NOTICE OF
RULEMAKING AND CONTINUING PUBLIC RULE HEARING
The
New Mexico Children, Youth and Families Department hereby gives notice as
required under Section 14-4-5.2 NMSA 1978 and 1.24.25.11 NMAC that it proposes
to adopt amendments to the following rule regarding CHILD CARE ASSISTANCE as authorized
by Section 9-2A-7 NMSA 1978:
8.15.2.7
NMAC – DEFINITIONS
8.15.2.9
NMAC – PRIORITIES FOR ASSISTANCE
8.15.2.12
NMAC – RECERTIFICATION
8.15.2.13
NMAC – CLIENT RESPONSIBILITIES
8.15.2.15
NMAC – PROVIDER REQUIREMENTS
8.15.2.17
NMAC – PAYMENT FOR SERVICES
No
technical scientific information was consulted in drafting this proposed rule.
Purpose
of proposed rule:
The purpose of the rule is to amend the eligibility levels for child care
assistance, to eliminate the waiting list for child care assistance, to provide
an explanation of the co-payment calculation and where to find the co-payment
schedule, to comply with federal regulation to pay for registration/educational
fees for children receiving child care assistance benefits on behalf of client,
and to address the overlap of care hours under payment for services. Pursuant to the continuation of this rule
change, amendments were made to the following sections: 8.15.2.9 NMAC;
8.15.2.12 NMAC; and 8.15.2.13 NMAC.
Copies
of the proposed rule may be found at CYFD’s website at https://www.newmexicokids.org/ or may be
obtained from 1120 Paseo De Peralta, Santa Fe, New Mexico, 30 days prior to the
Public Hearing.
Notice
of public rule hearing: The public rule
hearing that was originally scheduled for July 8, 2019 will held on Friday,
August 30, 2019 at 10:00 a.m. in Apodaca Hall, 1120 Paseo de Peralta, Santa Fe,
New Mexico 87502. The public hearing will be conducted in a fair and equitable
manner by a CYFD agency representative or hearing officer and shall be
recorded. Any interested member of the public may attend the hearing and will
be provided a reasonable opportunity to offer public comment, either orally or
in writing, including presentation of data, views, or arguments, on the
proposed rule during the hearing. Individuals with disabilities who need any
form of auxiliary aid to attend or participate in the public hearing are asked
to contact Debra Gonzales at debra.gonzales@state.nm.us. CYFD will make
every effort to accommodate all reasonable requests, but cannot guarantee
accommodation of a request that is not received at least ten calendar days
before the scheduled hearing.
Notice
of acceptance of written public comment: Written public comment, including
presentation of data, views, or arguments about the proposed rule, from any
interested member of the public, may also be submitted via email to CYFD-ECS-PublicComment@state.nm.us
with the subject line “8.15.2 NMAC Public Comment,” or via first class mail to,
Child Care Services Bureau, Children, Youth and Families Department, P.O.
Drawer 5160, Santa Fe, New Mexico 87502-5160 or by hand delivery to Kimberly
Brown. The comment period ends at the
conclusion of the public hearing on August 30, 2019.
AVISO DE PROMULGACION
DE LEYES ADMINISTRATIVAS Y AUDIENCIA PÚBLICA
El Departamento de Niños, Jóvenes y Familias de Nuevo
México por este medio da aviso como se requiere bajo la Sección
14-4-5.2 NMSA 1978 y 1.24.25.11 NMAC que propone adoptar enmiendas a las
siguientes reglas con respecto a
ASISTENCIA DE CUIDADO INFANTIL según
autorizado por la sección 9-2A-7
NMSA 1978:
8.15.2.7 NMAC –
DEFINICIONES
8.15.2.9 NMAC –
PRIORIDADES PARA ASISTENCIA
8.15.2.12 NMAC – RECERTIFICACIÓN
8.15.2.13 NMAC – RESPONSABILIDADES DEL CLIENTE
8.15.2.15 NMAC – REQUISITOS DEL PROVEEDOR
8.15.2.17 NMAC – PAGOS POR SERVICIOS
No se consultó información científica o técnica cuando
se redactaron las propuestas leyes
administrativas.
