[29 Pa.B. 271]
[Continued from previous Web Page] § 3040.20a. Grandfathering provisions.
Issue: The Department has renumbered proposed §§ 3040.20a--3040.27 to conform to the Pennsylvania Code and Bulletin style requirements.
Comment: Paragraph (1). IRRC and commentators suggested that the Department allow a family eligible under this section to remain eligible for one year following the implementation date of the final-form regulations.
Response: The Department has revised the section to include the 1-year period.
Comment: Paragraph (1). Several commentators suggested that the Department maintain the current income limit of 235% of the FPIGs for any family who is receiving subsidy at the time the final-form regulations are implemented. The commentators also suggested that the family remain eligible for subsidy until the family income exceeds 235% of FPIG, suggesting that a family may be grandfathered for a longer time than the proposed 1-year limit of the grandfathering provision.
Response: The Department has not incorporated these suggestions because subsidized child care must be limited to those families who are most needy. The grandfathering provision is meant to offer a transition to those families whose income exceeds 185% of FPIG but is no greater than 235% of FPIG.
Comment: Paragraph (1). Commentators suggested extending the grandfathering provision to families on the waiting list whose income is between 185% and 235% of FPIG. This would allow those families currently on the waiting list to receive subsidized child care benefits for 1 year from the point the child begins receiving subsidy.
Response: The Department has not incorporated this suggestion because subsidized child care must be limited to those families who are the most needy. The grandfathering provision is meant to be a transition for families who are in the subsidized system and not for families on the waiting list.
§ 3040.28. Composition of a family.
Issue: The Department has redesignated subsections (a)--(d) to paragraphs (1)--(4) in the final-form regulations.
Issue: Paragraph (1)(i) (final-form regulations). The Department has added a provision to include in the family siblings who are 18 to 21 years of age, attending college and dependent on the income of the parent or the spouse or live-in companion of the parent.
Issue: Paragraph (1)(ii) (final-form regulations). The Department has added a provision to specify that siblings of the child in need of child care and the child's other parent, if living in the household, are included in the family composition.
Comment: Paragraph (1)(ii) (final-form regulations). Commentators recommended in subsection (a) of proposed amendments that teen parents who are residing in the home of their parents should be considered a separate family and not included in the family unit with the teen parent's parent.
Response: The Department has not incorporated the suggestions because it is the Department's position that parents have financial responsibility for their children. Recognizing the financial stress on these families, the Department had proposed adding a monthly income deduction of $300 for each family member for whom the grandparent is responsible under Chapter 3040, Appendix A, Part II(D) (relating to income deductions). The Department has retained this provision in final-form regulations.
Comment: Paragraph (3) (final-form regulations). Several commentators raised the concern that the Department's intent was not clear in subsection (c) of proposed amendments regarding which individuals the Department intends to exempt from including in the family in cases where the parent formerly received TANF.
Response: The Department has clarified that families who formerly received TANF will be exempt for 6 months after TANF ends from the provision that the live-in companion be counted as a part of the family.
Comment: Paragraph (4) (final-form regulations). Commentators questioned the requirement in subsection (d) of the proposed amendments that an individual may be included in only one family. In some circumstances, a judge may grant joint custody to the parents of the child and each parent is in need of subsidized child care.
Response: The Department has modified the section to allow a child whose parents are granted joint custody to be included in two families which are both seeking subsidized child care for the purposes of eligibility determination.
§ 3040.31. General requirements regarding family eligibility.
Issue: The Department has renumbered the proposed § 3040.31(5)--(7) and has relocated the substance of those paragraphs to § 3040.34(b)(2), (6) and (7). Section 3040.31(8) has been deleted. The substance of paragraph (4) has been relocated to §§ 3040.51(e) and 3040.53(g).
Comment: Paragraph (7). IRRC and several commentators requested that the Department include provisions for a parent to claim an exemption for good cause from the eligibility requirement of establishing paternity and establishing a child support order.
Response: The substance of paragraph (7) has been relocated to § 3040.34(b)(7) in final-form regulations. The Department has added a provision for a parent to be exempt from the requirements of establishing paternity and establishing a child support order if the parent can show good cause for failing to do so. The good cause exemptions are in § 187.23(a)(3) (relating to waiver of cooperation for good cause). For the purposes of subsidized child care, the CAO responsibilities listed in § 187.23(a)(3) will be completed by the eligibility agent and the requirements pertaining to cash assistance will be applied to subsidized child care.
§ 3040.32. Financial eligibility.
