DAR File No. 42855

This rule was published in the May 15, 2018, issue (Vol. 2018, No. 10) of the Utah State Bulletin.

Workforce Services, Employment Development

Rule R986-700

Child Care Assistance

Notice of Proposed Rule

(Amendment)

DAR File No.: 42855
Filed: 04/27/2018 02:44:22 PM

RULE ANALYSIS

Purpose of the rule or reason for the change:

The purpose of these proposed rule changes is to bring the policies and procedures for administering child care subsidies into line with new federal requirements, to streamline and improve enforcement of child care subsidy administration, to correct ambiguities promulgated in previous versions of this rule, and to make technical changes.

Summary of the rule or change:

The federal government provides funding for child care assistance under the Child Care and Development Block Grant Act, 42 U.S.C. 9801 et seq. These funds are held by the Child Care and Development Fund (CCDF), and access to those funds by the states is controlled by federal CCDF regulations found in 45 CFR Part 98. Recent amendments to those regulations became effective in November 2016 and required a variety of changes to the state rules and procedures promulgated by the Department of Workforce Services (DWS), Office of Child Care, which administers the state child care subsidy program under the authority of Sections 35A-3-310 and 35A-3-310.5, see Child Care and Development Fund (CCDF) Program, 81 FR 67438 (09/30/2016). Specifically, the CCDF changes provide that a parent receiving a child care subsidy payment is subject to a periodic review of the household's eligibility once initial eligibility has been determined. An increase in household income prior to the end of the review period will no longer reduce or eliminate the household's eligibility for subsidy unless the income change pushes the household over the specified gross monthly income threshold, which is set by the federal government at 85% of the state median income. The Department will continue to act immediately on changes that increase the amount of a parent's subsidy, as well as changes based on the amounts being charged for child care by a provider (including a change in providers). In connection with these changes, certain previously reportable events, such as a parent leaving an approved training or educational program, and no longer meeting minimum work requirements, are no longer reportable except at the time of the review. Similar changes are made to the temporary change child care reporting requirements, clarifying that only persons who experience a temporary loss of employment are required to report that event to the Department in order for their child care subsidy to continue at the same level. These proposed rule changes also add a new category of temporary change, namely a child turning 13 years old during the eligibility review period. In addition, these proposed rule changes alter the job search child care requirements to bring them in line with the CCDF guidance. Specifically, these proposed rule changes delete the bar on receiving job search child care more than once in a 12-month period. The CCDF changes also put in place stringent new requirements regarding background checks for child care providers and their employees. Per the CCDF regulations, these changes are intended to apply to all providers who are or could become eligible to receive CCDF funds; therefore, these proposed rule changes clarify that it is intended to apply to all such providers, and to assess a consequence of exclusion from the approved provider list for any provider that does not comply with the background-check requirements. CCDF regulations also require background checks to be partially complete before a provider or employee may work with children while being supervised by another employee, and require the checks to be totally complete before such persons can work unsupervised. In addition, CCDF regulations require background checks to be regularly renewed and also require fingerprints for at least the initial check. In conjunction with these requirements, these proposed rule changes harmonize the Department's handling of background checks with the policies and procedures set out in the CCDF regulations, as well as those set forth by the Child Care Licensing Program within the state Department of Health, which is the entity that has statutory authority under Utah law to view, handle, and process the actual background checks. These proposed rule changes also provide that, in addition to the categorical exceptions for certain offenses that are already in rule, the Department's designee may issue a case-by-case exemption for persons who would otherwise be deemed to have failed a background check under certain circumstances, consistent with Section 35A-3-310.5. This discretion is granted as a matter of sound policy and also in connection with the equal employment opportunity guidance provided in the Federal Register in conjunction with the new CCDF regulations. These proposed rule changes also clarify the appeals process related to background checks for providers and their employees as required by the CCDF regulations and consistent with the Utah Administrative Procedures Act, Section 63G-4-101 et seq. Other aspects of these proposed rule changes are intended to streamline enforcement procedures and correct errors or ambiguities in prior versions of the rule. For example, these proposed rule amendments change the handling of provider disqualifications by making clear that a disqualification follows the facility where the incriminating conduct occurred and the principal(s) of that facility, not necessarily any other facilities that may be affiliated with the same provider. These changes are expected to alleviate the potential burden of a disqualification on parents receiving subsidy, as well as innocent facilities and their workers. These proposed rule changes also clarify that licensees are persons for whom child care subsidy will not be provided if they are caring for their own children. Similarly, these proposed rule changes clarify that a provider living in the same home as the parent is ineligible for subsidy only if the provider is providing care in the home where they live (as opposed to at a dedicated child-care facility). This standard would also apply to providers living in the same home as a non-custodial parent and providing child care for a child of that parent. These clarifications resolve ambiguities in the wording of the existing rule. These proposed rule changes also resolve an ambiguity that previously could have resulted in exceptions to the minimum work requirements being made available for two-parent households but not single-parent households. In addition, these proposed rule changes resolve ambiguities in the job search child care requirements to bring them in line with Department policy. Specifically, these proposed rule changes delete references to hours of previous employment in favor of referencing the general minimum work requirements, delete references to the three-month temporary change time frame, and clarify that the copayment for job search child care disregards only the income earned during the job search period. In addition, these proposed rule changes make a technical correction to the eight-hour reporting requirement for the absence of a child from child care to bring it in line with the intent of the rule and Department policy. Further, these proposed rule changes delete the bar on receiving job search child care if a person is separated from one of multiple jobs they hold. These proposed rule changes also remove the maximum hours requirement for child care services provided when a parent works graveyard shifts and needs time during the day to sleep. The revised standard is that the hours of care provided must not exceed the number of hours the parent worked. The remainder of the changes are technical and nonsubstantive. The Department has specific authority to make rules to implement these changes under Sections 35A-1-104, 35A-1-303, 35A-3-102, 35A-3-310, and 35A-3-310.5.

Statutory or constitutional authorization for this rule:

42 U.S.C. 9801 et seq.
Section 35A-3-310
81 FR 67438
45 CFR Part 98
Section 35A-3-310.5

Anticipated cost or savings to:

the state budget:

At the outset it should be noted that the costs and savings described in this section are applied to the CCDF funds the Department receives from the federal government and do not require any independent appropriations from the Legislature. The portions of these proposed rule changes dealing with maintaining a client's eligibility until the end of the 12-month review period if the client's household income increases prior to that point will cause a cost to the state budget because clients who previously would have had their cases closed mid-review period will now remain eligible and receive subsidies until the end of the review period. The Department has determined an annual cost of approximately $1,100,000 per year for this change. The portions of these proposed rule changes dealing with maintaining a client's eligibility until the end of the 12-month review period if a child in the household reaches age 13 before the end of the review period will cause a cost to the state budget because clients who previously would have had their cases closed mid-review period will now remain eligible and receive subsidies until the end of the review period. The Department has determined an annual cost of approximately $294,000 per year for this change. The additional portions of these proposed rule changes dealing with maintaining a client's eligibility until the end of the review period -- specifically, those dealing with changes that are no longer required to be reported -- will cause a cost to the state budget because clients who previously would have had their cases closed mid-review period will now remain eligible and receive subsidies until the end of the review period. The Department has determined an annual cost of approximately $871,000 per year for this change. The portions of these proposed rule changes dealing with the extension of temporary change child care beyond three months will cause a cost to the state budget because clients who previously would have had their cases closed at the end of the three-month period may now remain eligible. The Department has determined an annual cost of approximately $102,000 per year for this change. The portions of the proposed rule dealing with the elimination of the 12-month limit on requests for job search child care will cause a cost to the state budget because clients who previously would have had their cases closed due to lack of eligibility for job search child care may now remain eligible. The Department has determined an annual cost of approximately $51,000 per year for this change. All of the above costs are mandated by federal CCDF requirements and must be incurred as conditions of continuing to receive CCDF monies for the State. The portions of these proposed rule changes dealing with the elimination of subsidies for providers living with a child's non-custodial parent will cause a savings to the state budget because clients who previously received subsidies in these situations will no longer be eligible. The Department has determined an annual savings of approximately $14,000 per year for this change. The portions of these proposed rule changes dealing with payment of subsidies to licensees caring for their own children, providers living with a parent client but providing child care elsewhere, eligibility of single parents who can prove the existence of a disability preventing them from meeting the minimum work requirements, eligibility of parents who work graveyard shifts, application of the minimum work requirements for two-parent households, job search child care in relation to permanent separations from employment, annual background checks and associated waiting periods, and clarification of appeals procedures are not expected to cause costs or savings to the state budget. This is the case because these portions of these proposed rule changes are intended to correct ambiguities in the existing rule and ensure this rule is in place with currently existing Department policy and practice; in other words, they do not constitute substantive changes that will affect the state budget. The portions of these proposed rule changes dealing with the effect of a provider disqualification are not expected to cause costs or savings to the state budget because provider disqualifications are exceedingly rare (the state has not had one since 2015) and because any effect of a provider disqualification is caused by the provider's own bad acts that led to the disqualification, not by the Department. The portions of these proposed rule changes dealing with requiring all CCDF-eligible child care providers to undergo background checks and requiring re-fingerprinting under certain circumstances are not expected to cause costs or savings to the state budget because the costs associated with this requirement are borne by child care providers, not the state. The portions of these proposed rule changes dealing with the expansion of potential opportunities for exceptions due to adverse background check findings are not expected to cause costs or savings to the state budget because the granting or denying of an exception does not impose any specific costs on the state.

