The 2019 Legal Guide to Child Care Subsidies in California ...

The 2019 Legal Guide to Child Care Subsidies in California Chapter 3: California Department of Education Child Care Subsidies

This chapter includes:

3.1

MAIN CDE CHILD CARE PROGRAMS

3.2

GOVERNING AUTHORITY FOR CDE CHILD CARE PROGRAMS

3.3

HOW CDE CHILD CARE IS ADMINISTERED

3.3.1 3.3.2

Vouchers Contracted Programs

3.4

CONTRACTOR DISCRETION IN ESTABLISHING POLICIES

3.5

CDE-ADMINISTERED CHILD CARE REQUIREMENTS

3.5.1 "12-Month Eligibility Requirements" 3.5.2 Residency Requirements 3.5.3 Age Limits for Children 3.5.3.1 California State Preschool Program 3.5.4 Bases for Eligibility 3.5.4.1 Receipt of Cash Assistance as a Basis for Eligibility 3.5.4.2 Income as a Basis for Eligibility 3.5.4.2.1 Initial Income Eligibility for Most CDE Child Care Programs: Adjusted Income at or

Below 70% of the State Median Income (SMI), Adjusted for Family Size 3.5.4.2.2 Ongoing Income Eligibility for Most CDE Child Care Programs: Adjusted Income at or

Below 85% of the State Median Income (SMI), Adjusted for Family Size 3.5.4.2.3 California Department of Finance's State Median Income Figure Must Be Updated

Each Fiscal Year 3.5.4.2.4 Documentation of Income Eligibility 3.5.4.2.5 Income Eligibility for the California State Preschool Program (CSPP) 3.5.4.3 Categorical Eligibility: Exceptions to Income Eligibility Limits for Some Families 3.5.4.3.1 Homelessness as a Basis for Eligibility 3.5.4.3.1.1 Documentation of Homelessness 3.5.4.3.2 Child Protective Services and Risk as a Basis for Eligibility 3.5.4.3.2.1 Documentation of Families with CPS or At-Risk Status

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The 2019 Legal Guide to Child Care Subsidies in California Chapter 3: California Department of Education Child Care Subsidies

3.5.5 3.5.5.1 3.5.5.1.1 3.5.5.1.2 3.5.5.1.3 3.5.5.2 3.5.5.2.1 3.5.5.3

3.5.5.3.1 3.5.5.4 3.5.5.4.1 3.5.5.5 3.5.5.5.1 3.5.5.6

Parents' Need for Child Care Employed or Seeking Employment as the Basis of Need for Care Documentation of Employment Documentation of Self-Employment Documentation of Seeking Employment Vocational Training as the Basis of Need for Care Documentation of Vocational Training Engaged in an Educational Program for English Language Learners, or to Attain a High School Diploma or General Education Development Certificate as the Basis for Need of Care Documentation of ELL, High School Diploma or GED Classes Seeking Permanent Housing for Family Stability As Basis of Need for Care Documentation of Seeking Permanent Housing for Family Stability Parental Incapacity as the Basis of Need for Care Documentation of Parental Incapacity Limited Term Service Leaves

3.6

CALWORKS STAGES 2 AND 3

3.6.1 3.6.2 3.6.2.1 3.6.2.2 3.6.2.3 3.6.2.4 3.6.3 3.6.3.1

"Seamless" Transition Between Stages 1, 2, and 3 Stage 2 Children's Eligibility Families Who Have Never Received Stage 1 Are Eligible for Stage 2 Stage 2 Eligibility After Diversion Payments 24-Month Stage 2 Time Limit Post Cash Assistance or Diversion Services Stage 3 What Happens if Stage 3 Funding is Insufficient

3.7

ELIGIBILITY FOR CHILD CARE SUBSIDIES FOR IMMIGRANT FAMILIES

3.7.1 3.7.2

Immigrants and Non-CalWORKs CDE Child Care Immigrants and CalWORKs Child Care Stages 2 and 3