Comment: Subsection (a). IRRC and several other commentators questioned the replacement of the term ''paystub'' with the more general term ''income documentation.'' The commentators suggested that the Department restore the term ''paystub'' because it is a specific type of documentation for income from employment.
Response: The Department has restored the use of the term ''paystub'' when discussing income documentation because it specifically indicates income from employment.
Issue: Subsection (b). The Department has restructured and added an introductory statement to address situations in which the family member does not have paystubs to document earned income.
Comment: Subsection (d). IRRC commented that it appeared that the Department eliminated the exemption of earned income of unemancipated minors as a result of proposing to delete subsection (d) as it appears in current regulations.
Response: The Department has not eliminated the exemption of earned income of a minor. Earnings of a minor child are excluded under Income Exclusions listed in Appendix A, Part III.
Comment: Subsection (f). IRRC and other commentators recommended that the Department reconsider returning to the current income limit for eligibility for the subsidized child care program of 235% of FPIG rather than the proposed 185% of FPIG.
Response: The Department has retained the income limit of 185% of FPIG in final-form regulations. The subsidized child care program operates under a capped block grant and the Department must direct resources to the most needy families. Under the current system, approximately 90% of the children enrolled in care are from families whose income is less than 185% of FPIG. In addition, 185% of FPIG is in the higher range of income limits set by other states.
§ 3040.33. Documentation of self-employment income.
Issue: The Department has renamed this section ''Self-employment'' in final-form regulations.
Issue: Subsection (a). The Department has deleted the reference to the percentage of Social Security paid by the self-employed family member.
Comment: Subsection (b)(1). Commentators suggested that the Department expand the requirements and not limit the eligibility agent's review of the Federal Income Tax return document to Schedule C for an individual who has income from self-employment, but rather include all schedules related to self-employment.
Response: The Department has modified the provision to require that acceptable documentation of income from self-employment includes a copy of the family's Federal Income Tax Return including all schedules related to self-employment.
Comment: Subsection (b)(3). Several commentators raised the issue that the requirement for quarterly eligibility reviews for a family in which an adult member is self-employed is unreasonable as the income information typically does not change and the self-employed individual may not need to file quarterly tax statements if they are not paying estimated taxes.
Response: The Department has removed the requirement regarding quarterly tax statements. An annual Federal Income Tax Return is acceptable income documentation when the family member has been self-employed in the same business for more than 1 year.
§ 3040.34. Nonfinancial eligibility.
Issue: Subsection (a). The Department has deleted this subsection as proposed as duplicative of provisions in § 3040.31. Based on the deletion, subsequent subsections were redesignated.
Issue: Subsections (a) and (b) (final-form regulations). The Department has reorganized these subsections in the final-form regulations. Subsection (a) contains nonfinancial eligibility conditions which must be met at each determination and redetermination of eligibility. Subsection (b) contains those eligibility conditions which must be met or verified only at the initial eligibility determination. In addition, some requirements listed in proposed regulations in § 3040.31 were moved to § 3040.34.
Issue: Subsection (a)(1) (final-form regulations). The Department has clarified that the child's need for care must coincide with the hours of the adult family members' hours of employment or the minor parents' educational program.
Issue: Subsection (a)(2) (final-form regulations). The Department has added a provision that employed family members must be earning minimum wage, with exceptions for those individuals who are employed as laborers on a farm or are granted a subminimum wage exception by the Department of Labor and Industry.
Issue: Subsection (a)(3) (final-form regulations). The Department has specified the number of hours that an adult family member must work. In addition, the Department has replaced the specific dates in subsection (b)(4) of proposed amendments and indicated certain hours of employment required during the first 180 days (until July 31, 1999), and after 181 days from the effective date of the final-form regulations (August 1, 1999).
Issue: Subsection (a)(3)(iv) (final-form regulations). The Department has clarified that the parent of a family transferring to the subsidized child care program from the TANF program must be employed, and has 6 months from the date TANF ends to meet the number of hours of employment required under § 3040.34(a)(3)(i)--(ii) in the final-form regulations.
Issue: Subsection (a)(4). The Department has clarified that a minor parent who has not graduated from high school or has not completed the GED must be enrolled in an educational program and attend on a full-time basis. In addition, the Department has clarified that the verification of attendance at an educational program must be on a form prescribed by the Department.
Issue: Subsection (a)(5) (final-form regulations). The Department has made editorial corrections to the language in subsection (b)(8) of proposed amendments describing eligibility for subsidized care for a child during the parent's sleep time.
Issue: Subsection (a)(6) (final-form regulations). The Department has added a paragraph to address the employment and earning requirements of a minor parent who has graduated from high school or has a GED.
