Original Notice.

     Preproposal statement of inquiry was filed as WSR 05-13-176.

     Title of Rule and Other Identifying Information: Chapter 388-290 WAC, Working connections child care, amending WAC 388-290-0020, 388-290-0030, 388-290-0032, 388-290-0035, 388-290-0130, 388-290-0135, 388-290-0140, 388-290-0155, 388-290-0240, 388-290-0260, 388-290-0271 and 388-290-0273; adopting new WAC 388-290-0138 and 388-290-0274; and repealing WAC 388-290-0255.

     Hearing Location(s): Blake Office Park East, Rose Room (one block north of the intersection of Pacific Avenue S.E. and Alhadeff Lane, behind Goodyear Tire. A map or directions are available at http://www1.dshs.wa.gov/msa/rpau/docket.html or by calling (360) 664-6097), 4500 10th Avenue S.E., Lacey, WA 98503, on September 27, 2005, at 10:00 a.m.

     Date of Intended Adoption: Not earlier than September 28, 2005.

     Submit Written Comments to: DSHS Rules Coordinator, P.O. Box 45850, Olympia, WA 98504, delivery 4500 10th Avenue S.E., Lacey, WA 98503, e-mail fernaax@dshs.wa.gov, fax (360) 664-6185, by 5:00 p.m., September 27, 2005.

     Assistance for Persons with Disabilities: Contact Stephanie Schiller, DSHS Rules Consultant, by September 23, 2005, TTY (360) 664-6178 or (360) 664-6097 or by e-mail at schilse@dshs.wa.gov.

     Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: The department is revising the rules to comply with a United States Internal Revenue Service (IRS) directive regarding third party payment rules and the role of the state in relationship to the consumer (as the employer) and exempt provider (as the employee). With these changes the state will meet requirements in IRS Code 26 U.S.C. 3504 regarding reporting status and requirements in IRS Code 26 U.S.C. 3401 (d)(1) regarding meeting third party payer status for WCCC consumers who receive in-home care.

     Under the proposed rules, the department will pay the exempt provider directly on behalf of the consumer, as currently occurs with licensed/certified providers. Changing how the department pays exempt providers changes consumer responsibilities. The proposed rules also change exempt provider responsibilities and when a provider may be assessed an overpayment.

     Other proposed revisions are related to clarifying and correcting errors from the last revision such as web site links.

     Reasons Supporting Proposal: To help the state remain in compliance with IRS statutes.

     Statutory Authority for Adoption: RCW 74.04.050, 74.12.340.

     Statute Being Implemented: RCW 74.04.050, 74.12.340, 74.13.085.

     Rule is not necessitated by federal law, federal or state court decision.

     Name of Proponent: Department of Social and Health Services, governmental.

     Name of Agency Personnel Responsible for Drafting, Implementation and Enforcement: Lisa Lind, Division of Child Care and Early Learning, (360) 725-4691.

     No small business economic impact statement has been prepared under chapter 19.85 RCW. The rules do not impact providers that are considered small businesses.

     A cost-benefit analysis is not required under RCW 34.05.328. The proposed rules are not considered significant legislative rules under RCW 34.05.328. A cost-benefit analysis is not required.

August 19, 2005

Andy Fernando, Manager

Rules and Policies Assistance Unit

     (a) An employee of the same child care center where your children receive care and you do not provide direct care to your own children during the time WCCC is requested;

     (b) In ((sanction or Child SafetyNet status for temporary assistance for needy families (TANF), while you are in)) an activity needed to remove ((the)) a WorkFirst sanction or, Child SafetyNet status((, or for employment));

     (c) A parent in a two-parent family and one parent is not able ((and)) or available to provide care for your children while the other is working, looking for work, or preparing for work;

     (i) "Able" means physically and mentally capable of caring for a child in a responsible manner. If you claim one parent is unable to care for the children, you must provide written documentation from a licensed professional (see WAC 388-448-0020) that states the:

     (A) Reason the parent is unable to care for the children;

     (B) Expected duration and severity of the condition that keeps them from caring for the children; and

     (C) Treatment plan if the parent is expected to improve enough to be able to care for the children. The parent must provide evidence from a medical professional showing they are cooperating with treatment and are still unable to care for the children.

