WSR 11-03-046

EMERGENCY RULES

DEPARTMENT OF

EARLY LEARNING

[ Filed January 13, 2011, 2:43 p.m. , effective January 13, 2011, 2:43 p.m. ]


     Effective Date of Rule: Immediately.

     Purpose: The department of early learning (DEL) is amending working connections child care (WCCC) and seasonal child care (SCC) program rules in chapter 170-290 WAC. The rules:

     1. Revise eligibility requirements for families to receive WCCC and SCC subsidy benefits as follows:


     •     Consumers who were receiving WCCC subsidy benefits in [on] January 1, 2011 (or apply for benefits in January 2011), must have countable income at or below one hundred seventy-five percent of the federal poverty guidelines (FPG), and may continue to be eligible as long as their countable monthly income remains at or below one hundred seventy-five percent of the FPG. This would be $2,671 per month for a family of three.

     •     Effective February 1, 2011, consumers initially applying for WCCC benefits, or reapplying after a termination of WCCC eligibility, must be determined eligible for temporary assistance for needy families (TANF) or be receiving a TANF grant to be eligible [for] WCCC. These consumers may remain eligible for WCCC until their countable income exceeds one hundred seventy-five percent of the FPG, even if the family is no longer eligible to receive TANF.


     2. Effective February 1, 2011, raise child care copayments for certain WCCC consumers as follows:


     •     For consumers whose countable monthly income is above eighty-two percent of the FPG up to 137.5 percent of the FPG, copayments will increase from $50 to $60 per month; and

     •     For consumers whose countable monthly income is above 137.5 percent of the FPG through one hundred seventy-five percent of the FPG, monthly copayments will increase by amending the sliding scale formula as follows: The dollar amount equal to subtracting 137.5 percent of FPG from countable income, multiplying by forty-four percent, then adding $60 instead of $50.


     Copayments for consumers with income at or below eighty-two percent of the FPG will remain at $15 per month.

     3. Allow families on TANF to apply for SCC benefits. The current rules do not allow a family receiving TANF to also receive SCC. However, no new applications for SCC are being accepted at this time. The program has run out of funds for the current state fiscal year ending June 30, 2011.

     These rules will replace emergency rules filed on December 17, 2010, filing number WSR 11-01-114, which are being rescinded. The replacement emergency rules clarify eligibility for consumers initially applying for WCCC benefits, or reapplying after a lapse in benefits. The previous emergency rules also limited WCCC eligibility to new applicants who were receiving a TANF grant effective February 1. This rule extends WCCC eligibility both to consumers who are receiving TANF and those determined eligible for TANF.

     The WCCC and SCC programs provide child care assistance to lower income parents who are working or attending approved school, training or other activities. More than 35,000 families in Washington state receive DEL child care subsidy assistance each month. For more information about these rules, please visit the DEL web site at http://www.del.wa.gov/laws/development/income.aspx.

     Citation of Existing Rules Affected by this Order: Amending WAC 170-290-0005, 170-290-0075, 170-290-0085, 170-290-3520, and 170-290-3640.

     Statutory Authority for Adoption: RCW 43.215.060 and 43.215.070.

     Other Authority: Chapter 43.215 RCW.

     Under RCW 34.05.350 the agency for good cause finds that immediate adoption, amendment, or repeal of a rule is necessary for the preservation of the public health, safety, or general welfare, and that observing the time requirements of notice and opportunity to comment upon adoption of a permanent rule would be contrary to the public interest; and that in order to implement the requirements or reductions in appropriations enacted in any budget for fiscal years 2009, 2010, or 2011, which necessitates the need for the immediate adoption, amendment, or repeal of a rule, and that observing the time requirements of notice and opportunity to comment upon adoption of a permanent rule would be contrary to the fiscal needs or requirements of the agency.

     Reasons for this Finding: Failure to implement WCCC and SCC spending cuts by emergency rule would result in these programs becoming oversubscribed and over budget, because of insufficient revenues to pay program benefits and higher than anticipated caseloads, causing the state to likely run out of funds for these programs before the end of the state fiscal year ending June 30, 2011 (SFY 2011). If that occurs, the state could be faced with terminating child care subsidies to all families in the WCCC and SCC programs, with serious disruptive effects to children, families, child care providers and the public welfare.