local governments:

No costs or savings are anticipated to local governments because the child care subsidy program is a state-level program that generally does not rely on local governments for its funding, administration, or enforcement, and because any costs incurred by local governments in processing background checks are passed on to the child care provider or employee in the form of a background check fee that covers the entire cost of the background check.

small businesses:

Portions of these proposed rule changes are expected to affect small businesses that serve as child care providers (NAICS 624410, Child Care Services) and receive or are eligible for CCDF monies. The portions of these proposed rule changes dealing with maintaining a client's eligibility until the end of the 12-month review period if the client's household income increases prior to that point will cause a benefit to small businesses because clients who previously would have had their cases closed mid-review period will now remain eligible and receive subsidies until the end of the review period. There are approximately 1,100 providers affected by this change. Although the amount of the effect for each provider may vary greatly depending on the size of the provider and the makeup of the clients the provider serves, the average provider is expected to see a benefit of approximately $1,000 per year. The portions of these proposed rule changes dealing with maintaining a client's eligibility until the end of the 12-month review period, if a child in the household reaches age 13 before the end of the review period, will cause a benefit to small businesses because clients who previously would have had their cases closed mid-review period will now remain eligible and receive subsidies until the end of the review period. There are approximately 1,100 providers affected by this change. Although the amount of the effect for each provider may vary greatly depending on the size of the provider and the makeup of the clients the provider serves, the average provider is expected to see a benefit of approximately $270 per year. The additional portions of these proposed rule changes dealing with maintaining a client?s eligibility until the end of the review period -- specifically, those dealing with changes that are no longer required to be reported -- will cause a benefit to small businesses because clients who previously would have had their cases closed mid-review period will now remain eligible and receive subsidies until the end of the review period. There are approximately 1,100 providers affected by this change. Although the amount of the effect for each provider may vary greatly depending on the size of the provider and the makeup of the clients the provider serves, the average provider is expected to see a benefit of approximately $790 per year. The portions of the proposed rule dealing with the extension of temporary change child care beyond three months will cause a benefit to small businesses because clients who previously would have had their cases closed at the end of the three-month period may now remain eligible. There are approximately 1,100 providers affected by this change. Although the amount of the effect for each provider may vary greatly depending on the size of the provider and the makeup of the clients the provider serves, the average provider is expected to see a benefit of approximately $90 per year. The portions of these proposed rule changes dealing with the elimination of the 12-month limit on requests for job search child care will cause a benefit to small businesses because clients who previously would have had their cases closed due to lack of eligibility for job search child care may now remain eligible. Although the amount of the effect for each provider may vary greatly depending on the size of the provider and the makeup of the clients the provider serves, the average provider is expected to see a benefit of approximately $50 per year. The portions of the proposed rule dealing with the expansion of potential opportunities for exceptions due to adverse background check findings will cause a benefit to small businesses because providers that would previously have had to forego hiring or retaining an employee with an adverse background check finding may now have the possibility of receiving an exception to the finding. The amount of this benefit is inestimable because very few exceptions (less than five per year) are expected to be granted by Child Care Licensing, and because the Department does not have and cannot reasonably obtain the information necessary to calculate the monetary value to a provider of not having to discharge an employee due to an adverse background check finding. The portions of these proposed rule changes dealing with requiring all CCDF-eligible child care providers to undergo background checks and requiring re-fingerprinting under certain circumstances will cause a cost to small businesses because some providers who were not previously in compliance with these provisions will have to come into compliance. There is a one-time cost of $37 for fingerprints for each background check, as well as an annual cost of $18 for the background check itself. The Department estimates that there are 22 licensed programs that need to be brought into compliance, with an average of 14 employees per program that will need background checks. The Department estimates that there are 47 licensed family providers that need to be brought into compliance, with an average of one employee per provider that will need a background check. The Department expects there are additional providers that could be subject to these requirements, but those providers do not and have never received CCDF monies, are unknown to the Department, and are not listed in NAICS. The Department estimates one-time costs of $518 per licensed program and $37 per family provider, and annual costs of $252 per licensed program and $18 per family provider. The portions of these proposed rule changes dealing with the elimination of subsidies for providers living with a child's non-custodial parent will cause a cost to small businesses because clients who previously received subsidies in these situations will no longer be eligible. The payment of subsidy in this situation appears to be exceedingly rare, with the Department expecting 1-3 cases per year to be affected. Further, most of the affected providers are Family, Friend, and Neighbor (FFN) providers that consist of individuals providing child care on an informal basis within their home or the child?s home rather than on a commercial or business basis. On average, the Department expects an annual cost of $7,000 per year to two providers, for a total cost of $14,000 per year. The portions of these proposed rule changes dealing with payment of subsidies to licensees caring for their own children, providers living with a parent client but providing child care elsewhere, eligibility of single parents who can prove the existence of a disability preventing them from meeting the minimum work requirements, eligibility of parents who work graveyard shifts, application of the minimum work requirements for two-parent households, job search child care in relation to permanent separations from employment, annual background checks and associated waiting periods, and clarification of appeals procedures are not expected to cause costs or savings to small businesses. This is the case because these portions of these proposed rule changes are intended to correct ambiguities in the existing rule and ensure the rule is in place with currently existing Department policy and practice; in other words, they do not constitute substantive changes that will affect small businesses. The portions of the proposed rule dealing with the effect of a provider disqualification are not expected to cause costs or savings to small businesses because provider disqualifications are exceedingly rare (the state has not had one since 2015) and because any effect of a provider disqualification is caused by the provider's own bad acts that led to the disqualification, not by the Department. The portions of these proposed rule changes identified above as having a measurable negative fiscal impact on small businesses have been analyzed by the Department to determine whether the negative fiscal impact could be reduced via less stringent compliance or reporting requirements, less stringent schedules or deadlines for compliance or reporting, consolidated or simplified compliance or reporting requirements, performance standards in lieu of design or operational standards, and exemptions from portions of the proposed rule for small businesses. The Department has determined none of these options are feasible in this case because the background check requirements that impose a negative fiscal impact are federal CCDF requirements that the Department is required to impose as a condition of continuing to operate the CCDF program and receive CCDF monies, and because it would be impossible to meaningfully address the practice of providers who live with a non-custodial parent without applying the proposed rule to some small businesses.

persons other than small businesses, businesses, or local governmental entities:

