CHAPTER 3 CALIFORNIA DEPARTMENT OF EDUCATION CHILD CARE PROGRAMS INCLUDING CALWORKS STAGES 2 AND 3

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1 CHAPTER 3 CALIFORNIA DEPARTMENT OF EDUCATION CHILD CARE PROGRAMS INCLUDING CALWORKS STAGES 2 AND 3 The California Department of Education (CDE) administers the majority of child care subsidy programs in California, both contracted and voucher-based. This includes two particularly important programs: Stage 2 and Stage 3 of CalWORKs child care. This chapter gives general background information on eligibility that applies to nearly all of the child care subsidy programs administered by CDE, followed by the specific rules that are applicable solely to CalWORKs child care Stage 2 and Stage 3. See Chapter 1 for information about distinguishing between child care subsidies, Chapter 5 for information regarding child care providers, and Chapter 6 for subsidy payment information. The CDE Child Development Division (CDD) administers all California subsidized child care except for CalWORKs Stage 1, which is administered by the Department of Social Services (DSS). The largest CDE-administered programs are: General Child Care (contracted centers and family child care home education networks), the California State Preschool Program (contracted centers and licensed family child care homes for 3 and 4 year olds), Alternative Payment (voucher program for low income, non-calworks families, sometimes referred to as the California Alternative Payment Program or CAPP), and CalWORKs Stages 2 and 3 (voucher program for current and former CalWORKs cash aid recipients). These and other child care subsidy programs are administered by CDE pursuant to California s Education Code, 1 Title 5 of the California Code of Regulations, 2 and sub-regulatory materials such as CDD s Management Bulletins and Funding Terms and Conditions. 3 On the county level, CDE does not have local public agencies analogous to County Welfare Departments (CWDs); rather, CDE contracts with a variety of local agencies private nonprofits, a few private for-profits, school districts, and CWDs to administer these child care subsidy programs on the local level. The contractors that administer subsidies are often collectively referred to as Alternative Payment Programs or APPs. It is important 1 CAL. EDUC. CODE (2010) 2 5 CAL. CODE REGS CAL. DEP T OF EDUC., MANAGEMENT BULLETINS, CAL. DEP T OF EDUC., FUNDING TERMS AND CONDITIONS FOR CHILD DEVELOPMENT CONTRACTS 1 ( ), 39

2 Chapter 3: CDE Child Care, Including CalWORKs Stages 2 and 3 to understand that these local contractors which include non-profits are performing a government function of determining subsidy eligibility, issuing notices, and holding hearings. 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 many other elements of subsidy program operation that are left to the discretion of CDE contractors, such as the level of required documentation to determine eligibility, the timing of the transition from CalWORKs Stage 1 to Stage 2, whether and when to grant a parent a limited term service leave, and other elements. CDE requires APPs and other CDE contractors to develop parent handbooks and provider handbooks describing these policies. 4 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 information, and requirements for provider participation. 5 The provider participation procedures must include information about termination of provider affiliation with the contractor and grievance procedures for parents and providers. 6 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 subsidized care, and underpayment and termination of child care providers from participation in subsidy programs. Advocates have been concerned about the extent to which CDE permits contractors to establish policies that significantly affect participation in CDE-administered programs, and have had some success in challenging these policies through administrative hearings. See Chapter 6 for more information about appeal and hearing rights. Please contact the Child Care Law Center for more information about this issue. ELIGIBILITY REQUIREMENTS This chapter discusses the regulatory structure of CDE-administered child care programs and only touches on policy implications. The eligibility 4 5 CAL. CODE REGS , 18223, (Stage 2), (Stage 3). 5 5 CAL. CODE REGS CAL. CODE REGS

3 Child Care Subsidies in California requirements that apply to virtually all CDE-administered child care subsidy programs include: Residency requirements; Children s age limits; Low income and other bases for eligibility; and Parents need for child care due to their work, participation in welfare-towork activities, search for employment or housing, or incapacity. Each of these elements is discussed further below. 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. 7 A person identified as homeless is exempted from the requirement, but must submit a declaration of intent to reside in California. 8 CDE contractors will serve families living in or using care in the county/service area served by the contractor; some CWDs/APPs will also serve families where the parent works but does not live in the contractor s county/service area. AGE LIMITS FOR CHILDREN Families with children from infancy up to age 13 9 (up to age 22 for children with exceptional needs) 10 are eligible for subsidized care through CDEadministered child care programs, including CalWORKs Stages 2 and 3. The California State Preschool Program (CSPP) is the only subsidized program with additional age limits, providing early care and education 7 5 CAL. CODE REGS (a),(b). Sometimes CWDs/APPs ask for additional documentation for residency. There is no clear authority for doing so. If additional documentation is requested by local CWDs/APPs, contact the Child Care Law Center. 8 5 CAL. CODE REGS (b). This is sufficient to meet the residency requirement. However, additional documentation maybe required to prove homelessness. See 5 CAL. CODE REGS CAL. EDUC. CODE 8208(i); 5 CAL. CODE REGS , 18407(b) (Stage 2); 18422(b) (Stage 3). See also CAL. DEP T OF EDUC., MANAGEMENT BULLETIN (hereafter MB ) 03-12, ELIMINATION OF SERVICES TO 13-YEAR OLD AND "GRANDFATHERED" CHILDREN (2003), (eliminating services to 13-year-old children). Note that the budget as initially proposed would have eliminated services for year olds C.F.R (a)(1); CAL. EDUC. CODE 8250, 8208(l) (2010) ; 5 CAL. CODE REGS (a) (Stage 2), 18422(c) (Stage 3). 41