     (ii) "Available" means free to provide care when not participating in an approved work activity under WAC 388-290-0040, 388-290-0045, 388-290-0050, or 388-290-0055 during the time child care is needed.

     (d) A married consumer described under WAC 388-290-0005 (1)(d) through (i). Only you or your spouse must be participating in activities under WAC 388-290-0040, 388-290-0045, 388-290-0050, or 388-290-0055.

     (2) You might be eligible for WCCC if your children are legally residing in the country, are living in Washington state ((residents)), and are:

     (a) Less than age thirteen; or

     (b) Less than age nineteen, and:

     (i) Have a verified special need, according to WAC 388-290-0220; or

     (ii) Are under court supervision.

     (3) Any of your children who receive care at the same place where you work (other than (1)(a) of this subsection) are not eligible for WCCC payments but can be included in your household if they meet WAC 388-290-0015. This includes if you work:

     (a) In a family home child care in any capacity and your children are receiving care at the same home during your hours of employment; or

     (b) In your home or another location and your children receive care at the same location during your hours of employment.

[Statutory Authority: RCW 74.04.050, 74.12.340, 74.13.085, and 2003 1st sp.s. c 25. 04-08-021 and 04-08-134, § 388-290-0020, filed 3/29/04 and 4/7/04, effective 5/28/04. Statutory Authority: RCW 74.04.050, 74.13.085. 02-12-069, § 388-290-0020, filed 5/31/02, effective 7/1/02. Statutory Authority: RCW 74.04.050 and C.F.R. Parts 98 and 99 (Child Care Development Fund Rules). 02-01-135, § 388-290-0020, filed 12/19/01, effective 1/19/02.]

     (1) Give us correct and current information so we can determine your eligibility and authorize child care payments correctly;

     (2) Choose a provider who meets requirements of WAC 388-290-0125 ((and make your own child care arrangements));

     (3) Pay, or make ((arrangements)) a plan to have someone pay, your WCCC copayment directly to your child care provider;

     (4) Leave your children with your provider ((for)) while you are in WCCC approved activities ((or arrange to pay the provider yourself, as the provider requires, for care while you are engaged in unapproved activities)). If you are not in an approved activity and you want to use the provider, you must make a plan to pay the provider yourself if the provider wants payment.

     (5) ((Keep attendance records when you choose in-home/relative child care. Records must be:

     (a) Accurate;

     (b) Provided when requested; and

     (c) Kept for one year after care has been provided.

     (6) Pay your in-home/relative provider the entire amount we send you for in-home/relative care listed on the remittance advice you receive with the warrant;

     (7) Require the in-home/relative provider to sign a receipt when you pay the provider the amount we send you and your copayment. You must keep the receipts for one year for us to review on request;

     (8))) If you use an in-home/relative provider, make sure care is being provided in the right home per WAC 388-290-0130.

     (6) Cooperate (provide the information requested) with the quality assurance review process to remain eligible for WCCC. You become ineligible for WCCC benefits upon a determination of noncooperation by quality assurance and remain ineligible until you meet quality assurance requirements or thirty days from the determination of noncooperation.

     (((9))) (7) Cooperate with the fraud early detection (FRED) investigator. If you refuse to cooperate (provide the information requested) with the investigator, it could affect your benefits.

[Statutory Authority: RCW 74.04.050, 74.12.340, 74.13.085, and 2003 1st sp.s. c 25. 04-08-021 and 04-08-134, § 388-290-0030, filed 3/29/04 and 4/7/04, effective 5/28/04. Statutory Authority: RCW 74.04.050 and C.F.R. Parts 98 and 99 (Child Care Development Fund Rules). 02-01-135, § 388-290-0030, filed 12/19/01, effective 1/19/02.]

     (1) Paying a higher copayment;

     (2) Paying for extra hours of care when your activity requires more than ten hours a day of care;

     (3) ((Receiving an overpayment for care billed as a result of using care when you were not eligible for WCCC;

     (4))) Receiving an overpayment for the number of days your child was absent ((above)) including the absences the licensed/certified or DSHS seasonal contracted day care provider is allowed to bill (see publication Child Care Subsidies, A Booklet for Licensed and Certified Child Care Providers, DSHS 22-877). An overpayment for absent days can occur when care is used when you are not eligible for WCCC and can be up to five days a month;

     (((5) Billing in-home/relative care when you are not eligible for WCCC.))

