45 Federal Register §98.51.
Comment: One commenter questioned if the Boards can change the Designated
Vendor criteria or only make additions.
Response: The percentage of Designated Vendors is a measure that is reported
to the Legislative Budget Board and the Governor's Office, which, therefore,
must have a statewide definition. The provision of §809.15(d) enables
the Boards to establish quality criteria at their discretion, but providers
in this category would not be referred to as Designated Vendors. If all the
Boards concurred on Designated Vendor criteria, the statewide definition could
be changed. The Commission urges the Boards to submit their recommendations
for this definition for the Commission to put forth during the next biennium
budget process for FY 2002-2003.
Comment: Two commenters requested additional definition and explanation.
Response: Criteria established by the Commission to identify a provider
as a Designated Vendor, when the provider exceeds the minimum standards established
by the Texas Department of Protective and Regulatory Services (TDPRS), will
be provided to the Boards. The rule requires that the criteria and Designated
Vendor status be maintained. The rule also provides for the Boards to establish
other voluntary criteria for improving quality at their discretion and to
recognize providers appropriately, although these would not be identified
as Designated Vendors based on state criteria.
Comment: One commenter suggested that the proposed rule allows the Child
Care Management System (CCMS) to step into the regulatory burdens of TDPRS
Child Care Licensing Division by improving health and safety conditions.
Response: The rule does not give the contractor any regulatory authority
related to health and safety conditions. The rule identifies improvement of
health and safety conditions as one criterion that may be considered as a
quality improvement activity.
Comment: One commenter recommended rewarding quality care and providing
an incentive for other providers to increase the quality of care by paying
a higher reimbursement rate to providers who meet Designated Vendor or National
Association for the Education of Young Children standards and also negotiating
with the State Board of Insurance to provide Designated Vendors a discount
on their liability premiums.
Response: The rule authorizes the Boards to establish the reimbursement
rate for providers and to plan and develop activities for the improvement
of quality in child care services. The Boards could pay a higher rate for
providers who meet higher standards if they so choose. The recommendation
regarding a discount on liability insurance will be forwarded to the State
Board of Insurance.
809.20 Local Donations.
Comment: One commenter asserted the rule should identify who would be responsible
for pursuing local donations.
Response: As stated in the rule, the Boards are responsible for ensuring
that local donations are pursued. The Boards can designate the responsible
party, or parties, for this activity. The Boards' members have knowledge of
community organizations and community resources and are in a stronger position
to plan an effective approach for optimizing local donations.
Comment: One commenter asserted that Texas does not appropriate enough
general revenue funds to draw down all the federal child care money available
for low-income working families and parents in job training programs and recommended
that the legislature appropriate enough money to draw down all of the available
federal money for child care.
Response: The Commission recognizes the limitation on funding for this
critical support service and has requested additional state funds to match
the increased amount of federal child care funds available for Texas.
809.41 General Requirements.
Comment: One commenter asserted the activity addressed in this rule is
a Child Care Licensing Division and Health Department task and that, when
possible non-compliance is noted, it is called in to both agencies.
Response: The Commission agrees and emphasizes that the Board or the contractors
should report possible violations of health or safety standards to the appropriate
regulatory agency.
Comments Regarding Persons or Entities Listed With TDPRS ("listed") concerning
§§809.14, 809.42, and §809.61. Thirteen commenters recommended
deleting "listed" because of one or more of the following: TDPRS does not
have minimum health and safety requirements for "listed," TDPRS does not inspect
unless there is an allegation of abuse or neglect, TDPRS is responsible for
this task, TDPRS does not monitor or visit the "listed," there is no minimum
age, it is unreasonable and dangerous to expect Boards to ensure compliance,
adding "listed" would not be beneficial as the "listed" only care for three
children and probably could not afford general liability insurance, adding
"listed" may negatively impact the quality of care, the amount of resources
to implement would cause concern, there may be no applicable local laws, the
contractor or Boards would be liable for actions of the "listed," and the
"listed" facility do not qualify to sign vendor agreements or to provide self-arranged
care. If the rules include "listed," one commenter stated that Boards should
determine whether "listed" meet the criteria, and, if not, that Board could
decline the provider agreement. One or more of the commenters suggested adding
the following: that there are no state regulatory standards and no inspections,
the federal health and safety regulations, how the Commission or the Boards
will ensure enforcement of local laws, a minimum age of at least 18, and that
Child Protective Services children are not placed with "listed" family homes.
Another commenter asserted that a plan needs to be developed to include "listed"
in the consumer guide that considers input from the Commission, TDPRS, the
Boards, contractors, and providers.
Response Regarding §809.42, Minimum Qualifications for Providers,
the following applies. In response to the numerous comments received regarding
the "listed" providers, the Commission removes this category of providers,
except as a self-arranged provider, from the list of options for child care
which may be funded by Commission-allocated funds. The Commission sought to
enlist the services of all available child care providers to handle the influx
of parents into the workforce due to welfare-to-work requirements, recognizing
that many entry-level jobs necessitate child care during the second or third
shifts or on weekends when the traditional child care services are not available.
The Commission also recognizes that federal laws and regulations on child
care require that child care providers reimbursed with federal funds must
meet health and safety standards established by state, local, or tribal law.
The Commission, in its proposed rules, sought to provide the Boards with the
opportunity to solicit local health and safety inspectors' assistance to ensure
appropriate standards of care, if needed to meet the needs of families and
demands of the labor market in their particular area for general providers
and providers of self-arranged care. The Commission now believes that it may
place too great a burden on the Boards for the Boards to ensure health and
safety standards are met for "listed" facilities who are not chosen through
self-arrangement by the parent, and removes from §809.42 the categories
of eligible child care providers those facilities that are "listed" with TDPRS.
The Commission, however, may choose to include these providers in the future,
as capacity is needed to ensure parent choice.
Response Regarding §809.61, Qualifications to Provide Self-Arranged
Care, the Commission believes that "listed" providers should be included as
a Board option in self-arranged care based on the following. As the "listed"
are recognized by state law to provide child care, and as parental choice
is a basic tenet in the state's support of child care services, the Commission
declines to remove the "listed" from the self-arranged providers to be considered.
In accordance with the proposed rules, the "listed" cannot be used unless
there are local laws regarding health and safety that apply to these providers.
In areas with few providers for child care, and particularly for non-routine
hours, the Boards may want to pursue implementation of local laws, if they
do not exist, to benefit from the availability of these providers. This is
not a requirement, but the Boards' option. The Commission appreciates the
significance of this task and agrees that some of the Boards may not be able
to ensure that there are in effect, under local law, requirements designed
to protect the health and safety of children that are applicable to the "listed,"
as required by 45 Federal Register §98.41. Other boards may determine
that such local laws do not exist. The Commission does not require that the
Boards include "listed" providers as self-arranged providers or that Boards
work to establish any new or additional local laws, but wants to provide the
option for the Boards to do so if the Board deems it necessary in their areas.
The Commission believes that the "listed" persons or entities may be a viable
avenue for rural or other locations where licensed and registered providers
are scarce or not accessible to parents, provided the Board ensures that local
laws exist that meet the requirements of the federal regulations. As part
of required consumer education, the parent should be given information to
ascertain what requirements/restrictions the providers are subject to so that
these can be considered in making their selection of a child care provider.
The Commission declines to impose requirements on the "listed" beyond those
established by state or federal law or the regulatory agency. The Commission
will include in the contract with the Boards any special provisions that TDPRS
requests for use of their funds, insofar as the special provisions are not
in conflict with federal or state law or regulations. The Commission agrees
that collaboration is important in developing any part of the local plan for
delivery of child care services.
Comment: One commenter asserted that this is a TDPRS Child Care Licensing
Division and Health Department task and that, when possible noncompliance
is noted, it is called in to both agencies. Another commenter requested clarification
of "applicable regulatory standards" and, specifically, if this includes the
regulatory standards that TDPRS enforces. The commenter suggested that the
Board or its contractors should not be responsible for assuming or duplicating
any licensing or regulatory enforcement responsibilities of TDPRS or other
licensing agencies, including the health and safety of children.
Response: The Commission agrees that the rule is not stated as intended
and deletes the provision in (2) from §809.42. Section 809.42 is further
amended to include a new subsection to clarify that the Board or its contractor
is responsible for reporting to the appropriate regulatory agency any possible
violation that it gains knowledge of in the course of fulfilling its responsibilities.
809.43 Provider Agreements.
Comment: One commenter noted lack of provisions for renewing Provider Agreements
and asserted that the rules should clearly define the parameters for initiating
and renewing vendor agreements in order to minimize risk to all concerned
parties. Another commenter questioned if there is a potential impact on quality
if the Board is no longer required to renew a Provider Agreement at regular
intervals.
Response: The boards are responsible for maintaining Provider Agreements
which are in conformance with regulations and rules. As a part of this responsibility,
the Boards may determine the time period for renewal.
809.44 Provider General Liability Insurance Requirements.
Comment: One commenter asserted the general liability should include the
provision of transportation insurance and that, if the state is allowing payment
for transportation, the provider should be adequately covered.
Response: In order to avoid misunderstanding, the Commission revises the
rule to include the phrase "including transportation insurance" following
"general liability insurance." The local board has the authority to determine
reimbursement rates, as well as insurance requirements.
Comment: One commenter supported the rule that gives the Boards the ability
to decide if general liability insurance will be required of the child care
providers and, if so, how much.
Response: On the issue of general liability and commercial transportation
insurance policies required of providers, the Commission notes the following:
state law already imposes the requirements of $300,000 in general liability
insurance on the state's licensed child care centers, and places no specific
liability requirements on providers transporting children. The Commission
believes that these additional regulatory burdens should fall upon the appropriate
regulatory bodies, the Texas Department of Protective and Regulatory Services
as the state's child care regulatory agency, and the Texas Department of Transportation
as the agency setting transportation requirements on commercial entities carrying
certain numbers of passengers, and we strongly encourage those agencies to
consider the need for imposing these requirements.
Comment: One commenter stated that the Texas Department of Protective and
Regulatory Services (TDPRS) only requires that direct child care providers
have general liability insurance and asserted that the group day homes and
registered family homes would not have liability insurance unless required
by the child care contractor. The commenter stated that a contractor cannot
make another agency enforce insurance or give the contractor a copy.
Response: The Commission defers to the state agency responsible for establishing
minimum standards. Any perceived violations should be reported to the appropriate
agency. Failure to comply with provider eligibility requirements would be
grounds for terminating a provider agreement.
Comment: One commenter recommended that the rule require that general liability
insurance be required of providers at a standardized amount, such as $300,000,
to ensure statewide consistency.
Response: The Commission believes that statewide consistency has been established
by the state law and rules of TDPRS, which is the agency invested with the
authority and responsibility for regulation of licensed child care centers.
The rule enables the Boards to establish further standards at their discretion.
Comment: One commenter recommended insurance requirements in the rule for
registered family homes and transportation in order to ensure that safeguards
to protect the child care contractor, the Boards, and the state are being
met.
Response: The Commission declines to impose requirements beyond state law
and the state regulatory agency's requirements, but requires the Boards to
review the issues and establish a policy to address local needs.
Comment: One commenter questioned if the authority of the Boards to establish
liability insurance requirements for child care providers will be an exception
to the requirements for liability insurance in the Financial Manual for Grants
and Contracts.
Response: The Financial Manual provides general guidelines. A specific
rule may be more or less specific. In this case, the rule requires the Boards
to consider the issue of liability insurance and make a determination in regard
to what the Boards require.
Comment: One commenter asserted general liability insurance should be required
in an amount consistent with protecting the state, Boards, the employers,
and the injured parties.
Response: Although the Commission agrees with the importance of insurance
protection, any requirement beyond state law and state regulatory authority
will be a policy of the Boards.
Comment: One commenter asserted that, if only certain vendors are required
to have general liability insurance because of the areas in which they are
located, this would be discriminatory to them.
Response: The state law establishes the statewide requirements for licensed
centers. The Boards may impose greater requirements in this regard.
Comment: One commenter expressed appreciation for the flexibility of determining
general liability insurance requirements for providers.
Comment: Two commenters asserted that $300,000 liability and transportation
insurance should be required, and further asserted that the Boards have the
authority to authorize optional coverage amounts for group day homes and registered
family homes. Two other commenters also stated that liability insurance should
be required.
Response: State law requires $300,000 liability insurance for licensed
day care centers and does require that a specific commercial transportation
insurance level be set for vehicles carrying fewer than 13 passengers. Beyond
those requirements, the Boards may establish additional local requirements.
809.45 Collection of Parent Fees and Subsidies.
Comment: One commenter expressed support for the rule that gives the Boards
the responsibility to establish policy regarding the consequences when a parent
fails to pay the parent fee. The commenter further noted that the Boards,
rather than the state, should set the minimum amount in the automated system.
Response: The Boards must establish a policy on parent fees, and the minimum
accepted in the automation system can be changed. However, the current minimum
provides for a parent fee of only $1.00 per week. Federal regulations require
the cost sharing structure, with certain exceptions, and a reasonable amount
should be considered and encouraged.
Comment: One commenter recommended a revision to the rule to require contractors
to compensate providers if a parent fails to pay the parent fee rather than
giving the Boards the flexibility to make this decision. Another commenter
questioned whether the Boards will be responsible for ensuring providers are
paid in full if the parent does not pay.