4 Chapter 3: CDE Child Care, Including CalWORKs Stages 2 and 3 specifically for three- and four-year-old children. The first priority for CSPP is three or four-year-old children who are neglected or abused and are recipients of child protective services; the second priority is children between 3 years, 9 months and 4 years, 9 months. 11 Children over four years of age may enroll in CSPP if additional space is available after all eligible children with higher priorities are enrolled. 12 The vast majority of three- and four-year-old children receiving subsidized care will be enrolled into CSPP. CDE has provided an option for contractors and parents who want full-time care for their children who are not yet three years old as of September 1. Those children may enroll if they will turn three by December 2 of the same year. 13 ELIGIBILITY BASES There are four possible bases for a family s eligibility for subsidized child care. The family must be: (A) a current CalWORKs cash aid recipient, (B) for Stages 2 and 3 and other CDE-administered programs, income eligible (C) homeless, or (D) one whose children are recipients of protective services, or whose children have been identified as being abused, neglected, or exploited, or at risk of being abused, neglected, or exploited. 14 The family must document its eligibility status in order for the contractor to certify the family s eligibility for child care benefits. 15 RECEIPT OF CASH AID AS A BASIS FOR ELIGIBILITY Families receiving CalWORKs cash assistance are categorically eligible for Stage 2 child care, and need not meet a separate income eligibility requirement. 16 If the basis of a family s eligibility is that they currently receive cash aid, the parent is required to provide documentation of receipt of CalWORKs assistance unless the contractor elects to use other means of obtaining verification. 17 CDE contractors often have established relationships with CWDs that allow for shared 11 5 CAL. CODE REGS (a) (b). 12 CAL. EDUC. CODE 8235(c), 8236 (2010) (specifying that families who meet the eligibility criteria have priority). CAL. DEP T OF EDUC., CSPP: FUNDING TERMS AND CONDITIONS AND PROGRAM REQUIREMENTS FOR CHILD DEVELOPMENT PROGRAMS, FISCAL YEAR (2009), 13 CAL. DEP T OF EDUC., MB (2009), DEVELOPMENTALLY APPROPRIATE CHILD DEVELOPMENT SETTING FOR CHILDREN WHO TURN THREE-YEARS OLD ON OR BEFORE DECEMBER 2, 14 CAL. EDUC. CODE (a) (2010) (applicable to all CDE programs except those noted below); 5 CAL. CODE REGS , CAL. EDUC. CODE (a) (2010) (applicable to all CDE programs except those noted below); 5 CAL. CODE REGS , CAL. CODE REGS (a) CAL. CODE REGS

5 Child Care Subsidies in California access to databases and electronic confirmation of families status as current cash aid recipients. Occasionally, because of different rules about the type of income counted by CDE and DSS, cash aid families receiving Stage 2 benefits may actually have incomes which, if calculated using CDE rules, would be above 70 percent of the State Median Income (SMI), the limit families must meet for income eligibility requirements (discussed below). See Western Center on Law and Poverty s CalWORKs manual, available at for information about CalWORKs cash assistance income eligibility requirements. Despite cash aid families categorical eligibility, advocates have reported that some counties attempt to impose the 70 percent of SMI eligibility requirement on Stage 2 families receiving cash aid, which is in violation of the regulations. There have also been issues regarding the counting of CalWORKs families income for the purpose of imposing family fees. For more information on family fees, see Chapter 6 Child Care Subsidy Payments. Please contact the Child Care Law Center for assistance with eligibility issues. LOW INCOME AS A BASIS FOR ELIGIBILITY Most families that are not current cash aid recipients must meet income eligibility requirements in order to receive CDE-administered child care subsidies, including Stages 2 and 3 of CalWORKs child care (see exceptions below). These income eligibility requirements also apply to families that have transitioned off CalWORKs cash assistance but, for a variety of possible reasons, continue to receive Stage 1 child care. See Chapter 2 for more information on Stage 1 child care and the circumstances under which a former cash aid recipient would be eligible to receive it. INCOME LIMIT OF 70 PERCENT OF STATE MEDIAN INCOME (SMI) APPLIES TO MOST CDE-ADMINISTERED CHILD CARE PROGRAMS With few exceptions (see below), a family s income must fall at or below 70 percent of the state median income (SMI), adjusted for family size. 18 Some income is not considered in determining whether a family s income falls at or below 70 percent of the SMI. The following types of income are among those not counted: 18 CAL. EDUC. CODE (a) (2010) (applicable to all CDE programs except those noted below); CAL. DEP T OF SOC. SERVICES, MANUAL OF POLICIES & PROCEDURES [hereinafter MPP] , at 635 (Stage 1); 5 CAL. CODE OF REGS (i), 18406(a)(1) (Stage 2), 18421(a)(1) (Stage 3). California is less generous than it might be. The Child Care and Development Fund, the primary federal source of funding for child care subsidies, allows states to provide child care for families whose income is up to 85 percent of the state median. 45 C.F.R (a)(2) (2010). 43