[Statutory Authority: RCW 74.04.050, 74.12.340, 74.13.085, and 2003 1st sp.s. c 25. 04-08-021 and 04-08-134, § 388-290-0032, filed 3/29/04 and 4/7/04, effective 5/28/04.]

     (1) Determine your eligibility within thirty days from the date you applied (application date as described in WAC 388-290-0100(2)).

     (2) Allow you to choose your provider as long as they meet the requirements in WAC 388-290-0125;

     (3) Review your chosen in-home/relative provider's background information.

     (4) Authorize payments only to child care providers who allow you to see your children whenever they are in care;

     (5) Only authorize payment when no adult in your WCCC family is "able ((and)) or available" to care for your children (under WAC 388-290-0020).

     (6) Inform you of:

     (a) Your rights and responsibilities under the WCCC program at the time of application and reapplication;

     (b) The types of child care providers we can pay;

     (c) The community resources that can help you select child care when needed; and

     (d) Any change in your copayment during the authorization period except under WAC 388-290-0120(5).

     (7) Respond to you within ten days if you report a change of circumstance that affects your:

     (a) WCCC eligibility;

     (b) Copayment; or

     (c) Providers.

     (8) Provide prompt child care payments to your child care provider.

[Statutory Authority: RCW 74.04.050, 74.12.340, 74.13.085, and 2003 1st sp.s. c 25. 04-08-021 and 04-08-134, § 388-290-0035, filed 3/29/04 and 4/7/04, effective 5/28/04. Statutory Authority: RCW 74.04.050, 74.13.085. 02-12-069, § 388-290-0035, filed 5/31/02, effective 7/1/02. Statutory Authority: RCW 74.04.050 and C.F.R. Parts 98 and 99 (Child Care Development Fund Rules). 02-01-135, § 388-290-0035, filed 12/19/01, effective 1/19/02.]

     (a) Be an adult who is a U.S. citizen or legally residing in the United States;

     (b) Meet the requirements in WAC 388-290-0135; and

     (c) Be one of the following adults ((relatives)) providing care in the home of either the child or the ((relative)) adult:

     (i) ((An adult)) A sibling living outside the child's home;

     (ii) An extended tribal family member ((under)) according to chapter 74.15 RCW; or

     (iii) A grandparent, aunt, uncle, or great-grandparent, great-aunt or great-uncle.

     (2) An ((in-home, nonrelative provider)) adult not listed in (1)(c)(i), (ii), or (iii) of this section must:

     (a) Meet the requirements in subsection (1)(a) and (b) of this section; and

     (b) ((Be an adult friend or neighbor and)) Provide care in the child's home.

     (3) If you use an in-home/relative provider you can:

     (a) Have no more than two in-home/relative providers authorized for payment during your eligibility period at the same time (not including back-up providers);

     (b) Have one back up provider (licensed or an in-home/relative provider)((;

     (c) Change to a different in-home/relative provider during your eligibility period.

     (4) An in-home/relative provider can care for up to a maximum of six children during any one time period.

     (5) An in-home/relative provider is not an eligible provider (under WAC 388-290-0095 and 388-290-0100) anytime prior to the date we receive the results of all applicable criminal background checks under WAC 388-290-0143(1) and 388-290-0150. Providers other than in-home/relative that you can use are described in WAC 388-290-0125.

     (6) The in-home/relative provider is not eligible for payment if they are:

     (a) The child's biological, adoptive or step-parent;

     (b) The child's nonneedy or needy relative or relative's spouse or partner;

     (c) The child's legal guardian or the guardian's spouse or partner;

     (d) Another adult acting in loco parentis or that adult's spouse or partner; or

     (e) Anyone living in the same residence with the child)).