Response: The Commission declines to mandate this payment and gives the
Boards the authority to establish the policy for their local area. The Boards,
in turn, will determine this policy in accordance with rules for establishing
policy.
Comment: One commenter contended that it is not the contractor's responsibility
to ensure that the parent fee is paid to the provider.
Response: This rule provides for the Boards to establish policies in regard
to failure of the parent to pay the provider. Although action required of
the contractor would be a local decision, the Commission believes it would
be reasonable for the contractor to work with the parent to determine if there
is a valid reason for a reduction in the fee or to develop a payment plan.
809.46 Assessing Parent Fees.
Comment: One commenter expressed support for the transfer of responsibility
of setting parent fees to the Boards, but recommended deletion of the range
for the fee that is established in the rule by the Commission.
Response: The range cited in the rule is a recommendation, not a requirement.
The Commission further notes that federal regulations recommend 10% so as
not to impose a burden on a low-income family's budget.
Comment: One commenter recommended limiting the cost of the parent's fee
for child care to 10% of family income, regardless of family size.
Response: The rule gives the authority to the Boards to establish the policy
for assessment of the parent fee.
Comment: Two commenters asserted that this statement contradicts §809.93
(Calculating Income #1).
Response: The provision in §809.46 relates to a teen parent with her
own child; the provision in §809.93 relates to a child in the family
who is between 14 and 18 years old and whose earnings count toward family
income. As these address different circumstances, the Commission does not
see a contradiction in these statements.
Comment: One commenter asserted that the option for the Boards to raise
parent fees above the current 11% maximum would place an undue hardship on
low income families struggling to maintain their independence and recommended
the parent fees remain at 9% for one child and 11% for two or more children.
Response: The Boards are given the authority to establish parent fees because
they can better address local needs. The reasoning for maintaining the current
fee structure should be presented to the Board for its consideration.
Comment: One commenter suggested parent fees should be based on a sliding
fee scale based on the parent's income.
Response: The rule requires the parent fee to be assessed based on the
family's gross monthly income, which, in effect, becomes a sliding fee scale.
The Boards have the ability to add more steps on the scale if they so desire.
809.48 Attendance Tracking.
Comment: One commenter expressed support for the rule that gives the Boards
responsibility to set attendance standards rather than setting an arbitrary
statewide number.
Response: The Commission acknowledges the comment and believes that each
Board should set forth its attendance policy. The Commission believes that
the prior statewide attendance policy was not arbitrary, but was based on
criteria designed to be applicable statewide.
809.49 Provider Advisory Groups.
Comment: One commenter suggested that, based on the definition of provider
in 809.2, it appears that registered homes would be required to establish
Parent Advisory Groups which could impose a hardship on small providers and
an additional requirement for monitoring by the Boards. The commenter also
questioned what the penalties would be for failure to comply with this requirement.
The commenter recommended revision to specify this requirement does not apply
to registered homes.
Response: In accordance with Texas Human Resources Code §44.002, providers
with greater than 30% of licensed capacity purchased with Commission funds
are each required to establish a Parent Advisory Group. The statute only applies
to licensed centers, and the rule will be revised to clarify this.
Comment: Two commenters recommended including the pertinent section of
Chapter 44 of the Texas Human Resources Code.
Response: In the interest of not restating the law and, thus, lengthening
the rule, the Commission prefers to reference, rather than repeat, other statutes
and regulations that apply.
809.61 Qualifications to Provide Self-Arranged Care.
See comments regarding the "listed" addressed with comments regarding §809.42.
809.62 Reimbursement for Self-Arranged Care.
Comment: One commenter recommended that clients be required to provide
written verification that providers of self-arranged care were paid in full
for the previous month.
Response: The provision in (a)(2) of this section indicates that the declaration
is made verifying that the services were rendered. The Board shall require
that the verification referenced in (b)(6) of this section be written.
809.71 Parental Choice.
Comment: One commenter contended that the rule requires that the CCMS know
how to do the Texas Department of Regulatory Services (TDPRS) Child Care Licensing
Division's job in order to assure CCMS clients are informed about the various
licensing, registration, and health and safety standards that providers shall
follow.
Response: This type of information is required by federal regulations in
order to help parents make informed child care choices. The requirement is
to provide factual consumer information to parents, not to expound on the
licensing worker's duties.
Comment: One commenter asserted that the proposed rule states that the
CCMS will give the parents assistance in choosing the initial or additional
child care referrals and that the CCMS should not take on the liability of
referring parents or children to particular facilities. The commenter recommended
that the CCMS provide the parents with a vendor list, TDPRS Child Care Licensing
Division's phone number, and encourage the parent to visit facilities and
call the Child Care Licensing Division. The commenter further asserted that,
if the CCMS begins to refer to particular facilities, this could also be considered
discrimination.
Response: The rule does not give the contractor the responsibility or authority
to refer to a particular facility. Parental choice is a basic premise of the
child care services provided through Commission-allocated funds. The rule
requires that a list of providers, with pertinent information, be provided
to parents, as the commenter suggested. The rule also requires this list to
include the telephone number of TDPRS and any other information that would
assist parents in choosing a provider. As a part of parental choice, the rule
states the right of parents to visit available child care facilities before
making a choice, as well as when services are being provided, and the parents'
right to receive assistance in choosing initial or additional referrals. This
is to ensure parents have all the information they need to make an informed
choice, but not to be directed to a particular facility.
Comment: One commenter noted a fine line between giving information regarding
day care providers and recommending a provider. The commenter stated concern
with liability issues if they do not encourage parent choice.
Response: The Commission fully concurs with the decision of a provider
being the choice of the parent. The rule requires information to be given
to the parent so that an informed choice may be made.
809.72 General Parent Rights.
Comment: Two commenters recommended that the time period be 12 days to
be uniform with other time frames.
Response: The Commission changes the notification period from 12 days in
the previous rules to 10, 15, or 20 days as specified in the respective new
rules.
809.73 Eligibility Documentation.
Comment: One commenter recommended that Boards have maximum flexibility
to design eligibility processes and procedures within federal regulations
and state definitions of eligibility. The commenter recommended deleting all
except the first sentence of §809.73 (a) and deleting all of (c).
Response: The Commission agrees, and the rule is revised accordingly.
809.75 Parent Reporting Requirements.
Comment: One commenter recommended this section be deleted and the requirements
addressed by local board procedures.
Response: Although the Commission agrees with operations based on local
board-developed procedures, these provisions are stated because they would
be minimally required.
Comment: One commenter recommended the time limit in which a client must
report changes to the child care contractor be the decision of the Boards.
Response: The Commission believes it has a responsibility to establish
a maximum time period in which changes can be reported to ensure that timely
action can be taken in regard to eligibility issues.
Comment: Two commenters recommended that the time period be kept at 12
days for uniformity with other time frames.
Response: The Commission changes the notification periods from 12 days
in the previous rules to 10, 15, or 20 days as specified in the respective
new rules.
809.78 Parent Responsibility Agreement.
Comment: Two commenters requested clarification of this rule and stated
this is a source of confusion.
Response: This rule is not included in the proposed rules because it is
unchanged from a previous rule publication. Although the commenter does not
explain the issue(s) of confusion, a Workforce Development Letter is being
issued to address questions that have been submitted to program staff.
809.91 Definitions.
Comment: One commenter requested further clarification of "household dependent"
and questioned how the contractor verifies that a child or other minor living
in the household is the responsibility of the parents and what time period
must the child have lived there in order for the parent(s) to qualify for
child care payments.
Response: The responsibility is established by the child being born to
the parents or being adopted by either or both parents, the parents being
given legal responsibility for the child by a court, or otherwise being provided
supervision and care by the parents. The contractor may establish the provision
of supervision and care by declaration of the parent; this may be verified
by collateral contacts if needed. There is not a duration related to the residence
requirement.
Comment: One commenter recommended that these rules be streamlined and
collapsed into a single section concerning eligibility with revisions to provide
the Boards with more flexibility and to eliminate residual ties to past funding
methods.
Response: The Commission agrees with simplification of rules insofar as
possible and revises some of the rules in accordance with this commenter's
specific suggestions. Others are not revised for reasons stated in response
to the specific comments.
Comment: One commenter noted that the definition of "family" does not include
the concept of non-traditional family such, as a legal guardian, and suggested
that a broader definition would encompass children who are eligible to receive
services.
Response: The definition of "family" includes the parents of a child eligible
to receive child care services. The definition of "parent," in §809.2,
includes legal guardian.
809.92 General Eligibility Requirements.
Comment: One commenter asserted that the Boards should be allowed to establish
time limits for training completion and recommended a revision to require
the Boards to establish policies related to time limits. Another commenter
asserted that the two-year time limit on students is an obstacle for parents
who need extra time to learn English or to take remedial classes before completing
a degree program. The commenter recommended changing the time limit to a progress
standard so that as long as a parent shows satisfactory progress in a declared
program he/she is entitled to receive child care. The commenter further suggested
that satisfactory progress could be defined as maintaining a 2.0 grade point
average while enrolled in at least 12 credit hours, not to exclude English
as a second language and remedial classes.
Response: The Commission agrees and the rule is amended accordingly. The
Commission agrees with the Board deciding what criteria to use to determine
whether satisfactory progress is being made to justify continued funding for
child care beyond the proposed two year limit. The Commission revises the
rule to provide for the local board to establish a policy related to training
limitations.
Comment: Two commenters recommended the additional requirement that the
client must reside in the Board's service delivery area unless the Board approves
an exception.
Response: The Board is responsible for the clientele and activities only
in their local workforce development area. If a Board chooses to approve an
exception and enter into agreements with another Board or contractor for reimbursement
for incidental services, then that would be within the Board's discretion.
However, contracting for more than infrequent or incidental reimbursement
would likely be subject to procurement procedures. It is generally not expected
that the Boards would be serving clients in other areas; therefore, the Commission
does not see a need to include this provision in the rules.
Comment: One commenter asserted that applying the income limitation to
transitional clients is a conflict with the intent of House Bill 1863 which
was passed in 1995 when federal and state child care rules did not impose
an income limit on transitional clients.
Response: Federal regulations now include income limits as a condition
of eligibility, and, as the commenter noted, House Bill 1863 provides for
transitional child care in accordance with department rules and federal law.
Regardless of timing, federal law always supercedes state law.
Comment: One commenter questioned broadening the scope of the eligible
population and setting income limits at 85% of state median income when waiting
lists are long and funding is limited.
Response: The federal regulations which were effective in July 1998 authorized
the income level for eligibility to be 85% or less of the state's median income
for a family of the same size. The Commission understands this may increase
the eligible population, but the Commission believes the Boards should be
afforded the flexibility incorporated in the new federal regulations. It would
be a Board's determination as to how to manage the funds to best meet the
needs in the Board's local area.
Comment: One commenter asserted there is need to consider establishing
a longer period of time for training and education and that this would be
more cost effective because it would generally result in higher earnings,
more taxes paid, higher productivity, and higher return on the investment.
The commenter further noted that disadvantaged participants have greater barriers
to overcome and generally require more than two years to complete a training
program or degree.
Response: The Commission agrees that the Boards should determine the best
method of addressing local needs given the limited funding available and the
need to support working families. Setting longer time limits for education
may be an avenue in which the Boards wish to develop specific local policies
to meet local needs; and thus, the rule is amended accordingly.
Comment: One commenter requested flexibility to allow people who are close
to finishing a degree that will help them achieve self-sufficiency to complete
their course with child care assistance even though they exceed the 65 hour
limit.
Response: The Commission agrees and revises the rule to provide for the
Boards to establish the policy for limitations on education.
Comment: One commenter expressed the opinion that parents should be allowed
up to 130 semester hours in order to complete a four-year degree.
Note: The commenter referenced §809.92 (b)(1), but the comments relate
to §809.92 (c)(1).
Response: The Commission revises the rule to provide for the Boards to
establish a policy in regard to length of training allowed.
Comment: One commenter asserted that the limitation of 65 semester hours
of college credit defeats the goal of self-sufficiency.
Response: The Commission agrees that this may be insufficient training
time in some instances and revises the rule to give the local board the authority
to establish training limitations.
Comment: Two commenters asserted that 150% of the federal poverty income
level is appropriate with the Boards' option to increase to 85% of state median
income.
Response: The Commission believes the Boards should have the discretion
provided by federal regulations.
809.93 Calculating Income.
Comment: One commenter questioned the method for calculating total gross
income for eligibility purposes and questioned if overtime pay during the
income determination period should be averaged.
Response: The Commission disagrees with the commenter that overtime should
not be averaged because the income is estimated based on the person's history
of receiving pay.
809.101 Children of Parents Eligible for Transitional Child Care.
Comment: One commenter recommended revisions in the wording for this section,
which would make it more understandable.
Response: The Commission agrees, and the rule is changed accordingly.
Comment: One commenter recommended adding two additional groups, those
on transitional Medicaid programs who have been denied TANF due to new earnings
or the removal of the earned income disregards.
Response: As this rule is based on state law, it reflects the provisions
of House Bill 1863, and the Commission declines to expand on this requirement.
Comment: One commenter recommended a revision in wording to conform with
a revision in House Bill 1863 which changes the word "volunteers" to "voluntarily
participates."
Response: The Commission agrees, and the rule is revised accordingly.