6 Chapter 3: CDE Child Care, Including CalWORKs Stages 2 and 3 Child support paid by a parent; Earnings of a child under 18 years old; Loans; Grants or loans to students for educational purposes other than any balance available for living costs; Food stamps, EITC, 19 or tax refund; GI Bill entitlements and hazardous duty pay; Adoption assistance payments; Reimbursements for work-related clothing, uniforms, mileage, food, or shelter; and Business expenses for self-employed family members. 20 CALIFORNIA DEPARTMENT OF FINANCE S STATE MEDIAN INCOME FIGURE The California Department of Finance (DOF) is responsible for annually providing CDE with information establishing the state median income for determining eligibility for subsidized child care. 21 Over the years, there has often been tension between DOF, CDE, and the legislature regarding the setting of the income eligibility ceilings, and for that reason the SMI ceilings for child care are rarely updated on an annual basis. The ceilings currently in effect were originally set in November The current income eligibility ceilings are published in a chart in a 2007 CDD Management Bulletin. 23 As of the date of this manual (May 2012), for the purpose of determining income eligibility for subsidized child care, 70 percent of the state median income for subsidized child care for a family of three is $3518 per month. For readers, it will be important to determine whether the income eligibility ceilings have been updated; if so, the new income ceilings will be published in a Management Bulletin on the CDE website. 24 If you have difficulty locating the most current income eligibility chart or have questions regarding the ceilings, contact the Child Care Law Center. 19 These income exclusions come from The Funding Terms and Conditions and mirror the DSS Income rules for CalWORKs Stage 1, but the regulations do not say all of these are excluded CAL. CODE REGS (a),(q). 21 CAL. EDUC. CODE 8447(e) (2010); 5 CAL. CODE REGS (p). 22 CAL. EDUC. CODE (2011). Budget Bill, , ABX4 1, Sec. 439, p.292; , prov. (8)(a): Notwithstanding any other provision of law, the income eligibility limits pursuant to Section of the Education Code that were in effect for the fiscal year shall remain in effect for the fiscal year. 23 CAL. DEP T OF EDUC., MB 07-13, UPDATED CHILD DEVELOPMENT INCOME CEILINGS (2007); 24 CDE webpage for Management Bulletins: 44

7 Child Care Subsidies in California EXCEPTIONS FROM INCOME ELIGIBILITY LIMITS FOR SOME FAMILIES Under some circumstances, families with incomes above 70 percent of the SMI may nonetheless be eligible to receive child care subsidies: 25 Families receiving Stage 2 child care while they receive CalWORKs cash aid are categorically eligible and need not meet a separate income eligibility requirement, as discussed above. Families with children receiving Child Protective Services, or who are, or are at risk of, being abused or neglected are not required to meet the income eligibility limit. 26 (See section on Child Protective Services, below.) The few families receiving child care through the Severely Handicapped program need not meet any income eligibility requirement. 27 Families that meet the homeless criteria are categorically eligible and need not meet a separate income eligibility requirement. In such cases, the family data file should include (1) a written referral from an emergency shelter or other legal, medical, or social service agency, or (2) a written parental declaration that the family is homeless and a statement describing the family s current living situation. 28 DOCUMENTATION OF INCOME ELIGIBILITY Parents applying for subsidized child care are responsible for providing documentation of the family s total countable income, and the contractor is required to verify the information. 29 In addition, contractors must require parents to document income at recertification and at any time the contractor becomes aware of a change in family size, activity, or income that may affect a family s eligibility or family fee. Employed parents must provide a release authorizing the contractor to contact their employer(s) and, to the extent known, must provide the employer s name, address, telephone number, and usual business hours. In addition, parents must provide payroll check stubs, a letter from the employer, or other record of 25 See CAL. EDUC. CODE 8263 (2010); CAL. DEP T OF EDUC., MB 03-12, ELIMINATION OF SERVICES TO 13-YEAR OLD AND "GRANDFATHERED" CHILDREN (2003), (stating that the income requirements do not apply to families whose eligibility is based on a criterion other than income, i.e., current aid recipient, child protective services, or homeless.) 26 CAL. EDUC. CODE 8263(a)(1)(D), (a)(2)(a) (2010); 5 CAL. CODE REGS (g)(1) CAL. CODE REGS , See CAL. DEP T OF EDUC., CHAN: FUNDING TERMS AND CONDITIONS AND PROGRAM REQUIREMENTS FOR CHILD DEVELOPMENT PROGRAMS, FISCAL YEAR CAL. EDUC. CODE 8263(a)(1); 5 CAL. CODE REGS CAL. CODE REGS

