CFS-24-16-00001-P Child Care for Children Experiencing Homelessness

6/15/16 N.Y. St. Reg. CFS-24-16-00001-P

NEW YORK STATE REGISTER

VOLUME XXXVIII, ISSUE 24

June 15, 2016

RULE MAKING ACTIVITIES

OFFICE OF CHILDREN AND FAMILY SERVICES

PROPOSED RULE MAKING

NO HEARING(S) SCHEDULED

 

I.D No. CFS-24-16-00001-P

Child Care for Children Experiencing Homelessness

PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following proposed rule:

Proposed Action:

Amendment of sections 404.1, 404.6, 404.8, 415.1, 415.2, 415.3, 415.4, 415.7, 415.8 and 415.9; and repeal of section 415.11 of Title 18 NYCRR.

Statutory authority:

Social Services Law, sections 20(3)(d), 34(3)(f), 410(1) and title 5-C

Subject:

Child care for children experiencing homelessness.

Purpose:

To reduce barriers for children experiencing homelessness to receive child care assistance and to attend child care.

Text of proposed rule:

Title 18, of the Official Compilation of Codes, Rules and Regulations of the State of New York (NYCRR), is hereby amended to include amendments to sections 404.1, 404.6, 404.8, 415.1, 415.2, 415.3, 415.4, 415.7, 415.8 and 415.9. In addition, section 415.11 is hereby repealed.

18 NYCRR Section 404.1(d)(1)(ii) is amended to read as follows:

(ii) Except for the provision of child care services to certain families transitioning from family assistance as set forth in section 415.2(a)(1)[(iii)](iv) of this Title, and protective services for adults as set forth in Part 457 of this Title, no reimbursement will be available for the provision of services prior to the date of actual determination of programmatic and/or financial eligibility unless such determination is made within 30 days of the date of application and the individual is determined to have been programmatically and/or financially eligible when services were initiated. In no event may the date of eligibility precede the date of application except for the provision of child care to transitioning families as set forth in section 415.2(a)(1)[(iii)](iv) of this Title and protective services for adults.

18 NYCRR Section 404.6(a) is amended to read as follows:

(a) The social services district must impose and provide for the collection of such fees for service as are required in the then effective consolidated services plan or integrated county plan or, in the case of child care services, the family share for such services required by section 415.3[(f)](e) of this Title. Failure of the service recipient to pay a fee or family share as required in this section must lead to suspension or termination of the service for which the fee or family share was imposed and not paid unless, in the case of child care services, satisfactory arrangements have been made, prior to the suspension or termination of such services, for the service recipient to make full payment of all delinquent family shares. No subsequent application nor any reapplication by the service recipient for any service suspended or terminated by reason of the failure to pay a required fee or family share will be considered until such time as all delinquent fees are paid or, in the case of child care services, unless and until arrangements satisfactory to the social services district are made for the service recipient to make full payment of all delinquent family shares. Notwithstanding the foregoing, failure of the service recipient to pay a fee or family share must not be a basis for denial or discontinuance of services as part of a plan of protective services for an adult or a child or for preventing placement of a child in foster care.

18 NYCRR Section 404.8(b) is amended to read as follows:

(b) The definition of child care services unit set forth in section 415.1[(f)](l) of this Title must be used for all determinations and redeterminations of eligibility for child care services.

18 NYCRR Section 415.1(a) is amended to read as follows:

(a) Child care services means care for an eligible child provided on a regular basis either in or away from the child's residence for less than 24 hours per day which is provided by an eligible provider as defined in subdivision [(i)](g) of this section. Child care services may exceed 24 consecutive hours when such services are provided on a short-term emergency basis or in other cases where the caretaker's approved activity necessitates care for 24 hours or more on a limited basis, if the district has indicated in its consolidated services plan or integrated county plan that it will provide for such care.