Propósito de las propuestas leyes administrativas: El propósito de las leyes administrativas es enmendar los niveles de
elegibilidad para la asistencia de cuidado de niños, eliminar la lista de
espera para asistencia, proporcionar una explicación del cálculo de copago y
dónde encontrar el programa de tarifas
para copago, y estar conforme con regulación federal de pagar las tarifas
educacionales y de registración para
niños recibiendo beneficios de
asistencia de cuidado de niños en nombre del cliente, y abordar el traslapo de horas
de cuidado bajo pago por servicios. Se hicieron enmiendas a las siguientes
secciones: 8.15.29.F. NMAC; 8.15.2.12 NMAC; y
8.15.2.13 B. NMAC.
Copias de las propuestas leyes administrativas pueden
ser localizadas en el sitio de la red de CYFD @https://www.newmexicokids.org/ o se pueden obtener en: 1120 Paseo De Peralta, Santa
Fe, New México, 30 días antes de la Audiencia Pública.
Aviso de Audiencia Pública de
leyes administrativas: La audiencia
pública de leyes administrativas que originalmente fue programada para el lunes 8 de julio de 2019 será el s
viernes, 30 de agosto, 2019 a las 10:00 a.m. en 1120 Paseo de Peralta, Santa
Fe, Nuevo México 87502, en la sala Apodaca Hall. La audiencia pública se
llevará a cabo de manera justa y equitativa por un representante de la agencia
de CYFD o el funcionario de audiencias y
será grabada. Cualquier miembro del público interesado en asistir la audiencia tendrá un una
oportunidad razonable para ofrecer comentarios al público,
oralmente o por escrito, incluso una
presentación de datos, puntos de vista s o argumentos, sobre las
propuestas. Personas con discapacidades
que necesiten cualquier forma de asistencia auxiliar para asistir o participar
en la audiencia pública deben comunicarse con
Debra Gonzalesdebra.gonzales@state.nm.us. CYFD
hará todos los esfuerzos posibles para acomodar todas solicitudes razonables,
pero no puede garantizar acomodar
solicitudes que no sean recibas por lo menos diez días antes de la fecha programada para la audiencia.
Aviso de aceptación de comentario público por escrito: Comentarios públicos por
escritos, incluso presentaciones de datos, puntos de vista o argumentos
de cualquier miembro del público interesado, sobre las propuestas leyes
administrativas, pueden ser enviados a través de correo electrónico a: CYFD-ECS-PublicComment@state.nm.us, especificando en la línea de Asunto: “8.17.2 NMAC Public
Comment,” o por correo de primera clase a Child Care Services
Bureau, Children, Youth and
Families Department, P.O. Drawer 5160, Santa Fe, New Mexico
87502-5160, o se puede entregar en mano a: Kimberly Brown. El período de
comentarios termina a la conclusión de la audiencia pública del 30 de agosto de
2019.
Amended Sections to Proposed Rule / Reglas Propuestas
8.15.2.9 PRIORITIES FOR ASSISTANCE:
***
F. Priority four: Child care
assistance for families whose income is above one hundred percent of the
federal poverty level but at or below two hundred percent of the federal
poverty level, adjusted annually in accordance with federal guidelines. These families are certified for a 12 month
block of time [subject to the availability of funds and renewable subject to
the availability of funds] and will remain eligible at or below two
hundred fifty percent of the federal poverty level. Exceptions to the 12 month certification
period are included in 8.15.2.11 NMAC. [The
department reserves the right to expand the eligibility requirement up to two
hundred percent of the federal poverty level based on budget availability.
Families in any priority may be transferred to priority four if budget
availability permits. If the number of
eligible clients in this priority exceeds budget availability, the department
may maintain a waiting list.] The department prioritizes child care
services within priority four for children with special needs, disabilities, [teen
parents and homeless families] homeless families, and for teen parents.
