Effective Date of Rule: Immediately.

     Purpose: The department of early learning (DEL) is extending emergency rules for the working connections child care (WCCC) and seasonal child care (SCC) programs chapter 170-290 WAC while the department completes permanent rule making. The rules revise consumer entry into and eligibility for WCCC and SCC as follows:

     a. WAC 170-290-0001, amended: This rule allows DEL to limit the number of families enrolled in the WCCC by providing for caps, priority lists and/or waiting list [lists] as appropriate to keep the program within available funds.

     b. WAC 170-290-0005, 170-290-0085, 170-290-3520 and 170-290-3640 amendments: Consumers must have countable income at or below one hundred seventy-five percent of the federal poverty guidelines (FPG) to qualify for and to remain eligible for WCCC or SCC subsidy benefits. This is $2,671 per month for a family of three. Once a family's income exceeds one hundred seventy-five percent of the FPG, they are no longer eligible for WCCC or SCC.

     c. WAC 170-290-0075, amended: Monthly child care copayments are increased for some WCCC and SCC families, as follows:

     •     Effective February 1, 2011, through February 28, 2011:

     -     For consumers whose countable monthly income is above eighty-two percent of the FPG up to 137.5 percent of the FPG, copayments increased to $60 per month.

     -     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 increased 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.

     •     Effective March 1, 2011:

     -     For consumers whose countable monthly income is above eighty-two percent of the FPG up to 137.5 percent of the FPG, copayments increased to $65 per month.

     -     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 fifty percent, then adding $65.

     •     No copayment change for families with income at or below eighty-two percent of the FPG - their copayment remains at $15 a month.

     d. WAC 170-290-0247, amended: Only DEL-licensed or certified family home child care providers are eligible to field trip fee reimbursements for children in subsidized care. Child care centers and school-age centers are no longer eligible for WCCC field trip fees. The age limit is removed.

     The one hundred seventy-five percent of FPG income limit applies to families applying for the SCC program. SCC has been suspended since January 2011 due to lack of funds. DEL plans to reopen applications and enrollment for SCC in July 2011 when revised rules proposed filed as WSR 11-08-009 are adopted as final. The SCC proposal includes amended WAC 170-290-3520 and 170-290-3640 also included in this emergency rule.

     This emergency rule replaces and supersedes emergency rules filed on January 31, 2011, filing number WSR 11-04-078, and on February 15, 2011, filing number WSR 11-05-088. DEL plans to file proposed rules in June 2011 including WAC 170-290-0001, 170-290-0005, 170-290-0075, 170-290-0085 and 170-290-0247 included in this emergency rule, as well as other sections of chapter 170-290 WAC.

     The WCCC program provides child care assistance to eligible parents who are working or attending approved school, training or other activities. The SCC program helps eligible parents who are working in seasonal crop harvesting or processing pay for child care. 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 170-290-0001, 170-290-0005, 170-292-0075, 170-290-0085, 170-290-0247, 170-290-3520, and 170-290-3640.

     Statutory Authority for Adoption: RCW 43.215.060 and 43.215.070; section 612(16), chapter 5, Laws of 2011 regular session.

     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: DEL is extending emergency rules filed as WSR 11-04-078 and 11-05-088 while the department completes permanent rule making. Earlier proposed WCCC and SCC income eligibility rules filed on August 30, 2010 (WSR 10-18-064) were withdrawn.

     The department has filed proposed SCC rules - including amended WAC 170-290-3520 and 170-290-3640 and other related sections of this chapter - as WSR 11-08-009, and public hearings were held on the proposal on May 12 and 14, 2011. Permanent rules will be filed soon.

     DEL plans to file proposed WCCC rules shortly, including amended WAC 170-290-0001, 170-290-0005, 170-290-0075, 170-290-0085, 170-290-0247 included in this emergency rule, and other related sections of this chapter.

     The department remains under a directive to reduce child care subsidy expenditures to help close a projected $82 million shortfall in the state fiscal year (SFY) 2011 budget for the state's WorkFirst program. WorkFirst is Washington state's combined welfare-to-work agencies and programs, including WCCC and SCC.

     Under the emergency rules filed on February 15, 2011 (WSR 11-05-088), since March 2011 DEL has been limiting entry into WCCC to approximately 35,200 families per month - this is the number of WCCC families per month that DEL has determined can be provided child care subsidy benefits and allow the program to remain within available SFY 2011 funds. Once the monthly target of 35,200 WCCC families is reached, remaining families who apply for WCCC in the month are placed on a waiting list. Priority is given to: First, applicants receiving a temporary assistance to needy families (TANF) grant; second, families who have a child with special needs who needs WCCC child care; and third, other families with countable monthly income at or below one hundred seventy-five percent of the FPG. DSHS notifies a family on the waiting list in writing when space becomes available - the family must then complete the application process and be determined eligible for WCCC subsidy benefits. As of May 2011, individual families have remained on the waiting list for WCCC from about three to four weeks.