Portions of these proposed rule changes are expected to affect parent clients that receive or are eligible for CCDF child care subsidies because the changes will affect eligibility criteria for those subsidies. The portions of these proposed rule changes dealing with maintaining a client's eligibility until the end of the 12-month review period if the client's household income increases prior to that point will cause a benefit to parent clients because clients who previously would have had their cases closed mid-review period will now remain eligible and receive subsidies until the end of the review period. The Department estimates an average of 258 clients will be affected per year. Although the amount of the effect for each parent client may vary greatly depending on household composition and other factors, the average affected client is expected to see a benefit of approximately $4,300 per year. The portions of these proposed rule changes dealing with maintaining a client's eligibility until the end of the 12-month review period, if a child in the household reaches age 13 before the end of the review period, will cause a benefit to parent clients because clients who previously would have had their cases closed mid-review period will now remain eligible and receive subsidies until the end of the review period. The Department estimates an average of 69 clients will be affected per year. Although the amount of the effect for each parent client may vary greatly depending on household composition and other factors, the average affected client is expected to see a benefit of approximately $4,300 per year. The additional portions of these proposed rule changes dealing with maintaining a client's eligibility until the end of the review period -- specifically, those dealing with changes that are no longer required to be reported -- will cause a benefit to parent clients because clients who previously would have had their cases closed mid-review period will now remain eligible and receive subsidies until the end of the review period. The Department estimates an average of 204 clients will be affected per year. Although the amount of the effect for each parent client may vary greatly depending on household composition and other factors, the average affected client is expected to see a benefit of approximately $4,300 per year. The portions of these proposed rule changes dealing with the extension of temporary change child care beyond three months will cause a benefit to parent clients because clients who previously would have had their cases closed at the end of the three-month period may now remain eligible. The Department estimates an average of 26 clients will be affected per year. Although the amount of the effect for each parent client may vary greatly depending on household composition and other factors, the average affected client is expected to see a benefit of approximately $3,900 per year. The portions of these proposed rule changes dealing with the elimination of the 12-month limit on requests for job search child care will cause a benefit to parent clients because clients who previously would have had their cases closed due to lack of eligibility for job search child care may now remain eligible. The Department estimates an average of 18 clients will be affected per year. Although the amount of the effect for each parent client may vary greatly depending on household composition and other factors, the average affected client is expected to see a benefit of approximately $2,900 per year. The portions of these proposed rule changes dealing with the expansion of potential opportunities for exceptions due to adverse background check findings will cause an indirect benefit to parent clients because providers that would previously have had to forego hiring or retaining an employee with an adverse background check finding may now have the possibility of receiving an exception to the finding, making child care more available for parent clients. The amount of this benefit is inestimable because very few exceptions (less than five per year) are expected to be granted by Child Care Licensing, and because the Department does not have and cannot reasonably obtain the information necessary to calculate the monetary value to a parent client of a provider not having to discharge an employee due to an adverse background check finding. The portions of these proposed rule changes dealing with the elimination of subsidies for providers living with a child's non-custodial parent will cause a cost to parent clients because clients who previously received subsidies in these situations will no longer be eligible. The payment of subsidy in this situation appears to be exceedingly rare, with the Department expecting 1-3 cases per year to be affected. On average, the Department expects an annual cost of $7,000 per year to two clients, for a total cost of $14,000 per year. The portions of these proposed rule changes dealing with requiring all CCDF-eligible child care providers to undergo background checks and requiring re-fingerprinting under certain circumstances are not expected to cause costs or savings to parent clients because the costs associated with these provisions are imposed on providers, not parent clients. The portions of the proposed rule dealing with payment of subsidies to licensees caring for their own children, providers living with a parent client but providing child care elsewhere, eligibility of single parents who can prove the existence of a disability preventing them from meeting the minimum work requirements, eligibility of parents who work graveyard shifts, application of the minimum work requirements for two-parent households, job search child care in relation to permanent separations from employment, annual background checks and associated waiting periods, and clarification of appeals procedures are not expected to cause costs or savings to parent clients. This is the case because these portions of these proposed rule changes are intended to correct ambiguities in the existing rule and ensure the rule is in place with currently existing Department policy and practice; in other words, they do not constitute substantive changes that will affect parent clients. The portions of these proposed rule changes dealing with the effect of a provider disqualification are not expected to cause costs or savings to parent clients because provider disqualifications are exceedingly rare (the state has not had one since 2015) and because any effect on parent clients of a provider disqualification is caused by the provider's own bad acts that led to the disqualification, not by the Department. In the event a disqualification does occur, the changes are expected to provide an indirect benefit to parent clients because the effect of a disqualification will not be as far-reaching and will not cause as much disruption to parent clients who were obtaining child care through a now-disqualified provider.

Compliance costs for affected persons:

For child care providers not already in compliance with CCDF requirements, there is a one-time cost of $37 for fingerprints for each background check, as well as an annual cost of $18 for the background check itself. The Department estimates that there are 22 licensed programs that need to be brought into compliance, with an average of 14 employees per program that will need background checks. The Department estimates that there are 47 licensed family providers that need to be brought into compliance, with an average of one employee per provider that will need a background check. The Department expects there are additional providers that could be subject to these requirements, but those providers do not and have never received CCDF monies, are unknown to the Department, and are not listed in NAICS. The Department estimates one-time costs of $518 per licensed program and $37 per family provider, and annual costs of $252 per licensed program and $18 per family provider.

Comments by the department head on the fiscal impact the rule may have on businesses:

The Department believes these proposed rule changes will constitute a net benefit to the approximately 1,100 small businesses that serve as child care providers and receive or may receive CCDF funds. Those businesses will be able to gain more parent clients with CCDF eligibility and associated subsidy, as well as experience greater continuity of clientele because the eligibility of parent clients for subsidies will be more consistent. The background check portions of these proposed rule changes constitute a relatively small cost that must be imposed as a requirement of keeping the state's CCDF program in compliance with federal law. These portions of the proposed rule will not affect the 13 non-small business child care providers in the state as all of them are already required to comply with CCDF requirements. The Department expects 22 child care centers and 47 licensed family providers will need to be brought into compliance with the background check provisions.

Jon Pierpont, Executive Director

The full text of this rule may be inspected, during regular business hours, at the Office of Administrative Rules, or at:

Workforce Services
Employment Development
140 E 300 S
SALT LAKE CITY, UT 84111-2333

Direct questions regarding this rule to:

Nathan White at the above address, by phone at 801-526-9647, by FAX at , or by Internet E-mail at [email protected]

Interested persons may present their views on this rule by submitting written comments to the address above no later than 5:00 p.m. on:

06/22/2018

This rule may become effective on:

06/29/2018

Authorized by:

Jon Pierpont, Executive Director

RULE TEXT

Appendix 1: Regulatory Impact Summary Table*

Fiscal Costs	FY 2019	FY 2020	FY 2021
State Government	$2,418,000	$2,418,000	$2,418,000
Local Government	$0	$0	$0
Small Businesses	$19,500	$6,400	$6,400
Non-Small Businesses	$14,000	$14,000	$14,000
Other Persons	$14,000	$14,000	$14,000
Total Fiscal Costs:	$2,465,500	$2,452 ,000	$2,452 ,000

Fiscal Benefits
State Government	$14,000	$14,000	$14,000
Local Government	$0	$0	$0
Small Businesses	$2,418,000	$2,418,000	$2,418,000
Non-Small Businesses	$0	$0	$0
Other Persons	$2,418,000	$2,418,000	$2,418,000
Total Fiscal Benefits:	$4,850,000	$4,850,000	$4,850,000

Net Fiscal Benefits:	$2,384,500	$2,398,000	$2,398,000

*This table only includes fiscal impacts that could be measured. If there are inestimable fiscal impacts, they will not be included in this table. Inestimable impacts for State Government, Local Government, Small Businesses and Other Persons are described above. Inestimable impacts for Non - Small Businesses are described below.

Appendix 2: Regulatory Impact to Non - Small Businesses

There are 13 large businesses in the industry in question (NAICS 624410) in Utah. The Department does not expect these proposed rule changes to have a fiscal impact on these large businesses because the large businesses at issue are already required to be in compliance with CCDF requirements, so these proposed rule changes do not affect their status.

R986. Workforce Services, Employment Development.

R986-700. Child Care Assistance.

R986-700-702. General Provisions.

(1) CC is provided to support employment for U.S. citizens and qualified aliens authorized to work in the U.S. Child care for approved education and training activities, job search, or for an approved temporary change as defined in R986-700-703 may be authorized in accordance with rule.

(2) CC is available, as funding permits, to the following clients who are employed or are participating in activities that lead to employment:

(a) parents;

(b) specified relatives; or

(c) clients who have been awarded custody or appointed guardian of the child by court order and both parents are absent from the home. If there is no court order, an exception can be made on a case by case basis in unusual circumstances by the Department program specialist.