Comment: One commenter asserted that the Boards should be allowed to establish
time limits for transitional services and recommended a revision to require
the Boards to establish policies related to time limits.
Response: The time limits in the proposed rule are statutorily provided
in House Bill 1863. The Commission supports legislation that would revise
the statute and give the Boards the authority to establish the time limits;
but, unless and until the statute is revised, the time limits remain in the
rule.
809.102 Children of Parents Participating in the Choices Program.
Comment: One commenter recommended adding "and Board policies" to this
rule.
Response: As this is a requirement of House Bill 1863, Board policies could
not change the eligibility stated in this rule.
Comment: One commenter recommended deleting (d) from this rule.
Response: The Commission believes that the Boards should determine whether
and in what instances child care services are needed to support Choices participants
to those approved for Choices but waiting to enter an approved initial component
of the program.
809.105 Children Receiving or Needing Protective Services.
Comment: One commenter recommended requiring the assignment of priority
status to children at risk of abuse and neglect. Another commenter noted that
the proposed rules do not give priority status for children at risk of abuse
and neglect.
Response: Children referred by CPS workers shall receive priority services
for care provided by the Texas Department of Protective and Regulatory Services
(TDPRS) funds, and §809.221 of the rule has been revised to clarify this.
The Boards shall provide priority for child care services to a child needing
to receive protective services if care for the child is no longer funded by
TDPRS, the CPS worker indicates that the child needs to receive protective
services, and the provision of care to the child does not result in another
child being removed from care.
Comment: One commenter asserted child care is a needed service which provides
families the support necessary to complete the transition to a safe, stable,
and self-sufficient family unit and recommended the former CPS day care category
be continued and included in the rules. One commenter recommended that the
Commission continue to provide child care services for former CPS clients.
One commenter referenced elimination of the provision to provide child care
for an additional six months following closure of a protective service case
and noted the federal regulations allow states to serve these children. One
commenter asserted that the Commission currently or previously budgeted for
care for former CPS clients and questioned if this will continue. One commenter
noted that the program goals do not address the need to provide child care
services for children who are or have been abused or neglected and recommended
that services be provided to these children whether or not the parents are
working.
Response: Children being served through a CPS worker will receive care
as directed by the CPS worker and funded through the CPS allocation in accordance
with the interagency contract between the Commission and TDPRS. When the child
care is no longer being funded through the CPS allocation, the Commission
agrees that the Boards shall provide child care for children who meet the
federal requirements contained in 45 Federal Register §98.20 and revises
the rule accordingly. Specifically, the rule is changed to require the Boards
to provide Child Care and Development-funded care to a child if TDPRS or the
CPS worker determines that the child "needs to receive protective services
and that the child resides with a parent or parents...if determined to be
necessary on a case-by-case basis" by a CPS worker "or in consultation with,
an appropriate protective services worker." Likewise, the rule name is modified
to incorporate children needing to receive protective services.
Comment: One commenter referenced the current procedure of referring CPS
clients to Designated Vendors unless a waiver is obtained by the Director
of CPS and recommended that the designated day care vendor referral and waiver
process be continued and reflected in the rules. Another commenter questioned
if the child care contractor will continue to refer designated vendors to
CPS staff who refer children for general protective day care and establish
a waiver process if no designated vendors exist in the family's area.
Response: The Commission declines to impose rules in relation to TDPRS
funded services. If TDPRS requests this requirement, it will be made a provision
of the Commission's contract with the board in the allocation of TDPRS funds.
Comment: One commenter questioned if this provision is based on funding
provided by CPS or another category of funding service.
Response: This provision relates to child care funded by TDPRS, except
for the provisions of (c) added to the rule.
809.121 Children Living At Very Low Incomes.
Comment: One commenter recommended deleting this section and adding the
phrase "or are receiving federal Supplemental Security Income" to §809.92
(b)(1).
Response: The Commission agrees that this action would cover eligibility,
but believes it is important to identify this category of eligibility along
with others that are specified.
Comment: Two commenters referred to a previous comment recommending use
of 150% of the federal poverty income level.
Response: The Commission believes the Boards should have the discretion
provided by federal regulations.
809.122 Children with Disabilities.
Comment: One commenter stated that the definition leaves out some developmental
areas such as language and less severe disabilities that are not being covered
and that there is no mention of medical conditions in this definition.
Response: The definition is consistent with federal regulations, and the
Commission declines to be more or less restrictive than the federal regulations.
Comment: One commenter recommended deleting this section and adding this
provision to §809.93.
Response: Although this would provide appropriate information regarding
calculating income for eligibility, the Commission believes the provision
should be included with the eligibility provisions for this specific group.
Comment: Two commenters referred to a previous comment recommending use
of 150% of the federal poverty income level.
Response: The Commission believes the Boards should have the discretion
provided by federal regulations.
809.123 Children of Teen Parents.
Comment: One commenter asserted that parents are currently considered teen
parents if the teen parent is under 20 years of age and completing high school
or the equivalent and that this age should be retained as there are parents
still in high school who are 19 years old.
Response: The Commission agrees that a parent who is 19 years of age should
be encouraged to complete high school. The rule is revised accordingly.
Comment: Two commenters recommended staying with 20 years of age.
Response: The rule is revised to include individuals 19 years of age who
are still in high school.
Comment: Two commenters referred to a previous comment recommending use
of 150% of the federal poverty income level.
Response: The Commission believes the Boards should have the discretion
provided by federal regulations.
Comment: One commenter recommended deleting this section and adding this
provision to §809.93.
Response: Although this would provide appropriate information regarding
calculating income for eligibility, the Commission believes the provision
should be included with the eligibility provisions for this specific group.
809.124 Children Served by Special Projects.
Comment: One commenter recommended the funding mechanism for children served
by special projects be addressed since the money for these projects would
potentially come from an already inadequate funding level for other programs
needed to meet other federal standards. The commenter also suggested the amounts
should be capped in order to prevent special projects from taking needed funds
from other programs with federal standards that must be met or funded separately.
Response: Any funding relating to special projects, such as funds for use
in infant and toddler care, will be made available to the Boards. The requirements
will also be available to the Boards.
809.221 General Funds Management.
Comment: One commenter requested clarification of the rule which requires
priority for Transitional and Choices eligible children when other rules state
that care for these children shall be provided.
Response: Child care services for Transitional and Choices eligible children
are required by House Bill 1863. The rule questioned refers to managing resources
so that this requirement can be met.
Comment: One commenter expressed support for the rule that gives the Boards
the flexibility to set the priority of client groups who will receive child
care services.
Response: The Commission acknowledges the comment and agrees, subject to
the limitations in (a) and (b).
Comment: One commenter questioned what will happen if a Board spends all
of its allotted money, if the Commission can transfer money between the Boards,
and if there is additional money that the Commission can access.
Response: All of the available child care funds are allocated to the Boards,
except for less than three percent retained for state administration. As stated
in the rule, the Boards are responsible for ensuring that resources are proportionately
allocated. As the Boards have experience and expertise in financial management
of large and complex allocations, the Commission believes they will manage
funds appropriately. The Commission does have a rule for deobligation and
reobligation of funds if a Board area cannot utilize funds effectively and
another area could benefit from additional funds.
809.222 Effective Utilization of Funds.
Comment: One commenter asserted the rule requires changes to the waiting
list documentation requirements, which will require enhancements to the automation
system, and questioned if the Commission will fund the required enhancements.
Another commenter questioned if there will be a cost associated with required
changes to the waiting list document and who will pay the added costs.
Response: The Commission will work with the Boards to implement necessary
revisions to the automation system and/or to assist in development of local
systems. Additional funding is not available at this time for local system
enhancements.
809.223 Eligibility Verification.
Comment: One commenter recommended the Boards be given the authority to
set the standard for how often eligibility should be redetermined.
Response: The Commission agrees and revises the rule, but cautions that
services provided for an ineligible client will result in disallowed costs.
Comment: One commenter recommended revision of the rule to read that eligibility
for child care be redetermined no more than once a year and noted that eligibility
redetermination is not a provision of federal regulations.
Response: The Commission revises the rule to give the Board the authority
to determine frequency of redetermining eligibility, but emphasizes that services
provided for ineligible clients will result in disallowed costs. Monitoring
and redetermining eligibility is critical to ensuring that funds are not spent
on ineligible clients, but are utilized for those eligible.
809.224 Custody and Visitation Arrangements.
Comment: One commenter asserted that assuring that a child who is absent
from child care due to a court-ordered custody arrangement may receive care
at the same provider site when the child returns is costly child care and
requiring a child selected from the waiting list to temporarily fill a slot
is contrary to parent choice. The commenter recommended that the child be
guaranteed to return to care, although not necessarily with the same provider.
Another commenter recommended this provision be deleted because it is harmful
to children and difficult to track.
Response: The Commission disagrees that the cost of the child care would
outweigh the benefits of preserving continuity of care for the child subject
to the court order. The rules do not require a parent selected from the waiting
list to temporarily fill a slot, and the Commission also disagrees that the
temporary filling of a slot is contrary to parent choice because a parent
is not required to accept the temporary slot nor does the parent lose their
place on the waiting list for declining a temporary slot. The Commission believes
that providing a temporary slot for someone who, under the old rules, would
not receive even the temporary slot while it remained empty is more supportive
of parents in employment, training, or education than providing no support
at all. Regarding the recommendation that the child be guaranteed to return
to the same provider, the Commission revises the rule to allow, but not require,
the Board to maintain the availability of the slot for the child returning
from court-ordered visitation or custody if this can be accomplished without
paying for the empty slot.
Comment: One commenter recommended deletion of the rule because the commenter
believed it would be difficult for the contractor to find the right aged child
in the same area, disruptive for the child taken from the waiting list to
be moved to another provider for a short time period, and the time period
would be over before the eligibility and enrollment process could be completed.
A second commenter asserted that it is unfair to make a child care facility
hold a spot for a child on court-ordered visits. The second commenter questioned
why children referred by a child care contractor should be guaranteed return
to care after they have been removed for a temporary period of time when private
paying parents do not have this guarantee unless they put down a deposit.
A third commenter disagreed with the rule and stated that most vendors will
request payment for the slot. Another commenter cited a conflict between §§809.224
and 809.229 and questioned if custody spots must be held.
Response: The Commission requires the Boards to maintain the availability
of the slot for the child returning from court-ordered visitation or custody
if this can be accomplished without paying for the empty slot.
Comment: One commenter questioned whether this provision applies to children
referred by the contractor or private paying parents, if the child is removed
from child care when the original child returns, and how this relates to consistency
of care.
Response: This provision applies to children referred by the contractor
for Commission-funded or Texas Department of Protective and Regulatory Services-funded
care, but does not apply to private paying parents, because neither the Boards
nor the contractors would have input regarding parents who are not receiving
state assistance. The temporary care would be offered to a parent on that
basis, temporarily until the original child returns. This action does not
contradict the continuity of care requirement because the care for the second
child in this instance is offered on a temporary basis. The long-term continuity
of care of the child subject to the court-ordered visitation is the intent
of this section.
Comment: One commenter recommended this be deleted as it is harmful to
children and difficult to track.
Response: The Commission requires the Boards to maintain the availability
of the slot for the child returning from court-ordered visitation or custody
if this can be accomplished without paying for the empty slot.
Comment: One commenter questioned if the contractor is expected to go through
the waiting list to find a parent who wants the particular vendor for a limited
time and then is removed from care when the original child returns and questioned
how this is keeping them from being at risk.
Response: With limited child care resources, the Commission believes that
every opportunity to provide care should be explored.
Comment: One commenter agreed that children should not lose their space
for child care by complying with court-ordered visits but questioned by what
means Boards will be able to ensure that the space remains available. The
commenter further asserted that the Boards need authority to arrange for payment
for children who are affected by this arrangement and requested clarification
of the provision that providers are not paid for holding spaces open.
Response: The Commission requires the Boards to maintain the availability
of the slot for the child returning from court-ordered visitation or custody
if this can be accomplished without paying for the empty slot.
809.225 Continuity of Care.
Comment: One commenter expressed support for the rule that allows children
to move between funding streams as long as their parent is eligible for care
regardless of the waiting list.
Response: The Commission agrees that continuing children in care whenever
feasible is in the best interest of child care and development. Stability
provided by the child care support service for families working, in training
or education, or subject to the continuing need for protective services is
the purpose behind this section.
Comment: One commenter asserted the child care contractor staff should
determine if a child/family would meet another day care funded category before
the Texas Department of Protective and Regulatory Services (TDPRS) or Commission-funded
day care services are terminated and recommended that the rule include TDPRS
funded child care.
Response: Enrolled children shall receive child care as long as the parent
remains eligible for any available source of Commission-funded child care.
Nothing in this chapter shall be interpreted in a manner as to result in a
child being removed from care. Children who no longer receive TDPRS funded
care shall also continue receiving child care funded through the Commission
if eligible to receive care based on other eligibility criteria or if the
TDPRS or its caseworker indicates that the child is in need of protective
services.
Comment: One commenter questioned if the child care contractor will make
efforts to determine if the child is eligible for another funding category
of child care after being informed by a CPS worker that the child will no
longer be eligible for general protective day care services.
Response: Enrolled children shall receive child care as long as the parent
remains eligible for any available source of Commission-funded child care.
