New Mexico Register / Volume XXXI, Issue 11 / June 9, 2020
NOTICE OF
RULEMAKING AND 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 rules regarding SOCIAL SERVICES
CHILD CARE ASSISTANCE REQUIREMENTS FOR CHILD CARE ASSISTANCE PROGRAMS FOR
CLIENTS AND CHILD CARE PROVIDERS as authorized by Section 9-2A-7 NMSA 1978:
8.15.2.10
NMAC – APPLICATION PROCESS
8.15.2.13
NMAC – CLIENT RESPONSIBILITIES
8.15.2.17
NMAC – PAYMENT FOR SERVICES
No
technical scientific information was consulted in drafting these proposed
rules.
Purpose of proposed rules: The purpose of the rulemaking is to promulgate
amendments to 8.15.2 NMAC, which were initially published as emergency rules
effective March 16, 2020. Due to the
COVID-19 outbreak and the resulting executive orders and declarations, there
was an emergency need for these amendments.
The emergency amendments to 8.15.2 NMAC, as published, allow the
department secretary the following authority during a public health
emergency: to waive the requirements for
employment, attending school or a training program; to waive co-payments for
families receiving child care and pay the provider the clients approved rate;
and to approve a differential rate be paid to licensed providers.
Copies of the proposed amended
rules may be found at end of this notice and at CYFD’s website at https://www.newmexicokids.org/
30 days prior to the Public Hearing.
Notice of public rule
hearing: The public rule
hearing will be held on July 14, 2020, at 1:00 p.m. The hearing will be held via internet, email,
and telephonic means due to the concerns surrounding COVID-19 and in accordance
with Governor Michelle Lujan Grisham’s Executive Order 2020-004, Declaration of
Public Health Emergency and the March 12, 2020 Public Health Emergency Order to
Limit Mass Gatherings Due to COVID-19.
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 rules 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
rules, from any interested member of the public, may 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 P.O. Drawer 5160, Santa Fe, New Mexico
87502 – 5160. Written comments may be delivered to
the Old PERA building at 1120 Paseo De Peralta on July 14, 2020 from 1:00 pm to
3:00 pm. The comment period ends at the
conclusion of the public hearing on July 14, 2020.
Any interested member of the public may attend the
hearing via the internet or telephone and offer public comments on the proposed
rule during the hearing. To access the
hearing by telephone: place call
1-253-215-8782, access code 91353582922#.
You will be able to hear the full hearing and your telephone comments
will be recorded. To access the hearing
via the internet: please go to
https://zoom.us/j/91353582922, and follow
the instructions indicated on the screen – Meeting ID (access code): 91353582922.
This will be a live stream of the hearing. You may also provide comment via Chat during
the live streaming.
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 es requerido 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 LOS REQUISITOS DE ASISTENCIA DE LOS SERVICIOS SOCIALES PARA EL
CUIDADO INFANTIL PARA PROGRAMAS DE ASISTENCIA DE CUIDADO INFANTIL Y PARA
PROVEEDORES DE CUIDADO INFANTIL según autorizado por la sección 9-2A-7 NMSA
1978:
8.15.2.10 NMAC – PROCESO DE SOLICITUD
8.15.2.13 NMAC – RESPONSABILIDAD DEL CLIENTE
8.15.2.17 NMAC – PAGO POR SERVICIOS
No se consultó información científica o técnica cuando
se redactaron estas propuestas de leyes administrativas.
Propósito de las propuestas de leyes administrativas: El propósito de las leyes administrativas es enmendar
los requisitos bajo 8.15.2 NMAC las cuales fueron inicialmente publicadas como reglas de emergencia con
fecha efectiva marzo 16 del 2020. A
causa de la erupción de COVID-19 y el resultado de la orden ejecutiva y
declaraciones, que existía una necesidad emergente para estas enmiendas. Las enmiendas de emergencia para 8.15.2 NMAC,
como fue publicada, le permite al secretario del departamento la siguiente
autoridad durante una emergencia de salud pública: que elimine los requisitos de empleo,
asistir a la escuela o programa de capacitación. Eliminar co-pagos
para las familias que reciben cuidado infantil y pagar al proveedor la cantidad
aprobada a los clientes; y a aprobar una cantidad diferencial de pago a los
proveedores con licencia.
Copias de las propuestas de leyes administrativas
pueden ser localizadas al final de este aviso y en el sitio de la red de CYFD
en https://www.newmexicokids.org/ 30 dias antes de la
audiencia pública.