     Washington state's economic situation continues to worsen. Current forecasts indicate that state tax revenues will be insufficient to meet appropriations in the 2010-2011 Supplemental Operating Budget Act ESSB 6444 (chapter 37, Laws of 2010 1st sp. sess.). Congress has not acted on extending American Reinvestment and Revitalization Act (ARRA) stimulus funding that the legislature had projected receiving to help balance the budget. See the 2010 Supplemental Omnibus Budget Overview - Operating Only.

     In adopting ESSB 6444, the legislature anticipated that federal revenues in the WorkFirst "TANF (temporary assistance to needy families) Box" may fall short of estimates. WorkFirst is the state's "welfare-to-work" program, which includes DEL child care subsidy programs. As the economy declined and unemployment increased, in the last two years the state's WorkFirst caseload has grown by more than thirty percent, from 51,106 cases in July 2008 to 66,634 cases in June 2010. WorkFirst caseloads continue to rise.

     By August 2010, Washington's WorkFirst program faced a projected $52 million budget shortfall in SFY 2011. DEL was directed to cut nearly $14.8 million in child care subsidy costs. This led the department to adopt the emergency rules filed in September, WSR 10-20-032.

     By November 2010, the projected WorkFirst deficit had grown to more than $106 million. The governor directed WorkFirst agencies to further reduce spending by an additional $52 million to $54 million, including additional child care subsidy spending cuts. To help reach this target, DEL filed emergency rules in December 2010 ending WCCC and SCC subsidies for families with countable monthly income over one hundred seventy-five percent of the FPG on January 1, 2011, and revised eligibility requirements for families applying for WCCC or SCC on or after February 1, 2011.

     Based on DEL's experience with September 2010 emergency rules, filing these emergency rule[s] now is necessary to allow DEL and the department of social and health services* to make system changes so that families may receive accurate child care subsidy eligibility and copayment determinations based upon the new standards taking effect on February 1, 2011.

     Each month that DEL waits to implement child care subsidy eligibility revisions would result in more families who may be impacted by more severe cuts in child care subsidies. Revising eligibility requirements is expected to help the state avoid or delay additional budget cuts and the broad termination of child care subsidy benefits later in SFY 2011.

     The governor has formally declared that a budget shortfall is imminent and has directed state agencies to implement 6.3 percent across-the-board spending cuts to avoid running out of state general funds. Executive Order 10-04 - Ordering Expenditure Reductions in Allotments of State General Fund Appropriations, signed on September 13, 2010, declared that:


     •     Revenues have fallen short of projections;

     •     The current official state economic and revenue forecast of general fund revenues is less than the official estimate upon which the state's 2009-2011 biennial operating budget and supplemental operating budget were enacted; and

     •     The anticipated revenues combined with the beginning cash balance of the general fund are insufficient to meet anticipated expenditures from this fund for the remainder of the current fiscal period (SFY 2011).


     On December 15, 2010, Governor Gregoire announced proposed 2011-2013 budget cuts needed to close an additional $4.6 billion projected shortfall in the next state fiscal biennium, and proposed eliminating or restructuring many state programs, agencies, boards and commissions. "We face unprecedented times," the governor said. "Few alive today have witnessed a recession of this magnitude and length." See the governor's proposed budget for SFY 2011-2013 at this link http://www.governor.wa.gov/priorities/budget/press_packet.pdf.

     The legislature's anticipated shortfall in the WorkFirst TANF box, combined with the Governor's Executive Order 10-04, demonstrate that observing the time requirements of notice and opportunity to comment upon adoption of a permanent rule would be contrary both to the public interest and to the state's fiscal needs and requirements.

     These rules replace emergency rules filed on December 17, 2010, as WSR 11-01-114. Filing substantially similar emergency rules in sequence is permitted under RCW 34.05.350(2) if "...conditions have changed or the agency has filed notice of its intent to adopt the rule as a permanent rule, and is actively undertaking the appropriate procedures to adopt the rule as a permanent rule."