3.8

CHILD CARE ELIGIBILITY FOR NATIVE AMERICAN FAMILIES

3.9

PRIORITY RANKING FOR HOW FAMILIES ARE ENROLLED INTO CDE CHILD CARE

PROGRAMS

3.10

DEFINITIONS

3.10.1 3.10.2 3.10.3

"Parent" as Defined "Family" and "Family Size" as Defined "Child" and "Adult" as Defined

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The 2019 Legal Guide to Child Care Subsidies in California Chapter 3: California Department of Education Child Care Subsidies

The California Department of Education (CDE) administers the majority of child care subsidy programs in California, including CalWORKs Stage 2 and CalWORKs Stage 3 child care (CDE child care). CDE child care is both voucher-based and Title 5 contracted. This chapter will cover:

General background on eligibility requirements for CDE child care Stage 2 and Stage 3 specific eligibility requirements

3.1 MAIN CDE CHILD CARE PROGRAMS

The CDE Early Learning and Care Division (ELCD) administers CDE child care programs. The largest programs are:

General Child Care: CDE contracted child care centers and family child care home education network CDE child care is governed by the California Education Code, Title 5 of the California Code of Regulations, and subject to sub-regulatory rules of CDD's Management Bulletins and Funding Terms and Conditions. 1

California State Preschool Program: CDE contracted child care centers and licensed family child care homes for 3 and 4 year olds,

California Alternative Payment Program: Voucher programs for families, and sometimes referred to as "AP," "APP" or "CAPP." These programs administer CDE child care vouchers and also sometimes contract with county welfare agencies to administer Stage 1 child care.

CalWORKs Stages 2 and 3: Voucher program for current and former participants receiving CalWORKs cash assistance.

Migrant Child Care and Development Programs: Child care for families working in fishing, agriculture or agriculturally related work. The Migrant Program (CMIG) are CDE contracted child care centers and family child care home education networks. The Migrant Alternative Payment Program (CMAP) are vouchers.

3.2 GOVERNING AUTHORITY FOR CDE CHILD CARE PROGRAMS

CDE child care programs are governed by the California Education Code, Title 5 of the California Code of Regulations, and sub-regulatory rules of CDD's Management Bulletins and Funding Terms and Conditions. 2

1 CAL. EDUC. CODE ?? 8350-8359.1; CAL. CODE REGS. tit. 5, ?? 18400?18434; CAL. DEP'T OF EDUC., MANAGEMENT BULLETINS, ; CAL. DEP'T OF EDUC., CHILD CARE & DEVELOPMENT PROGRAMS FOR FISCAL YEAR 2018-19, . 2 CAL. EDUC. CODE ?? 8200-9 et seq.; 5 Cal. Code Regs. ?? 18ooo et seq.; CAL. DEP'T OF EDUC., MANAGEMENT BULLETINS, ; CAL. DEP'T OF EDUC., CHILD CARE & DEVELOPMENT PROGRAMS FOR FISCAL YEAR 2018-19, .

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The 2019 Legal Guide to Child Care Subsidies in California Chapter 3: California Department of Education Child Care Subsidies

ADVOCACY TIP: Many Title 5 regulations are outdated and some of the Management Bulletins and Funding Terms and Conditions contradict each other and are outdated as well. This manual will cite to the most current statute and accurate regulations and subregulatory guidance available. Lack of clear guidance can be very confusing for clients and attorneys. Please contact the Child Care Law Center if you have any questions.

3.3 HOW CDE CHILD CARE IS ADMINISTERED

CDE administers child care two main ways: (1) through vouchers, and (2) by directly contracting with local child care providers, such as centers. Local contractors are performing a government function of determining subsidy eligibility, issuing notices, and holding hearings.

3.3.1 Vouchers

Vouchers allow eligible families to choose among eligible child care providers in the private market. Alternative Payment Programs contract with the CDE to locally administer voucher-based child care subsidies and usually makes the payment directly to the child care provider. Certification of the child care subsidy requires approval by the Alternative Payment Programs for the number of hours of care, the child care provider selected, and a rate for payment. Alternative Payment Programs are local public and private community based agencies. Sometimes the local county department of education, school district or county welfare department serves at the Alternative Payment Program. Counties may have one or several Alternative Payment Programs.