[Statutory Authority: RCW 74.04.050, 74.12.340, 74.13.085, and 2003 1st sp.s. c 25. 04-08-021 and 04-08-134, § 388-290-0130, filed 3/29/04 and 4/7/04, effective 5/28/04. Statutory Authority: RCW 74.04.050, 74.13.085. 02-12-069, § 388-290-0130, filed 5/31/02, effective 7/1/02. Statutory Authority: RCW 74.04.050 and C.F.R. Parts 98 and 99 (Child Care Development Fund Rules). 02-01-135, § 388-290-0130, filed 12/19/01, effective 1/19/02.]

     (1) The in-home/relative child care provider's legal name, address and telephone number;

     (2) A copy of the provider's valid Social Security card;

     (3) A copy of the provider's photo identification;

     (4) A completed background check authorization; and

     (5) A form supplied by us ((that is)), completed and signed by ((the consumer)) you and the provider in which both of you attest to the following:

     (a) The provider is:

     (i) Of suitable character and competence;

     (ii) Of sufficient physical and mental health to meet the needs of the children in care. If we request it, you must provide written evidence that the in-home child care provider of your choice is of sufficient physical and mental health to be a safe child care provider;

     (iii) Able to work with the children without using corporal punishment or psychological abuse;

     (iv) Able to accept and follow instructions;

     (v) Able to maintain personal cleanliness; ((and))

     (vi) Prompt and regular in job attendance

     (vii) Informed about basic health practices, prevention and control of infectious disease, immunizations; and

     (viii) Able to provide constant care, supervision and activities based on the child's developmental needs.

     (b) The children are current on the immunization schedule as described in the National Immunization Guidelines, developed by the American Academy of Pediatrics and the Advisory Committee on Immunization Practices;

     (c) The home where care is provided is safe for the care of the children((;

     (d) The in-home/relative child care provider is informed about basic health practices, prevention and control of infectious disease, immunizations, and home and physical premises safety relevant to the care of the children; and

     (e) You and the provider state you have instructed the in-home/relative provider that they are continuously responsible to provide:

     (i) Constant care and supervision of the children throughout the arranged time of care in accordance with the needs of the children (constant care and supervision includes remaining awake while the children sleep); and

     (ii) Activities for the children that are consistent with their developmental stages)).

[Statutory Authority: RCW 74.04.050, 74.12.340, 74.13.085, and 2003 1st sp.s. c 25. 04-08-021 and 04-08-134, § 388-290-0135, filed 3/29/04 and 4/7/04, effective 5/28/04. Statutory Authority: RCW 74.04.050, 74.13.085. 02-12-069, § 388-290-0135, filed 5/31/02, effective 7/1/02. Statutory Authority: RCW 74.04.050 and C.F.R. Parts 98 and 99 (Child Care Development Fund Rules). 02-01-135, § 388-290-0135, filed 12/19/01, effective 1/19/02.]

     (1) Report within ten days changes in their legal name, address or telephone number;

     (2) Report within twenty-four hours pending charges or convictions they have;

     (3) Report within twenty-four hours pending charges or convictions for anyone sixteen years of age and older who lives with the provider when care occurs outside of the child's home;

     (4) Bill WCCC only for care he/she provided;

     (5) Not bill WCCC for more than six children at one time for the same hours of care; and

     (6) Keep correct attendance records. Records must:

     (a) Show both days and times the care was provided;

     (b) Be kept for five years; and

     (c) Be given to us, within fourteen consecutive calendar days, if we ask for them.

[]

     (1) Your provider does not meet the requirements in WAC 388-290-0130 ((or)), 388-290-0135, and 388-290-0138;

     (2) ((You fail to submit a completed criminal background check form or copies of the provider's Social Security card, photo identification, and current address to us;

     (3))) Your in-home/relative provider has been convicted of, or has charges pending for crimes posted on the DSHS secretary's list of disqualifying convictions for ESA. You can find the complete list at ((http://www.dshs.wa.gov/esa/dccel/)) http://www1.dshs.wa.gov/esa/dccel/policy.shtml;

     (((4))) (3) We do not have background check results according to WAC 388-290-0143; or

     (4) The provider is:

     (a) The child's biological, adoptive or step-parent;

     (b) The child's nonneedy or needy relative or relative's spouse or live-in partner;

     (c) The child's legal guardian or the guardian's spouse or live-in partner.

     (d) Another adult acting in loco parentis or that adult's spouse or live-in partner.