Nothing in this chapter shall be interpreted in a manner as to result in a
child being removed from care. Children who no longer receive TDPRS funded
care shall also continue receiving child care funded through the Commission
if eligible to receive care based on other eligibility criteria or if the
TDPRS or its case worker indicates that the child is in need of protective
services. The child care contractor would be responsible for determining if
the child is eligible for care through another funding source consistent with
the Board's policies.
809.227 Provider Billing Requirements.
Comment: One commenter recommended deleting this section based on the requirement
being contained in the Commission's policy manual on financial systems.
Response: The Commission agrees with deleting this section. These provisions
should be contained in the contract between the Board and the child care contractor.
Comment: Two commenters recommended adding a provision for these requirements
to also apply to self-arranged child care.
Response: The Commission agrees that self-arranged child care should be
subject to the provisions contained in the contract between the Board and
the child care contractor as applicable to provide the benefit to the parent
who chooses to self-arranged care with someone who has not executed a provider
agreement.
Comment: One commenter recommended changing the rule to read: "...later
than 45 (or 30) days after the end of the month in which the child care has
been delivered" to allow time for document turnaround.
Response: The Commission agrees with this recommendation, but will delete
this section because the terms of payment will be contained in the applicable
contracts.
809.228 Units of Service of Child Care.
Comment: One commenter recommended allowing Boards to decide the definition
of full-day and part-day and perhaps other designations of unit of service
to avoid overpayments and underpayments in specific situations.
Response: The Commission agrees with the Boards defining full-day and part-day,
and the rule is revised accordingly; however, the automated payment system
currently in use will accept only one full-day and one part-day entry per
day.
809.229 Provider Payment Based on Child Care Enrollment.
Comment: One commenter recommended adding to the end of the sentence "as
authorized by contractor."
Response: Although the Commission believes the rule is clear in its implication,
the recommended statement is added in order to clarify the meaning.
One commenter requested a definition of "occasionally."
Response: As circumstances will vary, the Commission declines to impose
a rigid definition. "Occasionally" would be defined as the dictionary definition
as determined by the Board and generally indicates an infrequent occurrence.
It would be within a Board's discretion to determine what would constitute
"occasionally."
Comment: One commenter expressed disagreement with the rule based on the
possibility that the provider may have to prepare an extra meal or pay a worker
to stay later because the child was there full time. The commenter further
suggested that the parent be required to contact the contractor for advance
authorization to attend full time.
Response: As this addresses an occasional circumstance, the Commission
does not consider it to impose a hardship on the provider and declines to
revise the rule.
809.230 Inclusion Assistance Rates.
Comment: One commenter asserted that the inclusion rate currently covers
the cost of allowing a more skilled staff to work with the child on a one-on-one
basis.
Response: The Commission agrees that the inclusion assistance rate may
include additional skilled staff to work with the child but may not necessarily
require a one-on-one basis. The Commission notes that the Boards have the
authority to establish all reimbursement rates, including those needed for
care for children with disabilities. Therefore, the rules are revised to delete
§809.230, and an additional provision is included in §809.231 to
clarify its relationship to provider reimbursement rates.
809.231 Provider Reimbursement Rates.
Comment: One commenter expressed concern that reimbursement to child care
providers is not keeping pace with the market. Another commenter questioned
what measures are being, or will be, taken to raise reimbursement rates since
provider reimbursement rates that are lower than the local market rate have
deterred some child care programs from becoming vendors.
Response: The proposed rule gives the Boards the authority to establish
reimbursement rates for purchased child care based on a market-rate study,
which will be provided by the Commission. The Commission will monitor the
Boards for compliance with this provision.
Comment: One commenter asserted local markets can be defined in various
ways and recommended the addition of the option that the Boards may conduct
their own market surveys.
Response: The Commission will continue to provide a market-rate survey
for each area every two years, which is the time period required by federal
regulations. If the Board wants a survey more frequently, the rule does not
prohibit it from conducting additional surveys. The survey is considered essential
for ensuring equal access, but is not the only factor to be used by the Board
in its determination of reimbursement rates.
Comment: One commenter expressed support for the rule that allows the Boards
to establish the reimbursement rates for child care using the market-rate
survey provided by the Commission. Another commenter appreciates the flexibility
for the Boards to design the service delivery system and particularly to set
child care reimbursement rates.
Response: The Commission believes that rates are best set at the local
level, taking into consideration the state survey of local market rates and
the federal requirements of providing equal access to child care. Based on
the guidance provided in the preamble to the federal regulations in 45 Federal
Register Part 98, regarding §98.43, Equal Access, at pages 39958 through
39960, the Commission believes that the Boards should have the flexibility
at the local level for setting rates that provide equal access. In addition
to other guidance, the preamble to the federal regulations states that "It
must be presumed that a rate that provides access to at least three-quarters
of all care does, in fact, provide equal access. "
Comment: One commenter requested clarification of the methodology for how
access to at least three-fourths of all child care services in the local market
will be determined, a timeline for when the first market-rate survey will
be available to the Boards, and the frequency of subsequent surveys. Another
commenter questioned if the survey will provide the rate amount that 75% of
providers in the region will accept.
Response: A market-rate survey will be available to the Boards prior to
the effective date of the rules, and a survey will be conducted every two
years in accordance with federal requirements. A Board may conduct additional
local surveys more frequently if it chooses to do so. The Commission notes
that the cost of a local survey may be prohibitive, and the Commission does
not require that such survey be performed. The survey will provide the data
collected regarding rates charged by providers in the area for the different
categories of care. From that data, the Board can establish the appropriate
rate. The Commission will provide technical assistance if needed by the Boards
to interpret survey data.
Comment: One commenter noted that reimbursement rates have not been increased
by the state since 1992 with the exception of an adjustment due to the increase
in minimum wage and contends that, as the reimbursement rate falls behind
the actual cost of providing child care, not for-profit providers are forced
to raise money to subsidize the amount being paid by the state or close their
programs. The commenter further contends that setting the rates on any regional
basis means that providers in some areas earn less than their counterparts
in other areas. The commenter recommended an increase of the reimbursement
ceiling by at least 10% in 2000 and 2001 and to continue to base regional
surveys on the cost of providing care.
Response: The proposed rule gives the Boards the authority to establish
reimbursement rates based on a market-rate survey that will be provided to
the Boards by the Commission. The survey will continue to be based on the
actual cost of providing child care in the respective area.
Comment: Two commenters recommended the provision that the Boards have
the option to provide higher reimbursements rates for providers on the Designated
Vendor track.
Response: As a Board can establish reimbursement rates, a Board already
has the authority to establish higher reimbursement rates for Designated Vendors
if it so chooses.
Comment: One commenter asserted that the Boards should be allowed to conduct
market-rate surveys as a basis for setting reimbursement rates, perhaps with
Commission guidelines for survey requirements. The commenter recommended the
phrase "provided by the Commission" be eliminated. Two other commenters recommended
that the Boards be authorized to conduct the market rate study.
Response: The Commission will provide a survey every two years in accordance
with federal guidelines. However, the rules do not preclude the Boards from
conducting a survey more frequently. The Boards have the authority to establish
the reimbursement rates using the results of the survey along with other criteria.
Comment: One commenter requested a revision to require that market-rate
surveys be conducted every two years.
Response: The federal regulations require payment rates to be based on
a local market-rate survey conducted no earlier than two years prior to the
effective date of the State Plan. Therefore, the survey will be conducted
no less than every two years. The Commission does not believe it is necessary
to reiterate this requirement in the state rule.
Comment: One commenter noted that setting rates that allow access to at
least three-fourths of all child care services in the local market, with no
increase in funds, will result in a decrease in the number of children in
care and will hinder the Welfare to Work efforts.
Response: The Commission understands this dilemma; however, the requirement
to have payment rates that ensure equal access for children receiving Commission-funded
child care is a federal regulation. The problem exists whether the Commission
or the Boards establish the reimbursement rates. The Commission believes the
Boards have more comprehensive information regarding the availability of services
in the local area and, therefore, can better establish rates that meet the
local need.
809.232 Provider Reimbursement for Transportation.
Comment: One commenter requested that transportation be reimbursed separately
and not subject to the limitations in §809.231 in order to encourage
more providers to provide transportation. The commenter recommended a maximum
transportation rate of $2.00 per trip.
Response: The Commission believes this is a decision most appropriately
made by the Boards based on local needs and circumstances. However, reimbursement
rates should comply with the equal access regulations and the requirements
in §809.231. The recommended maximum transportation rate may be too high
or too low, depending on the local market and what is required for equal access.
809.234 Payment for Operating Expenses and 809.235 Billing.
Comment: One commenter recommended deleting these sections based on the
requirements being contained in the Commission's policy manual on financial
systems.
Response: The Commission agrees with deleting §809.234 and revises
§809.235 to retain only the provision that the Boards are responsible
for ensuring that bills are processed and submitted to the Commission in a
timely and efficient manner.
809.235 Billing.
Comment: One commenter recommended the time limit for the Boards to bill
the Commission, after obtaining billing from the contractors, be extended
to 60 days to give consideration to small Boards who may not have a large
accounting staff. Another commenter requested that the rule clarify that payment
for services provided are made on a cost reimbursement basis. The commenter
also recommended the rule include requirements for submittal of bills by providers.
Response: Fiscal procedures between the Commission and the Boards are included
in the Board contracts and the fiscal management manual. Subject to those
limitations, the Boards have the authority to establish procedures, and the
Commission revises this section to reflect that the Boards have general responsibility
for ensuring that bills are processed and submitted to the Commission in a
timely and efficient manner. The Commission does not believe the rules should
prescribe arrangements between a Board and its contractors.
809.251 General Fraud Investigation Procedures.
Comment: One commenter expressed concern that the fraud investigations
procedures will be difficult to implement, that staff are neither trained
nor experienced in investigative procedures or legal processes, and that the
Boards do not have adequate staff to carry out this requirement. Another commenter
questioned who is accountable for investigating suspected fraud.
Response: The Commission does not expect the Board to pursue criminal investigations.
As situations that may be fraudulent arise, the board is responsible for documenting
the relevant facts and forwarding an incident report to the Commission. Commission
staff will review the facts and determine the nature of the investigation
required and, consequently, if it will be a state or local responsibility.
Cases that need procedural follow-up will be returned for Board action. Those
that may require prosecutorial action will be further investigated by the
Commission. The Commission will provide training for Board staff to assist
them in understanding the procedural issues and appropriate action. The Commission
will also clarify the responsibilities of the Commission and the Boards in
this process.
Comment: Two commenters stated an assumption that the United States Department
of Health and Human Services (HHS) and the Department of Labor (DOL) policies
are taken into account when developing fraud procedures.
Response: The Commission continually coordinates with federal agencies.
Proposed rules are not in conflict with HHS or DOL policies.
Comment: Two commenters asserted that the Commission should be responsible
for fraud investigation because the Boards do not have the resources to pursue
investigations.
Response: A Board's responsibility concerning fraud investigations will
be in relation to procedural activities for which the Board is responsible.
The Board will have more knowledge and expertise regarding these issues than
the state staff could obtain. Criminal investigations will be pursued by the
Commission.
809.253 Action to Prevent or Correct Suspected Fraud.
Comment: One commenter recommended deleting this statement.
Response: If there is a suspicion of fraud, temporarily withholding payment
is a responsible and necessary action until the suspected violation has been
investigated and determined to be true or false.
809.271 - 809.273 Subchapter M. Appeal Procedure.
Comment: Two commenters asserted that a Board's review of adverse action
will require additional costs of time and money for the Boards and customers
and that the customer who elects to continue receiving child care services
through the process, including appeal to the Commission, incurs a great debt
to be repaid.
Response: As the Boards have administrative responsibility for delivery
of child care services, the Commission believes they must be included in the
process for review of adverse action.
809.271 Child Care During Appeal.
Comment: One commenter asserted that parents should not be allowed to continue
child care during the appeal process and cites money owed from parents who
lost their appeal, which will not be repaid.
Response: The Commission believes that the maximum amount of due process
would include delaying termination of services pending an appeal until a decision
is reached.
Comment: Two commenters recommended adding non-payment of parent fees to
the list of reasons for not continuing child care during an appeal.
Response: The Commission agrees and revises the rule because this is consistent
with the intent of the section.
Comment: One commenter questioned how likely it is that the cost of providing
services during the appeal process would be recovered from parents, if the
Boards will be given technical assistance prior to implementing this sanction,
and under what circumstances this would be deemed an appropriate sanction.
Response: The Commission will assist the Boards in understanding appropriate
action in regard to this process, including efforts to recover overpayments.
Services will continue during any appeal, except for the provisions of §809.271
(b), and would be considered an overpayment if the appeal decision is rendered
against the parent. The likelihood of recouping the cost of services would
depend on the circumstances of the appeal.
809.272 Board Review.
Comment: One commenter asserted that adverse action as a result of a federal
or state rule should be appealed direct to the Commission and does not need
a Board's review.
Response: Although the Boards cannot overrule a federal or state requirement,
the Board should review the issue to determine that appropriate action was
taken in accordance with the federal or state requirement before an appeal
is forwarded to the Commission. This procedure will allow the Boards to cure
local errors and assist in ensuring that appropriate action is taken.