***
8.15.2.12 RECERTIFICATION: Clients must
recertify for services at the end of their eligibility period by complying with
all requirements of initial certification.
Clients who recertify will qualify at or below two hundred fifty
percent of the federal poverty level.
If recertification is not completed in a timely manner, the case may be
closed on the last day of the month for which assistance is provided under the
previous placement agreement. At time of
recertification, clients must provide proof of income, or proof of school
enrollment. Changes in income, household
size, employment, training or educational status are noted in the client’s
record. Co-payment, if applicable, is
re-determined at the time of recertification.
8.15.2.13 CLIENT RESPONSIBILITIES:
Clients must abide by the regulations set forth by the department and
utilize child care assistance benefits only while they are working, attending
school or participating in a training or educational program.
A. Co-payments:
Co-payments are paid by all clients receiving child care assistance
benefits, except for CPS child care, at-risk child care, and qualified
grandparents or legal guardians as defined in Paragraph (2) of Subsection C of 8.15.2.11 NMAC. [Co-payments are based upon the size and
income of the household.] Co-payments
are determined by income and household size.
The co-payment schedule is published yearly at https://cyfd.org/child-care-services.
B. [Co-payments for each additional child are determined
at one half of the co-payment for the previous child.] Co-payments described in Subsection A of
8.15.2.13 NMAC, are used for determining the base co-payment for the first
eligible child. The formula for
calculating the co-payment for the first full time child is (low end of the
monthly income bracket on the co-payment schedule ÷ 200 percent of annual federal poverty level
for household size) X (low end of the monthly income bracket on the copayment
schedule) X 1.1 = monthly copayment for first full time child. Base co-payments for each additional child are
determined at one half of the co-payment for the previous child.
(1) The first child is identified as the
child requiring the most hours of child care.
(2) Each additional child will be ranked
based on the most number of hours needed for child care to the least number of
hours needed for child care.
C. [Co-payments for children in part-time care are
determined based upon the block of time that the child is in care.] Each child’s co-payment will be adjusted
based on the units of services described in Subsection E of 8.15.2.17 NMAC, as
follows:
(1) full time
care will be based on one hundred percent of the base co-payment;
(2) part time 1
care will be based on seventy-five percent of the base co-payment;
(3) part time 2
care will be based on fifty percent of the base co-payment; and
(4) part time 3
care will be based on twenty-five percent of the base co-payment.
***
Original Proposed Rule/Reglas Propuestas
8.15.2.7 DEFINITIONS:
***
[FF. “Waiting list” means a list of
families who have applied for child care services during a period of lack of
funding.]
[GG.] FF. “Working” means employment of any
type, including self-employment. For
TANF recipients, this includes work experience or community service or any
other activity that meets the TANF work activity requirements.
8.15.2.9 PRIORITIES FOR ASSISTANCE:
***
C. Priority one B: Child care assistance for income eligible
families whose income is at or below one hundred percent of the federal poverty
level, adjusted annually in accordance with federal guidelines. [If the number of eligible clients in this
priority exceeds budget availability, the department may maintain a waiting
list.] The department prioritizes child care services within priority one B
for children with special needs, disabilities, homeless families, and
for teen parents. [If budget
availability permits, the department reserves the right to transfer priority
one B families whose income exceeds one hundred percent of the federal poverty
level but is at or below two hundred percent of the federal poverty level to
the priority four category.]
***
F. Priority four: Child care assistance for families whose
income is above one hundred percent of the federal poverty level but at or
below [two] one hundred sixty percent of the federal
poverty level, adjusted annually in accordance with federal guidelines. These families are certified for a 12 month
block of time [subject to the availability of funds and renewable subject to
the availability of funds] and will remain eligible at or below two
hundred percent of the federal poverty level. Exceptions to the 12 month certification
period are included in 8.15.2.11 NMAC. [The
department reserves the right to expand the eligibility requirement up to two
hundred percent of the federal poverty level based on budget availability.