     (5) We do not have the results of all applicable criminal background checks under WAC 388-290-0143(1) and 388-290-0150. An in-home/relative provider is not an eligible provider (per WAC 388-290-0095 and 388-290-0100) prior to receiving these background results. Providers other than in-home/relative providers you can use are described in WAC 388-290-0125; or

     (((5))) (6) We determine your provider is not of suitable character and competence or of sufficient physical or mental health to meet the needs of the child in care, or the household may be at risk of harm by this provider, as indicated by information other than conviction information. We will use criteria, such as the following, when reviewing information about incidents/issues/reports/findings:

     (a) Recency;

     (b) Seriousness;

     (c) Type;

     (d) Frequency; and

     (e) Relationship to the direct care of a child including health, mental health, learning, and safety.

[Statutory Authority: RCW 74.04.050, 74.12.340, 74.13.085, and 2003 1st sp.s. c 25. 04-08-021 and 04-08-134, § 388-290-0140, filed 3/29/04 and 4/7/04, effective 5/28/04. Statutory Authority: RCW 74.04.050 and C.F.R. Parts 98 and 99 (Child Care Development Fund Rules). 02-01-135, § 388-290-0140, filed 12/19/01, effective 1/19/02.]

     (1) Compare the background information with convictions posted on the DSHS secretary's list of disqualifying convictions for economic services administration (ESA). You can find the complete list at ((http://www.dshs.wa.gov/esa/dccel/)) http://www1.dshs.wa.gov/esa/dccel/policy.shtml.

     (2) Review the background information using the following rules:

     (a) We give the same weight to a pending charge for a crime as a conviction;

     (b) If the conviction has been renamed, we give the same weight as the previous named conviction. For example, larceny is now called theft;

     (c) We give convictions whose titles are preceded with the word "attempted" the same weight as those titles without the word "attempted"; and

     (d) We do not consider the crime a conviction for the purposes of WCCC when:

     (i) It has been pardoned; or

     (ii) A court of law acts to expunge, dismiss, or vacate the conviction record.

     (3) Notify you whether or not we are able to approve the provider for WCCC.

     (4) Allow you, the consumer, to decide character and suitability of the provider when an individual is not automatically disqualified due to the background information from the record of arrests and prosecutions (RAP) sheet.

     (5) Deny or stop payment when the background information disqualifies the individual being checked.

     (6) Assist you in finding other child care arrangements.

[Statutory Authority: RCW 74.04.050, 74.12.340, 74.13.085, and 2003 1st sp.s. c 25. 04-08-021 and 04-08-134, § 388-290-0155, filed 3/29/04 and 4/7/04, effective 5/28/04. Statutory Authority: RCW 74.04.050, 74.13.085. 02-14-066, § 388-290-0155, filed 6/27/02, effective 7/1/02. Statutory Authority: RCW 74.04.050 and C.F.R. Parts 98 and 99 (Child Care Development Fund Rules). 02-01-135, § 388-290-0155, filed 12/19/01, effective 1/19/02.]

     (a) Two dollars and six cents per hour for the child who needs the greatest number of hours of care and one dollar and three cents per hour for the care of each additional child in the family; or

     (b) The provider's usual hourly rate for that care.

     (2) We may pay above the maximum hourly rate for children who have special needs under WAC 388-290-0235.

     (3) ((When care is provided by an in-home/relative provider, we pay benefits directly to you, defined as the consumer in WAC 388-290-0005)) We make the WCCC payment directly to your eligible provider.

     (4) ((On all payments we make toward the cost of in-home/relative child care, when appropriate we pay the employer's share, on behalf of the client, of)) When appropriate, we pay your (the employer's) share of the following:

     (a) Social Security and Medicare taxes (FICA) up to the wage limit;

     (b) Federal Unemployment Taxes (FUTA); and    

     (c) State unemployment taxes (SUTA) when applicable.

     (5) ((On all payments we make toward the cost of in-home/relative child care we withhold Medicare taxes and Social Security taxes (FICA) up to the wage base limit.

     (6))) If an in-home/relative child care provider receives less than the wage base limit per family in a calendar year, we refund all withheld taxes to the provider.