18 NYCRR Section 415.1(i) is amended to read as follows:

(i) Legally-exempt group child care means care provided by those caregivers, other than caregivers of informal child care as defined in subdivision [(c)](h) of this section, which are not required to be licensed by or registered with the department or licensed by the City of New York but which meet all applicable State or local requirements for such child care programs. Caregivers of legally-exempt group child care include, but are not limited to:

A new subparagraph (v) is added to 18 NYCRR Section 415.2(a)(2) to read as follows:

(v) A family experiencing homelessness, in accordance with section 725 of Subtitle VII-B of the McKinney-Vento Act, with income up to 200 percent of the State income standard and child care services are needed for the child’s caretaker(s) to seek housing and:

(a) for the child’s caretaker(s) to seek employment as defined in section 415.1(p); or

(b) for the child’s caretaker(s) to be engaged in work as defined in section 415.1(o); or

(c) for the child’s caretaker(s) to attend educational or vocational activities as defined in section 415.2(a)(3)(vii)(b) or section 415.2(a)(3)(iv). Notwithstanding the potential for some of these educational or vocational training programs to allow for the eventual attainment of a bachelor's degree or like certificate of completion for a four-year college program, this regulation does not permit the renewal of such educational or vocational training program enrollment for any additional period in excess of 30 consecutive calendar months except as for those programs defined in section 415.2(a)(3)(iv), nor does it permit enrollment in more than one such program.

18 NYCRR Section 415.2(a)(3)(iii)(b) is amended to read as follows:

(b)[homeless or ] receiving services for victims of domestic violence and needs child care in order to participate in an approved activity, or in screening for or an assessment of the need for services for victims of domestic violence; or

18 NYCRR Section 415.2(a)(3)(iii)(c) is amended to read as follows:

(c) in an emergency situation of short duration including, but not limited to, cases where the caretaker’s absence from the home for a substantial part of the day is necessary because of extenuating circumstances such as a fire, [being dispossessed from the home, seeking living quarters,] or providing chore/housekeeper services for an elderly or disabled relative.

18 NYCRR Section 415.2(d)(1)(i) is amended to add clause (c), and to read as follows:

(a) families with very low income. Each social services district must establish in its consolidated services plan or integrated county plan an income level at or below 200 percent of the State income standard which will constitute the upper income level for families with very low income; [and]

(b) families with children who have special needs[.]; and

(c) families experiencing homelessness.

18 NYCRR Section 415.3(e)(1) is amended to read as follows:

(1) Each family receiving child care services, [with the] except[ion of] for a family where the parent(s) or caretaker relative(s) is receiving public assistance[,] or a family experiencing homelessness, must contribute toward the costs of such services by paying a family share based upon the family's income. A family share also may be required of any family to recoup an overpayment for a child care services regardless of whether any member of the family is receiving public assistance.

18 NYCRR Section 415.4(a)(1)(v) is amended to read as follows:

(v) a recipient's responsibility to contribute toward the costs of the child care services by paying a family share, if required as determined in accordance with section 415.3[(f)](e) of this Part;

18 NYCRR Section 415.4(c)(1) is amended to read as follows:

(1) A recipient must have the option to choose between the eligible providers set forth in section 415.1[(h)](g) of this Part; provided, however, that:

18 NYCRR Section 415.4(f)(7)(iv)(b) is amended to read as follows:

(b) if the caregiver of legally-exempt group child care is not required to operate under the auspices of another Federal, State or local governmental agency, then the caregiver must meet the additional health and safety requirements set forth in [subparagraphs (iv) and (v) of this paragraph] section 415.4(f)(7).

18 NYCRR Section 415.4(f)(7)(v)(w) is amended to read as follows:

(w) The caregiver shall [will] not[ give] provide child care to any child unless the caregiver has been furnished with a statement signed by a physician or other authorized individual who specifies that the child has received age appropriate immunizations in accordance with New York State Public Health Law or a statement signed by a physician or other authorized individual who indicates that one or more of the immunizations would be detrimental to the child's health, or the child's caretaker provides a statement indicating that the child has not been immunized due to the caretaker's religious beliefs.

18 NYCRR Section 415.7(f)(2) is amended to read as follows:

(2) to receive a child care certificate, as defined in section 415.1[(p)](n) of this Part, which permits the child's caretaker to arrange child care services with any eligible provider.

18 NYCRR Section 415.8(k)(2) is amended to read as follows:

(2) The parent or caretaker relative must document to the social services district, through the submission of new attestations in accordance with [subdivision (h) of this] section 415.8(i) on a periodic basis as set forth by the social services district, that the parent or caretaker relative is continuing to attempt to locate the needed child care including following up on all new referrals from the social services district, child care resource and referral agency, and/or any other child care agency, as applicable, and by responding to all offers of child care from the social services district. New attestations must be submitted in accordance with a schedule developed by the district based on the parent's or the caretaker relative's employment plan.