Eligible child care providers who can accept CDE vouchers include: Licensed child care centers, Licensed family child care homes, Child care providers who are exempt from licensing requirements ("legally license-

exempt care") which most commonly means Family, Friend and Neighbor care, but also includes some other types of legally license-exempt care, like afterschool and public recreation programs.

All CalWORKs child care is exclusively a voucher-based program.

3.3.2 Contracted Programs

CDE also contracts directly with child care providers to provide child care spaces or "slots" in child care centers.3 These child care centers are sometimes called "Title 5 programs."

3 The term "slot" objectifies children. Therefore, we will use the word "spaces" or "openings" throughout this manual.

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The 2019 Legal Guide to Child Care Subsidies in California Chapter 3: California Department of Education Child Care Subsidies

4 Title 5 centers can be private nonprofits, private for-profits, or part the local school district. Below are some general points about Title 5 programs:

They are usually a form of center-based child care, although CDE also contracts with groups of home-based licensed family child care providers associated with contracted centers called Family Child Care Home Education Networks (FCCHENs).

Families with subsidy vouchers may use their vouchers to obtain care in a contracted center if there is space available in addition to the center's contracted child care spaces.

There are no contracted Family, Friend and Neighbor care providers--only parents with vouchers may use Family, Friend and Neighbor care or other types of legally licensed-exempt care.

Switching between contracted child care providers can be difficult, while the nature of vouchers is that they are transferable from one child care provider to another.

3.4 CONTRACTOR DISCRETION IN ESTABLISHING POLICIES

CDE has detailed regulations regarding family eligibility and many other aspects of parent access to and provider participation in subsidized child care. Still, there are other elements of subsidy program operation that are left to the discretion of CDE contractors, such as the type of required documentation to determine eligibility, the timing of the transition from CalWORKs Stage 1 to Stage 2, and other elements.5 CDE requires Alternative Payment Programs and other CDE contractors to develop parent handbooks and provider handbooks describing these policies.6 Each CDE contractor must develop and implement a written policy statement that includes information about the program's purpose and range of services, enrollment priorities, eligibility requirements, conditions for participation, payment

4 The name "Title 5 programs" comes from their governing regulations, Cal. Code of Regs., title 5. 5 CAL. CODE REGS. tit. 5, ?? 18081 et seq. offer the types of documentation contractors must accept. Note that many provisions of these regulations are obsolete because of amendments to CAL. EDUC. CODE ? 8263(h) in 2017. See updated guidance on these regulations in CAL. DEP'T OF EDUC., MANAGEMENT BULLETIN 17-14 (2017), (12-Month eligibility guidance) (find the "Attachment A" hyperlink in "Purpose" section of Management Bulletin 17-14 and also at ). See also CAL. EDUC. CODE ?? 8350, 8351 (transition requirements from CalWORKs Stage 1 to Stage 2); CAL. DEP'T OF EDUC., MANAGEMENT BULLETIN 18-04 (2018), (required documentation for homeless children); CAL. DEP'T OF EDUC., MANAGEMENT BULLETIN 17-03 (2017), (clarifying that a digital signature may be used to satisfy the requirements of an electronic signature). 6 CAL. CODE REGS. tit. 5, ?? 18221-3. See CAL. CODE REGS. tit. 5, ?? 18410 (Stage 2) & 18430 (Stage 3) for contractors responsibility for informing parents about how to maintain eligibility in Stages 2 and 3. Note that the substantive requirements, including a family's duty to report changes within 5 days, are obsolete pursuant to CAL. EDUC. CODE ? 8263(h), which established 12-month child care eligibility. See updated guidance on regulations in CAL. DEP'T OF EDUC., MANAGEMENT BULLETIN 17-14 (2017), (12-Month eligibility guidance) (find the "Attachment A" hyperlink in "Purpose" section of Management Bulletin 17-14 and also at ). See also CAL. DEP'T OF EDUC., MANAGEMENT BULLETIN 14-04 (2014), (monthly attendance record or invoice requirements).