(3) Child care is provided only for children living in the home and only during hours when neither parent is available to provide care for the children. To be eligible, the child must have a need for at least eight hours of child care per month as determined by the Department.

(4) If a client is eligible to receive CC, the following children, living in the household unit, are eligible:

(a) children under the age of 13; and

(b) children up to the age of 18 years if the child;

(i) meets the requirements of rule R986-700-717, and/or

(ii) is under court supervision.

(5) Clients who qualify for child care services will be paid if and as funding is available. When the child care needs of eligible applicants exceed available funding, applicants will be placed on a waiting list. Eligible applicants on the list will be served as funding becomes available. Special needs children, homeless children and FEP or FEPTP eligible children will be prioritized at the top of the list and will be served first. "Special needs child" is defined in rule R986-700-717.

(6) Payments are issued monthly based on a client's eligibility for services in that month. The amount of CC might not cover the entire cost of care.

(7) A client is only eligible for CC if the client has no other options available for child care. The client is encouraged to obtain child care at no cost from a parent, sibling, relative, or other suitable provider. If suitable child care is available to the client at no cost from another source, CC cannot be provided.

(8) CC can only be provided by an eligible provider approved by the Department and will not be provided for illegal or unsafe child care. Illegal child care is care provided by any person or facility required to be licensed or certified but where the provider has not fulfilled the requirements necessary to obtain the license or certification.

(9) CC will not be paid to a client for the care of his or her own child(ren) when the client is working in a residential setting. CC may be approved where the client is working for an approved child care center, does not regularly watch his or her own children at the center, and does not have an ownership interest in the child care center. CC will not be paid to a client for the care of his or her own child(ren) if the client is also the licensee or is a stockholder, officer, director, partner, manager or member of a corporation, partnership, limited liability partnership or company or similar legal entity providing the CC.

(10) Neither the Department nor the state of Utah is liable for injuries that may occur when a child is placed in child care even if the parent receives a subsidy from the Department.

(11) Foster care parents receiving payment from the Department of Human Services are not eligible to receive CC for the foster children.

(12) Once eligibility for CC has been established, eligibility must be reviewed once every twelve months. The review is not complete until the client has completed, signed and returned all necessary review forms to the local office. All requested verifications must be provided at the time of the review. If the Department determines[~~has reason to believe~~] the household's gross monthly income exceeds the percentage of the state median income as determined by the Department in R986-700-710(3)[~~client's circumstances have changed, affecting either eligibility or payment amount~~], the Department may[~~reduce or~~] terminate CC even if the certification period has not expired.

R986-700-703. Client Rights and Responsibilities.

In addition to the client rights and responsibilities found in R986-100, the following client rights and responsibilities apply:

(1) A client has the right to select the type of child care which best meets the family's needs.

(2) If a client requests help in selecting a provider, the Department will refer the client to the local Care About Child Care agency.

(3) A client is responsible for monitoring the child care provider. The Department will not monitor the provider.

(4) A client is responsible to pay all costs of care charged by the provider. If the child care assistance payment provided by the Department is less than the amount charged by the provider, the client is responsible for paying the provider the difference.

(5) The only changes a client must report to the Department within ten days of the change occurring are:

(a) that the household's gross monthly income exceeds the percentage of the state median income as determined by the Department in R986-700-710(3);[

~~(b) that the client is no longer in an approved training or educational program;~~]

( b[c]) if the client's schedule changes so that child care is no longer needed during the hours of approved employment and/or training activities;[

~~(d) that the client does not meet the minimum work requirements of an average of 15 hours per week or 15 and 30 hours per week when two parents are in the household and it is expected to continue;~~]

( c[e]) the client is separated from his or her employment;

( d[f]) a change of address;

( e[g]) any of the following changes in household composition; a parent, stepparent, spouse, or former spouse moves into the home, a child receiving child care moves out of the home, or the client gets married;

( f[h]) a change in the child care provider, including when care is provided at no cost;

( g[i]) when the child has stopped attending child care or has not attended child care for at least eight hours during the month for which CC was authorized;

( h[j]) a change in child custody, visitation, or parent-time, including any regular periods of extended change in visitation or parent-time such as extended holidays or vacations with a non-custodial parent;

( i[k]) a change in the total cost of care for a client that is based on a change in a person(s) paying some or all of the total cost of care; and

( j[l]) any other changes that would affect a client's eligibility for ESCC as described in rule R986-700-709.

(6)[~~Certain reportable changes are considered allowable temporary changes when the circumstances are expected to last three months or less.~~

](a) The following are allowable temporary changes:

(i) Time-limited absences from work due to medical or other emergency, such as maternity leave, bed rest, or temporary medical issues of the client or an immediate family member living in the client's home if the client is responsible for the immediate family member's care;

(ii) Temporary fluctuations in earnings or hours, such as summer break for teachers or seasonal hours changes for IRS employees, that would otherwise have the effect of causing the client to fail to meet the minimum work requirements for eligibility;

(iii) Scheduled holidays or breaks in a client's educational training schedule ;[.]

(iv) An eligible child turning 13 years old during an eligibility review period, unless the child no longer has a need for child care.

(b) A client who experiences an allowable temporary change and has been approved for ongoing employment support child care (ESCC) may continue to receive child care payments at the same level for the remainder of the certification period. If the allowable temporary change is a temporary loss of employment, the client must comply with Department procedures regarding eligibility verification, including but not limited to reporting the temporary loss of employment to the Department within ten days and requesting the child care continue.[A client must have received an ESCC payment in the month prior to or the month of the temporary change before receiving a temporary change payment or a subsequent temporary change payment. The Department shall inform a client whose eligibility for ESCC ends due to a change in circumstances of the client's possible eligibility for temporary change child care. To receive temporary change child care, the client must request such child care within ten days of receiving a notification of possible eligibility from the Department, comply with Department procedures regarding eligibility verification, and continue to use child care during the temporary change period. Temporary change child care may not be received for more than three consecutive months.]

(7) Once an eligibility determination is made and a full month's payment and copayment is assessed, benefits will be paid at the same level during the remainder of the certification period so long as the client remains eligible, except that:

(a) The Department may act on reported changes that result in a subsidy increase or copayment decrease, and

(b) Benefits may be reduced if a child care provider reports a lower monthly charge or the client changes to a different child care provider[If a material change which would result in a decrease in the amount of the CC payment is reported within 10 days, the decrease will be made effective beginning the next month and sums received in the month in which the change occurred will not be treated as an overpayment. If it is too late to make the change to the next month's CC payment, the client is responsible for repayment even if the 10 days for reporting the change has not expired. If the client fails to report the change within 10 days, the decrease will occur as soon as the Department learns of the change and the overpayment will be assessed back to the date of the change].

(8) If an overpayment is established and it is determined that the client was at fault in the creation of the overpayment, the client must repay the overpayment to the Department. In some situations, the client and provider may be jointly liable. In the case of joint liability, both parties can be held liable for the entire overpayment.

(9) The Department is authorized to release the following information to the designated provider:

(a) limited information regarding the status of a CC payment including that no payment was issued or services were denied;

(b) the date the child care subsidy was issued;

(d) the copayment amount;

(e) information available in the Department Provider Portal. The Provider Portal provides a provider with computer access to limited, secure information;

(f) the month the client is scheduled for review;

(g) the date the client's application was received; and

(h) general information about what additional information and/or verification is needed to approve CC such as the client's work schedule and income.

(10) If a client uses a child care provider at least eight hours in the calendar month, and that provider has been paid for that month, the Department will not pay another provider for child care for the rest of that month, even if the client changed providers, unless the maximum subsidy payment amount for the month will not be exceeded by paying the second provider and one of the following exceptions also applies:

(a) The initial provider is no longer providing child care, is no longer an approved provider, or has been disqualified by the Department;

(b) The client relocates his or her residence and it is no longer reasonably feasible to continue using the initial provider due to travel time or distance;

(c) There is a substantial change in the days or times of day when child care is needed, such as a change in the timing of the shifts the client is working, that cannot be accommodated by the initial provider; or

(d) The Department determines a change in child care providers is necessary due to an endangerment finding for the child. The Department may, in its discretion, approve payment to a second provider due to an endangerment finding even if the maximum subsidy payment amount would be exceeded.