     DEL has filed a notice of intent to adopt permanent rules (see WSR 10-15-116 and 10-03-033). Proposed rules to implement the one hundred seventy-five percent of FPG income eligibility limit were filed in August 2010 (WSR 10-18-064) and public hearings were held in four locations around the state in October 2010. The department continues to monitor state revenue and WorkFirst caseload forecasts to determine if a revised rule proposal should be filed.

     DEL has determined that the rules meet office of financial management guidance 3.c regarding the Governor's Executive Order 10-06 suspending noncritical rule making, but allowing rules to proceed that are "... necessary to manage budget shortfalls, maintain fund solvency, or for revenue generating activities ..."

     *DEL and DSHS jointly operate the WCCC program, under section 501 (uncodified) chapter 265, Laws of 2006. DEL adopts WCCC policy and rules for the program. DSHS staff receive WCCC applications, determine family eligibility, and process child care subsidy payments.

     Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 0, Amended 5, Repealed 0.

     Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.

     Number of Sections Adopted on the Agency's Own Initiative: New 0, Amended 0, Repealed 0.

     Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, Amended 0, Repealed 0.

     Number of Sections Adopted Using Negotiated Rule Making: New 0, Amended 0, Repealed 0;      Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 0, Amended 5, Repealed 0.

     Date Adopted: January 13, 2011.

Elizabeth M. Hyde

Director


AMENDATORY SECTION(Amending WSR 09-22-043, filed 10/28/09, effective 12/1/09)

WAC 170-290-0005   Consumers.   (1) In WCCC, an eligible consumer has parental control of one or more children, lives in the state of Washington, and is the child's:

     (a) Parent, either biological or adopted;

     (b) Stepparent;

     (c) Legal guardian verified by a legal or court document;

     (d) Adult sibling or step-sibling;

     (e) Nephew or niece;

     (f) Aunt;

     (g) Uncle;

     (h) Grandparent; or

     (i) Any of the relatives in (f), (g), or (h) of this subsection with the prefix great (for example, great-aunt).

     (2) Consumers may be eligible for WCCC benefits if they:

     (a) Meet eligibility requirements for WCCC described under part II of this chapter;

     (b) Participate in an approved activity under WAC 170-290-0040, 170-290-0045, 170-290-0050, or have been approved per WAC 170-290-0055;

     (c) Comply with any special circumstances that might affect WCCC eligibility under WAC 170-290-0020; and

     (d) ((Have countable income at or below two hundred percent of the federal poverty guidelines (FPG) (under WAC 170-290-0065))) Meet the following income eligibility limits:

     (i) Effective January 1, 2011, consumers who are currently receiving child care subsidy benefits, initially applying for benefits before February 1, 2011, or reapplying for benefits before February 1, 2011, after a termination in benefits under WAC 170-290-0110:

     (A) Must have countable income at or below one hundred seventy-five percent of the federal poverty guidelines (FPG); and

     (B) Remain income eligible until their countable income is greater than one hundred seventy-five percent of the FPG; and

     (ii) Effective February 1, 2011, consumers initially applying for benefits, or reapplying for benefits after a termination of benefits under WAC 170-290-0110:

     (A) Must be determined eligible for, or receiving, a temporary assistance for needy families (TANF) grant; and

     (B) Remain income eligible until their countable income is greater than one hundred seventy-five percent of the FPG, even if the consumer is no longer eligible to receive TANF.

     (3) A consumer's eligibility shall end January 1, 2011, if a consumer's countable income is greater than one hundred seventy-five percent of the FPG.

     (4) A consumer is not eligible for WCCC benefits when he or she:

     (a) Is the only parent in the family and will be away from the home for more than thirty days in a row; or

     (b) Has a monthly copayment that is higher than the rate the state will pay for all eligible children in care.

