DAR File No. 39395
This rule was published in the June 1, 2015, issue (Vol. 2015, No. 11) of the Utah State Bulletin.
Workforce Services, Employment Development
Child Care Assistance
Notice of Proposed Rule
DAR File No.: 39395
Filed: 05/15/2015 11:24:34 AM
Purpose of the rule or reason for the change:
The purpose of this amendment is to change the method of payment to child care providers.
Summary of the rule or change:
Previously, the Department paid parents directly and the parent was responsible to pay the provider. The Department will now pay the provider directly. This change explains how those payments will be made and include some other housekeeping changes to mirror federal regulations.
State statutory or constitutional authorization for this rule:
- Section 35A-3-310
- Subsection 35A-1-104(4)
- Section 35A-1-104
Anticipated cost or savings to:
the state budget:
This applies to federally-funded programs so there are no costs or savings to the state budget.
This applies to federally-funded programs so there are no costs or savings to local governments.
There will be no costs to small businesses to comply with these changes because this is a federally-funded program.
persons other than small businesses, businesses, or local governmental entities:
There will be no costs to persons other than small businesses, businesses or local government entities to comply with these changes because there are no costs or fees associated with these proposed changes.
Compliance costs for affected persons:
There are no compliance costs for this change to anyone, including persons affected by this change.
Comments by the department head on the fiscal impact the rule may have on businesses:
There are no compliance costs associated with this change. There are no fees associated with this change. There will be no cost to anyone to comply with these changes. There will be no fiscal impact on any business.
Jon Pierpont, Executive Director
The full text of this rule may be inspected, during regular business hours, at the Division of Administrative Rules, or at:Workforce Services
140 E 300 S
SALT LAKE CITY, UT 84111-2333
Direct questions regarding this rule to:
- Suzan Pixton at the above address, by phone at 801-526-9645, by FAX at 801-526-9211, or by Internet E-mail at firstname.lastname@example.org
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:
This rule may become effective on:
Jon Pierpont, Executive Director
R986. Workforce Services, Employment Development.
R986-700. Child Care Assistance.
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;
(c) if the client's [
and/or child'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;
(e) the client is separated from his or her employment;
(f) a change of address;
(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; or
(h) a change in the child care provider, including when care is provided at no cost.
(6) 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.
A client is responsible for payment to the Department of
any overpayment made in CC.]
(8) 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;
(c) the subsidy amount for that provider;
(d) the copayment amount;
the date a two party check was mailed to the
(f) a copy of the two party check on a need to know
g]) the month the client is scheduled for review[ or reestablishment,]
h]) the date the client's application was received;
i]) general information about what additional information
and/or verification is needed to approve CC such as the
client's work schedule and income.
(9) Unused child care funds issued on the client's electronic benefit transfer (EBT) card will be removed from ("aged off") the EBT card 90 days after those funds were deposited onto the EBT card. Aged off funds will no longer be available to the client.
R986-700-705. Eligible Providers and Provider Settings.
(1) The Department will only pay CC to clients who select eligible providers. The only eligible providers are:
(a) providers regulated through Department of Health Child Care Licensing (CCL):
(i) licensed homes;
(ii) licensed child care 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 from CCL and have at least one person who is trained in first aid and infant/child CPR who must be with the children at all times including when the children are being transported in a vehicle. Current verification of first aid and CPR training must be provided to CCL prior to Department approval; 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 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;
(c) a parent, foster care parent, stepparent or former stepparent, even if living in another residence;
(d) undocumented aliens;
(e) persons under age 18;
(f) a provider providing care for the child in another state;
(g) 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 and the
provider is otherwise eligible[
including meeting the requirements of background checks
(h) any provider disqualified under R986-700-718;
(i) a provider who does not
cooperate with a Department
of a potential overpayment;;] or
(j) a provider whose child care subsidies are being taken pursuant to an IRS levy or garnishment.
(3) FFN providers 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 as explained in the orientation;
(c) pass a home inspection as provided in Department policy;
(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 and submit a renewal application, together with any information, verifications or releases required or requested by the Department or CCL, 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) A FFN provider or applicant has a right to file an appeal when an adverse action has been taken against him or her in regards to FFN approval status or health and safety compliance. Prior to filing an appeal, the provider or applicant must request a review with the CCL manager. If unresolved after that review, the provider may file an appeal by requesting a fair hearing with DWS in accordance with R986-1-123 et seq.