R986-700-705. Eligible Providers and Provider Settings.

(1) The Department will only pay CC to clients who select eligible providers. All eligible providers, including providers who receive CC grants from the Department, must meet all Child Care Development Fund (CCDF) requirements. The only eligible providers are:

(a) providers regulated through Department of Health Child Care Licensing (CCL):

(i) licensed homes;

(ii) licensed child care centers, except hourly centers; and

(iii) homes with a residential certificate.

(b) license exempt providers who are not required by law to be licensed and are either;

(i) license exempt centers as defined in R430-8-3. Programs or centers must have a current letter of exempt status with Department approval from CCL; or

(ii) DWS Family, Friend and Neighbor providers (FFN) as approved by CCL. The requirements for FFN approval are provided in subsection (3) of this section and in Department policy.

(2) The following providers are not eligible for receipt of a CC payment:

(a) a provider living in the same home as the parent client and providing child care in the home where they live, unless the provider is caring for a child who has special needs who cannot be otherwise accommodated;

(b) a sibling of the child living in the home can never be approved, even for a special needs child;

(d) undocumented aliens;

(e) persons under age 18;

(f) a provider providing care for the child in another state;

(g) a sponsor of a qualified alien client applying for child care assistance;

(h) a provider who has committed an IPV as a provider, or as a recipient of any funds from the Office of Child Care including subsidy and grant payments, as determined by the Department or by a court. The disqualification for an IPV will remain in effect until the IPV disqualification period has run, any resulting overpayment has been satisfied, and the provider is otherwise eligible;

(i) any provider disqualified under R986-700-718;

(j) a provider who does not provide necessary information or cooperate with a Department investigation or audit or is not an approved provider; or

(k) a provider whose child care subsidies are being taken pursuant to an IRS levy or garnishment[.]; or

(l) a provider living in the same home as a non-custodial parent and providing child care for a child of that parent.

(3) FFN providers must comply with all CCDF and Department requirements and will not be approved for a CC subsidy payment unless all of the following requirements have been successfully completed and verification has been provided to CCL:

(a) complete, sign and submit an application to CCL;

(b) provide a copy of a certificate of completion of New Provider orientation and agree to comply with Department requirements and policy, including ongoing training, as explained in the orientation;

(d) complete an infant/child CPR training;

(e) complete first aid training; and,

(f) the provider and all individuals 12 years old or older living in the home where care is provided must submit to and pass a background check as provided in R986-700-751 et seq.

(4) A FFN provider must also comply with all Department policy including abiding by the ratio requirements.

(5) FFN approval must be renewed annually. Renewal information is found in Department or CCL policy. The FFN CC Provider must complete an announced inspection and show compliance with all regulations at least 30 calendar days before the expiration date of the current approval.

(6) FFN CCL provider approval is for the provider and the location(s) and is not assignable or transferable.

(7) If a program or provider is not subject to licensing requirements, and the program or provider receives or wishes to receive CCDF funds but has had adverse action taken against it by CCL regarding DWS approval status or health and safety compliance, the program or provider's appeal shall be made to CCL according to CCL's procedures. An appeal based on adverse action by the Department shall be made to the Department in accordance with R986-100-123 et seq.

R986-700-706. Provider Rights and Responsibilities.

(1) Providers assume the responsibility to collect copayments and any other fees for child care services rendered. Neither the Department nor the state of Utah assumes responsibility for payment to providers.

(2) A provider may not charge clients receiving a CC subsidy a higher rate than their customers who do not receive a CC subsidy.

(3) Providers may retain the full monthly subsidy payment so long as at least eight hours of care were provided during the month and the provider is otherwise in compliance with Department rules and policies. The subsidy payment is to support an eligible client's monthly employment and training activities and allows for temporary absences and unforeseen circumstances. Having a child only attend one day per month or sporadically to receive a child care payment is a misuse of funds and will result in an overpayment and possible child care disqualification. Additionally, the subsidy payment is intended to be used to cover the provider's business expenses during the month for reserving the slot(s) and shall not be used to cover the client's out of pocket expenses, copayments, or carried forward for future months of service. Providers who choose not to apply the funds as required will be subject to an overpayment and possible child care disqualification.

(4) Providers must keep accurate records of subsidized child care payments, and time and attendance. The Department has the right to investigate child care providers and audit their records. Audits and investigations may be performed by a person or entity under contract with the Department. Time and attendance records for all subsidized clients must be kept for at least three years.

(5) Providers must provide initial verification information to determine eligibility. Providers must also cooperate with an investigation or audit to determine ongoing eligibility or if eligibility was correctly determined. Cooperation includes providing information and verification and returning telephone calls or responding to emails from Department employees or other persons authorized by the Department to obtain information such as an employee of ORS in a timely manner. "A timely manner" is usually considered to be ten business days for written documentation and two business days to return a phone call or email request. Providing incomplete or incorrect information will be treated the same as a failure to provide information if the incorrect or insufficient information results in an improper decision with regard to the eligibility. Failure to disclose a material fact that might affect the eligibility determination can also lead to criminal prosecution. If a provider fails to cooperate with an investigation or audit, provide any and all information or verification requested, or fails to keep records for three years without good cause, the provider will no longer be an approved provider. Good cause is limited to circumstances where the provider can show that the reasons for the delay in filing were due to circumstances beyond the provider's control or were compelling and reasonable. The period the provider will not be an approved provider will be from the date the information or verification was due until when it is received by the Department.

(6) If a provider accepts payment from funds provided by the Department for services which were not provided, the provider is responsible for repayment of the resulting overpayment and there may be a disqualification period and/or criminal prosecution.

(7) CCL will keep a list of all providers that have been disqualified as a provider or against whom a referral or complaint is received.

(8) All providers, except FFN providers as defined in R986-700-705(1)(b)(ii), are required to report their monthly, full-time child care rates to the local Care About Child Care agency. All providers must also report the rate for each individual child to the Department if the amount is less than the rate reported to Care About Child Care. Failure to report reduced rates may result in an overpayment.

(9) Providers are required to access the Provider Portal at jobs.utah.gov/childcare and:

(a) submit and manage bank account information;

(b) read and agree to the terms and conditions contained [~~in the Provider Guide and~~ ]in the Portal;

(d) manage Provider Portal user access to ensure only those users with authority to make changes can do so. The provider is liable for all changes made and information provided through the Provider Portal;

(e) report the following changes within 10 days, or by the 25th of the month, whichever is sooner:

(i) a reduced or part-time rate for an individual child in care, as applicable. This includes reporting any rate changes or updates that occur for each child once a rate has been submitted in the portal;

(ii) a child is no longer in child care;

(iii) a child is not expected to be in child care the following month;

(iv) that the provider received a greater subsidy payment amount than what was charged to the client for the month of service. Excess subsidy funds cannot be used to cover outstanding balances, copayments, or future services. The provider should notify the Department and the difference will either be deducted from the next month's subsidy payment or the funds must be returned to the Department;

(v) that a child has not attended for at least eight hours by the 25th of the month, regardless of whether the child attends or is expected to attend for at least eight hours following the 25th of the month; and

(vi) a change in financial institution account information for direct deposit.

(f) Effective February 1, 2018, between the 25th of each month and the end of the month, a licensed provider shall certify, in a manner specified by the Department, that the licensed provider has reviewed each child's attendance and reported any reportable changes in each child's attendance, including future changes known or expected by the provider.

(10) Providers are required to read and agree to the terms and conditions contained in the Provider Guide annually.

(11[0]) Providers must submit a W-9 Form, Federal Employer Identification Number (EIN) or Social Security Number via the DWS Provider Portal, if required by the Department, and a 1099 will be issued annually. The Federal EIN or Social Security Number must be provided within 30 days of receipt of the first subsidy payment from the Department. Failure to submit this information shall result in the provider being removed from approved provider status.

(12[1]) A provider who provides services for any part of a month and then terminates services with the client/child during the month, must reimburse the Department for the days when care was not provided. However, if it was necessary to remove the child from care because the child or others were endangered, and the incident was reported to CCL or local authorities, the Department may waive repayment.