Comment: One commenter expressed support for the Boards being responsible
for the first round of the appeals process but anticipates a financial burden
as a result of staff time required. The commenter requested additional funds
for this purpose.
Response: All child care funds have been contracted to the Boards with
the exception of less than three percent retained for state administration.
Comment: Two commenters recommended that the appeals process should remain
with the Commission and this section should be deleted. Another commenter
questioned how a Board can also be the entity to hear appeals of parents and
providers and if this will be the responsibility of their contractor.
Response: The Boards have administrative responsibility for delivery of
child care services and is the first level of review of a situation involving
adverse action. The Boards have an inherent advantage to resolving appeals
at the local level and potentially modifying actions, educating parties, and
implementing and monitoring procedures to improve communication and implementation
at the local level. The local review is an integral part of improving local
education of both parties and improving communication and dispute resolution
methods to address matters that may arise at the local level. After the local
review is performed, in which a Board may choose to reconsider the initial
local action or support the local action, the party that disagrees with the
Board action can then appeal to the Commission for a state level review. The
Commission believes that the two-tiered appeal process benefits the Board
in its implementation and understanding of all issues related to the local
child care delivery system. The Board, not the contractor, is responsible
for reviewing a case, upon request, to determine if appropriate action was
taken. If any party does not agree with the determination made by the Board,
the party may request a Commission hearing to appeal the results of the review.
809.273 Appeals to the Commission.
Comment: Two commenters recommended changes in this process because of
a previous recommendation to delete the provision for a Board to review adverse
action.
Response: The Commission declines to delete the provision for a Board to
review adverse action because changes in this provision are not appropriate.
The Commission believes that local consideration and responsibility make local
review a means of improving quality and communication at the local level.
809.282 Provider Agreement Violations.
Comment: One commenter noted that the proposed rule asks that the CCMS
ensure corrective action is taken by CCMS when a vendor does not comply with
licensing standards and contends that the CCMS should work in cooperation
with the Texas Department of Protective and Regulatory Services (TDPRS) Child
Care Licensing Division but should not initiate corrective action concerning
another agency's regulatory burden.
Response: The Commission agrees that the corrective action regarding a
licensing violation is under the purview of TDPRS. The corrective action referred
to in the rule is corrective action on the part of the Board to ensure that
children are not placed in care with a provider who is in violation of licensing
standards.
Comment: One commenter objected to the rule that specifies the Boards shall
ensure payments are not made to vendors on a day in which the attendance exceeds
the state-licensed capacity and recommended that the Board be given discretion
in this area to put more emphasis on the staff-child ratio.
Response: The Commission recognizes the importance of health and safety
requirements and believes that the standards, particularly those relating
to providers not exceeding capacity levels, should be adhered to by providers
receiving Child Care Development Funds and, thus, the Commission disagrees
with revising the rule.
809.283 Corrective and Adverse Action.
Comment: One commenter recommended clarification that the Board or its
child care contractor may terminate a Provider Agreement for failure to adhere
to the requirements of the agreement itself.
Response: The Commission believes that §809.282 provides this clarification.
Comment: One commenter requested further definition of terms for termination
of a Provider Agreement, specifically, the situation of repeated non-compliance
with the agreement.
Response: §809.282(f) authorizes a Board to take corrective action
as a response to agreement violations including, but not limited to, those
indicated under §809.283. This gives the Board the latitude to take the
action it deems appropriate.
809.284 Noncompliance with Other State or Federal Programs.
Comment: One commenter requested clarification concerning the state and
federal laws for which the Boards are responsible for ensuring compliance
of contractors and providers.
Response: The requirements contained in 45 Federal Register Parts 98 and
99 set forth requirements applicable to providers, particularly with regards
to non-discrimination, and other compliance requirements.
809.285 Reapplication for Provider Status after Termination or Nonrenewal
of the Provider Agreement.
Comment: One commenter asserted that the reapplication process involves
local processes and should be determined by the Boards.
Response: The Commission agrees and the rule is revised accordingly.
Comment: One commenter requested the words "or nonrenewal" be inserted
after "termination" and before "date of the Provider Agreement...."
Response: The Commission agrees and the rule is revised to add this wording
because it is consistent with the intent behind this section.
809.286 Recovery of Overpayment.
Comment: One commenter concurred that the child care contractor should
be responsible for overpayments, but recommended consideration be given for
unusual circumstances that might arise that would be out of the contractor's
control and that, in these cases, the Commission be responsible for the overpayment.
Response: The Commission does not have a contingency fund for these payments;
the administrative responsibility is transferred to the Boards along with
the authority to establish policies and procedures.
Comment: Two commenters asserted the Boards should not be liable for overpayments
for which a reasonable effort has been made to collect.
Response: Child care funds have been contracted to the Boards along with
administrative responsibility for the delivery of child care services. Thus,
liability for overpayments is an administrative responsibility.
809.288 Failure to Meet Performance Standards.
Comment: Two commenters asserted that it will be difficult and expensive
for a Board or its contractor to recover payments made during the appeals
process, which is lengthened by the new appeal procedures, and suggest that
the additional costs of tracking and staffing may exceed the benefit of collection
of the debt.
Response: Due process requires that benefits not be denied during an appeal
process. Fiscal responsibility requires that recoupment be attempted for any
payment for which it is later determined the recipient was not eligible.
Comment: One commenter asserted the principal parts of this section refer
to process measures for eligibility determination and Provider Agreements
rather than to performance standards. The commenter questioned if the process
measurements need to continue, but, if so, recommended revised wording.
Response: In response to another comment, this rule has been revised. Although
the process for reviewing eligibility determinations has been deleted from
the rule, the Commission emphasizes the importance of ensuring accurate eligibility
determinations.
Comment: One commenter asserted it should be a Board decision to determine
how many cases should be monitored, the benchmarks for acceptable levels of
service, and the penalties for non-compliance. The commenter further asserted
the Boards have a plan and process for monitoring the contractor using a monitoring
instrument that is more comprehensive and that it is more appropriate for
the Commission to monitor the Board's monitoring schedule and instruments.
Response: The Commission agrees that the rule may provide more flexibility
and modifies the rule by removing the provisions in subsection (b) and following.
The Commission intends to provide the Boards with as much flexibility as feasible,
while ensuring that appropriate monitoring is achieved. The rule is revised
accordingly.
Comment: One commenter questioned the appropriateness of the Commission's
authority to sanction the Board's contractors and also questioned what the
authority is for the Board to sanction contractors. The commenter suggested
that the Commission establish procedures for holding the Boards accountable
for the failings of their contractors.
Response: In response to another comment, the section referencing sanctions
of contractors has been deleted. The Boards will establish the procedures
for contractor accountability.
Comment: Two commenters questioned if this refers to only the quality assurance
standard and not Legislative Budget Board standards.
Response: The performance standards include references to all measures
of quality, including Legislative Budget Board standards, quality assurance
standards, performance measures, and other outcome measures. The proposed
rule addresses standards for client eligibility. Additional performance standards
will be developed with the assistance of a work group that includes representation
from the Boards. The Commission intends to modify performance measures by
working with local partners to determine appropriate standards and measures.
Comment: One commenter questioned under what circumstances the Commission
would recoup administrative costs in response to a Board's failure to meet
performance standards.
Response: In response to another comment, the provisions addressed by this
commenter are deleted from the rule.
Comment: One commenter questioned the basis of determining a monitoring
sample, consistently and fairly, and how frequently the Commission will monitor.
Response: The monitoring sample will be determined by a risk assessment
study, including such factors as the results of prior reviews, size of the
area and contract, and changes in management and staff. Several factors, including
the risk assessment results, could impact the monitoring frequency, but each
area can expect to be reviewed at least once each year.
Comment: One commenter requested clarification regarding what a Board and
its contractor are supposed to monitor as opposed to what other agencies are
monitoring so as to avoid duplication as well as to establish lines of responsibility.
The commenter further questioned if the Board and its contractors need to
be trained in the licensing standards used by the Texas Department of Protective
and Regulatory Services (TDPRS).
Response: There will be variations between contracts and workforce development
areas. Each Board is responsible for developing a monitoring plan based on
the risks associated with each contract, as well as federal requirements for
monitoring and oversight. A Board may determine that it has a high degree
of reliance on the internal monitoring performed by a contractor or the contractor's
monitoring of subcontractors and vendors. Overall responsibility for Board
monitoring includes the provisions in the rules, as well as federal and state
regulations cited in the rules. The Commission will monitor the Board in regard
to fulfillment of its oversight role and will review some contractor functions
to verify adequate Board oversight. The Boards are not responsible for monitoring
requirements established by other agencies not specified in the rules, but
the Boards and the Boards' contractor(s) should be familiar with TDPRS requirements
so that they will be able to report to TDPRS for further investigation any
possible violations that the Board or its contractor become knowledgeable
of in the course of fulfilling the responsibility.
General Comments.
Comment: One commenter expressed concern with the repeal of Texas Education
Code Chapter 9, which leaves CCMS without any legal basis, and how the legislature
will view the necessity for funding child care when it is an option.
Response: Note: As there is no Texas Education Code Chapter 9, the response
to this comment relates to the repeal of Texas Administrative Code Chapter
809 regarding the Child Care and Development Program. The majority of the
current rules are repealed and proposed as new rules. The status of child
care as a federal and state funded program does not change. The Child Care
Management System was developed before the workforce system. With the passage
of House Bill 1863, services were integrated with the Boards because child
care is vital to working parents served by the Boards. Boards will continue
to contract with service providers for intake, eligibility determinations,
and training services.
Comment: One commenter expressed concern with issues of planning, strategy,
quality control, and accountability as the state transitions from a unified
system to numerous Boards and the ability to guarantee consistency and congruence.
The commenter cites the automation system, federal guidelines, priority for
abused children, the labor intensity of child care, and the importance of
children as significant issues.
Response: The Commission agrees that child care services are critical to
our state's workforce and recognizes that today's children will become the
workforce of the future. We trust the Legislature's vision to integrate this
significant support service with other services available to families through
the local workforce delivery system. Further, the concept of local control
enables the Boards to establish policies and develop plans for services that
meet their residents' needs. All local plans will not be exactly the same,
but all will be based on common state and federal requirements, while incorporating
aspects unique to the particular area.
Comment: One commenter requested guidelines for the Boards in implementation
of their child care management system.
Response: The Commission intends to provide training and written information
for the Boards to use in designing and implementing their child care service
delivery system.
Comment: One commenter commended the Commission for clear instructions
to the Boards, a succinct list of assistance available to families transitioning
off public assistance, recognition of the need to balance quality control
by the state with flexibility at the local level, use of funds for quality
enhancement and training, and the requirement for "listed" homes to fulfill
health and safety requirements.
Response: The Commission appreciates this commenter's intensive analysis
of the rules.
Comment: One commenter expressed concern in melding the child care industry
with the workforce development system, particularly in regard to access to
child care services in career centers. The commenter noted that these systems
are mutually interdependent and there are numerous operational issues to be
considered.
Response: The Commission agrees that these issues require careful consideration
and believes the Boards are uniquely positioned to make these important decisions.
Comment: One commenter recommended that the rule be clear in regard to
intent so that the responsibilities of the various parties are understood.
Response: The Commission concurs and has made every effort to minimize
state requirements and give the Boards the authority to establish appropriate
controls at the local level.
Comment: One commenter expressed concern that complying with the rules
will be too great an expense for some child care centers to bear and that
small centers will find it difficult to stay in business if they must pay
someone to help bring them into compliance. The commenter suggested it may
be necessary to provide partial funding for the compliance process in order
to assure that child care spaces remain available.
Response: The Commission has eliminated many requirements from the rule
other than those imposed by federal regulations. The Boards are given authority
to establish policies that were previously imposed at the state level so that
they can better address local circumstances. Providers are encouraged to work
with the Boards and provide information relevant to their policy decisions.
Comment: One commenter recommended that the Boards be given more autonomy
in their operations, which would enable them to tailor their use of funds
to respond to the particular needs of their geographical regions as well as
to: 1) assure the Board has a permanent member who has expertise in current
child care practices; 2) provide training to Board members on child care needs
and services; and 3) assure fairness in contracting with service providers
for child care training and other services.
Response: The Commission agrees with providing the Boards with as much
autonomy as feasible to meet the needs of the local areas while balancing
the various federal and state statutory and regulatory requirements, including,
but not limited to, the eligibility, reporting, and funding requirements.
The Commission has granted a great deal of autonomy to the Boards with the
expectation that the Boards will plan service delivery to meet the needs of
the local area. To the extent that further flexibility can possibly be incorporated,
the Commission will strive to incorporate that flexibility as the Boards tailor
the local child care delivery in coordination with other workforce support
services. The Commission agrees with the first enumerated point and responds
that the chief elected officials in the local workforce development areas
are required, through state law, to appoint to the Boards a permanent representative
with expertise in child care in accordance with Texas Government Code §2308.256(g).
The Commission also agrees with the second and third points and is committed
to ensuring that training to Board members on child care needs and services
is accomplished, that available child care funds are contracted to the Boards,
and that the Boards have the discretion to use funds for training as needed,
including training for providers.
Comment: One commenter recommended that the Boards take advantage of the
newly established ability to use local donations to apply for federal funds.
Response: Although local funds have traditionally been used to match federal
funds, the Commission agrees that the Boards are in a unique position to be
more effective in obtaining and utilizing local donations to match federal
funds.