8 Chapter 3: CDE Child Care, Including CalWORKs Stages 2 and 3 wages issued by the employer for the month preceding the initial certification or recertification of the family s eligibility. 30 If the employer refuses or fails to provide requested documentation, or if a request for documentation would adversely affect the parent s employment, parents must provide other means of verification. These may include a list of clients and amounts paid, the most recent tax returns, quarterly estimated tax statements, or other records, together with a self-certification of income. 31 If the information provided is inconsistent with the contractor s knowledge or community practice, the contractor must request clarification and the parent must submit additional income information to verify total countable income, and/or information that provides the contractor with a reasonable basis for concluding that the employer genuinely exists and the parent is actually an employee. 32 Parents must also provide documentation of all non-wage income, any verified child support payments, and self-certification of any income for which no documentation is possible. 33 Parents who are self-employed often have great difficulty in satisfactorily documenting their employment status and their income. CDE contractors are under enormous pressure to ensure they have correctly determined the income eligibility of subsidy applicants. 34 The regulations encourage contractors to place very high documentation demands on those who are self-employed, and also give contractors a great deal of discretion to determine whether the documentation provided is sufficient. 35 Parents whose income comes from selfemployment must provide a combination of documentation to establish current income eligibility for at least a month preceding initial certification. The CDE contractor may demand as many types of documentation as necessary to determine and certify income, including a letter from the source of the income, a copy of the most recent tax return, or other business records such as ledgers, receipts, or business logs. 36 The contractor must independently verify the cost for services provided by self-employed parents by contacting clients, reviewing bank statements, or confirming the information in advertisements or on websites. If the income cannot be independently verified, the contractor is required to assess whether the reported income is reasonable or consistent with the community practice for this employment CAL. CODE REGS (a)(1) CAL. CODE REGS (a)(2) CAL. CODE REGS (b)(2),(4) CAL. CODE REGS (a)(4) CAL. CODE REGS (b)(5) CAL. CODE REGS (b)(4) CAL. CODE REGS (a)(3) CAL. CODE REGS (b)(3). 46

9 Child Care Subsidies in California Prior to initial enrollment and at the time of recertification, the contractor is required to certify the family s eligibility and each child s eligibility for services after reviewing the completed application and supporting documentation. 38 At the time the contractor certifies or recertifies eligibility of a family, the contractor is required to inform the family of the family s responsibility to notify the contractor within five calendar days of any changes in family income, family size, or the need for services, 39 and to provide documentation of those changes. Some contractors fail to fully inform parents about the required level of documentation that will be required. If parents are subsequently unable to meet the documentation standards imposed by contractors, contractors may refuse to certify payment, and the parents will have responsibility for paying their providers. INCOME ELIGIBILITY FOR THE CALIFORNIA STATE PRESCHOOL PROGRAM California has always had a state preschool program, but as of July 1, 2009, the legislature created an expanded California State Preschool Program (CSPP) constituted from a combination of five different programs. CSPP is designed to serve three- and four-year-old children in part-day and full-day programs. See Chapters 1 and 5 for more information. The part-day program remains the traditional child development preschool program, while children attending the full-day program are in a combined preschool and child care program. For income eligibility purposes, the CSPP full-day program has requirements identical to other CDE-administered subsidy programs, as discussed above. For part-day services, children whose families have the lowest adjusted monthly income at the time of enrollment have the highest priority. Generally, the families incomes cannot exceed the most recent income ceiling schedule issued by CDE. 40 This is currently set at 70 percent of SMI. However, after all eligible children have been enrolled and a diligent search has been made for additional eligible children, CSPP contractors may enroll children into part-day state preschool programs who are not otherwise eligible, including children whose 38 5 CAL. CODE REGS CAL. CODE REGS CAL. DEP T OF EDUC. MB (APRIL 2005), MB (AUGUST 2005), MB (MAY 2007), MB (NOVEMBER 2008), MB (FEBRUARY 2009), MB (JUNE 2009), MB 09-09A (SEPTEMBER 2009); CAL. DEP T OF EDUC., CSPP: FUNDING TERMS AND CONDITIONS AND PROGRAM REQUIREMENTS FOR CHILD DEVELOPMENT PROGRAMS, CALIFORNIA STATE PRESCHOOL, PART-DAY AND FULL-DAY, FISCAL YEAR (2009), See also CAL. EDUC. CODE 8235(c), 8236 (2010). 47