R986-700-709. Employment Support (ES) CC.

(1) Parents who are not eligible for FEP CC may be eligible for Employment Support (ES) CC. To be eligible, a parent must be employed or be employed while participating in educational or training activities. Work Study is not considered employment. A parent who attends school but is not employed at least 15 hours per week, is not eligible for ES CC. ES CC will only be provided to cover the hours a client needs child care for work or work and approved educational or training activities.

(2) If the household has only one parent, the parent must be employed at least an average of 15 hours per week. An exception may be made to the minimum work requirements with Department approval when a parent with a disability is employed at his or her full capacity and provides requested documentation and/or verification.

(3) If the family has two parents, CC can be provided if:

(a) one parent is employed at least an average of 30 hours per week and the other parent is employed at least an average of 15 hours per week and their work schedules cannot be changed to provide care for the child(ren). An exception may be made to the minimum work requirements with Department approval when both parents are employed at their full capacity and provide requested documentation and/or verification. CC will only be provided during the time both parents are in approved activities and neither is available to care for the children; or

(b) one parent is employed and the other parent cannot work, or is not capable of earning $500 per month and cannot provide care for their own children because of a physical, emotional or mental incapacity. Any employment or educational or training activities invalidate a claim of incapacity except if approved by the Department. The incapacity must be expected to last 30 days or longer. The individual claiming incapacity must verify the incapacity and why the incapacity prohibits them from providing care for their children in the following ways:

(i) receipt of disability benefits from SSA if it proves the incapacity prohibits the client from providing care for their children;

(ii) 100% disabled by VA if it proves the incapacity prohibits the client from providing care for their children; or

(iii) by submitting a written statement from:

(A) a licensed medical doctor;

(B) a doctor of osteopathy;

(D) a licensed Advanced Practice Registered Nurse; or

(E) a licensed Physician's Assistant.

(4) Employed or self-employed parent client(s) must make, either through wages or profit from self-employment, a rate of pay equal to or greater than minimum wage multiplied by the number of hours the parent is working. To be eligible for ES CC, a self employed parent must provide business records for the most recent three month time period to establish that the parent is likely to make at least minimum wage. If a parent has a barrier to other types of employment, exceptions can be made in extraordinary cases with the approval of the state program specialist.

(5) Americorps*Vista is not supported. Job Corps activities are considered to be training and a client in the Job Corps would also have to meet the work requirements to be eligible for ES CC.

(6) Applicants must verify identity but are not required to provide a Social Security Number (SSN) for household members. Benefits will not be denied or withheld if a customer chooses not to provide a SSN if all factors of eligibility are met. SSN's that are supplied will be verified. If an SSN is provided but is not valid, further verification will be requested to confirm identity.

R986-700-715. Overpayments.

(1) An overpayment occurs when a client or provider received CC for which they were not eligible including when a provider accepts payment but does not provide care. If the Department fails to establish one or more of the eligibility criteria and through no fault of the client, payments are made, it will not be considered to have been an overpayment if the client would have been eligible and the amount of the subsidy would not have been affected.

(2)(i) Even if CC funds are authorized by the Department, a CC provider cannot receive and retain funds for any month during which no CC services were provided. If authorized or unauthorized subsidy funds received and retained by a provider but no CC services were provided during the month, the provider will be required to reimburse the Department for the excess funds and may be disqualified from receipt of further CC subsidy funds as provided in R986-700-718.

(ii) A provider is considered to have retained subsidy funds if the provider knew or should have known the child would not receive services that month and fails to notify the Department within ten days, or if the provider does not notify the Department by the 25th of the month when the child was not in care at least eight hours that month.

(iii) If the client does not use at least eight hours of child care by the 25th of the month but the child returns after the 25th of the month and attends for at least eight hours total in the month[~~uses at least eight hours of child care after the 25th of the month~~], it may result in a partial overpayment for that month. The partial overpayment may not be assessed if the provider reports by the 25th of the month that a child was not in care during that month or stopped attending care during that month and the child returns after the 25th of the month and attends for at least eight hours total in the month[~~the child then attends for eight hours that month after the change has been reported~~].

(3) In the event that excess funds were issued for the month of service, the payment cannot be used to cover the client's out of pocket expenses, copayments, or carried forward for future months of service with a provider. The payment must be returned to the Department or, if possible, the payment for the following month may be reduced to offset the over-issuance. An overpayment may also occur when a provider receives a greater subsidy payment amount than the client was charged for the month of service.

(4) All CC overpayments must be repaid to the Department.

(a) Client overpayments may be deducted from ongoing CC payments for clients who are receiving CC. If the Department is at fault in the creation of an overpayment, the Department will deduct $10 from each month's CC payment unless the client requests a larger amount.

(b) Provider overpayments. If a provider does not repay any outstanding overpayment within 30 days of notice of the overpayment, the Department will commence collection procedures which may include recouping the overpayment by deducting a portion of the overpayment from ongoing child care subsidies from the Department. This is true even if the child or client no longer receives child care from the provider. The decision whether to recoup the overpayment from ongoing child care payments or to commence collection procedures lies with the Department and not the provider or client/s.

(i) If the Department elects to recoup the overpayment from ongoing child care payments, and the overpayment is less than $1,000, the Department will recoup the full amount within 90 days. If the overpayment is more than $1,000 the Department will recoup the amount within six months. If the recoupment presents a hardship because it is more than 50% of the provider's ongoing monthly subsidy amount, the provider can contact the Department to discuss alternative arrangements for repayment.

(ii) If a provider stops providing care and has a balance due on an overpayment, and seeks approval to become a provider at a later date, approval cannot be granted until the overpayment is paid in full even if any disqualification period has expired.

(5) CC will be terminated if a client fails to cooperate with the Department's efforts to investigate alleged overpayments.

(6) If the Department has reason to believe an overpayment has occurred and it is likely that the client will be determined to be disqualified or ineligible as a result of the overpayment, payment of future CC may be withheld, at the discretion of the Department, to offset any overpayment which may be determined.

(7) A CC provider may appeal an overpayment as provided for public assistance appeals in rule R986-100. Any appeal must be filed in writing within 30 days of the date of the notice of agency action establishing the overpayment.

(8) If a provider or individual facility fails to enter into a payment plan to repay the overpayment or abide by the terms of the payment plan for 12 consecutive months, the provider will be taken off the approved provider list until all overpayments are paid in full or the arrearage on the payment plan is brought current. This is true even if there is only one overpayment.

R986-700-716. CC in Unusual Circumstances.

(1) CC may be provided for study time, to support clients in education or training activities if the parent has classes scheduled in such a way that it is not feasible or practical to pick up the child between classes. For example, if a client has one class from 8:00 a.m. to 9:00 a.m. and a second class from 11:00 a.m. to noon it might not be practical to remove the child from care between 9:00 a.m. and 11:00 a.m. These additional hours may be supported with child care.

(2) An away-from-home study hall or lab may be required as part of the class course. A client who takes courses with this requirement must verify study hall or lab class attendance. The Department will not approve more study hall hours or lab hours in this setting than hours for which the client is enrolled in school. For example: A client enrolled for ten hours of classes each week may not receive more than ten hours of this type of study hall or lab.

(3) CC may be authorized to support employment for clients who work graveyard shifts and need child care services during the day for sleep time. If no other child care options are available, child care services may be authorized for the graveyard shift or during the day, but not for both. Hours of need cannot exceed actual work hours[~~A maximum of seven hours per day will be approved for sleep time~~].

(4) CC may be authorized to support employment for clients who work at home, provided the client makes at least minimum wage from the at home work, and the client has a need for child care services. The client must choose a provider setting outside the home.

R986-700-718. Provider Disqualification; Removal From Approved Provider Status.

(1) If a parent or provider commits an IPV, as defined in R986-100-117, the parent or provider will be responsible for repayment of the overpayment, if there is one, and will be disqualified from receipt of any funds from the Office of Child Care, including subsidy funds, grants and funds as a provider or as a parent:

(a) for a period of one year for the first IPV;

(b) for a period of two years for the second IPV; and

(2) If the overpayment resulted from parent or provider fault not amounting to fraud or an agency error, the client and or provider will be responsible for repayment of the overpayment. There is no disqualification or ineligibility period for a fault overpayment.