[Statutory Authority: RCW 74.04.050, 74.13.085. 02-12-069, § 388-290-0240, filed 5/31/02, effective 7/1/02. Statutory Authority: RCW 74.04.050 and C.F.R. Parts 98 and 99 (Child Care Development Fund Rules). 02-01-135, § 388-290-0240, filed 12/19/01, effective 1/19/02.]

     (2) Licensed or certified child care providers or in-home/relative providers can request hearings under chapter 388-02 WAC and RCW 43.20B.675 only for WCCC overpayments.

     (3) To request a hearing you ((or)), the licensed ((or)) /certified provider, or in-home/relative provider:

     (a) Contacts the office which sent them the notice; or

     (b) Writes to the Office of Administrative Hearings, PO Box 42489, Olympia WA 98504-2489; and

     (c) Makes the request for a hearing within:

     (i) Ninety days of the date a decision is received for consumers; or

     (ii) Twenty-eight days of the date a decision is received for providers (per RCW 43.20B.675).

[Statutory Authority: RCW 74.04.050, 74.12.340, 74.13.085, and 2003 1st sp.s. c 25. 04-08-021 and 04-08-134, § 388-290-0260, filed 3/29/04 and 4/7/04, effective 5/28/04. Statutory Authority: RCW 74.04.050 and C.F.R. Parts 98 and 99 (Child Care Development Fund Rules). 02-01-135, § 388-290-0260, filed 12/19/01, effective 1/19/02.]

     (1) You are no longer eligible or you are eligible for a smaller amount of care, such as using care for an unapproved activity or for children not in your WCCC household;

     (2) You fail to report information to us that results in an error in our determination of:

     (a) Your eligibility;

     (b) The amount of care authorized; or

     (c) The amount of your copayment.

     (3) Your provider ((does not meet the requirements in WAC 388-290-0130)) is not an eligible provider per WAC 388-290-0140;

     (4) ((You use DSHS WCCC subsidized payment to pay a person who has not been determined an eligible provider by WCCC;

     (5) You do not have attendance records and payment receipts to support the amount you billed us for in-home/relative care;

     (6) You cannot provide verification that you have paid your provider the DSHS WCCC subsidized payment)) Your child is not eligible per WAC 388-290-0015 or 388-290-0020.

[Statutory Authority: RCW 74.04.050, 74.12.340, 74.13.085, and 2003 1st sp.s. c 25. 04-08-021 and 04-08-134, § 388-290-0271, filed 3/29/04 and 4/7/04, effective 5/28/04.]

     (a) ((The provider receives)) Billed and received payment for WCCC services not provided;

     (b) ((The provider)) Does not have attendance records that comply with licensing requirements (refer to WAC 388-295-7030, ((388-155-460)) 388-296-0520, and 388-151-460 for attendance record requirements). Only attendance records meeting WAC requirements will be accepted for attendance verification;

     (c) ((We pay the provider)) Billed and received payment for more than they are eligible to bill;

     (d) ((The provider)) Billed and received payment ((from us)) and the provider is not eligible based on WAC 388-290-0125; or

     (e) ((The provider)) Is caring for a child outside their licensed allowable age range without a waiver.

     (2) The ((worker)) WCCC program staff may request documentation from ((the)) your provider when preparing to establish an overpayment. ((The)) Your provider has fourteen consecutive calendar days to supply any requested documentation.

[Statutory Authority: RCW 74.04.050, 74.12.340, 74.13.085, and 2003 1st sp.s. c 25. 04-08-021 and 04-08-134, § 388-290-0273, filed 3/29/04 and 4/7/04, effective 5/28/04.]

     (a) Billed and received payment for WCCC services not provided;

     (b) Does not have attendance records that comply with attendance records based on WAC 388-290-0138. Only attendance records meeting WAC requirements will be accepted for attendance verification;

     (c) Billed and received payment for more than they are eligible to bill;

     (2) The WCCC program staff may request documentation from your provider when preparing to establish an overpayment. Your provider has fourteen consecutive calendar days to supply any requested documentation.

[]

     The following section of the Washington Administrative Code is repealed:

WAC 388-290-0255

When can the WCCC program establish a protective payee to pay my in-home/relative provider?

© Washington State Code Reviser's Office