     Failure to reduce WCCC enrollment and eligibility by emergency rule would result in this program 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 WCCC funds before the end of SFY 2011 on June 30, 2011. If that occurs, the state could be faced with terminating child care benefits to thousands more families receiving WCCC benefits, with serious disruptive impacts to children, families, child care providers, employers and the public welfare. DEL plans to adopt the current enrollment and eligibility limits as permanent rules to give the department tools to regulate WCCC program expenditures and to keep the program within the extent of available funding in the 2011-2013 biennium.

     Washington state's economic situation remains unstable. Current forecasts indicate that revenues will remain insufficient to meet state general fund appropriations in the 2010-2011 Supplemental Operating Budget Act ESSB 6444 (chapter 37, Laws of 2010 1st sp. sess.) and future fiscal years. The legislature has been grappling with how to cut spending by more than $5,000,000,000 from current levels to keep the 2011-2013 state budget in balance (a 2011-2013 operating appropriations bill, 2ESHB 1087, was passed on May 25, 2011, but has not been signed into law as of the date of this emergency rule filing).

     On September 13, 2010, Governor Gregoire formally declared that a budget shortfall is imminent and directed state agencies to implement nearly 6.3 percent across-the-board spending cuts to avoid a [an] SFY 2011 deficit. Executive Order 10-04 - Ordering Expenditure Reductions in Allotments of State General Fund Appropriations, 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 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 state fiscal year 2011.

     In the 2011 Supplemental Operation Appropriations Act, ESHB 1086 (chapter 5, Laws of 2011 regular session), section 612(16), the legislature directed DEL to set the WCCC income eligibility limit no lower than one hundred seventy-five percent of the federal poverty guidelines. As a result, DEL may not reduce the income eligibility limit further as a means of regulating WCCC or SCC enrollment and expenditures. The 2011 legislature also passed EHB 1248 extending authority through SFY 2013 for state agencies to file emergency rules to implement requirements and reductions contained in appropriations legislation (as of the date of this filing the governor has not signed EHB 1248 into law).

     The legislature's anticipated shortfall in the WorkFirst program, combined with the Governor's Executive Order 10-04, adoption of ESHB 1086 and passage of EHB 1248, and continued legislative efforts to balance the state's 2011-2013 budget, demonstrate that an emergency rule is necessary to implement WCCC and WorkFirst spending reductions, and 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.

     DEL has determined that the rules meet office of financial management guidance 3.d. 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 ..."

     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 7, 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 7, Repealed 0.

     Date Adopted: May 27, 2011.

Elizabeth M. Hyde

Director

     (c) Creating and maintaining a waiting list..

     (2) The purpose of WCCC, as provided in part II of this chapter, is to:

     (a) Assist eligible families in obtaining child care subsidies for approvable activities that enable them to work, attend training, or enroll in educational programs; and

     (b) Consider the health and safety of children while they are in care and receiving child care subsidies.

     (3) The purpose of SCC, as provided in part III of this chapter, is to:

     (a) Assist eligible families who are seasonally employed in agriculturally related work to pay for licensed child care; and

     (b) Consider the health and safety of children while they are in care and receiving child care subsidies.

[Statutory Authority: RCW 43.215.060, 43.215.070, 2006 c 265, and chapter 43.215 RCW. 09-22-043, § 170-290-0001, filed 10/28/09, effective 12/1/09. 08-08-047, recodified as § 170-290-0001, 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, § 388-290-0001, 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, § 388-290-0001, filed 12/19/01, effective 1/19/02.]

     Reviser's note: The typographical error in the above section occurred in the copy filed by the agency and appears in the Register pursuant to the requirements of RCW 34.08.040.
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))) one hundred seventy-five percent of the federal poverty guidelines.

     (3) A consumer's eligibility shall end if the 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.]

     (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) Effective February 1, 2011 through February 28, 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) On or after March 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	$65
(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 50%, then adding $65
(d) Above 175% of the FPG, a consumer is not eligible for WCCC benefits.

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

     ((4)) (6) 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.]

     Reviser's note: The typographical error in the above section occurred in the copy filed by the agency and appears in the Register pursuant to the requirements of RCW 34.08.040.
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.]

     (((a))) (1) Admission;

     (((b))) (2) Transportation (not to include the provider's gas and insurance); and

     (((c))) (3) The cost of hiring a nonemployee to provide an in-house field trip activity.

     (((2) The field trip fee can only be reimbursed for children three years of age and older.))

[Statutory Authority: RCW 43.215.060, 43.215.070, 2006 c 265, and chapter 43.215 RCW. 09-22-043, § 170-290-0247, filed 10/28/09, effective 12/1/09. 08-08-047, recodified as § 170-290-0247, 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, § 388-290-0247, filed 3/29/04 and 4/7/04, effective 5/28/04.]

     Reviser's note: The typographical error in the above section occurred in the copy filed by the agency and appears in the Register pursuant to the requirements of RCW 34.08.040.
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;

     (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.]

     (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