(3) Effective February 1, 2018, a licensed provider that, in any six-month period, fails three times to timely certify attendance during the monthly certification period as required in rule R986-700-706(9)(f) shall be disqualified.

(4) A CC provider may appeal an overpayment, removal from approved provider status, or disqualification as provided for public assistance appeals in rule R986-100. Any appeal must be filed in writing within 30 days of the date of the notice of agency action establishing the overpayment or disqualification. A provider who has been disqualified or removed from approved provider status may not continue to receive CC subsidy funds pending appeal. The disqualification period will take effect even if the provider files an appeal of the decision issued by the ALJ. If the provider fails to file an appeal within 30 days of the date of the notice of agency action and the Department issues a default decision, and the provider files a request to set aside the default, CC subsidy funds will not continue unless or until the default is set aside by the ALJ. If the request to set aside the default is denied, the provider will be disqualified pending appeal of the denial to set aside the default.

(5) A provider is ineligible for CC subsidy funds after a disqualification until all overpayments established in conjunction with the disqualification have been paid in full even if the disqualification period has ended.

(6) A provider that intentionally breaches any program rule as provided in R986-100-117, except as provided in subsection (1) of this section, or violates CC rule R986-700-706(2) through (5) or who assumes a client's identity in order to gain access to client information or payment of Department funds will be disqualified for one year for the first offense, two years for the second offense and for life for the third offense.

(7) All disqualification periods run concurrently.

(8) A disqualification issued to a provider[~~, including a child care center,~~] under this subsection will follow [~~both~~ ]the facility[~~provider~~], any successor facilities[~~the principal provider~~], and [~~any~~]the principal(s) of the facility[~~successor center or provider~~].

(a) A "successor facility" [~~provider, including a child care center,~~]is any facility that acquires the business or acquires substantially all of the assets of a facility that has been disqualified[~~the provider or child care center~~]. This includes a facility whose provider [~~who~~ ]changes from one status to another like a provider who was disqualified as a licensed family provider who then changes to be a license exempt provider.

(b) "Acquired" means to come into possession of, obtain control of, or obtain the right to use the assets of a business by any legal means including a gift, lease, repossession or purchase. For purposes of succession, a purchase through bankruptcy court proceedings where assets are being liquidated is not considered an acquisition, if the court places restrictions on the transfer of liabilities to the purchaser. It is not necessary to purchase the assets in order to have acquired the right to their use, nor is it necessary for the predecessor to have actually owned the assets for the successor to have acquired them. The right to the use of the asset is the determining factor.

(c) "Assets" [~~are commonly defined to~~ ]include any property, tangible or intangible, which has value. Assets may [~~also~~ ]include the acquisition of the name of the business, customers, accounts receivable, patent rights, goodwill, employees, or an agreement by the predecessor not to compete.

(d) "Substantially all" means acquisition of 90 percent or more of all of the predecessor's assets.

(f) A "principal" is the individual or individuals who were responsible for the day to day business of the child care center provided that individual had an ownership interest in the center. An ownership interest includes a shareholder, director or officer of a corporation and a partner, member or manager of a limited liability partnership or company.

R986-700-719. Job Search Child Care (JS CC).

(1) JS CC is available to a client who is otherwise eligible for child care but is separated from his or her job and meets the eligibility criteria.

(2) JS CC is available for a maximum of three additional months provided the client:

(a) met the minimum work requirement for a single or two-parent household,[~~was employed at least 15 hours per week~~] and was permanently separated from his or her job or was receiving child care for an allowable temporary change [~~that did not exceed three months~~ ]when permanently separated from his or her job;

(b) was receiving ES CC in the month of the job separation and;

(c) reports the job loss within 10 days and requests continued child care payments while searching for a job. In that case, the client will be eligible for one additional month of child care. The month of the job loss does not count.

(3) If the client verifies the job loss in a timely manner, as directed by the Department, a second and third month of CC will be paid while the client looks for a job.[

~~(4) The JS CC extension is only available once in a rolling 12 month period even if the client received only one month of JS CC assistance.~~

~~(5) A client is not eligible for JS CC if the client has two or more jobs and is separated from one or more of them but still has one job.~~]

( 4[6]) The JS CC copayment will be at the lowest copayment amount required by the Department for the lowest income group, disregarding all earned income during the JS CC period.

R986-700-751. Background Checks.

(1) Sections R986-700-751 through 756 apply to child care providers identified in Utah Code Section 35A-3-310.5(1) and license-exempt providers and other programs and grantees not subject to CCL requirements[~~that wish to receive CCDF funds~~].

(2) The following persons must submit to a background check:

(a) The provider;

(b) Each person age 12 years old or older who is living in the household where the child care is provided; and

(c) Each person who is employed or volunteering at the facility where the child care is provided, if the person's activities involve care or supervision of children or unsupervised access to children.

(3) If child care is provided in the child's home, a background check must be done on each person age 12 years old or older living in the child's home who is not on the client's child care case.

(4) A client is not eligible for a subsidy if the client chooses a provider and any person described in Subsection (2) above has:

(a) a supported finding of severe abuse or neglect by the Department of Human Services, a substantiated finding by a Juvenile court under Subsection 78-3a-320 or a criminal conviction related to neglect, physical abuse, or sexual abuse of any person; or

(b) a conviction for an offense as identified in R986-700-754; or

(c) an adjudication in juvenile court of an act which if committed by an adult would be an offense identified in R986-700-754.

R986-700-753. Criminal Background Checks [ ~~Screening~~ ].

(1) The Department will contract with the CCL to perform a criminal background check[~~screening~~], which includes a review of the Bureau of Criminal Identification, (BCI) database maintained by the Department of Public Safety pursuant to Part 2 of Chapter 10, Title 53; and if a fingerprint card, waiver and fee are submitted, CCL will submit the fingerprint card and fee to the Utah Department of Public Safety for submission to the FBI for a national criminal history record check.

(2) Each client requesting approval of a covered child care provider must submit to CCL a form, which will include a[~~waiver and~~] certification, completed and signed by the child care provider as part of the DWS FFN approved provider process. Additional household members must give permission to run the background check. The provider shall pay all applicable background check fees. A fingerprint card and fee, prepared either by the local law enforcement agency or an agency approved by local law enforcement, shall also be submitted if required by Subsection (4) below. If the fingerprints are submitted electronically, they must be submitted in conformity with the CCL guidelines regarding electronic submissions. Fingerprints are not required to be submitted if:

(a) The covered individual has previously submitted fingerprints to CCL for a Next Generation national criminal history record check;

(b) The covered individual has resided in Utah continuously since the fingerprints were submitted; and

(c) The covered individual has not permitted his or her background check to lapse or expire since the fingerprints were submitted.

(3) The provider must state in writing, based upon the provider's best information and belief, that no covered person, including the provider's own children, has ever been convicted of a felony, misdemeanor or had a supported finding from DHS or a substantiated finding from a juvenile court of severe abuse or neglect of a child. If the provider is aware of any such conviction or supported or substantiated finding, but is not certain it will result in a disqualification, CCL will obtain information from the provider to assess the threat to children. If the provider knowingly makes false representations or material omissions to CCL regarding a covered individual's record, the provider will be responsible for repayment to the Department of the child care subsidy paid by the Department. If a provider signs an attestation, a disqualification based on a covered individual who no longer lives in the home can be cured under certain conditions.

(4) All providers, caregivers who are 16 years old and older, and covered individuals who are 18 years and older[~~including caregivers and covered individuals~~] are required to submit fingerprints under these rules as requested. In addition, the Department may conduct background checks[~~screening~~] annually.

(5) If CCL takes an action adverse to any covered individual based upon the background check[~~screening~~], CCL will send a denial letter to the provider and the covered individual.

(6) A background check must be submitted for each covered individual:

(a) Prior to the date the person becomes a covered individual, unless:

(1) The person is turning 12 years old and resides in the facility where child care is being provided, in which case the background check form must be submitted and authorized within ten business days of the date the child turns 12 years old;

(2) The person is currently employed by another child care provider within the State and has a current background check; or

(3) The person has been separated from employment from another child care provider within the State for no more than 180 days and has a current background check; and

(b) On an annual basis for each covered individual.