18 NYCRR Section 415.8(l)(6) is amended to read as follows:

(6) Affordable means the parent or caretaker relative would have sufficient income to pay the family share for the child care services determined in accordance with section 415.3[(f)](e) of this Part, if required, and/or to pay the cost of care above market rate, if applicable. If the potential provider is a provider of informal child care who would be providing care in the child(ren)'s home, affordable also means that the parent or caretaker relative would have sufficient income to pay the provider at least minimum wage, if required by State and/or Federal law, and to provide such provider with all employment benefits required by State and Federal law.

18 NYCRR Section 415.9(h) is amended to read as follows:

(h)(1) A social services district may establish a differential payment rate[s] for child care services provided by [regulated]licensed or registered child care providers that have been accredited by a nationally-recognized child care organization. Legally-exempt child care providers are not eligible for a differential payment rate under this paragraph. If the social services district chooses to provide a differential rate, the differential rate must be at least five percent higher than the actual cost of care or the applicable market rate, whichever is less. The differential rate may not exceed 15 percent of the actual cost of care or the applicable market rate, whichever rate is less.

(2) A social services district [may also]must establish differential payment rates for any eligible child care provider[s] as defined in section 415.1[(h)](g) of this Part for child care services provided during nontraditional hours (evening, night or weekend hours). The differential rate must be at least five percent higher than the actual cost of care or the applicable market rate, whichever is less. The differential rate may not exceed 15 percent of the actual cost of care or the applicable market rate, whichever is less.

(3) A social services district must establish differential payment rates for licensed and registered child care providers for child care services provided to a child experiencing homelessness. A social services district may establish differential payment rates for legally-exempt child care providers for a child experiencing homelessness. The differential rate for licensed and registered child care providers must be at least five percent higher than the actual cost of care or the applicable market rate, whichever is less. There is no minimum differential rate for legally-exempt child care providers. The differential rate may not exceed 15 percent of the actual cost of care or the applicable market rate, whichever is less.

(4) [The differential payment rates established by the district may be up to 15 percent higher than the applicable market rates set forth in these regulations.] The differential payment rates the district sets [for accredited programs] may be different [than the rates set for care provided during nontraditional hours] for each category established in this subdivision. The social services district must indicate in the district's consolidated services plan or integrated county plan the percentage [above the applicable market rate(s)] that it [opts to allow] will provide for [accredited programs and/or for care provided during nontraditional hours] each category. The social services district must indicate the rate that it will provide for child care providers that qualify for multiple differential payment rates, pursuant to this section. The total percentage must not exceed 25 percent of the applicable market rate or the actual cost of care. A social services district may request a waiver from the [office] Office to establish a payment rate that is in excess of [15] 25 percent above the applicable market rate upon a showing that the [15] 25 percent maximum is insufficient to provide access within the district [to accredited programs and/or care provided during nontraditional hours]to such child care providers, as applicable.

Text of proposed rule and any required statements and analyses may be obtained from:

Public Information Office, New York State Office of Children and Family Services, 52 Washington Street, Rensselaer, NY 12144, [phone], email: [e-mail]

Data, views or arguments may be submitted to:

Same as above.

Public comment will be received until:

45 days after publication of this notice.

Regulatory Impact Statement

1. Statutory authority:

Section 20(3)(d) of the Social Services Law (SSL) authorizes the Commissioner of the Office of Children and Family Services (Office) to establish rules, regulations and policies to carry out the Office’s powers and duties under the SSL.

Section 34(3)(f) of SSL authorizes the Commissioner of the Office to establish regulations for the administration of public assistance and care within the State.

Section 410(1) of the SSL authorizes a social services official of a county, city or town to provide day care for children at public expense and authorizes the Office to establish criteria for when such day care is to be provided.

Article 6, Title 5-C (sections 410-u through 410-z) of the SSL governs the New York State Child Care Block Grant. It includes provisions regarding the use of funds by social services districts, the types of families eligible for services, the amount of local funds that must be spent on child care services, and reporting requirements. The Office is required to specify certain NYSCCBG requirements in regulation.

The Child Care and Development Block Grant Act of 2014 (42 U.S.C. 9858 et seq) requires that the State give priority to families experiencing homelessness. In addition, the federal statute includes a number of provisions to improve access to high quality child care for children experiencing homelessness. The law requires the State to establish a grace period that allows children experiencing homelessness and children in foster care to receive child care services while allowing their families, a reasonable time to comply with immunization and other health and safety requirements.