Families in any priority may be transferred to priority four if budget
availability permits. If the number of
eligible clients in this priority exceeds budget availability, the department
may maintain a waiting list.] The department prioritizes child care
services within priority four for children with special needs, disabilities, [teen
parents and homeless families] homeless families, and for teen parents.
***
8.15.2.12 RECERTIFICATION: Clients must
recertify for services at the end of their eligibility period by complying with
all requirements of initial certification.
Clients who recertify will qualify at or below two hundred percent of
the federal poverty level. If
recertification is not completed in a timely manner, the case may be closed on
the last day of the month for which assistance is provided under the previous
placement agreement. At time of
recertification, clients must provide proof of income, or proof of school
enrollment. Changes in income, household
size, employment, training or educational status are noted in the client’s
record. Co-payment, if applicable, is
re-determined at the time of recertification.
8.15.2.13 CLIENT RESPONSIBILITIES:
Clients must abide by the regulations set forth by the department and
utilize child care assistance benefits only while they are working, attending
school or participating in a training or educational program.
A. Co-payments:
Co-payments are paid by all clients receiving child care assistance
benefits, except for CPS child care, at-risk child care, and qualified
grandparents or legal guardians as defined in Paragraph (2) of Subsection C of 8.15.2.11 NMAC. [Co-payments are based upon the size and
income of the household.] Co-payments
are determined by income and household size.
The co-payment schedule is published yearly at https://cyfd.org/child-care-services.
B. [Co-payments for each additional child are determined
at one half of the co-payment for the previous child.] Co-payments described in Subsection A of
8.15.2.13 NMAC, are used for determining the base co-payment for the first
eligible child. Base co-payments for
each additional child are determined at one half of the co-payment for the
previous child.
(1) The first child is identified as the
child requiring the most hours of child care.
(2) Each additional child will be ranked
based on the most number of hours needed for child care to the least number of
hours needed for child care.
C. [Co-payments for children in part-time care are
determined based upon the block of time that the child is in care.] Each child’s co-payment will be adjusted
based on the units of services described in Subsection E of 8.15.2.17 NMAC, as
follows:
(1) full time
care will be based on one hundred percent of the base co-payment;
(2) part time 1
care will be based on seventy-five percent of the base co-payment;
(3) part time 2
care will be based on fifty percent of the base co-payment; and
(4) part time 3
care will be based on twenty-five percent of the base co-payment.
***
8.15.2.15 PROVIDER REQUIREMENTS:
***
D. Child
care providers accept the rate the department pays for child care and are not
allowed to charge families receiving child care assistance above the department
rate for the hours listed on the placement agreement. Failure to comply with
this requirement may result in sanctions or suspension of the child care
assistance agreement.
(1) [In situations where an incidental
cost may occur such as field trips, special lunches or other similar
situations, the child care provider is allowed to charge the child care
assistance family the additional cost, provided the cost does not exceed that
charged to private pay families.] Providers
are not allowed to charge clients a registration/educational fee for any child
who is receiving child care assistance benefits as listed under 8.15.2
NMAC. The department shall pay a five
dollar monthly, not to exceed sixty dollars per year, registration/educational
fee per child in full time care, on behalf of department clients under 8.15.2
NMAC. Adjustments to the five dollar
registration/educational fee will be made based on units of care.
(2) [Providers may charge a
registration/educational fee to a child care assistance family comparable to
but not to exceed that charged to private pay families. The registration/educational fee shall be
charged no more than once every six months and shall be limited to materials
and supplies. If the department
determines that the provider is charging fees that are unreasonable and pose an
undue burden to child care assistance families, the department may suspend the
child care assistance contract.] In
situations where an incidental cost may occur such as field trips, special
lunches or other similar situations, the child care provider is allowed to
charge the child care assistance family the additional cost, provided the cost
does not exceed that charged to private pay families.