(7) A person may not begin work as a covered individual until the person has completed a fingerprint-based check and the results have been received. After the fingerprint-based check has been completed but prior to full completion of the background check process, a covered individual must be supervised by a person who has fully completed and passed the background check process.

R986-700-754. Exclusion from Child Care Due to Criminal Convictions.

(1) As required by Utah Code Subsection 35A-3-310.5(4), if the criminal conviction was a felony, or is a misdemeanor that is not excluded under paragraphs (2) or (3) below, the covered individual may not provide child care or reside in a home where child care is provided.

(2) As allowed by Utah Code Subsection 35A-3-310.5(5), the Department hereby excludes the following misdemeanors and determines that a misdemeanor conviction listed below does not disqualify a covered individual from providing child care:

(a) any class B or C misdemeanor offense under Title 32A, Alcoholic Beverage Control Act, except for 32A-12-203, Unlawful sale or furnishing to minors;

(b) any class B or C misdemeanor offense under Title 41, Chapter 6a, Traffic Code except for 41-6a-502, Driving under the influence of alcohol, drugs, or a combination of both or with specified or unsafe blood alcohol concentration, when the individual had a child in the car at the time of the offense;

(d) any Class B or C misdemeanor offense under Title 58, Chapter 37a, Utah Drug Paraphernalia Act;

(e) any class B or C misdemeanor offense under Title 58, Chapter 37b, Imitation Controlled Substances Act;

(f) any class B or C misdemeanor offense under Title 76, Chapter 4, Inchoate Offenses, except for 76-4-401, Enticing a Minor;

(g) any class B or C conviction under Chapter 6, Title 76, Offenses Against Property, Utah Criminal Code;

(h) any class B or C conviction under Chapter 6a, Title 76, Pyramid Schemes, Utah Criminal Code;

(i) any class B or C misdemeanor offense under Title 76, Chapter 7, Subsection 103, Adultery, and 104, Fornication;

(j) any class B or C conviction under Chapter 8, Title 76, Offenses Against the Administration of Government, Utah Criminal Code except 76-8-1201 through 1207, Public Assistance Fraud; and 76-8-1301 False statements regarding unemployment compensation;

(k) any class B or C conviction under Chapter 9, Title 76, Offenses Against Public Order and Decency, Utah Criminal Code, except for:

(i) 76-9-301, Cruelty to Animals;

(ii) 76-9-301.1, Dog Fighting;

(iii) 76-9-301.8, Bestiality;

(iv) 76-9-702, Lewdness;

(v) 76-9-702.5, Lewdness Involving Child; and

(vi) 76-9-702.7, Voyeurism; and

(l) any class B or C conviction under Chapter 10, Title 76, Offenses Against Public Health, Welfare, Safety and Morals, Utah Criminal Code, except for:

(i) 76-10-509.5, Providing Certain Weapons to a Minor;

(ii) 76-10-509.6, Parent or guardian providing firearm to violent minor;

(iii) 76-10-509.7, Parent or Guardian Knowing of a Minor's Possession of a Dangerous Weapon;

(iv) 76-10-1201 to 1229.5, Pornographic Material or Performance;

(v) 76-10-1301 to 1314, Prostitution; and

(vi) 76-10-2301, Contributing to the Delinquency of a Minor and

(m) any class A misdemeanor where the conviction occurred more than ten years ago and the offense would be an excludable offense listed in this section.

(3) The Department will rely on the criminal background screening as conclusive evidence of the conviction and the Department may revoke or deny approval for a provider based on that evidence.

(4) If a covered individual causes a provider to be disqualified as a provider based upon the criminal background screening and the covered individual disagrees with the information provided by BCI, the covered individual may challenge the information by contacting BCI directly. If the information causing the disqualification came from a Utah court, the covered individual must contact that court or seek an expungement as provided in Utah Code Ann. Sections 77-18-10 through 77-18-15.

(5) All child care providers must report all felony and misdemeanor arrests, charges or convictions of covered individuals to DOH within 48 hours of the arrest, notice of the charge, or conviction. All child care providers must also report a person aged 12 or older moving into the home where child care is provided within ten calendar days of that person moving in. A release for a background check must also be provided for that person within the time requested by the Department or DOH.

(6)(a) Pursuant to Utah Code Ann. Section 35A-3-310.5(5)(b), the Department's designee for considering and exempting individual cases is the Child Care Licensing Administrator within the Utah Department of Health.

(b) The Department's designee may exempt a covered individual from being excluded from providing child care due to a criminal conviction if the Department's designee determines that the nature of the background check finding or relevant mitigating circumstances indicate the covered individual does not pose a risk to children.

(c) Notwithstanding Subsection (b) above, the Department's designee shall not exempt a covered individual convicted of any of the following:

(i) Any offense specifically not excluded under Subsection (2) above;

(ii) Any "violent felony" as that term is used in Section 76-3-203.5(1)(c) of the Utah Code;

(iii) Any felony against a child, including child pornography;

(iv) Any felony involving abuse or neglect of a spouse, child, or vulnerable adult;

(v) Any felony involving rape or sexual assault;

(vi) Any felony involving kidnapping;

(vii) Any felony involving arson;

(viii) Any felony involving physical assault or battery;

(ix) Any drug-related felony, unless the offense was a non-violent offense and occurred at least ten years prior to the date of the background check; or

(x) Any violent misdemeanor committed as an adult against a child, including offenses involving child abuse, child endangerment, sexual assault, or child pornography.

R986-700-756. Exclusion From Child Care Due to Finding of Abuse, Neglect, or Exploitation.

(1) Pursuant to Utah Code Subsection 62A-4a-1005(2)(a)(v) CCL will screen all covered individuals, including children residing in a home where child care is provided, for a history of a supported finding of severe abuse, neglect, or exploitation from the licensing information system maintained by the Utah Department of Human Services (DHS) and the juvenile court records. The juvenile court records need only be accessed as provided in 35A-3-310.5(2)(c).

(2) If a covered individual appears on the licensing information system, the threat to the safety and health of children will be assessed. The Department or CCL may revoke any existing approval and refuse to permit child care in the home until the Department or CCL is reasonably convinced that the covered individual no longer resides in the home.

(3) If the Department or CCL denies or revokes approval of a child care subsidy based upon the licensing information system, the Department will send a written decision to the client.

(4) If the DHS determines a covered individual has a supported finding of severe abuse, neglect or exploitation after the Department approves a child care subsidy, the covered individual has ten calendar days to notify CCL. Failure to notify CCL may result in the child care provider being liable for an overpayment for all subsidy amounts paid to the client between the finding and when it is reported or discovered.

R986-700-757. Consequences for Failure to Comply; Appeals.

(1) A child care provider that fails to comply with Sections R986-700-751 through -756 will be removed from approved provider status until the provider complies. The child care provider may also be held liable for additional penalties under Section R986-700-718 if the requirements for liability under that section are met.

(2) A child care provider or covered individual may appeal an adverse action related to the background check requirements by following the procedure for appeals set forth in Section R986-700-705(7).

KEY: child care

Date of Enactment or Last Substantive Amendment: [~~September 21, 2017~~]2018

Notice of Continuation: September 3, 2015

Authorizing, and Implemented or Interpreted Law: 35A-3-310; 53A-1b-110

Additional Information

More information about a Notice of Proposed Rule is available online.

The Portable Document Format (PDF) version of the Bulletin is the official version. The PDF version of this issue is available at https://rules.utah.gov/publicat/bull_pdf/2018/b20180515.pdf. The HTML edition of the Bulletin is a convenience copy. Any discrepancy between the PDF version and HTML version is resolved in favor of the PDF version.

Text to be deleted is struck through and surrounded by brackets ([~~example~~]). Text to be added is underlined (example). Older browsers may not depict some or any of these attributes on the screen or when the document is printed.

For questions regarding the content or application of this rule, please contact Nathan White at the above address, by phone at 801-526-9647, by FAX at , or by Internet E-mail at [email protected]. For questions about the rulemaking process, please contact the Office of Administrative Rules.

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