R986-700-706. Provider Rights and Responsibilities.
(1) Providers assume the responsibility to collect payment 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 must keep accurate records
of subsidized child care payments,
time and attendance. The Department has the right to
investigate child care providers and audit their records. Time and
attendance records for all subsidized clients must be kept for at
least one year.[
If a provider fails to cooperate with a Department
investigation or audit, or fails to keep records for one year, the
provider will no longer be an approved provider.]
4]) If a provider accepts payment from funds provided by the
Department for services which were not provided,
[ the provider may be referred for criminal prosecution and
will no longer be an approved provider following the procedure
outlined in section R986-700-718. This is true even if the funds
were authorized under R986-700-718.]
(5) If an overpayment is established and it is determined
that the provider was at fault in the creation of the overpayment,
the provider is responsible for repayment of the
Records will be kept by the Department for individuals who
are not approved providers and]
against whom a referral or complaint is received.
(7) All providers, except FFN providers as defined in R986-700-705(1)(b)(ii), are required to report their child care rates to the local Care About Child Care agency.
R986-700-708. FEP CC.
(1) ]FEP CC may be provided to clients receiving
financial assistance from FEP or FEPTP. FEP CC will only be
provided to cover the hours a client needs child care to support
the activities required by the employment plan. FEP CC is not
subject to the copayment.
(2) Additional time for travel may be included on a case by
case basis when circumstances create a hardship for the client
because the required activities necessitate travel of distances
taking at least one hour each way.
R986-700-714. CC Payment Method.
CC payments to parents will be generated monthly by a
two-party check issued in the parent's name and the chosen
provider's name, except as noted in paragraph (2) below. The
check is mailed to the client.]
CC payments will be made by electronic benefit transfer
(EBT) either through a point of sale (POS) machine or interactive
voice recording (IVR) system to authorized provider types as
determined by the Department. The provider may elect which option
of EBT to use. The provider must complete the application process
and sign an agreement with the Department's contractor in order
to be eligible to receive CC payments. If the provider elects to
use the POS method of payment, the provider must lease a POS
machine at the provider's own expense. Providers that completed
the application process prior to August 1, 2011 need to provide
additional information to the Department contractor. If the
provider does not provide this additional information, the provider
will not be eligible for CC payments as of January 1,
(3) In the event that a check is reported
as lost or stolen, [
both the parent and ]the provider [ are] required to sign a statement that they have not received
funds from the original check before a replacement check can be
issued. The check must be reported as lost or stolen within 60 days
of the date the check was mailed. The statement must be signed on
an approved Department form[ and the signing witnessed, and in some cases notarized, at
a local office of the Department. If the provider is unable to come
into a Department office to sign the form, the form may be accepted
if the signature is notarized]. If the original check has
[ a copy of the check will be reviewed and both the parent
and provider must] provide a sworn, notarized statement
that the signature on the endorsed check is a forgery.
[ T]he Department may require a waiting period prior to issuing
a replacement check.
(4) The Department is authorized to stop
payment on a CC check without prior notice[
to the client] if:
(a) the Department has determined that the
was not eligible for the CC payment, the
Department has confirmed with the child care provider that no
services were provided for the month in question or the provider
cannot be located, and the Department has made an attempt to
contact the [
(b) when the check has been outstanding for at least 90 days; or
(c) the check is lost or stolen.
(5) No stop payment will be issued by the Department without prior notice to the provider unless the provider is not providing services or cannot be contacted.
(1) An overpayment occurs when a client or provider received CC for which they were not eligible. 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) 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 and will be disqualified from receipt
of any funds from the Office of Child Care, including subsidy
funds, grants and funds as a provider: (a) for a period of one year for the first IPV; (b) for a period of two years for the second IPV;
and (c) for life for the third IPV. (3) If the client was at fault in the creation of an
overpayment for any reason other than an IPV as provided in
paragraph (2) above, the client will be responsible for repayment
of the overpayment. There is no disqualification or ineligibility
period for a fault overpayment.]
4]) All CC overpayments must be repaid to the Department.
O]verpayments 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
5]) CC will be terminated if a client fails to cooperate with
the Department's efforts to investigate alleged
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.
R986-700-718. Provider Disqualification.