10 Chapter 3: CDE Child Care, Including CalWORKs Stages 2 and 3 family income exceeds the ceiling by up to 15 percent. The number of otherwise ineligible children who are permitted to enroll must not exceed 10 percent of total enrollment, including those from over-income families and children above four years of age. 41 HOMELESSNESS AS A BASIS FOR ELIGIBILITY A separate basis for eligibility for CDE-administered programs is homelessness, which is defined as a family that lacks a fixed, regular, and adequate night-time residence and instead resides in a supervised publicly or privately operated shelter, transitional housing, or homeless support program, or a public or private place not designed for, or ordinarily used as, a regular sleeping accommodation for human beings. 42 If the basis for eligibility for subsidized child care is homelessness, the family must provide documentation of that condition, including a written referral from an emergency shelter or other legal, medical or social service agency, or a written parental declaration that the family is homeless and a statement describing the family s current living situation. 43 If the family is residing in a shelter, child care services may be provided while the parent attends appointments or activities necessary to comply with the shelter participation requirements. 44 CHILD PROTECTIVE SERVICES AND RISK AS A BASIS FOR ELIGIBILITY Families with children receiving or at risk of receiving child protective services are eligible for subsidized child care services without regard to their income. 45 These families are also not required to meet a separate need requirement. (See the discussion of need requirements, below). The fact that the children in these families are receiving protective services through the local county welfare department, or are identified by a legal, medical, social service agency, or emergency shelter as being, or at risk of being, abused, neglected, or exploited is sufficient to make them eligible for subsidized child care services CAL. EDUC. CODE 8235(a)-(c) (2010) (specifying that families who meet the eligibility criteria have priority). 5 CAL. CODE REGS CAL. DEP T OF EDUC., CSPP: FUNDING TERMS AND CONDITIONS AND PROGRAM REQUIREMENTS FOR CHILD DEVELOPMENT PROGRAMS, CALIFORNIA STATE PRESCHOOL, PART-DAY AND FULL-DAY, FISCAL YEAR (2009), 42 CAL. EDUC. CODE 8263(a)(1)(C) (2010); 5 CAL. CODE REGS (g)(4), 18078(h) CAL. CODE REGS CAL. CODE REGS (a),(b), 18091(a),(b). 45 CAL. EDUC. CODE 8263(a)(1)(D), (a)(2)(a) (2010); 5 CAL. CODE REGS (g)(1). It is not clear whether the provisions for CPS/at-risk eligibility apply to CalWORKs Stages 2 or 3, or whether families must meet the CalWORKs-specific eligibility and need requirements, 5 CAL. CODE REGS , CAL. CODE REGS (c). 48

11 Child Care Subsidies in California In order to be eligible for child care benefits, the family must have: (1) a written referral from a county welfare department child welfare services worker certifying that the child is receiving protective services and the family requires child care services as part of the case plan, or (2) a written referral from a legally qualified professional from a legal, medical, or social service agency, or emergency shelter for children at risk of abuse, neglect, or exploitation, stating that the child care services are needed to reduce or eliminate that risk, and the probable duration of the CPS plan or the at-risk situation. 47 A family receiving child care on the basis of having a child at risk of abuse, neglect, or exploitation is limited to up to three months of child care services. A family may receive subsidized child care for up to 12 months on the basis of a certification by the county child welfare agency that child care services continue to be necessary or if the child is receiving child protective services during that period of time, and the family requires child care and remains otherwise eligible. 48 Given the time-limited nature of at-risk and CPSbased child care, if the family is income eligible and meets a separate need requirement (see discussion below), many contractors will certify the family s eligibility for child care on the non-cps basis so the family will not be timelimited in their receipt of subsidized child care services. Although CPS/at-risk families are not required to meet the income eligibility limit, these families will be required to provide documentation of total countable income for purposes of paying a family fee (the family s share of cost) unless the written referral for child care services specifies that it is necessary to exempt the family from paying a fee. 49 NEED FOR CHILD CARE: REQUIREMENT FOR PARENT TO HAVE A RECOGNIZED BASIS FOR NEEDING CARE In addition to being low income or meeting one of the other eligibility criteria, with the exception of the part-time California State Preschool Program, CDE child care programs impose a requirement that parents have a need for care in 47 CAL. EDUC. CODE 8263(b)(2)(A) (2010); ); 5 CAL. CODE REGS (b)(9),(10), 18083(e)(1), (g)(1), Parents who receive CalWORKs child care must be current or former recipients of CalWORKs cash aid, and so must meet the immigrant eligibility requirements of the CalWORKs program. See Chapter CAL. EDUC. CODE 8263(b)(1)(B),(C) (2010) CAL. CODE REGS (c). 49