Issue: Subsection (a)(7) (final-form regulations). The Department has added provisions to specify that a parent whose child is receiving child care subsidy shall sign a self-certification statement that the child has received age-appropriate immunizations.
Issue: The Department has relocated the following subsections: (b)(4) has been relocated to (a)(3); (b)(5) has been relocated to (b)(1); (b)(6) has been relocated to subsection (c); (b)(7) has been relocated to (b)(2); (b)(8) has been relocated to (a)(5); and (b)(9) has been relocated to (b)(3).
Comment: Subsection (b)(4). Commentators suggested that the Department eliminate the requirement for a parent to be employed a minimum of 3 days per week and retain the requirement that a parent needs to be employed a minimum of 20 hours per week.
Response: The Department has eliminated the requirement that the parent must be employed for a minimum of 3 days per week. Under proposed amendments, a parent would have been required to work a minimum of 30 hours per week effective 1 year following the implementation of the final-form regulations. In response to the commentators concerns, the Department has revised the number of hours per week work requirement. Under the new requirement, a parent must be employed a minimum of 20 hours per week for a period of 180 days following the effective date of the regulations (until July 31, 1999), and a minimum of 25 hours per week effective 181 days following the effective date of the regulations (August 1, 1999). This change provides a transition for parents as they move toward self-sufficiency.
Comment: Subsection (b)(5). IRRC commented that the citizenship requirements should be listed in only one section rather than in the previously proposed §§ 3040.18 and 3040.34(b)(5).
Response: The Department has included the requirement that all family members must be citizens or aliens lawfully admitted for permanent residence or otherwise permanently residing under color of law, and has placed it in subsection (b)(1) of final-form regulations. Section 3040.18 has been deleted and reserved in the final-form regulations.
Issue: Subsection (b)(6) (final-form regulations). The Department has expanded the group of individuals who are permitted to use the release of information form in § 3040.31(5) of the proposed amendments to include staff from the Office of Inspector General (OIG).
Comment: Subsection (b)(6). Commentators suggested that the Department require photoidentification at a face-to-face interview.
Response: The Department has revised the requirement to include photo-identification and has modified the list of acceptable forms of identification in subsection (c) of the final-form regulations to include: a driver's license, a passport, a military identification card; an employment identification card; or other verifiable photo-identification.
Issue: Subsection (d). The Department has deleted this subsection as duplicative of provisions in subsection (b)(5) of final-form regulations.
§ 3040.35. Factors affecting eligibility status.
Issue: The Department has renamed this section ''Reporting changes'' in the final-form regulations.
Issue: Paragraphs (2) and (11). The Department also has modified this section to include in the factors that must be reported a change in training status and a change in custody or foster care arrangements.
§ 3040.36. Inability to be employed or continue participation in an education program.
Issue: Subsection (a)(1). The Department has modified this paragraph for consistency with regulations which require a medical assessment which verifies the inability of the adult family member to be employed or enrolled in an educational program and inability to care for the child. The Department has revised this paragraph to provide that a medical assessment form for a parent who is unable to participate in employment or educational activities and unable to care for the child must be completed by a licensed psychologist or physician.
§ 3040.37. Attendance requirements.
Comment: Subsection (b). Commentators expressed concern that the proposed requirement to discontinue subsidy for a child whose absence exceeds the proposed 10 consecutive enrollment days would not allow sufficient time for the child's parent to be notified prior to the subsidy discontinuance.
Response: The Department has not modified the language because it is not necessary. The eligibility agent must provide the parent with a written notice in accordance with § 3040.72 (relating to content of a written notice of adverse action). Section 3040.71(d) requires that this notice be sent at least 10 days before the date the action is proposed to be taken. If the parent appeals within 10 days, subsidy continues until a hearing decision is made.
Comment: Subsection (b). IRRC raised a concern that when the Department reduced the number of consecutive enrollment days during which a child may be absent from 20 days to 10 days without exceptions that the child may be determined ineligible for reasons beyond the parent's control, thereby disadvantaging the family. IRRC recommended that the subsection be amended to include absences for reasons such as hospitalization or illness.
Response: The Department has retained the 10-day limit on absences under this subsection. The Department recognizes that there are several valid reasons for absence which would exceed 10 days. These absences are not counted under this subsection. These reasons are listed in § 3040.52(d) (relating to eligibility agent responsibilities).
Issue: Subsection (c). The Department has revised this subsection to clarify that days of suspension, including those days when a child is absent for more than 10 days because of illness or hospitalization, are not counted toward the 30 allowable days of absence in a fiscal year. In addition, a parent may request a waiver of the 30-days-of-absence limitation for children who have a chronic disease.