(1) A child care provider removing child care subsidy funds
from a client's account by way of electronic benefit transfer
(EBT) and interactive voice response (IVR), can only remove those
funds from a client's account that are authorized by the
Department for that provider. All providers receiving payment for
child care services through an EBT may learn the exact amount
authorized for that provider for each client by accessing the
Department's Provider Payment Authorization website. Providers
who remove more funds than authorized will be required to reimburse
the Department for the excess funds and will be disqualified from
receipt of further CC subsidy funds as follows; (a) if the provider has never removed unauthorized CC
subsidy funds before, the Department will send a notice of agency
action to the provider's last known address informing the
provider of the unauthorized access and establishing an
overpayment in the amount of the excess funds. If the provider
repays the overpayment within six months of the date of the
notice of agency action, no further action will be taken on that
overpayment. If the provider does not repay the overpayment in
full within six months of the notice of agency action the
overpayment will become an IPV and the provider will be
disqualified as a provider for one year; (b) if the provider removes funds in excess of those
authorized by the Department a subsequent time, there is no
outstanding balance on any previous provider overpayment and the
provider has never been disqualified, the subsequent overpayment
is treated as a first overpayment. The provider will be given six
months from the notice of agency action to repay the overpayment
under these circumstances. If the subsequent overpayment is not
repaid in full within six months of the notice of agency action,
the provider will be disqualified for one year. If the provider
was previously disqualified, the provider will be given 30 days
from the notice of agency action to repay all outstanding
overpayments in full, including all prior and subsequent
overpayments. If the overpayment/s is/are not paid within 30
days, the provider will be disqualified for a period of two
years. If the provider has never been disqualified but has a
balance due on a previous overpayment, the provider will be given
six months to repay the overpayment but may be disqualified if
the first overpayment is not paid in time. (c) a CC provider that removes unauthorized funds after
having been disqualified for a two year period due to
unauthorized removal of funds in paragraph (1)(b) of this
subsection will be given 30 days from the notice of agency action
to repay all outstanding overpayments in full. If the
overpayment/s is not paid in full within 30 days, the provider
will be permanently disqualified. (d) each time a provider removes unauthorized funds is a
separate offense even if the removal occurs on the same day. If,
for instance, a provider removed funds from three separate
clients on the same day, it would be three offenses. Likewise, if
the provider removed unauthorized funds from the same client
three times in different months, it would be three
offenses. (2) Even if CC funds are authorized under this section, a
CC provider cannot remove, accept and/or retain funds for any
month during which no CC services were provided. If authorized or
unauthorized subsidy funds were accepted from a client or removed
from a client's account as provided in this section but no CC
services were provided during the month, the provider will be
required to reimburse the Department for the excess funds and
will be disqualified from receipt of further CC subsidy funds in
the same manner as provided in subsection (1) of this
section. (3) CC providers disqualified under subsections (1) or
(2) of this section will be ineligible for receipt of quality
grants awarded by the Department during the period of
disqualification. (4) A CC provider overpayment not paid in full within the
time limits specified in subsection (1) of this section will be
referred to collection and will be collected in the same manner
as all public assistance overpayments. Payment of provider
overpayments must be made to the Department and not to the
5]) A CC provider may appeal an overpayment 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 [ found ineligible] may continue to receive CC subsidy funds
pending appeal until a decision is issued by the ALJ. 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[ unless the provider is within the six month or 30 day grace
period allowed under subsection (1) of this section].
6]) 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.
7]) 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.
8]) All disqualification periods run [ consecutively].
9]) A disqualification issued to a provider, including a
child care center, under this subsection will follow both the
provider, the principal provider, and any successor center or
(a) A "successor" provider, including a child care center, that acquires the business or acquires substantially all of the assets of the provider or child care center. This includes a 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.
KEY: child care
Date of Enactment or Last Substantive Amendment: [
May 1, ]2015
Notice of Continuation: September 8, 2010
Authorizing, and Implemented or Interpreted Law: 35A-3-310; 53A-1b-110
More information about a Notice of Proposed Rule is available online.
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For questions regarding the content or application of this rule, please contact Suzan Pixton at the above address, by phone at 801-526-9645, by FAX at 801-526-9211, or by Internet E-mail at email@example.com. For questions about the rulemaking process, please contact the Division of Administrative Rules.