Comment: One commenter recommended the state continue to be diligent in
pursuing federal money and noted that grants are needed to match state funds,
as well as local funds.
Response: The Commission agrees with making all efforts to obtain the maximum
amount of federal funds.
Comment: One commenter agreed with increased flexibility for the Boards
but recommended continued state oversight, maintenance of the current service
delivery and automation system, and provision by the state of a basic planning
and service guide.
Response: The Commission plans to provide training, as well as written
guidance, for the Boards' consideration in developing their policies and procedures.
The Commission will also monitor local programs. The Commission will work
with the Boards to transition to an automated system that meets their needs.
The local service delivery system will be developed by the Boards in accordance
with the concept of local control established by House Bill 1863.
Comment: One commenter recommended that, where federal regulations governing
the Child Care and Development Fund do not require further regulation or explication,
that there be no further definition in state rules.
Response: The Commission agrees with this in concept but believes there
are some issues for which additional state guidance is prudent, particularly
during the integration of the child care support service with other workforce
services.
Comment: One commenter recommended that as much flexibility as possible
should be provided to the Boards in determining who will be served through
the local child care broker and how funds will be used to provide such services.
The commenter further suggested that defining eligibility too narrowly or
placing extraordinary requirements not in federal or state law or regulations
on the expenditure of funds limits the ability of the Boards to meet the needs
of their customers.
Response: The Commission agrees and believes that flexibility has been
granted to the Boards.
Comment: Two commenters requested more definitive language in the rules
to clarify responsibilities in regard to monitoring child care providers,
specifically the responsibility of TDPRS to monitor compliance with licensing
standards including those associated with the health and safety of children
in care and the responsibility of the Board's child care contractor to ensure
compliance with the terms of the provider agreement.
Response: Additional information regarding responsibilities is provided
in §809.42 (c).
Comment: One commenter expressed support for the rules moving responsibility
from the Commission to the Boards. Another commenter expressed support for
the autonomy that is proposed for the Boards and noted that the flexibility
provided will enable the Boards to address the needs and concerns of the local
areas. Another commenter is supportive of the Commission's efforts to enhance
local control of the child care management system. One commenter expressed
support for the proposed rules that allow more flexibility in how the child
care program is administered.
Response: The Commission acknowledges the comments and agrees that the
changes will enable the Boards to be responsive to the local employment, education,
and training needs of the local workforce areas through integrating services
with the workforce system designed to support working families and move families
off of public assistance.
Comment: One commenter noted that provisions in the proposed rules can
positively impact the education and information available to parents, financial
and programmatic support for improved quality in programs for children, and
stability in the child care industry.
Response: The Commission agrees that additional steps to continually improve
the quality of child care and child development is an integral part of providing
the child care support service. The Commission believes the Consumer Guides
will enhance parent choice through educating parents regarding various child
care options specific to the local area.
Comment: One commenter requested the Commission set out clear parameters
and expectations and provide extensive training, technical assistance, and
support, in addition to assigning responsibility for decision-making to the
Boards.
Response: The Commission understands these needs and intends to provide
the necessary information to the Boards.
Comment: One commenter expressed concern that all clients in the state
with the same or similar circumstances will not be treated equally as a result
of the Boards being allowed to determine certain eligibility requirements
and other policies. Examples cited are §809.46 and §809.92.
Response: As local circumstances vary, the Commission believes local control
over policies and procedures, beyond requirements of federal or state statutes
and regulations, results in a more effective service delivery system, as well
as being in accordance with state law which promulgates local control. State
law created the Boards as the method of delivery of workforce services including
the child care workforce support service. State law contemplates local discretion
to address the local needs of residents, employers, and persons transitioning
into the workforce.
Comment: One commenter expressed support for Commission rules that purport
a consistent statewide child care system and asserted that the rules should
provide an orderly process for: 1) communication about regulatory policies,
2) services to Child Protective Services families, including former cases;
3) exchanges between TDPRS and local child care services contractors; and
4) adequate consumer information for parents to make informed choices about
child care. The commenter also suggested the rules should contribute to a
consistent, ongoing automated data collection system to accumulate child care
information which may be shared with other state and federal agencies and
to record the cost and quality of care across the state.
Response: The Commission agrees with the importance of interagency communication
at both the state and local levels, as well as comprehensive consumer education
being provided to parents. The need to provide flexibility for Boards to integrate
child care services with other workforce support services will result in local
service delivery systems rather than a statewide system. The transition away
from a rigid central control is intended to enable and empower local residents,
employers, and communities to specifically address local needs. Nothing in
the new rules is intended to change the federal reporting and state data collection
to forecast and effectively support statewide workforce improvements and economic
development. The federally required data collection and state data collection
can be shared with other state and federal agencies, in addition to the Commission.
Comment: One commenter expressed concern that all interested parties may
have not had the opportunity to respond to the proposed rules due to the relatively
short public comment period and recommended that the public comment period
be lengthened to allow all stakeholders to participate in the process. The
commenter requested an extension of the comment period to approximately February
15 in order to read, understand, and prepare comments; to get input from other
parties; and to assess quality versus quantity.
Response: The Commission believes it is important to finalize rules as
quickly as possible so that the Boards can develop their plans and implement
the plans on a timely basis. The comment period is in accordance with standard
state procedures, and the Commission also mailed a copy of the proposed rules
to Board chairs, Board executive directors, child care contractors, the Child
Care Advisory Committee, other state agencies, and interested legislators
prior to the Texas Register publication of the proposal. Further, a public
hearing was held to obtain comment on the proposal. The Commission believes
it has made a good faith effort to solicit public comment and declines to
extend the comment period.
Comment: One commenter expressed concern that the contract language clearly
define and clarify the role of the child care contractor vs. the role of other
agencies established to work with child care issues. The concern is related
to regulatory responsibilities of TDPRS and potential for litigation if the
child care contractor assumes these roles.
Response: The rules do not redirect regulatory responsibilities from TDPRS
to the child care contractor. The rules require the Boards to ensure that
appropriate action is taken in regard to management of services funded through
the Child Care and Development Fund.
Comment: One commenter urged that input from the child care contractors
be considered in the transition of child care service delivery to the Boards
and access to child care through career centers.
Response: The Commission supports this concept.
Comment: One commenter asserted that Texas places too great a burden on
the current child care subsidy pool to meet the needs of parents in job training
programs and recommended that the legislature include funds specifically for
child care in all job retraining allocations.
Response: The commenter submitted this comment to the respective State
Senator, and the Commission agrees that this was the appropriate action. The
Commission has asked for general revenue funds to draw down additional federal
matching funds.
Comment: One commenter opposed a plan that would dismantle the statewide
system that handles all child care paperwork and urges the Commission to maintain
systems that have proven to be effective tools in child care administration.
The commenter recommended continuation of the current computer system.
Response: The current automated system will remain in place until a system
that better meets local needs may be developed with Board input.
Comment: One commenter asserted there is confusion over which functions
will remain with the Commission and which will be the responsibility of the
Boards and recommended determining and publishing who has responsibility for
these functions.
Response: The Commission believes that the rule specifies for which functions
the Boards have responsibility.
Comment: One commenter recommended establishment of a loan program for
workers who have been in child care for two years to enable them to advance
in their formal child development education and, if the student stays in child
care for three years after graduating, to forgive the loan.
Response: All child care funds are allocated to Boards except for state
operational costs. The Boards may choose to implement innovative programs
to improve the quality of child care.
Comment: One commenter questioned why the performance standards address
only the accuracy and timeliness of eligibility determinations and redeterminations,
considering that the Commission is advocating improvements in the availability,
affordability, and quality of child care.
Response: The Commission intends to convene a work group, including Board
representatives, in the near future to address comprehensive performance standards
for the child care system.
Comment: One commenter questioned whether the Boards will have much flexibility
in the design and implementation of a unique service delivery system, assuming
there are separate allocations for Board administration and contractor operations
which will not allow for much creativity regarding efficiencies and redesign.
The commenter further stated there will be opportunity for redesign and improvements
as operations move to the career centers, but there will be associated costs,
and the Boards need to have the flexibility to determine the best use of operational
funds.
Response: For FY 2000, there will be one allocation to the Boards for child
care, which will include administration and operational costs. For FY 1999,
a separate allocation was made for administration and operations; however,
a recently adopted Commission amendment to the current allocation rule enables
Boards to transfer funds between direct care categorical allocations. There
is a requirement that the total amount of administration and operational costs
not exceed the current allocation without a proportionate increase in the
number of children receiving services.
Comment: One commenter expressed concern with the liability associated
with the Boards or their subcontractors having the responsibility to oversee
compliance with health and safety issues of providers.
Response: Neither the Boards nor the contractors are responsible for oversight
regarding health and safety issues. In the course of monitoring operational
activities, any knowledge of a possible violation should be reported to the
cognizant agency.
Comment: One commenter agreed with the purpose of the rules, the program
goals, input from local entities in developing policies and plans for service
delivery, continued use of a statewide automated system until alternative
methods of managing information are developed, the proposed effective date,
the schedule for a public hearing, the general description of changes, and
the description of Subchapter A regarding general provisions. The commenter
also agreed with §809.2, 809.4, 809.13, 809.16-20, 809.41, 809.43, 809.45,
809.47-48, 809.62, 809.71, 809.73-74, 809.76-77, 809.91, 809.93, 809.101-105,
809.124, 809.221-223, 809.225-226, 809.228-230, 809.232-235, 809.252-253,
809.281-285, and 809.282.
Response: The Commission appreciates the public comments and agrees.
Comment: One commenter questioned whose responsibility it is to ensure
access to child care services through career centers and expressed concern
with resource requirements for this connectivity. The commenter requested
that the word "access" be fully defined and questioned if it means a presence
or full intake and referral capabilities. The commenter further questioned
how the Commission intends for the Boards to fund the connectivity if it is
required. Another commenter questioned if the Boards will be expected to assume
costs of co-locating child care services at one-stop centers.
Response: "Access" means having services available in the career center.
This could include a staff presence or, since individuals may apply for child
care services via telephone, telephone access to the child care contractor
could suffice. The extent of access provided after, at least, a minimum amount
of access is provided, is a Board decision, and the determining factor would
be that the client has full access to child care services. Additional funding
is not available for the connectivity required because all available funds
have been contracted to the Boards. It is the responsibility of the Boards
to ensure that access to child care services is provided through the career
centers. All of the resources for this activity have been contracted to the
Boards in those areas where a Board has a master contract with the Commission
and would be included in the amount allocated. The efficiencies of reducing
administrative costs at the local level through combining facilities and or
similar functions would be to the benefit of the Boards and at the discretion
of the Boards.
Comment: One commenter encouraged use of "child development" as a part
of the process of creating the workforce system.
Response: The Commission concurs with the importance of child development
as a part of child care.
Comment: One commenter contended that the issue of general liability should
encompass the roles and responsibilities of the CCMS contractors and the multitude
of regulatory agencies that carry specific regulatory burdens via state and
federal laws.
Response: The Commission agrees that liability is a concern of all interested
parties; however, the Commission believes it would be inappropriate to impose
additional requirements beyond those established by another state agency which
is invested with this responsibility. The rule provides for additional requirements
to be established, at the discretion of the Boards, because local decisions
will best meet the needs of the residents of the local area.
Comment: One commenter disagreed that the burden of regulation for general
liability and transportation should fall to the two agencies overseeing these
areas of operation. The commenter asserted that PRS would not be able to enforce
these regulations in the near future and that the regulations would have a
major financial impact on registered and licensed facilities. The commenter
also asserted it would be difficult to ensure that continued transportation
insurance was carried once the registration was completed. The commenter believes
that insurance is essential in advocating for the health and safety of children
and recommended that the current requirement of general liability and transportation
insurance be continued as a vendor requirement.
Response: The Commission believes that the requirements for insurance should
be addressed by the agencies that have the knowledge and authority related
to these issues. The Commission does not believe that the enforcement of regulations
or financial impact is a greater or lesser issue depending on which agency
establishes the regulation. The Commission supports diligence in ensuring
the health and safety of children, but defers to the cognizant agencies for
state requirements, as well as the Boards for local policies and procedures.
Comment: One commenter expressed support for access to child care services
through the career centers and the options that will enable the Boards to
best meet the needs of the local areas.
Response: The Commission appreciates the comment and agrees that "access"
is a necessary component of the child care support service.
Comment: One commenter recommended retaining the current statewide automated
system to establish eligibility for child care assistance.
Response: The statewide automated system will be continued until alternative
methods of managing information are developed. This will enable the Boards
to determine their needs and develop a management and payment system that
meets those needs.
Comment: One commenter recommended adding "federal and state laws and regulations"
as criteria for development of Board policies.
Response: The Commission believes it is fully understood that federal and
state laws and regulations must be complied with as Board policies are developed
and that it is unnecessary to make this statement.
Comment: One commenter recommended adding "while still complying with federal
and state laws and regulations" to the statement that the Boards may develop
procedures for administering child care services that best fit the local needs.
Response: The Commission believes the Boards will develop their procedures
fully in compliance with federal and state laws and regulations and does not
believe this qualifier is necessary.