Aviso de audiencia pública de
leyes administrativas: La audiencia pública de leyes administrativas será el 14 de julio del 2020
a la 1:00 p.m. Se llevara acabo por internet, correo
electrónico y medios telefónicos a causa de preocupaciones acerca del COVID-19
y de acuerdo con la Orden Ejecutiva 2020-004 de la Gobernadora Michelle Lujan
Grisham; Declaración de Emergencia de Salud Pública de marzo 12 del 2020 y la
Orden de Emergencia de Salud Pública que Limita Reuniones Masivas a causa de
COVID-19. La audiencia pública será
conducida de una manera justa y con igualdad por un representante u oficial de
la agencia de CYFD y será grabado.
Cualquier miembro del público interesado en asistir a la audiencia
tendrá una oportunidad razonable para ofrecer comentarios, ya sea oralmente o
por escrito, incluso una presentación de datos, puntos de vista 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
Gonzales, a: debra.gonzales@state.nm.us. CYFD hará
todos los esfuerzos posibles para acomodar todas las solicitudes razonables,
pero no puede garantizar acomodar solicitudes que no sean recibidas por lo
menos diez días de calendario 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 de leyes
administrativas, pueden ser enviados s a través de correo electrónico a: CYFD-ECS-PublicComment@state.nm.us, especificando en
la línea de Asunto: “8.15.2 NMAC Public Comment,” o por correo de
primera clase a P.O. Drawer 5160, Santa Fe, New
México 87502-5160. Comentarios por
escrito pueden ser entregados en el edificio antiguo PERA ubicado en 1120 Paseo De
Peralta el dia 14 de Julio del 2020 de la 1:00 pm a
las 3:00 pm. El período de comentarios termina a la
conclusión de la audiencia pública del 14 de julio del 2020.
Cualquier miembro del público interesado puede atender
a la audiencia por medio de internet o telefono y
ofrecer comentario público sobre la propuesta de leyes administrativas durante
la audiencia. Para accesar
la audiencia por medio de telefono: llame al 1-253-215-8782 con
codigo de acceso
91353582922#. Usted tendra
la habilidad de escuchar toda la audiencia y sus comentarios seran grabados. Para accesar la audiencia por medio
de internet: por
favor dirijase a
https://zoom.us/j/91353582922, y siga las instrucciones
indicadas en la pantalla- Meeting ID- codigo de acceso: 91353582922. Esto sera una forma de audiencia
en vivo.
Puede proveer sus comentarios por medio de la funcion de Chat durante
la audiencia en vivo.
Proposed Rules/Reglas
Propuestas
8.15.2.10 APPLICATION PROCESS:
A. Clients apply
for child care assistance benefits by presenting the following documents to
establish eligibility in person at the local child care office. Upon a need or request by the client, the
department may approve a client to submit their initial application by fax,
email, or mail. Clients shall have 14
calendar days after initial submission of an application to submit all other
required forms. Under documented
extenuating circumstances and with approval from the early childhood services
director, clients may be given longer than 14 days but no more than 30 days to
submit required documentation:
(1) a completed signed application form;
(2) current
proof of earned income or participation in the temporary assistance to needy
families (TANF) program; social security numbers or assigned TANF
identification numbers may be used to verify TANF participation or receipt of
child care support;
(3) school schedule or verification of educational activity, if
applicable;
(4) verification of birth for all applicant’s household
children;
(5) proof of unearned income;
(6) proof of New Mexico home address; and
(7) CYFD approved provider.
B. Assistance is
provided effective the first day of the month of application if all of the following
apply:
(1) the client is utilizing child care services;
(2) the client is employed, attending school or a training
program. In the case of a public
health emergency, the department secretary may waive the requirement for
employment, attending school or a training program; and
(3) the eligible provider to be paid was providing care from the
first day of the month forward.
[8.15.2.10
NMAC - Rp, 8.15.2.10 NMAC, 10/1/2016; A/E,
03/16/2020]
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. In the case of a public health emergency, the
department secretary may waive co-payments for families receiving child
care. The department will pay providers
the client’s approved rate, to include required co-payments, during the time of
the public health emergency.
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 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 co-payment
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. 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.
D. Clients pay
co-payments directly to their child care provider and must remain current in
their payments. A client who does not
pay co-payments may be subject to sanctions.