2. Legislative objectives:

The legislative intent of the child care subsidy program is to assist low income families in meeting their child care costs in quality programs that provide for the health and safety of their children.

The regulations support the legislative objectives underlying Article 6, Title 5-C of the SSL to provide child care services to public assistance recipients and low income families when necessary to promote self-sufficiency and to protect the health and safety of children in care. In addition, the regulations provide social services districts with greater local flexibility to provide child care services in the manner that best meets the needs of their local communities.

3. Needs and benefits:

The Child Care and Development Block Grant Act of 2014 (42 U.S.C. 9858 et seq) requires that the State give priority to families experiencing homelessness, and establish a grace period that allows children experiencing homelessness and children in foster care to receive child care services while allowing their families a reasonable time to comply with immunization and other health and safety requirements.

The purpose of this proposed rule-making is to reduce barriers for children experiencing homelessness to receive child care assistance and to attend child care.

This package also makes technical revisions to correct inaccurate cross references.

4. Costs:

Under the State Budget for SFY 2016-2017, social services districts will receive their allocations of $805,928,000 in federal and State funds under the New York State Child Care Block Grant. Social services districts have the option to transfer a portion of their Flexible Fund for Family Services allocations to the New York State Child Care Block Grant to supplement their New York State Child Care Block Grant allocations.

Under section 410-v(2) of the Social Services Law, the State is responsible for reimbursing social services districts for seventy-five percent (75%) of the costs of providing subsidized child care services to public assistance recipients; social services districts are responsible for the other twenty-five percent (25%) of such costs. In addition, the State is responsible for reimbursing social services districts for one hundred percent (100%) of the costs of providing child care services to other eligible low-income families. The State reimbursement for these child care services is made from the State and/or federal funds allocated to the State Child Care Block Grant and is limited on an annual basis to each social services district’s State Child Care Block Grant allocation for that year.

For families that do not fall under the child care guarantee, social services districts will be required to prioritize and provide child care subsidies to support homeless families to the extent that they have funding available. Social services districts may use block grant funds allocated to cover the costs of the differential market rate for care provided to children experiencing homelessness.

Social service districts will continue to have discretion with regard to establishing a differential payment rate for child care services provided by an accredited nationally-recognized child care organization, however those districts that choose to establish such a rate will be required to establish the rate at least five percent (5%) higher than the actual cost of care or the applicable market rate, whichever is less.

Social services districts will be required to provide licensed/registered child care providers with a differential market rate, for care provided to a child experiencing homelessness, of at least five percent (5%) higher than the actual cost of care or the applicable market rate, whichever is less. Social services districts have the option to pay up to fifteen percent (15%) above the actual cost of care or the applicable market rate, if the social services district selects this option in its consolidated services plan or integrated county plan.

Social services districts have the option to establish a differential payment rate for legally-exempt child care providers for child care services provided to a child experiencing homelessness, if the social services district selects this option in its consolidated services plan or integrated county plan. If a social services district chooses to provide a differential rate it will not be required to establish a minimum differential rate for legally-exempt child care providers. Social services districts will have the option to pay up to fifteen percent (15%) above the actual cost of care or the applicable market rate, whichever is less.

Social services districts will be required to establish differential payment rates for child care providers for child care services provided during nontraditional hours (evening, night or weekend hours). The differential rate for child care providers must be at least five percent (5%) higher than the actual cost of care or the applicable market rate, whichever is less. Social services districts may not establish a differential rate that exceeds fifteen percent (15%) of the actual cost of care or the applicable market rate, whichever is less.

Social services districts may establish different differential payment rates for each category: accredited child care programs, care provided during nontraditional hours, or care provided to a child experiencing homelessness. The social services district will be required to indicate in the district's consolidated services plan or integrated county plan the percentage that it will provide for each category. For child care providers that qualify for multiple differential payment rates, the total percentage must not exceed twenty-five percent (25%) of the applicable market rate or the actual cost of care. Social services district will be allowed to request a waiver to establish a payment rate that is in excess of twenty-five percent (25%) above the applicable market rate upon a showing that the twenty-five percent (25%) maximum is insufficient to provide access within the district to accredited programs and/or care provided during nontraditional hours and/or care provided to a child experiencing homelessness.