§ 3040.38. Prospective employment or a prospective education program for new parent applicants.
Issue: The Department has renamed this section ''Prospective employment or a prospective education program for new applicants'' in the final-form regulations.
Issue: Subsection (a)(1). The Department has modified the language to state that employment or education must begin within 30 days from the date of application rather than the date of determination of eligibility.
Issue: Subsection (a)(2). The Department has modified the language to clarify that written verification of prospective employment or prospective education must be on a form prescribed by the Department.
Comment: Subsection (e). Commentators suggested that it is unclear as to how many 30-day periods of subsidized child care a parent who has exhausted all available TANF benefits could receive while looking for employment.
Response: For a parent who has exhausted his TANF benefits, there is only one 30-day period of subsidized child care to seek employment. The Department has revised this subsection to specify that the parent must apply for the 30 days of subsidized child care within 90 days of the date TANF benefits end.
§ 3040.40. Child care subsidy available to attend training.
Issue: The Department has added this section in the final-form regulations.
Comment: IRRC and other commentators suggested that the Department recognize that parents, especially those leaving TANF, should have the opportunity to attend training classes to enhance their job skills.
Response: The Department has provided for parents who meet the hourly work requirements to receive up to an additional 12 hours of child care per week. The training program must be accredited by a state or National board of examiners or recognized by the Department and must be designed to lead to a specific job.
§ 3040.51. General requirements in the eligibility determination process.
Issue: Subsection (d) (final-form regulations). The Department has added a provision for a family that transfers from TANF to subsidy within 90 days of the date TANF ends to begin receiving subsidy for the child on the date that the parent notifies the eligibility agent.
Issue: Subsection (e) (final-form regulations). The Department has added language to clarify that the initial determination of eligibility shall be completed within 90 days of the family's transfer from TANF and that the redetermination is set for 6 months from the date that TANF ends.
§ 3040.52. Eligibility agent responsibilities.
Issue: Subsection (a)(2). The Department has modified this paragraph to state that when a face-to-face interview is conducted, the eligibility agent shall document the identity of the parent who signs the application by noting in the family file the type of photo-identification used to verify the parent's identification.
Issue: Subsection (a)(6). The Department has modified this paragraph to include the eligibility agent's responsibility for advising the parent who formerly received TANF of the conditions to qualify for a retroactive child care benefit if the transfer from TANF did not take place the day after the date TANF benefits ended.
Comment: Subsection (a)(7). IRRC commented that the requirement for an eligibility agent to determine a family's eligibility for subsidized child care within 30 days should match § 165.43, in which eligibility for TANF individuals is determined within 15 days.
Response: The Department has not revised subsection (a)(7) because it wants to allow parents, who may never have applied for a public benefit such as TANF, adequate time to obtain all appropriate documentation to establish eligibility. The family is determined eligible on the day all verification is received by the eligibility agent regardless of when the eligibility agent processes the application, therefore, the family is not disadvantaged by the eligibility agent's workload.
Comment: Subsection (a)(7). Commentators requested that the Department clarify the section regarding the date of determination of eligibility.
Response: The Department has clarified that the date of initial eligibility for all families is the date that the eligibility agent has complete information to determine the family's eligibility.
Comment: Subsection (a)(10). Commentators requested clarification about how many face-to-face interviews were necessary.
Response: The Department has clarified that a face-to-face interview is required prior to the enrollment of the first child into the subsidized child care program. The eligibility agent may require other face-to-face interviews as needed.
Issue: Subsection (a)(10). The Department has modified the paragraph to state that the parent who completes the application shall acknowledge, in writing, his receipt and understanding of the rights and responsibility information.
Comment: Subsection (b)(1). IRRC and other commentators suggested that the provision for a complete redetermination of eligibility every 6 months is burdensome.
Response: The Department's position is that a redetermination every 6 months is reasonable given the potential for changes in the family income and the number of children on the waiting list. Under changes in § 3040.34(a) of the final-form regulations, the Department has clarified that not all information must be reviewed at each redetermination of eligibility. In light of this change, and the opportunity to use a mail-in redetermination, the Department has retained the provision as proposed.
Issue: Subsection (b)(2)(iii). The Department has deleted the provision that families with self-employed members be redetermined on a quarterly basis.
Issue: Subsection (b)(3). The Department has clarified that the eligibility agent shall notify the parent in writing, at each redetermination, of the documents needed to complete the redetermination of eligibility.