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The 2019 Legal Guide to Child Care Subsidies in California Chapter 3: California Department of Education Child Care Subsidies information, and requirements for provider participation.7 The provider participation procedures must include information about termination of provider affiliation with the contractor and grievance procedures for parents and providers.8

These policies cover very important aspects of subsidy program operation, and there is dramatic variation in contractor policies and procedures. While many contractors develop clear and fair policies, others use questionable or unreasonable policies that can result in denial or termination of families from receiving a child care subsidy, and underpayment and termination of child care providers from participation in subsidy programs. Advocates have been concerned about the extent to which CDE allows contractors to establish policies that significantly affect participation in CDE-administered programs, and have had some success in challenging these policies through administrative hearings.

3.5 CDE- ADMINISTERED CHILD CARE REQUIREMENTS

This chapter discusses the regulatory structure of CDE-administered child care programs and only touches on policy implications. Unless otherwise specified, "CDE child care" requirements include CalWORKs Stages 2 and 3 requirements. The following requirements apply to virtually all CDE-administered child care subsidy programs, voucher- and center-based:

1. "12-month eligibility requirements;" 2. Residency requirements; 3. Children's age limits; 4. Bases for eligibility; and 5. Parents' need for child care

Each of these elements is discussed further below.

3.5.1 "12-Month Eligibility Requirements"

As of July 1, 2017, the income eligibility and parents' reporting requirements for all CDE child care, including CalWORKs Stages 2 and 3, has drastically changed. The new provisions in law provide that:

After a family qualifies or is recertified for CDE child care, they receive no less than 12 months of continuous child care.

During the continuous eligibility period, which can be no less than 12 months, parents need not report any changes to their status. o EXCEPTION: If a family's eligibility is based on income, they must report if their family's adjusted monthly income exceeds 85% of SMI. If their income exceeds 85% of SMI, the contractor must evaluate their income to determine whether they continue to qualify in their current child care program, or if they can be transferred to another child care program.

7 CAL. CODE REGS. tit. 5, ? 18221. 8 CAL. CODE REGS. tit. 5, ? 18223.

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The 2019 Legal Guide to Child Care Subsidies in California Chapter 3: California Department of Education Child Care Subsidies

Family fees cannot be increased, and child care services cannot be reduced before the family's next recertification. However, parents may voluntarily report changes regarding their situation. In response to reporting, contractors may only o Decrease family fees; o Increase child care services; or o Extend the period of the family's eligibility before recertification;

To initially income qualify for CDE child care, the family's monthly adjusted income must be 70% of SMI. Starting July 1, 2019, the initial income eligibility will be 85% of SMI;

Families remain income eligible until their family's adjusted income exceeds 85% of SMI;

All income requirements must be based on most recent census data.9

The California Code of Regulations, Title 5 regulations have not yet been updated to reflect these substantial changes in law. In the meantime, please refer to the CDE Management Bulletins 17-14 and attached guidance (12-Month Eligibility), MB 17-08 (State Median Income, Initial Certification), MB 17-09 (Graduated Phase-Out, Recertification), MB 17-10 (Updated Income Rankings); MB 17-11 (Revised Family Fee Schedule), and MB 18-05 (Transfer of Families into a CalWORKs Stage 2 Program) for how contractors must implement this new law.10 You can also reference the CDE Frequently Asked Questions (FAQ) webpage on how to implement the 12-month eligibility changes from the Budget Act of 2017.11

3.5.2 Residency Requirements

To be eligible for any form of CDE-administered subsidized child care, the child must live in California while services are being received. Any evidence of a street address or post office address in California is sufficient to establish residency under the regulations.12 A person identified as homeless is exempted from this requirement, but must submit a declaration of intent to reside in California.13 CDE contractors will serve families living in or using care in the