[Statutory Authority: RCW 43.215.060, 43.215.070, 2006 c 265, and chapter 43.215 RCW. 09-22-043, § 170-290-0005, filed 10/28/09, effective 12/1/09. 08-08-047, recodified as § 170-290-0005, filed 3/27/08, effective 3/27/08. 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, § 388-290-0005, 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, § 388-290-0005, filed 12/19/01, effective 1/19/02.]


AMENDATORY SECTION(Amending WSR 09-22-043, filed 10/28/09, effective 12/1/09)

WAC 170-290-0075   Determining income eligibility and copayment amounts.   (1) DSHS takes the following steps to determine a consumer's eligibility and copayment:

     (a) Determine the consumer's family size (under WAC 170-290-0015); and

     (b) Determine the consumer's countable income (under WAC 170-290-0065).

     (2) Before February 1, 2011, if the consumer's family's countable monthly income falls within the range below, then his or her copayment is:


IF A CONSUMER'S INCOME IS: THEN THE CONSUMER'S COPAYMENT IS:
(a) At or below 82% of the federal poverty guidelines (FPG) $15
(b) Above 82% of the FPG up to 137.5% of the FPG $50
(c) Above 137.5% of the FPG through ((200%)) 175% of the FPG The dollar amount equal to subtracting 137.5% of FPG from countable income, multiplying by 44%, then adding $50
(d) Above ((200%)) 175% of the FPG, a consumer is not eligible for WCCC benefits.

     (3) On or after February 1, 2011, if the consumer's family countable income falls within the range below, then his or her copayment is:


IF A CONSUMER'S INCOME IS: THEN THE CONSUMER'S COPAYMENT IS:
(a) At or below 82% of the federal poverty guidelines (FPG) $15
(b) Above 82% of the FPG up to 137.5% of the FPG $60
(c) Above 137.5% of the FPG through 175% of the FPG The dollar amount equal to subtracting 137.5% of FPG from countable income, multiplying by 44%, then adding $60
(d) Above 175% of the FPG, a consumer is not eligible for WCCC benefits.

     (4) DSHS does not prorate the copayment when a consumer uses care for part of a month.

     (((4))) (5) The FPG is updated every year on April 1. The WCCC eligibility level is updated at the same time every year to remain current with the FPG.

[Statutory Authority: RCW 43.215.060, 43.215.070, 2006 c 265, and chapter 43.215 RCW. 09-22-043, § 170-290-0075, filed 10/28/09, effective 12/1/09. 08-08-047, recodified as § 170-290-0075, filed 3/27/08, effective 3/27/08. 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, § 388-290-0075, filed 3/29/04 and 4/7/04, effective 5/28/04. Statutory Authority: RCW 74.04.050, 74.13.085. 02-14-067, § 388-290-0075, filed 6/27/02, effective 8/1/02. Statutory Authority: RCW 74.04.050 and C.F.R. Parts 98 and 99 (Child Care Development Fund Rules). 02-01-135, § 388-290-0075, filed 12/19/01, effective 1/19/02.]


AMENDATORY SECTION(Amending WSR 09-22-043, filed 10/28/09, effective 12/1/09)

WAC 170-290-0085   Change in copayment.   (1) Once DSHS determines that a consumer is eligible for WCCC benefits, his or her copayment may change when:

     (a) The consumer's monthly income decreases;

     (b) The consumer's family size increases;

     (c) DSHS makes an error in the consumer's copayment computation;

     (d) The consumer did not report all income, activity and household information at the time of eligibility determination or application/reapplication;

     (e) The consumer is no longer eligible for the minimum copayment under WAC 170-290-0090;

     (f) DEL makes a mass change in benefits due to a change in law or program funding;

     (g) The consumer is approved for a new eligibility period; or

     (h) The consumer is approved for the fourteen-day wait period or twenty-eight-day gap period as provided in WAC 170-290-0055.

     (2) If a consumer's copayment changes during his or her eligibility period, the change is effective on the first day of the month following DSHS becoming aware of the change.

     (3) DSHS does not increase a consumer's copayment during his or her current eligibility period when his or her countable income remains at or below ((two hundred percent of the FPG)) the maximum eligibility limit as provided in WAC 170-290-0005 (2)(d) and (3), and:

     (a) The consumer's monthly countable income increases; or

     (b) The consumer's family size decreases.