12 Chapter 3: CDE Child Care, Including CalWORKs Stages 2 and 3 order to be eligible for subsidized child care. Parents must be unavailable to care for and supervise their children for some portion of the day because they are: 50 Working; Seeking employment; Participating in vocational education and training programs; Seeking permanent housing for family stability; or Temporarily or permanently incapacitated. The alternate need basis for all CDE-administered programs is that the child is identified by a legal, medical, social services agency, or emergency shelter as (1) a recipient of child protective services or (2) at risk of neglect, abuse or exploitation. 51 For families in which the children meet the CPS/at-risk requirements described above, the parents are not required to meet an additional basis for needing child care; the children s CPS/as-risk status alone is sufficient. California s State Preschool Program (part-day), designed explicitly to provide early education services for young children rather than as a work support for parents, is the only program that does not require the parents to be unavailable to provide care in order for their eligible children to receive CSPP part-day child development services. 52 CSPP imposes income and age limits to determine eligibility, but does not include a need requirement. The need elements of eligibility are discussed in detail below. PARENT AS DEFINED Subsidized child care is available only if there is no parent in the family capable of providing care for the child during the time care is requested, and supervision is not being provided by school or another person or entity. 53 In 2007, CDE revised many of the regulations governing the subsidized child care programs, including several of the definitional sections. CDE adopted an expansive definition of parent, which includes not only biological and adoptive parents but also stepparents, foster parents, domestic partners, legal guardians, caretaker relatives, and any other adult living with a child who has 50 CAL. EDUC. CODE 8263(a)(2)(B) (2010); 5 CAL. CODE REGS (most CDE programs), 18406(c) (d) (Stage 2), 18421(b) (c) (Stage 3). This requirement does not apply to selected programs, such as part-day preschool. See CAL. EDUC. CODE 8235, 8239 (2010). 51 CAL. EDUC. CODE 8263(a)(1)(D), (a)(2)(a) (2010). 52 CAL. EDUC. CODE 8235 (2010). 53 CAL. EDUC. CODE 8263(a)(2)(B) (2010); 5 CAL. CODE REGS (most CDE programs), 18406(c) (d) (Stage 2), 18421(b) (c) (Stage 3). 50

13 Child Care Subsidies in California responsibility for the care and welfare of the child. 54 CDE has interpreted this definition to include adults who do not have legal responsibility for a child, such as unmarried adults who have a child in common (these parents are held as having responsibility for all children in the household, not just the child in common) or any adult, such as a grandparent, who voluntarily contributes to the support of a child. FAMILY AND FAMILY SIZE AS DEFINED CDE also adopted an expansive definition of family as meaning the parents and the children for whom the parents are responsible, who comprise the household in which the child receiving services is living. 55 For the purposes of income eligibility and family fee determination, when a child and his or her siblings are living in a family that does not include their biological or adoptive parent, family shall be considered the child and related siblings. 56 The determination of family size, 57 which affects income eligibility as well as family fee levels, is based on CDE s expansive definition of family. To establish eligibility for subsidized care for a child, every parent in the family must have his or her income taken into account and must meet one of the need bases or be incapacitated. 58 Given CDE s expansive definitions of parent and family, in practical terms this means every adult in the household, whether or not that adult is, in fact, the parent of the child for whom subsidized care is being sought, will have to provide documentation of their income and unavailability to provide care. A parent applying for subsidized care must also provide documentation regarding the child s absent parent. The regulations require that when only one parent has signed the application and the information indicates the child has another parent whose name does not appear on the application, the presence or absence of that parent must be documented. 59 The regulations allow for a variety of documents as proof of the absence of the other parent, but specifically prohibit a self-declaration except under very limited circumstances. 60 Although the regulations permit documentation that includes rental agreements or utility bills for the residence indicating that the parent is the responsible party, there is also a provision allowing contractors to request additional documentation to verify 54 5 CAL. CODE REGS (l) CAL. CODE REGS (f) CAL. CODE REGS (f) CAL. CODE REGS CAL. CODE REGS (b)(2), 18406(d)(2) (Stage 2), 18421(c)(2) (Stage 3) CAL. CODE REGS (a)(2) CAL. CODE REGS (a)(2),(3). 51