Issue: Subsection (b)(6). The Department has added a provision that the eligibility agent shall provide an application form prescribed by the Department to each parent to complete a redetermination. The parent may mail in or hand deliver the signed, dated form to the eligibility agent.
Issue: Subsection (c)(1). The Department has added language to clarify that the method of reporting changes agreed to by the parent and the eligibility agent must be noted in the family file.
Issue: Subsection (c)(3). The Department has clarified that when a parent reports changes in circumstances which do not affect the parent's co-payment, a full redetermination is not needed, a partial redetermination shall be completed, and the original period of eligibility is not changed as a result of a partial redetermination.
Issue: Subsection (e) (final-form regulations). The Department has added a provision to the eligibility agent's responsibilities that the eligibility agent must review a parent's circumstances for eligibility for subsidized child care up to the time of a request for closure when a parent voluntarily requests discontinuance of subsidized child care.
Issue: Subsection (f) (final-form regulations). The Department has added a provision which allows the Department to direct the eligibility agents on standards for designating the funding for different populations based on the eligibility criteria under this chapter.
§ 3040.53. Parents rights and responsibilities.
Issue: The Department has renamed this section ''Parent/caretaker rights and responsibilities'' in the final-form regulations.
Issue: Subsection (b). The Department has added a provision that both parents must sign the application in a two-parent household.
Issue: Subsection (d). The Department has clarified that the parent has the right to receive written notification regarding a change in the family's eligibility following a determination or redetermination of eligibility.
Comment: Subsection (g). IRRC and other commentators suggested that the requirement for a face-to-face interview is too burdensome for parents.
Response: The Department had not proposed to require a face-to-face interview at every redetermination of eligibility. The parent shall meet at least once face-to-face with the eligibility agent prior to enrollment of the first child in the family for subsidized child care. It is the Department's position that this is reasonable and not too burdensome for parents.
Comment: Subsection (g). Commentators questioned if there may be occasions when the parent would need to engage in more than one face-to-face meeting with the eligibility agent.
Response: The Department has not modified the language, as there are times when the eligibility agent may find it necessary to request additional face-to-face meetings if there are questions on the parent's ongoing eligibility for subsidized child care, or if there is new information on eligibility which can be conveniently reviewed in a face-to-face interview.
Issue: Subsection (g). The Department has added a provision to clarify that a family transferring from TANF shall meet at least once face-to-face with the eligibility agent within 90 days after transferring to the subsidized child care program.
§ 3040.54. Waiting list.
Issue: The Department has made revisions to this section. Provisions in § 3040.55(b) and (c) of the proposed amendments regarding subsidized care for additional children in the family and time limits for enrolling into subsidized care once funding becomes available have been relocated to subsections (b) and (c). These additions to § 3040.54 consolidate all information regarding waiting lists.
§ 3040.55. Maintaining a waiting list.
Issue: The Department has deleted and reserved this section. Subsections (b) and (c) have been relocated to § 3040.54(b) and (c) in the final-form regulations.
Comment: Subsection (a). IRRC and other commentators questioned the requirement that the eligibility agent redetermine the eligibility status for families on the waiting list every 6 months.
Response: The Department has eliminated the need for families on the waiting list to be redetermined every 6 months.
Comment: Subsection (c). IRRC and other commentators suggested that the Department consider allowing siblings of children already enrolled in service to be enrolled according to the date of the family's initial eligibility.
Response: The Department has maintained this subsection as proposed and relocated it to § 3040.54(b) in the final-form regulations. A child added to the family after the date the family was initially determined eligible is placed on the waiting list as of the date the parent requests care for the child. The Department has decided to maintain this position because these parents already have children in service and are receiving a benefit, while other parents with children on the waiting list are not receiving any subsidy benefits. Because the subsidized child care program is capped, it may not be possible to provide all the benefits needed for every child in every family. The eligibility agent will discuss this with each parent at the time of initial determination.
§ 3040.61. General requirements regarding fee payment.
Issue: The Department has renamed this section ''General requirements regarding co-payment'' in the final-form regulations.
Issue: The Department has replaced the term ''weekly family fee'' with ''co-payment'' to be consistent with Chapter 168 and to clarify that it is the parent's responsibility to contribute to the cost of subsidized child care.
Issue: Subsection (b). The Department has added an exception to the rule requiring payment of an advance co-payment prior to enrollment of a child. A family who transfers from TANF has until the first redetermination to pay an advance co-payment.
Comment: Subsection (h)(4). Commentators questioned the Department's proposal to remove the penalty for parents who are habitually delinquent in payment of the assessed co-payment.