(3) Child care providers are allowed to
charge child care assistance families the applicable gross receipts tax for the
sum of the child care assistance benefit and co-payment.
***
8.15.2.17 PAYMENT FOR SERVICES:
***
C. The department shall pay a five dollar monthly, not to
exceed sixty dollars per year, registration/educational fee per child in full
time care, on behalf of department clients under 8.15.2 NMAC. Adjustments to
the five dollar registration/educational fee will be made based on units of
care. The registration/educational fee
will discontinue when a placement closes as a result of a client changing
providers, a provider discontinuing services, a child care placement agreement
expiring, or a provider’s license being suspended or expiring.
[C.] D. The amount of the payment is based upon the
age of the child and average
number of hours per week needed per child during the certification period. The number of hours of care needed is
determined with the parent at the time of certification and is reflected in the
provider agreement. Providers are paid
according to the units of service needed which are reflected in the child care
agreement covering the certification period.
[D.] E. The department pays for care based upon the
following units of service:
|
Full time |
Part time 1 |
Part time 2
(only for split custody or in cases where a child may have two providers) |
Part time 3 |
|
Care
provided for an average of 30 or more hours per week per month |
Care
provided for an average of 8-29 hours
per week per month |
Care provided
for an average of [ |
Care
provided for an average of 7 or less hours per week per month |
|
Pay at 100%
of full time rate |
Pay at 75 %
of full time rate |
Pay at 50 %
of full time rate |
Pay at 25%
of full time rate |
[E.] F. Hours of care shall be rounded to the
nearest whole number.
[F.] G. Monthly reimbursement rates:
|
Licensed
child care centers |
|||
|
Infant |
Toddler |
Pre-school |
School-age |
|
$720.64 |
$589.55 |
$490.61 |
$436.27 |
|
Licensed
group homes (capacity: 7-12) |
|||
|
Infant |
Toddler |
Pre-school |
School-age |
|
$586.07 |
$487.11 |
$427.13 |
$422.74 |
|
Licensed
family homes (capacity: 6 or less) |
|||
|
Infant |
Toddler |
Pre-school |
School-age |
|
$566.98 |
$463.50 |
$411.62 |
$406.83 |
|
Registered
homes and in-home child care |
|||
|
Infant |
Toddler |
Pre-school |
School-age |
|
$289.89 |
$274.56 |
$251.68 |
$251.68 |
[G.] H. The department pays a differential rate
according to the license or registration status of the provider, national
accreditation status of the provider if applicable, and star level status of
the provider if applicable.
[H.] I. Providers holding and maintaining CYFD
approved national accreditation status will receive the differential rate
listed in Subsection I. below, per child per month for full time care above the
base rate for type of child care (licensed center, group home or family home)
and age of child. All providers who
maintain CYFD approved national accreditation status will be paid at the
accredited rates for the appropriate age group and type of care. In order to continue at this accredited reimbursement
rate, a provider holding national accreditation status must meet and maintain
licensing standards and maintain national accreditation status without a
lapse. If a provider holding national
accreditation status fails to maintain these requirements, this will result in
the provider reimbursement reverting to a lower level of reimbursement.
(1) Providers who receive national
accreditation on or before December 31, 2014 from an accrediting body that is
no longer approved by CYFD will no longer have national accreditation status,
but will remain eligible to receive an additional $150 per child per month for
full time care above the base rate for type of child care (licensed center,
group home or family home) and age of child until December 31, 2017.
(a) In order to continue at this
reimbursement rate until December 31, 2017 a provider holding accreditation
from accrediting bodies no longer approved by CYFD must maintain licensing
standards and maintain accreditation without a lapse.
(b) If the provider fails to maintain
their accreditation, the provider reimbursement will revert to the base
reimbursement rate unless they have achieved a FOCUS star level or regain
national accreditation status approved by CYFD.