14 Chapter 3: CDE Child Care, Including CalWORKs Stages 2 and 3 family composition and family size if the information provided by the parent is insufficient, and leaves it to contractor discretion to determine sufficiency. 61 The term child is not defined in the CDE regulations but adult is defined as a person who is at least 18 years of age. 62 WORK OR OTHER PERMITTED ACTIVITIES AS THE BASIS OF NEED FOR CARE Parents or guardians must generally participate in one or more of the following activities to be eligible to receive child care subsidies through CDEadministered programs: Working at paid employment; Seeking employment (not to exceed 60 consecutive working days in a fiscal year); or Engaging in a vocational training and education program that leads directly to a recognized trade, profession, or paraprofession. In addition, CalWORKs Stage 2 and 3 parents may participate in job retention services approved by the county welfare department. 63 Parents still receiving cash assistance must be employed or participating in CWD-approved welfare-towork activities to receive Stage 2 benefits. 64 DOCUMENTATION OF EMPLOYMENT AND WORK HOURS For families in which the parent s employment provides the basis for needing child care, the amount of subsidized child care the parent will be authorized to receive is determined by the hours of employment. For this reason, the CDE regulations place enormous emphasis on documentation by parents and verification by CDE contractors of the days and hours of parents employment before child care benefits can be approved. For some parents, this documentation is readily available through their pay stubs. But for those who work variable schedules, as is true for many low-income parents, or for the self-employed, obtaining acceptable documentation of days and hours of employment can be a Herculean task. In addition to using pay stubs to document employment, CDE contractors may accept verification based on an independent written statement from or a telephone conversation with the parent s employer CAL. CODE REGS (a)(2)(D), (b) CAL. CODE REGS (D). 63 CAL. EDUC. CODE 8263(a)(2)(B) (2010) (most CDE programs); 5 CAL. CODE REGS (most CDE programs), 18406(c) (d) (Stage 2), 18421(b) (c) (Stage 3) CAL. CODE REGS (b) CAL. CODE REGS (a), (b). 52

15 Child Care Subsidies in California If the employer refuses or is non-responsive in providing the requested information, or if the parent asserts that a request for employer documentation would adversely affect the parent s employment, the CDE contractor must attest to the reasonableness of the days and hours of employment based on the parent s description and the contractor s knowledge of community practice. CDE contractors are limited to authorizing child care services only for the days and hours of employment determined to be reasonable. 66 However, CDE contractors must approve additional hours for travel time or sleep time to support employment. 67 If the parent s employment schedule is unpredictable, the parent may be authorized for a variable schedule for child care based on the actual hours worked, with a minimum and a maximum number of allowable hours certified by the contractor. The parent will be required to update the hours of needed services at least every four months. 68 If the parent is self-employed he or she must provide a declaration under penalty of perjury with a description of the employment and an estimate of the days and hours worked per week, together with appointment logs, client receipts, job logs, mileage logs, client lists with contact information, or similar records, and a copy of a business license, a workspace lease, or a workspace rental agreement. If the CDE contractor is unable to verify need based on the documentation provided by the parent, the contractor is required to take a variety of actions to determine the parent s hours of self-employment. If the contractor is unable to make a reasonable assessment of the hours needed for self-employment, the contractor may divide the parent s self-employment income by the applicable minimum wage to determine the maximum hours of approved child care. If the parent s employment is in the family s home, the parent must provide justification for requesting subsidized child care services based on the type of work, the age of the child, and the specific child care needs. The contractor is required to determine and document whether the parent s employment precludes supervision of the child. 69 If the parent operates a licensed family day care home or is an individual license-exempt provider, the parent is automatically ineligible for subsidized services (during the parent s business hours) because the employment does not preclude supervision of the family s 66 5 CAL. CODE REGS (b)(2)(E) CAL. CODE REGS (c), (e) CAL. CODE REGS (b)(2)(D) CAL. CODE REGS (b). 53