Response: The Department has added a penalty clause that states that a family whose eligibility for subsidized child care is discontinued because of habitual delinquency of payment of the co-payment will not be permitted to reapply for subsidized child care for 90 days following the date the delinquent co-payments have been paid.
§ 3040.62. Availability and use of the FPIG.
Issue: Subsection (b). The Department has deleted the proposed subsection regarding the use of FPIG and the calculation of the family fee because it is not necessary in this section. Subsection (c) in the proposed amendments has been redesignated subsection (b) in the final-form regulations.
Issue: Subsection (d) (final-form regulations). Subsection (d) in the proposed amendments has been redesignated subsection (c) in the final-form regulations.
§ 3040.63. Determining a weekly family fee.
Issue: The Department has renamed this section ''Calculating a co-payment'' in the final-form regulations.
Issue: Subsection (a). The Department has added a new provision to identify factors the Department considers in determining co-payments. As a result of this addition, subsequent subsections have been redesignated. In subsection (a)(3), the Department has added a provision that a family's annual co-payment cannot exceed 14.5% of the family's annual income.
Issue: Subsection (a). The Department has revised the methodology in subsection (a) of the proposed amendments, which has been redesignated subsection (b) in the final-form regulations, describing the determination of a family's annual income.
Issue: Subsection (c). The Department has revised the formula in subsection (c) of the proposed amendments which has been redesignated as subsection (d)(1) and (2) in the final-form regulations. The Department has created this formula to establish the process used to derive a family co-payment. To determine the co-payment, the eligibility agent or the parents do not need to use this formula because the results of the calculations are set forth on a chart in Appendix B, Co-Payment Schedule. The formula is used by the Department as the basis to develop Appendix B. The eligibility agent or the parent can easily locate, in Appendix B of these final-form regulations, the appropriate co-payment if they know the amount of the family's annual income and family size. In § 3040.63(d)(1) of the final-form regulations, the Department added a description of how the eligibility agent uses Appendix B to calculate the parent co-payment.
Comment: Subsection (c). IRRC and other commentators expressed concern that the amounts of the proposed increases in the co-payment were too high and that the cost of care should not be included as a factor in determining co-payment levels. Commentators generally felt that the cost of care should not be a consideration in determining the co-payment calculation because the cost of care as indicated in the proposed regulations did not take into account variances in costs in different geographic areas across the State nor did it take into account varying cost of care for children of different ages. Families in areas with higher child care costs and those with young children may be able to find only care more expensive than the average cost range for the State.
Response: The proposed § 3040.63(c) has been redesignated § 3040.63(d) in the final-form regulations. The Department has revised the methodology for determining the family co-payment in these final-form regulations by removing the factor for cost of care. After consideration of comments, the Department has determined that it will use family size and income to determine the co-payment.
In § 3040.63 of the final-form regulations, the Department has set forth the methodology used for determining the co-payment by either using the charts in Appendix B as described in § 3040.63(d)(1) or by using a formula as described in § 3040.63(d)(2). The charts in Appendix B include the family income as a percentage of FPIG and family size. In future years, the charts in Appendix B will be adjusted annually based on annual changes to the FPIG.
The Department has adopted the new co-payment amounts in Appendix B, which is the first revision in co-payments since 1992. The Department's methodology in creating the co-payment charts is reasonable and in line with what other states are using. In fact, some states are setting maximum annual parent co-payments as high as 16% to 18% of the parent's annual income, while the Department has capped the co-payment at 14.5% of the parent's annual income for those receiving subsidy whose income does not exceed 185% of FPIG. Families whose annual income is at or below 100% of FPIG will not pay more than 10% of their annual income for a co-payment. The parent's co-payment for subsidized child care will always be lower than that of the family on the waiting list who is paying the full cost of care and that of the TANF family who was receiving the child care disregard of a maximum of $175 per month per child for a child age two or older and $200 per child for a child under 2 years of age. In some counties, parents came forward in public forums to indicate that they would not mind paying more each week if it were to help serve additional families on the waiting list.
Even with the changes in these final-form regulations, the demand for child care by families with incomes below 185% of FPIG will grow. The Department believes that the current waiting lists reflect only a portion of the eligible families. The current waiting lists reflect only those families who are willing to wait for a child care subsidy. Because of the long waiting lists, many individuals have not continued the eligibility process necessary to keep their position on the waiting list. The Department expects that as more potentially eligible families learn that families are being enrolled into service from the waiting list, more families will come onto the waiting list.