Social services districts will be required to waive the family fee for a family experiencing homelessness.

Social services districts will be required to include a family experiencing homelessness as a priority population, if the family is seeking housing, and: seeking employment or, engaged in work or, participating in an approved educational or vocational activity.

Child care providers will be required to provide child care and social services districts will be required to provide child care assistance for a grace period, consistent with New York State Public Health Law, that will allow parents to obtain required immunization paperwork.

5. Local government mandates:

Social services districts will be required to make payments for subsidized child care services based on the actual cost of care up to the applicable market rates. Social services districts must identify which child care providers receive a differential payment rate for: serving a child/ren experiencing homelessness, providing care during non-traditional hours and/or, are accredited by a nationally-recognized child care organization. Social services districts must identify which child care providers are serving children experiencing homelessness and waive the family fee and adjust payments, as appropriate.

6. Paperwork:

Social services districts will need to review cases to determine whether the differential market rate applies to: accredited child care programs, care being provided during nontraditional hours, and/or the child care provider is caring for a child experiencing homelessness. Social services districts will need to review cases to determine whether or not the family fee should be waived. Payment adjustments will have to be made, as appropriate.

7. Duplication:

The new requirements do not duplicate any existing State or federal requirements.

8. Federal standards:

The regulations are consistent with the Child Care and Development Block Grant Act of 2014 (42 U.S.C. 9858 et seq) that require the State to prioritize families that are experiencing homelessness and provide a grace period for children experiencing homelessness to attend child care.

9. Compliance schedule:

These provisions must be effective on October 1, 2016.

10. Alternative approaches:

No alternative approaches were considered because federal statute requires that families experiencing homelessness be prioritized to receive child care assistance and provides a grace period for children experiencing homelessness to attend child care.

Regulatory Flexibility Analysis

1. Effect on small businesses and local governments:

The change in regulations, waiving the family fee for families experiencing homelessness, the differential market rate for care provided to children experiencing homelessness, the differential market rate for care provided during nontraditional hours, the differential market rate for care provided by an accredited child care program, prioritizing child care assistance for children experiencing homelessness, and providing a grace period for children to attend child care while the parents work toward complying with the state immunization requirements, will affect the 58 social services districts. There is a potential effect on over 20,000 licensed and registered child care providers and an estimated 45,000 informal providers that may provide child care services to families receiving a child care subsidy.

2. Compliance requirements:

For families that do not fall under the child care guarantee, social services districts will be required to prioritize and provide child care subsidies to support homeless families to the extent that they have funding available. Child care services will be provided to homeless families while the families seek housing, and: seek employment, or engage in work, or attend educational or vocational activities. Child care services will be provided during a grace period for families to comply with state immunization requirements in accordance with NYS Public Health Law.

Social services districts will be required to establish differential payment rates for child care providers for child care services provided during nontraditional hours (evening, night or weekend hours). Social services districts will be required to establish a differential rate for child care providers that must be at least five percent (5%) higher than the actual cost of care, or the applicable market rate, whichever is less. Social services districts may not establish a differential rate that exceeds fifteen percent (15%) of the actual cost of care or the applicable market rate, whichever is less.

Social services districts will be required to establish differential payment rates for licensed/registered child care providers for child care services provided to a child experiencing homelessness. Social services district may establish differential payment rates for legally-exempt child care providers for a child experiencing homelessness. Social services districts will be required to establish a differential rate for licensed/registered child care providers that must be at least five percent (5%) higher than the actual cost of care or the applicable market rate, whichever is less. If a social services district chooses to provide a differential rate, they will not be required to establish a minimum differential rate for legally-exempt child care providers. Social services districts may not establish a differential rate that will exceed fifteen percent (15%) of the actual cost of care or the applicable market rate, whichever is less.

Social services districts may establish differential payment rates that may be different for each category: accredited child care programs, care provided during nontraditional hours, or care provided to a child experiencing homelessness. The social services district will be required to indicate in the district's consolidated services plan or integrated county plan the percentage that it will provide for each category. For child care providers that qualify for multiple differential payment rates, the total percentage must not exceed twenty-five percent (25%) of the applicable market rate or the actual cost of care. Social services district will be allowed to request a waiver to establish a payment rate that is in excess of twenty-five percent (25%) above the applicable market rate upon a showing that the twenty-five percent (25%) maximum is insufficient to provide access within the district to accredited programs and/or care provided during nontraditional hours and/or care provided to a child experiencing homelessness.