Comment: One commenter referenced state law which requires licensed child
care centers to maintain $300,000 in general liability insurance and mandates
coordination of inspections by eliminating redundant inspections. The commenter
also referenced the Agreement of Joint Responsibility between the Commission
and TDPRS which addresses monitoring of day care centers for liability insurance
and asserted that funds will need to be provided to TDPRS if it assumes the
Commission's responsibility for monitoring. The commenter further stated that
TDPRS cannot legally monitor group day homes and registered family day homes
because the group day homes and registered family day homes are not required
by law to carry liability insurance. The commenter recommended continuation
of the current rule requiring providers of purchased child care to maintain
$300,000 in general liability insurance and a requirement for child care services
contractors to monitor the needed liability insurance.
Response: The Commission declines to impose insurance requirements beyond
those established by state law and the regulatory agency. The Board or its
contractor will continue to monitor child care providers to ensure that their
insurance coverage complies with what is required for their type of facility.
Comment: Two commenters requested clarification of "child care expertise"
in relation to the Board child care representative and questioned the meaning
of "permanent child care representative." The commenters also questioned if
all other Board member requirements apply.
Response: "Child care expertise" means special skill or knowledge on the
subject of child care. "Permanent child care representative" means there will
continue to be a child care representative on the Board. The individual is
subject to other Board member requirements, such as representative of the
private sector, or a representative of organized labor and community-based
organizations. This individual would serve in a dual capacity. The 74th Legislature
amended Texas Government Code §2308.256 regarding Board Membership to
include that "(g) At least one of the members of a Board appointed under Subsection
(a) must,
in addition to the qualifications required
for the member under the subsection
, have expertise in child care or
early childhood education. " [Emphasis added].
Comment: Two commenters inquired as to the status of the Child Care Services
Manual.
Response: A new manual will be published after the final rules are adopted
by the Commission and as soon as feasible to aid the Boards in exercising
the new flexibility incorporated into the new rules. Subchapter A. General
Provisions
The new rules are adopted under Texas Labor Code §301.061
and §302.002, which provide the Commission with the authority to adopt,
amend, or repeal such rules as it deems necessary for the effective administration
of Texas Workforce Commission programs, and under Texas Human Resources Code
§§31.010, 31.0035, and 44.002.
§809.1.Short Title and Purpose.
(a)
The rules contained in this chapter may be cited as the
Child Care and Development Rules. The purpose of these rules is to interpret
and implement the requirements of state and federal statutes and regulations
governing child care and quality improvement activities funded through the
Commission, fully integrating child care services with other workforce training
and services under the jurisdiction of local workforce development boards.
(b)
For local workforce development areas where there is no
certified local workforce development board with an approved plan and the
Commission continues to administer the delivery of child care services, the
rules contained in this chapter shall apply to the Commission, its contractors,
and its providers of services.
(c)
The effective date of the rules in this Chapter 809 relating
to Child Care and Development shall be twenty days after the date of filing
the adoption in the Office of the Secretary of State; however, until September
1, 1999, the Boards shall continue to comply with the rules in effect on January
1, 1999.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on January
22, 1999.
TRD-9900451
J. Randel (Jerry) Hill
General Counsel
Texas Workforce Commission
Effective date: February 11, 1999
Proposal publication date: November 13, 1998
For further information, please call: (512) 463-8812
40 TAC §§809.11-809.20
The new rules are adopted under Texas Labor Code §301.061
and §302.002, which provide the Commission with the authority to adopt,
amend, or repeal such rules as it deems necessary for the effective administration
of Texas Workforce Commission programs, and under Texas Human Resources Code
§§31.010, 31.0035, and 44.002.
§809.14.Promoting Consumer Education.
(a)
A Board shall make available to parents a consumer guide
to child care providers who have Provider Agreements to provide Commission-funded
child care in the local workforce development area and shall represent the
name, address, and phone number of each provider and shall represent whether
each provider:
(1)
is licensed by the Texas Department of Protective and Regulatory
Services;
(2)
is registered with the Texas Department of Protective
and Regulatory Services;
(3)
has met the Designated Vendor standards of the Commission;
(4)
has submitted proof of general liability insurance;
and
(5)
has submitted proof of appropriate commercial transportation
insurance.
(b)
The consumer guide shall set forth the requirements to
be licensed and registered with the Texas Department of Protective and Regulatory
Services as set forth in Texas Human Resources Code, Chapter 42 and applicable
administrative rules and a description of the types of facilities or homes,
which may be licensed or registered including, but not limited to, the following:
day-care centers, group day-care homes, and family homes.
(c)
A Board shall ensure that the consumer guide also includes
the telephone number of the Texas Department of Protective and Regulatory
Services or applicable regulating agency, so parents may obtain or verify
the information regarding the providers and check compliance history.
(d)
The consumer guide may include additional information including,
but not limited to, the following:
(1)
information the Board determines would assist parents in
choosing a provider; and
(2)
information as established by the Commission.
§809.15.Quality Improvement Activities.
(a)
A Board shall ensure that providers receive orientation,
technical assistance, and ongoing training to improve the quality of child
care.
(b)
A Board shall ensure that the quality of child care is
improved by recognizing providers who voluntarily exceed the minimum standards
for qualification set by the Texas Department of Protective and Regulatory
Services by using the Designated Vendor criteria as established by the Commission.
(c)
A Board shall ensure that the quality of child care is
improved by using quality improvement activities including, but not limited
to, the activities described in 45 Code of Federal Regulations §98.51,
except the Boards may not provide loans.
(d)
In addition to the Designated Vendor criteria, a Board
may establish other voluntary criteria for improving quality and recognize
providers that meet or exceed the voluntary standards for quality.
(1)
The quality improvement criteria may include, but are not
limited to one or more of the following activities:
(A)
reducing group sizes;
(B)
improving health and safety conditions;
(C)
improving linkage to parents and community services; or
(D)
improving teacher training.
(2)
Boards may also choose to recognize professional
center accreditation as a means to improve quality.
This agency hereby certifies that the adoption has been
reviewed by legal counsel and found to be a valid exercise of the agency's
legal authority.
Filed with the Office of the Secretary of State on January
22, 1999.
TRD-9900452
J. Randel (Jerry) Hill
General Counsel
Texas Workforce Commission
Effective date: February 11, 1999
Proposal publication date: November 13, 1998
For further information, please call: (512) 463-8812
40 TAC §§809.41-809.49
The new rules are adopted under Texas Labor Code §301.061
and 302.002, which provides the Commission with the authority to adopt, amend,
or repeal such rules as it deems necessary for the effective administration
of Texas Workforce Commission programs, and under Texas Human Resources Code
§§31.010, 31.0035, and 44.002.
§809.41. General Requirements.
(a)
A Board shall ensure that child care is provided only
by persons or entities chosen by the parents and who:
(1)
meet provider requirements set forth in this chapter,
or
(2)
are eligible to provide self-arranged care.
(b)
A Board shall ensure that providers of child care comply
with all appropriate health and safety provisions as required by federal regulations
including, but not limited to, 45 Code of Federal Regulations Part 98 as may
be amended.
§809.42. Minimum Requirements for Providers.
(a)
A Board shall ensure that providers are at a minimum:
(1)
licensed by the Texas Department of Protective and Regulatory
Services;
(2)
registered with the Texas Department of Protective
and Regulatory Services;
(3)
licensed by the Texas Department of Health as a youth
day camp; or
(4)
operated and monitored by the United States military
services.
(b)
A Board shall ensure that the providers:
(1)
provide child care in compliance with a Provider Agreement
as specified in this subchapter; and
(2)
are not the subject of corrective or adverse action
with the Texas Department of Protective and Regulatory Services, the Texas
Department of Health, the United States military services, or any other state
or federal agency.
(c)
When a Board or the Board's contractor, in the course
of fulfilling its responsibilities, gains knowledge of any possible violation
regarding regulatory standards, the Board or its contractor shall report the
information to the appropriate regulatory agency.
§809.43. Provider Agreements.
(a)
Provider Agreements are agreements between the Board or
the Board's designee and the providers of child care, which:
(1)
are in writing and signed by the provider and the Board
or the Board's designee before child care services are rendered, and
(2)
specify the roles and responsibilities of the parties.
(b)
A Board shall ensure that the Provider Agreements include
notices, statements, and terms that detail provider obligations for complying
with federal and state statutes and regulations relating to child care including,
but not limited to, statements to ensure that discrimination is prohibited
as referenced in 45 Code of Federal Regulations §§98.20, 98.46,
and 98.47, as may be amended.
(c)
Failure to maintain a Provider Agreement shall result
in disallowed costs by the Commission.
§809.44. Provider General Liability Insurance Requirements.
The Boards shall determine whether general liability insurance, including
transportation insurance, will be required of providers in their areas and,
if so, the amount.
§809.48. Attendance Tracking.
(a)
A Board shall set the attendance standards for eligible
children in the local workforce development area, including provisions consistent
with §809.224 of this Chapter (relating to Custody and Visitation Arrangements).
Providers and self-arranged providers shall document and maintain a record
of each child's attendance and submit such documents to the Board's designated
contractor upon request.
(b)
When an enrolled child is absent, providers shall inform
the Board's designated contractor and shall follow attendance reporting and
tracking procedures required by the Commission, Board, or, if applicable,
the Board's contractor.
(c)
Failure by the provider to keep required attendance records
may result in withholding payment or in termination of the Provider Agreement.
§809.49. Provider Advisory Groups.
Providers, that are licensed centers, are required to establish a Parent
Advisory Group consistent with Chapter 44 of the Texas Human Resources Code.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on January
22, 1999.
TRD-9900453
J. Randel (Jerry) Hill
General Counsel
Texas Workforce Commission
Effective date: February 11, 1999
Proposal publication date: November 13, 1998
For further information, please call: (512) 463-8812
40 TAC §809.61, §809.62
The new rules are adopted under Texas Labor Code §301.061
and 302.002, which provides the Commission with the authority to adopt, amend,
or repeal such rules as it deems necessary for the effective administration
of Texas Workforce Commission programs, and under Texas Human Resources Code
§§31.010, 31.0035, and 44.002.
§809.61. Qualifications to Provide Self-Arranged Care.
(a)
A relative who is at least 18 years of age and is one
of the following is eligible to provide self-arranged care:
(1)
the child's grandparent;
(2)
the child's great-grandparent;
(3)
the child's aunt;
(4)
the child's uncle; or
(5)
the child's sibling, if the sibling does not reside
in the same household as the eligible child.
(b)
If chosen by the parent, a person or entity who has not
signed a Provider Agreement is eligible to provide self-arranged care if:
(1)
licensed by the Texas Department of Protective and Regulatory
Services;
(2)
registered with the Texas Department of Protective
and Regulatory Services;
(3)
listed with the Texas Department of Protective and
Regulatory Services;
(4)
licensed by the Texas Department of Health as a youth
day camp; or
(5)
operated and monitored by the United States military
services.
(c)
A Board shall ensure that requests made by the Texas Department
of Protective and Regulatory Services, for specific providers or persons eligible
to provide self-arranged care, are enforced for children in protective services.
(d)
Before authorizing a person or entity "listed" with the
Texas Department of Protective and Regulatory Services to provide child care,
a Board shall ensure that there are in effect, under local law, requirements
designated to protect the health and safety of children that are applicable
to the persons or entities "listed" with the Texas Department of Protective
and Regulatory Services. Boards may choose to not allow "listed" providers
as self-arranged providers. Pursuant to federal regulations at 45 Code of
Federal Regulations §98.41, the requirements shall include:
(1)
the prevention and control of infectious diseases (including,
immunizations);
(2)
building and physical premises safety; and
(3)
minimum health and safety training appropriate to
the child care setting.
§809.62. Reimbursement for Self-Arranged Care.
(a)
A Board shall ensure that reimbursement for self-arranged
care is paid:
(1)
to the self-arranged provider; and
(2)
after the Board or its contractor receives a complete
Declaration of Services Statement (Declaration) verifying that services were
rendered.
(b)
The Declaration shall contain:
(1)
the name, age, and identifying information of the child;
(2)
the amount of care provided in terms of units of
care;
(3)
the rate of payment;
(4)
the dates services were provided;
(5)
the name and identifying information of the self-arranged
provider, including the location where care is provided;
(6)
verification by the self-arranged provider that the
information submitted in the Declaration is correct; and
(7)
additional information as may be required by the
Boards.
This agency hereby certifies that the adoption has been
reviewed by legal counsel and found to be a valid exercise of the agency's
legal authority.
Filed with the Office of the Secretary of State on January
22, 1999.
TRD-9900454
J. Randel (Jerry) Hill
General Counsel
Texas Workforce Commission
Effective date: February 11, 1999
Proposal publication date: November 13, 1998
For further information, please call: (512) 463-8812
40 TAC §§809.71-809.77
The new rules are adopted under Texas Labor Code §301.061
and 302.002, which provides the Commission with the authority to adopt, amend,
or repeal such rules as it deems necessary for the effective administration
of Texas Workforce Commission programs, and under Texas Human Resources Code
§§31.010, 31.0035, and 44.002.
§809.73. Eligibility Documentation.
(a)
Parents shall provide the Board's contractor with all
information necessary to determine eligibility according to the Board's administrative
policies and procedures.
(b)
Failure to submit documents may result in:
(1)
denial or termination of child care services, or
(2)
no payment for self-arranged care claims.