[Statutory Authority: RCW 43.215.060, 43.215.070, 2006 c 265, and chapter 43.215 RCW. 09-22-043, § 170-290-0085, filed 10/28/09, effective 12/1/09. 08-08-047, recodified as § 170-290-0085, filed 3/27/08, effective 3/27/08. 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, § 388-290-0085, filed 3/29/04 and 4/7/04, effective 5/28/04. Statutory Authority: RCW 74.04.050, 74.13.085. 02-14-067, § 388-290-0085, filed 6/27/02, effective 8/1/02. Statutory Authority: RCW 74.04.050 and C.F.R. Parts 98 and 99 (Child Care Development Fund Rules). 02-01-135, § 388-290-0085, filed 12/19/01, effective 1/19/02.]


AMENDATORY SECTION(Amending WSR 09-22-043, filed 10/28/09, effective 12/1/09)

WAC 170-290-3520   Eligible consumers.   (1) In SCC, an eligible consumer ((is not currently receiving temporary aid for needy families (TANF),)) lives in the state of Washington, has parental control of one or more children, and is the child's:

     (a) Parent, either biological or adopted;

     (b) Stepparent;

     (c) Legal guardian as verified by a legal or court document;

     (d) Adult sibling or step-sibling;

     (e) Aunt;

     (f) Uncle;

     (g) Niece or nephew;

     (h) Grandparent; or

     (i) Any of the above relatives in (e), (f), or (h) of this subsection, with the prefix "great," such as great-aunt.

     (2) Consumers may be eligible for SCC benefits if they:

     (a) Meet eligibility requirements in this chapter;

     (b) Participate in an approved activity under WAC 170-290-3555; and

     (c) Have countable income at or below ((two hundred percent of the federal poverty guidelines (FPG))) the maximum eligibility limit described in WAC ((170-290-3640)) 170-290-0005 (2)(d) and (3).

     (3) Consumers are not eligible for SCC benefits if they:

     (a) Have a copayment, under WAC 170-290-0075, that is higher than the maximum monthly state rate for all of the consumer's children in care;

     (b) Were employed with one employer more than eleven months in the previous twelve months; or

     (c) ((Are receiving TANF benefits; or

     (d))) Are the only parent in the household and will be away from the home for more than thirty days in a row.

[Statutory Authority: RCW 43.215.060, 43.215.070, 2006 c 265, and chapter 43.215 RCW. 09-22-043, § 170-290-3520, filed 10/28/09, effective 12/1/09.]


AMENDATORY SECTION(Amending WSR 09-22-043, filed 10/28/09, effective 12/1/09)

WAC 170-290-3640   Determining income eligibility and copayment.   (1) For the SCC program, DEL determines a consumer's family's income eligibility and copayment by:

     (a) The consumer's family size as defined under WAC 170-290-3540;

     (b) The consumer's average monthly income as calculated under WAC 170-290-3620;

     (c) The consumer's family's average monthly income as compared to the federal poverty guidelines (FPG); and

     (d) The consumer's family's average monthly income as compared to the copayment chart defined in WAC 170-290-0075.

     (2) If a consumer's family's income is above ((two hundred percent of the FPG as defined in WAC 170-290-0075)) the maximum eligibility limit as provided in WAC 170-290-0005 (2)(d) and (3), his or her family is not eligible for the SCC program.

     (3) SCC does not prorate the copayment when a consumer uses care for part of a month.

     (4) The FPG is updated every year on April 1. The SCC eligibility level is updated at the same time every year to remain current with the FPG.

     (5) SCC shall assign a copayment amount based on the family's countable income. The copayment amount will be on the consumer's child care plan. The consumer pays the copayment directly to the provider.

[Statutory Authority: RCW 43.215.060, 43.215.070, 2006 c 265, and chapter 43.215 RCW. 09-22-043, § 170-290-3640, filed 10/28/09, effective 12/1/09.]

© Washington State Code Reviser's Office