Social services districts will be required to waive the family fee for homeless families.

Social services districts will need to review cases to determine whether the differential market rate applies to: accredited child care programs, care being provided during nontraditional hours, and/or the child care provider is caring for a child experiencing homelessness. Social services districts will need to review cases to determine whether or not the family fee should be waived. Payment adjustments will have to be made, as appropriate.

3. Professional services:

Neither social services districts, nor child care providers, should have to hire additional professional staff in order to implement these regulations.

4. Compliance costs:

Under the State Budget for SFY 2016-2017, social services districts will receive their allocations of $805,928,000 in federal and State funds under the New York State Child Care Block Grant. Social services districts have the option to transfer a portion of their Flexible Fund for Family Services allocations to the New York State Child Care Block Grant to supplement their New York State Child Care Block Grant allocations.

Under section 410-v(2) of the Social Services Law, the State is responsible for reimbursing social services districts for seventy-five percent (75%) of the costs of providing subsidized child care services to public assistance recipients; social services districts are responsible for the other twenty-five percent (25%) of such costs. In addition, the State is responsible for reimbursing social services districts for one hundred percent (100%) of the costs of providing child care services to other eligible low-income families. The State reimbursement for these child care services is made from the State and/or federal funds allocated to the State Child Care Block Grant and is limited on an annual basis to each social services district’s State Child Care Block Grant allocation for that year.

In addition, social services districts may use block grant funds to serve the optional categories of eligible individuals set forth in OCFS regulations. Social services districts may use block grant funds allocated to cover the costs of the differential market rate to be paid to providers, who have obtained an accreditation from a nationally-recognized child care organization, who are serving a child experiencing homelessness, and/or provide care during nontraditional hours.

5. Economic and technological feasibility:

The child care providers and social services districts affected by the regulations have the economic and technological ability to comply with the regulations.

6. Minimizing adverse impact:

OCFS believes that there will be minimal impact on social services districts because these families will be served to the extent that the district has funding available. These changes will provide needed support to prioritize homeless families and incentivize providers to serve children who are homeless.

The regulations recognize that there may be differences in the needs among social services districts. To the extent allowed by statute, the regulations provide social services districts with flexibility in designing their child care subsidy programs in a manner that will best meet the needs of their communities.

7. Small business and local government participation:

In the development of the 2016-2018 Child Care Development Fund Plan, OCFS held three (3) regional public hearings in which these changes were presented to child care providers and local social services districts. OCFS held a statewide webinar for child care providers that outlined these and other changes. Local social services participated in two statewide phone conferences where ideas were shared on how to support homeless families. The draft 2016-2018 Child Care Development Fund Plan was posted on the OCFS website. Child care providers, local governments and the public made comments on the proposed 2016-2018 Child Care Development Fund Plan.

Rural Area Flexibility Analysis

1. Types and estimated numbers of rural areas:

The regulations will affect the 44 social services districts located in rural areas of the State and the child care providers and families located in those social services districts.

2. Reporting, recordkeeping, and other compliance requirements; and professional services:

Social services districts will need to review cases to determine whether the differential market rate applies to: accredited child care programs, care being provided during nontraditional hours, and/or the child care provider is caring for a child experiencing homelessness. Social services districts will need to review cases to determine whether or not the family fee should be waived. Payment adjustments will have to be made, as appropriate.

For families that do not fall under the child care guarantee, social services districts will be required to prioritize and provide child care subsidies to support homeless families to the extent that they have funding available. Child care services will be provided to homeless families while families seek housing and: seek employment, or engage in work, or attend training or educational activities. Child care services will be provided during a grace period for families to comply with state immunization requirements in accordance with NYS Public Health Law.

Social services districts will be required to establish differential payment rates for child care providers for child care services provided during nontraditional hours (evening, night or weekend hours). Social services districts will be required to establish a differential rate for child care providers that must be at least five percent (5%) higher than the actual cost of care, or the applicable market rate, whichever is less. Social services districts may not establish a differential rate that exceeds fifteen percent (15%) of the actual cost of care or the applicable market rate, whichever is less.