The family weekly co-payment calculation has been designed to support the most needy families. Overall, the family co-payment calculation provides increases in family weekly co-payment as family income increases to help ease the transition from subsidized day care to nonsubsidized care. The increase also will result in more funds being made available to serve additional children who are on the waiting list.
Comment: IRRC and other commentators commented that the Department's proposed amendments on parent co-payments did not correspond with some of the areas of the CCDBG statute, proposed Federal CCDBG regulations and preamble. Final regulations have now been published. IRRC and other commentators suggested that the preamble and proposed Federal regulations indicated that a parent co-payment should not exceed 10% of the parent's income and states should avoid using the cost of care as a factor when designing the parent co-payment level as these factors may conflict with equal access or parental choice. Also IRRC questioned if the Department is violating Executive Order 1996-1 because the proposed co-payment exceeded a Federal standard.
Response: The Department has reviewed the CCDBG statute and final Federal regulations and has concluded that the Department's final-form regulations do not conflict with the Federal regulations or the CCDBG statute. The Department notes that the preamble to the final Federal regulations at 63 FR 39960 merely recommends that a family co-payment be capped at no more than 10% of the parent's income and cost of care should not be considered as a single factor in determining a co-payment. The Federal regulations are silent on these issues.
The final Federal regulations do not specify a cap of 10% or any other amount for the parent co-payment and do not prohibit states from using cost of care in determining the parent co-payment. However, the Department has decided not to use the cost of care in these final-form regulations. The Department has not violated Executive Order 1996-1, as the Department's regulations do not exceed a Federal standard. The Department continues to maintain that its final co-payment calculation, which includes parent co-payments up to 14.5% of a parent's annual income, is reasonable. The Department's co-payment does not exceed 10% of the parent's annual income when the annual income is less than or equal to 100% of FPIG. It is reasonable that, as families move toward self-sufficiency, they should pay an increasing amount towards child care costs.
The Department has a State plan that has been approved by ACF. The approval confirms that ACF has found the Commonwealth's plan to be in compliance with Federal law. In the State plan, the Department informed ACF officials that it was proposing a regulation that included an increase in the co-payment calculation and that it would send ACF the final co-payment calculation upon the adoption of the final-form regulations. When ACF receives the Commonwealth's amended child care plan, based on the final-form regulations, ACF will review the amended plan to determine the Commonwealth's compliance with the CCDBG.
It has not been demonstrated that up to 14.5% of the parent's income is too high an amount for parents to pay. For example, a single mother who has two children and earns $25,500 per year is not eligible for subsidy, as her income is slightly above 185% of FPIG. She needs child care which costs $325 per month for one child. Her annual child care costs are $3,900 per year or 15% of her income. Parents who exceed the income limit for subsidized child care frequently select care which exceeds 14.5% of their annual income. TANF families who now pay the disregard already pay a higher percentage of their income than what is required under Child Care Works and many families on the waiting list for subsidized child care pay more than 14.5% of their annual income for child care now.
§ 3040.71. General requirements regarding notification.
Issue: Subsection (a). The Department has added a statement that the eligibility agent will determine the family ineligible if the parent does not provide all verification required within 30-calendar days.
Issue: Subsection (g) (final-form regulations). The Department has added the subsection to describe the eligibility agent's responsibilities to issue written notices of overpayments.
§ 3040.72. Content of a written notice of adverse action.
Issue: Subsection (a)(4)(iii). The Department has clarified that subsidy may not be continued at the prior level if the request for a hearing was postmarked or hand delivered after 10-calendar days from the date the written notice was postmarked or hand delivered to the parent/caretaker.
Issue: Subsection (a)(4)(iv). The Department has deleted this subparagraph as proposed because the information was not clear and not correct. As a result of this deletion, subparagraph (v) has been redesignated (iv) and (vi) has been renumbered paragraph (5).
Issue: Subsection (a)(6) (final-form regulations). The Department has added clarification that if subsidy continues at the level prior to the appeal and Bureau of Hearings and Appeals finds in favor of the eligibility agent or the Department, the parent/caretaker must repay subsidy for which he was not eligible.
Comment: Subsection (b)(3) (final-form regulations). Commentators requested that providers receive a copy of all written notices which affect a child's receipt of subsidized child care.
Response: The Department has added a provision that requires that the eligibility agent send a copy of all written notices to the child care provider within 1 working day of preparation.
§ 3040.73. Grounds for appeal.
Issue: The Department has renamed this section ''Actions that can be appealed'' in the final-form regulations.
§ 3040.74. Appeal: continuation of subsidy denied.