(2) The licensee shall notify the licensing
authority within 48 hours of any adverse action by the national accreditation
body against the licensee’s national accreditation status, including but not
limited to expiration, suspension, termination, revocation, denial, nonrenewal,
lapse or other action that could affect its national accreditation status. All
providers are required to notify the department immediately when a change in
accreditation status occurs.
[I.] J. The department will pay a differential
rate per child per month for full time care above the base reimbursement rate
to providers achieving higher Star levels by meeting FOCUS essential elements
of quality as follows:
|
2+ Star
FOCUS Child Care Centers, Licensed
Family and Group Homes |
|||||
|
Infant |
Toddler |
Pre-school |
School-age |
||
|
$88.00 |
$88.00 |
$88.00 |
$88.00 |
||
|
3 Star FOCUS
Child Care Centers, Licensed
Family and Group Homes |
|||||
|
Infant |
Toddler |
Pre-school |
School-age |
||
|
$100.00 |
$100.00 |
$100.00 |
$100.00 |
||
|
4 Star FOCUS Licensed Family and
Group Homes |
|||||
|
Infant |
Toddler |
Pre-school |
School-age |
||
|
$180.00 |
$180.00 |
$180.00 |
$180.00 |
||
|
5 Star FOCUS or CYFD approved
national accreditation Licensed Family and Group Homes |
|||||
|
Infant |
Toddler |
Pre-school |
School-age |
||
|
$250.00 |
$250.00 |
$250.00 |
$250.00 |
||
|
4 Star FOCUS Child Care Centers |
|||||
|
Infant |
Toddler |
Pre-school |
School-age |
||
|
$280.00 |
$280.00 |
$250.00 |
$180.00 |
||
|
5 Star FOCUS
or CYFD approved national accreditation Child Care Centers |
|||||
|
Infant |
Toddler |
Pre-school |
School-age |
||
|
$550.00 |
$550.00 |
$350.00 |
$250.00 |
||
[J.] K. In order to continue at the FOCUS
reimbursement rates, a provider must meet and maintain the most recent FOCUS
eligibility requirements and star level criteria. If the provider fails to meet the FOCUS
eligibility requirements and star level criteria the provider reimbursement
will revert to the FOCUS criteria level demonstrated.
[K.] L. Differential rates determined by achieving
higher star levels determined by AIM HIGH essential elements of quality will be
discontinued effective December 31, 2017.
The department will pay a differential rate to providers achieving
higher star levels determined by the AIM HIGH essential elements of quality
until December 31, 2017 as follows:
3-Star at $88.00 per month per child for full time care above the base
reimbursement rate; 4-Star at $122.50 per month per child for full time care
above the base reimbursement rate, and 5-Star at $150.00 per child per month
for full time care above the base reimbursement rate. In order to continue at these reimbursement
rates, a provider must maintain and meet most recent AIM HIGH star criteria and
basic licensing requirements. If the provider fails to meet the requirements,
this will result in the provider reimbursement reverting to the base
reimbursement rate.
[L.] M. The department pays a differential rate
equivalent to five percent, ten percent or fifteen percent of the applicable
full-time/part-time rate to providers who provide care during non-traditional
hours. Non-traditional care will be paid according to the following charts:
|
|
1-10 hrs/wk |
11-20 hrs/wk |
21 or more hrs/wk |
|
After hours |
5% |
10% |
15% |
|
|
1-10 hrs/wk |
11-20 hrs/wk |
21 or more hrs/wk |
|
Weekend
hours |
5% |
10% |
15% |
[M.] N. If a significant change occurs in the
client’s circumstances, (see Subsection G of 8.15.2.13 NMAC) the child care
placement agreement may be modified and the rate of payment is adjusted. The department monitors attendance and
reviews the placement at the end of the certification period when the child is
re-certified.
[N.] O. The department may conduct provider or
parent audits to assess that the approved service units are consistent with
usage. Providers found to be defrauding
the department are sanctioned. Providers
must provide all relevant information requested by the department during an
audit.
[O.] P. Payments are made to the provider for the
period covered in the placement agreement or based on the availability of
funds.