Social services districts will be required to establish differential payment rates for licensed/registered child care providers for child care services provided to a child experiencing homelessness. Social services district may establish differential payment rates for legally-exempt child care providers for a child experiencing homelessness. Social services districts will be required to establish a differential rate for licensed/registered child care providers that must be at least five percent (5%) higher than the actual cost of care or the applicable market rate, whichever is less. If a social services district chooses to provide a differential rate, they will not be required to establish a minimum differential rate for legally-exempt child care providers. Social services districts may not establish a differential rate that will exceed fifteen percent (15%) of the actual cost of care or the applicable market rate, whichever is less.

Social services districts may establish differential payment rates that may be different for each of the following categories: accredited child care programs, care provided during nontraditional hours, or care provided to a child experiencing homelessness. The social services district will be required to indicate in the district's consolidated services plan or integrated county plan the percentage that it will provide for each category. For child care providers that qualify for multiple differential payment rates, the total percentage must not exceed twenty-five percent (25%) of the applicable market rate or the actual cost of care. Social services district will be allowed to request a waiver to establish a payment rate that is in excess of twenty-five percent (25%) above the applicable market rate upon a showing that the twenty-five percent (25%) maximum is insufficient to provide access within the district to accredited programs and/or care provided during nontraditional hours and/or care provided to a child experiencing homelessness.

Social services districts will be required to waive the family fee for homeless families.

Social services districts will need to review cases to determine whether the differential market rate applies to: accredited child care programs, care is being provided during nontraditional hours, and/or the child care provider is caring for a child experiencing homelessness. Social services districts will need to review cases to determine whether or not the family fee should be waived. Payment adjustments will have to be made, as appropriate.

3. Costs:

Under the State Budget for SFY 2016-2017, social services districts received their allocations of $805,928,000 in federal and State funds under the New York State Child Care Block Grant. Social services districts have the option to transfer a portion of their Flexible Fund for Family Services allocations to the New York State Child Care Block Grant to supplement their New York State Child Care Block Grant allocations.

Under section 410-v(2) of the Social Services Law, the State is responsible for reimbursing social services districts for seventy-five percent (75%) of the costs of providing subsidized child care services to public assistance recipients; social services districts are responsible for the other twenty-five percent (25%) of such costs. In addition, the State is responsible for reimbursing social services districts for one hundred percent (100%) of the costs of providing child care services to other eligible low-income families. The State reimbursement for these child care services is made from the State and/or federal funds allocated to the State Child Care Block Grant, and is limited on an annual basis to each social services district’s State Child Care Block Grant allocation for that year.

In addition, social services districts may use block grant funds to serve the optional categories of eligible individuals set forth in OCFS regulations. Social services districts may use block grant funds allocated to cover the costs of the differential market rate to be paid to providers, who have obtained an accreditation from a nationally-recognized child care organization, who are serving a child experiencing homelessness, and/or provide care during nontraditional hours.

4. Minimizing adverse impact:

OCFS believes that there will be minimal impact on social services districts because these families will be served to the extent that the district has funding available. These changes will provide needed support to prioritize homeless families and incentivize providers to serve children who are homeless.

The regulations recognize that there may be differences in the needs among social services districts. To the extent allowed by statute, the regulations provide social services districts with flexibility in designing their child care subsidy programs in a manner that will best meet the needs of their communities.

5. Rural area participation:

The Child Care Development Block Grant Act of 2014 (42 U.S.C. 9858 et seq) requires that states improve access to child care services for homeless children including procedures that allow a child to be enrolled while required documentation is obtained. These regulations improve access to child care by incentivizing child care providers to provide care to children experiencing homelessness and while families’ seek employment or engage in work.

In the development of the 2016-2018 Child Care Development Fund Plan, OCFS held three (3) regional public hearings in which these changes were presented to child care providers and local social services districts. OCFS held a statewide webinar for child care providers that outlined these and other changes. Local social services participated in two statewide phone conferences where ideas were shared on how to support homeless families. The draft 2016-2018 Child Care Development Fund Plan was posted on the OCFS website. Child care providers, local governments and the public made comments on the proposed 2016-2018 Child Care Development Fund Plan.

Job Impact Statement

Section 201-a of the State Administrative Procedures Act requires a job impact statement to be filed if proposed regulations will have an adverse impact on jobs and employment opportunities in the State. OCFS believes that providing child care services to children experiencing homelessness will not result in a loss of jobs.