Office of Legal Counsel
Dept. of Workforce Development
P.O. Box 7946
Madison, WI 53707-7946
(608) 267-9403
Submission of Written Comments
Written comments on the proposed rules received at the above address, email, or through the http://adminrules. wisconsin.gov web site no later than April 11, 2008, will be given the same consideration as testimony presented at the hearing.
Analysis Prepared by the Department of Workforce Development
Statutory authority
Statutes interpreted
Explanation of agency authority
Section
49.155 (5), Stats., provides that an individual is liable for the percentage of the cost of child care specified by the department in a printed copayment schedule.
Summary of the proposed and emergency rules
Since 1997, the child care parental copayment schedule in DWD 56.08 has provided different copayment amounts for parents who receive child care services from a certified child care provider and parents who receive child care services from a licensed provider. A certified provider may provide child care services for 1 to 3 unrelated children, care in the child's home, or care for school-age children and receive reimbursement from state or federal funds. Certified providers are regulated by the Department. A child care provider who provides care and supervision for more than 3 unrelated children for compensation is required to be licensed by the Department of Health and Family Services.
When the Department submitted the federal fiscal year 2008-2009 Child Care and Development Fund (CCDF) State Plan for approval to the federal Department of Health & Human Services, DHHS responded with a notice that the plan was not approvable as submitted. The DHHS review found that Wisconsin's sliding fee scale (parental copayment schedule) is not allowable under CCDF regulations because it includes different copayment amounts based on category of care, such as certified versus licensed providers, and this difference interferes with parental choice of providers. Failure to submit an approvable plan could potentially result in a disruption of federal funding provided to Wisconsin for child care services for eligible families.
The Department submitted a corrective plan eliminating the different copayment amounts for certified and licensed care. DHHS has approved the corrective Wisconsin State Plan contingent upon implementation of changes to the copayment schedule with a deadline of April 1, 2008.
Currently, the copayments paid by families who receive child care services from a certified provider are lower than the copayments paid by families who receive child care services from a licensed provider. The emergency and proposed rules will eliminate the differential copayment amounts by increasing copayments for certified care to the same level as copayments for licensed care. The emergency rule is effective March 30, 2008.
The current s.
DWD 56.08 provides a copayment schedule and language that copayment amounts will be based on family size, family gross income, the number of children in a given family in child care, and the type of child care selected, with certain exceptions. The proposed rule will repeal “type of child care selected" from these provisions and update the copayment schedule to provide the same copayment amounts for certified and licensed care at the licensed care level. The copayment schedule is also adjusted for the 2008 federal poverty levels as provided under s.
DWD 56.08 (3).
Comparison with federal regulations
Under
45 CFR 98.42, lead agencies must establish, and periodically revise, by rule, a sliding fee scale that provides for cost sharing by families that receive child care services funded by the Child Care Development Fund. Sliding fee scales are to be based on income, family size, and other factors as appropriate. The section of the preamble to the rule regarding sliding fee scales refers readers to
45 CFR 98.43 regarding equal access (63 Fed. Reg. 39936, 39957, July 24, 1998).
The rule on equal access at §
98.43 provides that the state agency shall certify that the payment rates for the provision of child care services are sufficient to ensure equal access for eligible families as families who are not eligible to receive CCDF child care assistance. The state agency must show how a choice of the full range of providers is made available (center, group, family, and in-home care), how payments rates are adequate based on a local market survey, and how copayments based on a sliding fee scale are affordable. Payment rates must be consistent with
45 CFR 98.30 regarding parental choice requirements. Among other things, the parental choice requirements provide that state regulatory requirements may not have “the effect of limiting parental access to or choice from among such categories of care or types of providers, as defined in
45 CFR 98.2."
The section of the preamble to the rule regarding equal access (63 Fed. Reg. 39936, 39960, July 24, 1998) provides that:
[S]liding fee scales should not be designed in a way that limits parental choice
…Sliding fees scales must continue to be based on family size and income as §
98.42(b) has not changed. We note that this regulation provides Lead Agencies with the flexibility to take additional elements into consideration when designing their fee scales, such as the number of children in care. However, as was stated in the preamble to the regulations published on August 4, 1992, basing fees on the cost or category of care is not allowed (57 Fed. Reg. 34380).
The preamble to the August 4, 1992, rule (57 Fed. Reg. 34352, 34411) actually provides that “While Grantees may take into account the cost of care in establishing a fee scale (e.g., the family pays a percentage of the cost of care), the Grantee may not vary the fee scale based on the category of care or the type of provider."
The definitions section of the current rule at
45 CFR 98.2 provides that “categories of care" means “center-based child care, group home child care, family child care and in-home care." The rule defines “types of providers" as “different classes of providers under each category of care. For the purposes of CCDF, types of providers include non-profit providers, for-profit providers, sectarian providers and relatives who provide care."