This agency hereby certifies that the adoption has been
reviewed by legal counsel and found to be a valid exercise of the agency's
legal authority.
Filed with the Office of the Secretary of State on January
22, 1999.
TRD-9900455
J. Randel (Jerry) Hill
General Counsel
Texas Workforce Commission
Effective date: February 11, 1999
Proposal publication date: November 13, 1998
For further information, please call: (512) 463-8812
40 TAC §§809.91-809.93
The new rules are adopted under Texas Labor Code §301.061
and 302.002, which provides the Commission with the authority to adopt, amend,
or repeal such rules as it deems necessary for the effective administration
of Texas Workforce Commission programs, and under Texas Human Resources Code
§§31.010, 31.0035, and 44.002.
§809.92. General Eligibility Requirements.
(a)
The eligibility criteria set forth in this chapter are
based primarily on the federal and statute funding limitations. Nothing in
this chapter shall be applied in a manner that conflicts with those limitations
and the limitations contained in the use-of-funds provisions in the Commission's
child care allocation rule contained in Subchapter B of Chapter 800 of this
title (relating to Allocations and Funding).
(b)
For a child to be eligible for child care services, the
child's parents shall:
(1)
have a total gross income that does not exceed 85% of
the state median income for a family of the same size;
(2)
require child care to participate in training, education,
or employment activities; and
(3)
need the child care for a child under thirteen years
of age, unless a different age requirement is indicated in the applicable
eligibility rule contained in this chapter.
(c)
For purposes of this chapter, child care is needed to
support participation in education for a limited time as determined by the
Board.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on January
22, 1999.
TRD-9900456
J. Randel (Jerry) Hill
General Counsel
Texas Workforce Commission
Effective date: February 11, 1999
Proposal publication date: November 13, 1998
For further information, please call: (512) 463-8812
40 TAC §§809.101-809.105
The new rules are adopted under Texas Labor Code §301.061
and 302.002, which provides the Commission with the authority to adopt, amend,
or repeal such rules as it deems necessary for the effective administration
of Texas Workforce Commission programs, and under Texas Human Resources Code
§§31.010, 31.0035, and 44.002.
§809.101. Transitional Child Care.
(a)
A Board shall ensure that transitional child care services
will be provided for children of parents who have been denied TANF because
of:
(1)
employment and an increase in earnings which results in
being ineligible for TANF payments, or
(2)
expiration of TANF time limits.
(b)
Transitional child care is available for a period of up
to 12 months except in the case of an exempt TANF client who voluntarily participates
in the Choices program. For these individuals, transitional child care is
available for a period up to 18 months.
(c)
TANF clients who are not employed when TANF expires may
receive up to 4 weeks of transitional child care in order to allow these individuals
to search for work.
(d)
TANF clients who are engaged in an education or training
component that extends beyond the date that TANF expires, may receive transitional
child care in order to complete the component.
§809.102. Children of Parents Participating in the Choices Program.
(a)
Children eligible to receive Choices child care include
children of TANF recipients participating in the Choices program, in accordance
with the provisions of the Texas Human Resources Code, §§31.0035
and 31.012(c).
(b)
Child care shall be provided to children of parents participating
in the Choices program who need child care to accept employment and remain
employed.
(c)
Child care services for children of parents participating
in the Choices program shall continue for parents to participate in on-the-job
training unless the parents' on-the-job training earnings cause the denial
of a TANF grant.
(d)
Persons approved for Choices but waiting to enter an approved
initial component of the program may receive up to two weeks of child care:
(1)
when child care will prevent loss of the Choices placement,
and
(2)
if child care is available to meet the needs of the
child and parent.
§809.105. Children Receiving or Needing Protective Services.
(a)
A Board shall ensure that determinations of eligibility
for children needing protective services are performed by the Texas Department
of Protective and Regulatory Services.
(b)
Child care continues as long as authorized and funded
by the Texas Department of Protective and Regulatory Services.
(c)
In cases where the Child Protective Services (CPS) case
is closed and child care will no longer be funded by the Texas Department
of Protective and Regulatory Services, the Board shall continue the child
care by using other funding for the child care slot for up to six months after
they are no longer eligible for Texas Department of Protective and Regulatory
Services funds if the CPS worker or other Texas Department of Protective and
Regulatory Services staff states that the child needs to receive protective
services and child care is an integral factor of those services.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on January
22, 1999.
TRD-9900457
J. Randel (Jerry) Hill
General Counsel
Texas Workforce Commission
Effective date: February 11, 1999
Proposal publication date: November 13, 1998
For further information, please call: (512) 463-8812
40 TAC §§809.121-809.124
The new rules are adopted under Texas Labor Code §301.061
and 302.002, which provides the Commission with the authority to adopt, amend,
or repeal such rules as it deems necessary for the effective administration
of Texas Workforce Commission programs, and under Texas Human Resources Code
§§31.010, 31.0035, and 44.002.
§809.123. Children of Teen Parents.
(a)
A teen parent (teen) is an individual 18 years of age
or younger, or 19 years of age and attending high school or the equivalent,
who has a child.
(b)
A child of a teen may be eligible for child care if:
(1)
the teen needs child care services to complete high school
or the equivalent; and
(2)
the family's total gross income does not exceed 85%
of the state median income for a family of the same size.
(c)
For purposes of determining whether the family's total
gross income does not exceed 85% of the state median income for a family of
the same size, the following applies.
(1)
If residing with the teen's parent (the child's grandparent),
the teen shall include in the family's total gross income, the income of the
child's grandparent.
(2)
The teen is not required to include the grandparent's
income in the family's total gross income if the teen:
(A)
does not reside with the child's grandparent; or
(B)
is, or has been, married.
§809.124. Children Served by Special Projects.
(a)
Special projects developed in federal and state statutes
or regulations may add groups of children eligible to receive child care.
(b)
The eligibility criteria as stated in the statutes or
regulations shall control for the special project, unless otherwise indicated
by the Commission in the Board Planning Guidelines.
(c)
Special projects may include child care provided through
match initiatives as described in 45 Code of Federal Regulations Part 98.
(d)
The time limit for receiving child care for children served
by special projects may be:
(1)
specifically prescribed by federal or state statutes or
regulations according to the particular project;
(2)
otherwise set by the Commission depending on the
purpose and goals of the special project; and
(3)
limited to the availability of funds.
This agency hereby certifies that the adoption has been
reviewed by legal counsel and found to be a valid exercise of the agency's
legal authority.
Filed with the Office of the Secretary of State on January
22, 1999.
TRD-9900458
J. Randel (Jerry) Hill
General Counsel
Texas Workforce Commission
Effective date: February 11, 1999
Proposal publication date: November 13, 1998
For further information, please call: (512) 463-8812
40 TAC §§809.221-809.226, 809.228, 809.229, 809.231-809.233, 809.235
The new rules are adopted under Texas Labor Code §301.061
and 302.002, which provides the Commission with the authority to adopt, amend,
or repeal such rules as it deems necessary for the effective administration
of Texas Workforce Commission programs, and under Texas Human Resources Code
§§31.010, 31.0035, and 44.002.
§809.221. General Funds Management.
(a)
Boards shall ensure that resources are proportionately
allocated among eligibility groups so that priority for intake services is
assured for Transitional and Choices eligible children.
(b)
Children referred by Child Protective Services (CPS) workers,
for which care shall be provided through Texas Department of Protective and
Regulatory Services funds, shall also receive priority for available child
care openings. When Texas Department of Protective and Regulatory Services
funding stops and the CPS worker indicates that the child continues to need
protective services, the Boards shall continue the child care using the Child
Care and Development funds up to six months after they are no longer eligible
for Texas Department of Protective and Regulatory Services funds, so long
as the provision of care to the child does not result in another child being
removed from care.
§809.223.Eligibility Verification.
(a)
A Board shall ensure that its contractor confirms eligibility
before the contractor authorizes child care.
(b)
Eligibility for child care shall be redetermined:
(1)
any time there is a change in family income or other information
that could affect eligibility to receive child care; and
(2)
on an established frequency, at the Board's discretion.
§809.224. Custody and Visitation Arrangements.
(a)
A Board shall ensure that a child who is required by a
court-ordered custody or visitation arrangement to leave a provider's care
is permitted to continue receiving child care by the same provider, or another
provider if agreed to by the parent in advance of the leave, upon return from
the court-ordered custody or visitation arrangement.
(b)
A Board may encourage parents of other children to temporarily
utilize the space the child under court-ordered custody or visitation arrangement
has vacated until the child returns so that he or she can return to the same
provider.
(c)
A Board shall ensure that parents who choose to accept
temporary child care to fill a position opened due to court-ordered custody
or visitation shall not lose their place on the waiting list.
(d)
A Board shall ensure that parents who choose not to accept
temporary child care to fill a position opened due to court-ordered custody
or visitation shall not lose their place on the waiting list.
§809.225.Continuity of Care.
(a)
Enrolled children shall receive child care as long as the
parent remains eligible for any available source of Commission-funded child
care. Nothing in this chapter shall be interpreted in a manner as to result
in a child being removed from care. Children who no longer receive Texas Department
of Protective and Regulatory Services funded care shall also continue receiving
child care funded through the Commission if eligible to receive care based
on other eligibility criteria or if the Texas Department of Protective and
Regulatory Services or its caseworker indicates that the child is in need
of protective services.
(b)
Children currently enrolled in child care shall remain
in care when the Board assumes management of the child care services contract
and shall remain eligible as long as eligibility criteria are met.
§809.228. Units of Service of Child Care.
Unless otherwise determined by the Board and approved by the Commission
for automated reporting purposes, the funding of child care is based on the
unit of service delivered, as follows:
(1)
a full day unit of service is six to 12 hours of care
provided within a 24-hour period; and
(2)
a part-day unit of service is less than six hours
of care provided within a 24-hour period.
§809.229.Provider Payment Based on Child Care Enrollment.
(a)
Enrollment in child care begins the first day the child
is scheduled to attend child care as authorized by the contractor.
(b)
A Board or its contractor shall ensure that providers
are not paid for holding spaces open except as consistent with attendance
policies as established by the Boards.
(c)
If the child does not attend the first three days of scheduled
care, the provider has until the close of the third day of scheduled attendance
to contact the Board or the Board's contractor regarding the child's absence.
(d)
A Board or the Board's contractor shall not pay providers:
(1)
less when a child enrolled full time attends occasionally
for a part day; or
(2)
more when a child enrolled part time attends occasionally
for a full day.
§809.231. Provider Reimbursement Rates.
(a)
Based on a market rate survey provided by the Commission,
a Board shall establish the reimbursement rates for purchased child care to
ensure that the rates provide access to at least three-fourths of all child
care services in the local market and in a manner consistent with state and
federal statutes and regulations governing child care.
(b)
The Board or its contractor shall not reimburse a provider
retroactively for new reimbursement rates.
(c)
A Board or its contractor shall ensure that providers
who are reimbursed for additional staff needed to assist in the care of a
child with disabilities are paid a rate up to 190% of the provider's reimbursement
rate for a child of that same age.
(1)
The higher rate, which may be called an inclusion assistance
rate, is an increased provider reimbursement rate to provide for additional
staff to assist in the care of a child with disabilities, which shall take
into consideration the estimated cost of the additional staff needed by a
child with disabilities.
(2)
The Board shall ensure that a professional, who is
familiar with assessing the needs of children with disabilities, certifies
the need for the inclusion assistance rate.
§809.235. Billing.
A Board is responsible for ensuring that bills are processed and submitted
to the Commission in a timely and efficient manner.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on January
22, 1999.
TRD-9900459
J. Randel (Jerry) Hill
General Counsel
Texas Workforce Commission
Effective date: February 11, 1999
Proposal publication date: November 13, 1998
For further information, please call: (512) 463-8812
40 TAC §§809.251-809.253
The new rules are adopted under Texas Labor Code §301.061
and 302.002, which provides the Commission with the authority to adopt, amend,
or repeal such rules as it deems necessary for the effective administration
of Texas Workforce Commission programs, and under Texas Human Resources Code
§§31.010, 31.0035, and 44.002.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on January
22, 1999.
TRD-9900460
J. Randel (Jerry) Hill
General Counsel
Texas Workforce Commission
Effective date: February 11, 1999
Proposal publication date: November 13, 1998
For further information, please call: (512) 463-8812
Subchapter H. Commission Monitoring
Subchapter I. Monitoring by Boards, Subrecipients, and Contract Service Providers
Chapter 809.
Child Care and Development
Subchapter B. Contractor Requirements
Subchapter C. Child Care Provider Requirements
Subchapter D. Client Eligibility Requirements
Subchapter E. Client Eligibility Process Requirements
Subchapter F. Billing and Payment Requirements
Subchapter G. Program Monitoring and Compliance Requirements
Subchapter H. Corrective and Adverse Actions
Subchapter A. General Provisions
Subchapter B. General Management Requirements
Subchapter C. Requirements to Provide Child Care
Subchapter D. Self-Arranged Care
Subchapter E. Parent Rights and Responsibilities
Subchapter F. General Eligibility for Child Care
Subchapter G. Child Care for People Transitioning off Public Assistance
Subchapter H. Children of Parents at Risk of Becoming Dependent on Public Assistance
Subchapter K. funds Management
Subchapter L. Fraud Investigations
Subchapter M. Appeal Procedure