E. The co-payment
for a child shall not exceed the monthly provider reimbursement rate. If this situation arises, the co-payment may
be reduced in the amount by which it exceeds the monthly provider reimbursement
rate.
F. In-home
providers: Parents who choose to use an
in-home provider become the employer of the child care provider and must comply
with all federal and state requirements related to employers, such as the
payment of all federal and state employment taxes and the provision of wage
information. Any parent who chooses to
employ an in-home provider releases and holds the department harmless from any
and all actions resulting from their status as an employer. Payments for in-home provider care are made
directly to the parent.
G. Notification of
changes: Clients must notify the
department of changes that affect the need for care, which include but are not
limited to any non-temporary change in activity, or household members moving in
or out, within five business days of the change. Clients who do not comply with this
requirement may be sanctioned.
H. Required
application with New Mexico human services department’s child support
enforcement division (CSED):
(1) When
one or both of the child’s parents are absent from the home, the client shall
apply for child support though CSED within 12 months of initial application with the child care assistance
program.
(2) The
following exceptions include but are not limited to: the client is receiving TANF; the client is
already receiving child support; the client is receiving financial support,
including but not limited to housing, clothing, food, transportation and funds,
from the non-resident parent; there is a joint custody agreement and neither
parent is ordered to pay support; parental rights have been terminated; the
parent is a foster parent to the child; the parent is an adoptive parent and provides proof of a
single parent adoption; at-risk child care; a parent is temporarily out of the
home and is still considered part of the household; the client is a teen
parent; the client is a grandparent; guardian; parent is deceased or when good cause exists.
(3) Good
cause for refusal to apply may be granted when such application is not in the
best interest of the child or parent, including but not limited to the
following circumstances:
(a) there is possible physical or emotional harm to the child,
parent or guardian;
(b) the child was conceived as a result of incest or rape;
(c) legal proceedings for adoption of the child are pending
before a court; or
(d) the client is currently being assisted by a public or
licensed private social agency to resolve the issue of whether to keep the child
or relinquish the child for adoption.
(4) The
applicant or recipient who makes a claim for good cause shall supply written
documentation to establish the claim.
The caseworker shall not deny, delay, or discontinue subsidized child
care benefits pending a determination of good cause if the applicant or
recipient has complied with the requirements to furnish information.
(5) If
the client is not exempted from applying with CSED and has not applied within
the required timeframe, the client’s case will be closed.
[8.15.2.13
NMAC - Rp, 8.15.2.13 NMAC, 10/1/2016; A, 10/1/2019;
A/E, 03/16/2020]
8.15.2.17 PAYMENT FOR SERVICES:
The department pays child care providers on a monthly basis, according
to standard practice for the child care industry. Payment is based upon the child’s enrollment
with the provider as reflected in the child care placement agreement, rather
than daily attendance. As a result, most
placements reflect a month of service provision and are paid on this
basis. However, placements may be closed
at any time during the month. The
following describes circumstances when placements may be closed and payment
discontinued at a time other than the end of the month:
A. When the child
care placement agreement expires during the month, or when the provider
requests that the client change providers or the provider discontinues
services; payment will be made through the last day that care is provided.
B. Upon a change of
provider the client and former provider have three days after the fifth day of
nonattendance to notify the department.
If this requirement for notification was met, the provider will be paid
through the 14th day following the first date of nonattendance. If notification
requirement is not met, the provider will be paid through the last date of
attendance. The agreement with the new provider shall become effective when
payment to the previous provider ceases. If the client notifies the department
of the change in providers fewer than 14 days before the change will take place
or after the change has taken place, the client is responsible for payment to
the new provider beginning on the start date at the new provider and continuing
up until the final date of payment to the former provider, as described above. Payment to the former provider will be made
through the last day that care is provided if the child is withdrawn from the
provider because the health, safety or welfare of the child is at risk, as
determined by a substantiated complaint against the child care facility.
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.
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.
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 8-19 hours per week per month |
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 |
F. Hours of care
shall be rounded to the nearest whole number.
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 |
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.
In
the case of a public health emergency, the department secretary may approve a
differential rate be paid to licensed providers.
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.
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 |
||
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.
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.
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% |
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.
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.
P. Payments are
made to the provider for the period covered in the placement agreement or based
on the availability of funds.
[8.15.2.17 NMAC - Rp, 8.15.2.17 NMAC, 10/1/2016; A, 10/1/2019, A/E, 03/16/2020]