In its review of the 2008-2009 Wisconsin State Plan, the federal Department of Health & Human Services included licensed versus certified child care in the definition of “categories of care."
Comparison with rules in adjacent states
Minnesota. Copayment amounts are based on gross income and household size.
Illinois. Copayment amounts are based on family income, family size, and number of children in care.
Michigan. Copayment amounts are based on family size and family income.
Iowa. Copayment amounts are based on gross income, family size, and units of service used.
Summary of factual data and analytical methodologies
The federal Department of Health and Human Services has required that Wisconsin eliminate differential copayment amounts based on category of care, such as certified versus licensed providers.
Initial Regulatory Flexibility Analysis
The rule will affect small businesses as defined in s.
227.114 (1), Stats., but will not have a significant economic impact on a substantial number of small businesses. The Department's Small Business Regulatory Coordinator is Elaine Pridgen,
elaine.pridgen@dwd.state.wi.us or (608) 267-9403.
Analysis used to determine effect on small businesses
Certified providers will need to collect the increased copayments directly from families who use their child care services. If providers allow families to pay the increased copayment in installments, they may have additional bookkeeping. There are no reporting requirements necessary for compliance with the rule.
Fiscal Estimate
Summary
By combining the copayment rates for licensed and certified care at the licensed level, the Department will experience savings related to the increased copayment for certified care. By comparing the current copayments at the certified rate against the new copayment and applying that to the cost of care for child care subsidy parents who used certified care in SFY 07, it is estimated that the Department will realize about $475,000 in savings in direct child care subsidies for the three months that the rule will be effective in SFY 08, based on savings of $1,900,000 that might be expected for a full year.
Savings may diminish over time when program participants experience no differential in cost for varying types of care. As a result, SFY 09 savings are assumed to be only twice the SFY 08 amount, or $950,000.
Current-year appropriations are still anticipated to be fully expended.
State fiscal effect
Decrease in costs.
Local government fiscal effect
None.
Fund sources affected
GPR, FED, SEG
Affected Chapter
20 Appropriations
Long-range fiscal implications
If program participants migrate to higher cost licensed care, the change may be cost neutral over time.
Notice of Hearing
Workforce Development
NOTICE IS HEREBY GIVEN that pursuant to ss.
108.14 (2) and s.
227.11 (2) (a), Stats., the Department of Workforce Development proposes to hold a public hearing to consider rules revising chs.
DWD 100,
140, and
149, relating to disclosure of unemployment insurance records and affecting small businesses.
Hearing Information
April 8, 2008
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MADISON
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Tuesday
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G.E.F. 1 Building, B103
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1:30 p.m.
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201 E. Washington Avenue
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Interested persons are invited to appear at the hearing and will be afforded the opportunity to make an oral presentation of their positions. Persons making oral presentations are requested to submit their facts, views, and suggested rewording in writing.
Visitors to the GEF 1 building are requested to enter through the left East Washington Avenue door and register with the customer service desk. The entrance is accessible via a ramp from the corner of Webster Street and East Washington Avenue. If you have special needs or circumstances regarding communication or accessibility at the hearing, please call (608) 267-9403 at least 10 days prior to the hearing date. Accommodations such as ASL interpreters, English translators, or materials in audio format will be made available on request to the fullest extent possible.
Agency Contact Person
Daniel LaRocque, Director
Bureau of Legal Affairs
Phone: (608) 267-1406
Copy of Rule
An electronic copy of the proposed rules is available at
http://www.dwd.state.wi.us/dwd/hearings.htm. A copy of the proposed rules is also available at http://adminrules. wisconsin.gov. This site allows you to view documents associated with this rule's promulgation, register to receive email notification whenever the Department posts new information about this rulemaking order, and submit comments and view comments by others during the public comment period. You may receive a paper copy of the rule or fiscal estimate by contacting:
Elaine Pridgen
Office of Legal Counsel
Dept. of Workforce Development
P.O. Box 7946
Madison, WI 53707-7946
(608) 267-9403
Submission of Written Comments
Written comments on the proposed rules received at the above address, email, or through the http://adminrules. wisconsin.gov web site no later than April 9, 2008, will be given the same consideration as testimony presented at the hearing.
Analysis Prepared by the Department of Workforce Development
Statutory authority
Statutes interpreted
Related statutes and rules
Explanation of agency authority
Section
108.14 (7), Stats., provides that the records made or maintained by the department in connection with the administration of the unemployment insurance program are confidential and shall be open to public inspection or disclosure only to the extent that the department permits in the interest of program. No person may permit inspection or disclosure of any record provided to it by the department unless the department authorizes the inspection or disclosure.
The department may provide records made or maintained by the department in connection with the administration of the unemployment insurance program to any government unit, corresponding unit in the government of another state, or any unit of the federal government. No such unit may permit inspection or disclosure of any record provided to it by the department unless the department authorizes the inspection or disclosure.