9 See CAL. EDUC. CODE ?? 8263(c) (continuity of services provision), 8263(h), 8263.1, 8273 (family fees must be based on most recent census data), 8273.1 (family fees may be exempt for up to 12 months for families whose children receive child protective services, or are at risk of being neglected or abused); CAL. DEP'T OF EDUC., MANAGEMENT BULLETIN 18-05 (2018), . 10 CAL. DEP'T OF EDUC., ELCD MANAGEMENT BULLETINS, . 11 CAL. DEP'T OF EDUC., BUDGET ACT OF 2017 IMPLEMENTATION FAQ (Apr. 23, 2018), (last visited Jan. 27, 2019) (section on 12-Month eligibility). 12 CAL. CODE REGS. tit. 5, ? 18107(a)-(b). Sometimes CWDs/Alternative Payment Programs ask for additional documentation for residency. There is no clear authority for doing so. If additional documentation is requested by local CWDs/Alternative Payment Programs, contact the Child Care Law Center. 13 CAL. CODE REGS. tit. 5, ? 18107(b). This is sufficient to meet the residency requirement. Additional documentation is needed to establish eligibility. See also CAL. DEP'T OF EDUC., MANAGEMENT BULLETIN 18-04 (2018), (homeless children and youth); CAL. DEP'T OF EDUC., ATTACHMENT A: 12-MONTH ELIGIBILITY IMPLEMENTATION GUIDANCE (2017), in

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The 2019 Legal Guide to Child Care Subsidies in California Chapter 3: California Department of Education Child Care Subsidies

county/service area served by the contractor; some CWDs/Alternative Payment Programs will also serve families where the parent works but does not live in the contractor's county/service area.

3.5.3 Age Limits for Children

Families with children from infancy up to age 1314 (up to age 21 for children with exceptional needs)15 are eligible for CDE child care programs, including CalWORKs Stages 2 and 3.

ADVOCACY TIP: If a child turns 13 during the 12 months after the family established eligibility, that child remains eligible for child care services until the next recertification. Pursuant to Cal. Educ. Code section 8263(h), once a family has established initial eligibility for CDE child care, they must be considered to meet all eligibility and need requirements for those services for not less than 12 months. This includes a child who was determined eligible before turning 13 years at the time of initial certification or recertification. Therefore, a contract cannot disenroll a child who turns 13 until the next recertification period.16 Similarly, a child with exceptional needs who turns 21 years old during the 12-month eligibility period, remains eligible for child care until the family's next recertification.

3.5.3.1 California State Preschool Program

The California State Preschool Program (CSPP) is the only subsidized program with additional age limits, providing early care and education specifically for three- and four-year-old children.17 Priority for enrollment is as follows:

First priority: Three and four-year-old children who are neglected or abused and receive child protective services or are at risk of being neglected or abused. If a program cannot enroll a child in this first priority category, it must refer the child's parent or guardian to the local child care resource and referral agency so that services can be located.

MANAGEMENT BULLETIN 17-14, ? 18090, at 21 (2017), (find the "Attachment A" hyperlink in "Purpose" section of Management Bulletin 17-14 and also at ). 14 45 C.F.R. ? 98.20(a)(1)(i); CAL. EDUC. CODE ? 8208(i); CAL. CODE REGS. tit. 5, ? 18407(b)(1)(Stage 2); CAL. CODE REGS. tit. 5, ? 18422(b)(1) (Stage 3). 15 CAL. EDUC. CODE ?? 8250(b), 8208(l); CAL. CODE REGS. tit. 5, ? 18407(b)(2) (Stage 2); CAL. CODE REGS. tit. 5, ? 18422(b)(2) (Stage 3). 16 CAL. DEP'T OF EDUC., BUDGET ACT OF 2017 IMPLEMENTATION FAQ n. 30, (Apr. 23, 2018), (last visited Jan. 27, 2019). 17 CAL. EDUC. CODE ? 8235.

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