Issue: The Department has renamed this section ''Appeal: when subsidy is not continued during the appeal process'' in the final-form regulations.
Comment: Subsection (a). Commentators questioned the Department's intent regarding the parent's ability to appeal adverse eligibility decisions and continue to receive subsidy when the parent is questioning the regulation.
Response: The Department has added language indicating that a parent may appeal a decision which discontinues or reduces a child care subsidy; however, if the parent is disputing Federal or State law, regulations or policy, subsidy will not be continued at the prior level pending a decision on the appeal.
Issue: Subsection (c). The Department has deleted this subsection because the issue is addressed in subsection (a).
§ 3040.76. Filing an appeal: eligibility agent responsibilities.
The Department has added a provision that if the eligibility agent assists the parent in preparing a written appeal, the parent shall sign the appeal request.
§ 3040.77. Departmental actions.
Issue: The Department has renamed this section ''Appeal and hearing procedures'' in the final-form regulations.
Issue: Subsection (a). The Department has added a provision that if the parent fails to appear for a hearing, the appeal is considered abandoned and the decision of the eligibility agent or the Department will be sustained by the Bureau of Hearings and Appeals.
Issue: The Department has reversed the sequence of subsections (b) and (c) to present the subsections in a more logical way. In addition, editorial corrections were made to subsection (b).
Comment: Subsection (b). IRRC and other commentators suggested that a parent who incurs an overpayment because he appealed an eligibility decision should be given the opportunity to reapply for subsidy and establish a repayment plan if the hearing decision is in favor of the eligibility agent.
Response: The Department has included a provision in subsection (c) of the final-form regulations, consistent with provisions in § 3040.93(b), which allows the parent different repayment options. A parent who appeals an eligibility decision may reapply for subsidy if the parent makes a repayment or establishes a payment plan.
Issue: Subsection (e) (final-form regulations). The Department has added this subsection to clarify that appellants who are found eligible at the time of the hearing, but were ineligible at the time the notice was issued, will have eligibility for subsidy resumed on the date eligibility is established.
§ 3040.78. Continuing subsidy and fee payment during an appeal.
Issue: The Department has renamed this section ''Continuing subsidy and co-payment during an appeal'' in the final-form regulations.
Issue: Subsection (a). The Department has added a provision that if a parent files an appeal within 10 days of the notice of adverse action, subsidy continues at the prior level subject to § 3040.74 until a final decision is made by the Bureau of Hearings and Appeals.
Issue: Subsection (c). The subsection has been deleted because it is not consistent with a parent's rights to appeal an adverse action.
Overpayment, repayment and disqualification.
Comment: IRRC and other commentators requested clarification on the eligibility agent's responsibilities for identifying overpayments, overseeing repayment and disqualifying an individual from receiving subsidized child care.
Response: The Department has reformatted and revised §§ 3040.91--3040.94 to clarify the Department's, the eligibility agent's and the family's responsibilities when a family was erroneously determined eligible for a child care subsidy.
§ 3040.91. Overpayment.
Issue: Subsection (b). The Department has revised this subsection to describe the events or actions that can lead to an overpayment. This provision is in accordance with 62 P. S. § 481(a) and is consistent with the definition of ''overpayment'' in § 255.2.
§ 3040.92. Repayment requirements.
Issue: The Department has renamed this section ''Eligibility agent responsibilities'' and added paragraphs (1)--(10) to list all of the eligibility agent responsibilities.
§ 3040.93. Procedures for the parent to repay an overpayment.
Issue: The Department has renamed this section ''Repayment'' in the final-form regulations.
Comment: Subsection (a)(2). IRRC asked that the Department provide direction to the eligibility agents as to what constitutes a complaint.
Response: The Department has deleted this paragraph and has relocated the requirement for eligibility agents to investigate complaints to § 3040.92(3). The Department will clarify in the procedures manual used by the eligibility agents what constitutes a complaint and how to handle it.
§ 3040.94. Disqualification.
Comment: Subsection (c). IRRC questioned that the proposed amendments included disqualification periods which differed from those found in § 255.1(c). IRRC also questioned the date that the disqualification period would begin, and who in the family would be disqualified from the subsidized child care program.
Response: The Department has deleted subsection (b) and has redesignated subsection (c) to subsection (b) in the final-form regulations. The Department has clarified that the disqualification applies only to the parent and children of the parent whose actions led to the disqualification. The Department has listed the periods of time that a family may be disqualified. This provision is in accordance with 62 P. S. § 481(a) and (f) and is consistent with the restitution and disqualification provision for cash assistance, § 255.1.
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