16 Chapter 3: CDE Child Care, Including CalWORKs Stages 2 and 3 child. However, if the parent can document 70 that he or she is employed as an assistant in a large licensed family child care home, the contractor may authorize subsidized services. 71 SEEKING EMPLOYMENT OR PERMANENT HOUSING AS THE BASIS OF NEED FOR CARE Parents who are unemployed, as well as parents who are underemployed, may be eligible for subsidized child care services. If the basis of need for services is seeking employment or seeking permanent housing for family stability, the parent s period of eligibility for subsidized child care is limited to no more than 60 consecutive working days. Child care services are limited to five days per week and a maximum of 30 hours per week. The period of eligibility starts on the day authorized by the CDE contractor and extends for consecutive working days. A parent seeking employment may be eligible for an additional 20 working days of child care services. 72 Similarly, if a parent does not expect to secure housing prior to the end of the eligibility period, the parent may request an extension and the contractor may authorize up to 20 additional working days. 73 The parent must sign a declaration under penalty of perjury that the family is seeking employment, including the parent s search plan to secure, change, or increase employment, or that the parent is seeking permanent housing, including the parent s search plan to secure a fixed, regular, and adequate residence. The declaration must identify a general description of when services will be necessary. As noted above, if the family is residing in a shelter, services may also be provided while the parent attends appointments or activities necessary to comply with the shelter participation requirements. 74 The CDE contractor has the authority to determine the number of working days available for seeking employment or permanent housing and the child care schedule, which may be a variable schedule, based on documentation. 75 If necessary to verify need, the contractor may request that the parent provide, no more than once a week, a declaration signed under penalty of perjury describing 70 5 CAL. CODE REGS (d). The stringent documentation requirements include: a copy of the license indicating that the home is licensed as a large family child care home, a signed statement from the licensee confirming that the parent is employed as an assistant pursuant to licensing staffing ratios, proof that the parent s fingerprints are associated with the family child care home as an assistant, and a pay stub or other proof of payroll deductions withheld for the assistant by the licensee CAL. CODE REGS (c), (d) CAL. CODE REGS (e) CAL. CODE REGS (d) CAL. CODE REGS (a), (b), 18091(a), (b) CAL. CODE REGS (c) 54

17 Child Care Subsidies in California the activities the parent has undertaken to seek employment or permanent housing. The CDE contractor may also require a signed statement from the shelter, transitional housing agency, or homeless support program regarding the parent s search progress. 76 The Superintendent of Public Instruction may suspend the 60-day limitation if it is determined that opportunities for employment have temporarily diminished to such a degree that parents cannot reasonably be expected to find employment within 60 working days of diligent searching. 77 This was done in 2004 in 18 counties by governor s order and again in 2008 because of the rescission. Currently, the 60 day limit is applicable. VOCATIONAL TRAINING AS THE BASIS OF NEED FOR CARE If the basis of need for services is vocational training leading directly to a recognized trade, paraprofession, or profession, subsidized child care services are limited to either six years from the initiation of services or twenty-four semester units after the attainment of a Bachelor s degree, whichever expires first. As with the other bases for need, significant documentation is required, including the days and hours of vocational training, a current class schedule with the days of the week and times of day of the classes, the dates that classes begin and end, and the anticipated completion date of all required training activities to meet the vocational goal. 78 CDE contractors may approve child care services for study or travel time in additional to class time. 79 The parent must also document that he or she is making adequate progress toward the attainment of the vocational goal by maintaining a 2.0 grade point average each grading period. The first time the parent does not demonstrate adequate progress, the parent may continue to receive subsidized child care services for one additional period. If the parent continues to fail to make adequate progress, the child care services must be terminated and will not be available to the parent for six months. 80 PARENTAL INCAPACITY AS THE BASIS OF NEED FOR CARE Parental incapacitation is defined as the temporary or permanent inability of the child s parent(s) to provide care and supervision of the child for part of the 76 5 CAL. CODE REGS (c), 18091(a), (b) CAL. CODE REGS (d) CAL. CODE REGS (a), (b) CAL. CODE REGS (k) CAL. CODE REGS (f), (g). 55

18 Chapter 3: CDE Child Care, Including CalWORKs Stages 2 and 3 day due to a physical or mental health condition. 81 If the basis of need for subsidized child care services is parental incapacity, authorized child care services cannot exceed 50 hours per week. The parent must provide a release authorizing a legally qualified health professional to disclose information necessary to establish that the parent meets the definition of incapacity and needs services. The health professional must confirm the extent to which the parent is incapable of providing care and supervision of the child and the probable duration of the incapacitation. The health professional must also recommend the days and hours per week that services are needed to accommodate the incapacitation, which may include time for the parent s regularly scheduled medical or mental health appointments. 82 The contractor is required to determine the days and hours of service based on the recommendation of the health professional. Although temporary incapacity can serve as an important basis of need for child care for some parents, contractors are wary about the possibility of parents using inauthentic temporary incapacity as a way to fraudulently obtain child care services for which the family is not eligible. For this reason, contractors place a heavy emphasis on documentation and on frequent review of incapacity cases. Advocates can assist parents in obtaining the necessary documentation to confirm the extent of their incapacity. LIMITED TERM SERVICE LEAVES If a family receiving subsidized child care services temporarily will not have a need for services, the contractor may grant the family a limited term service leave. A limited term service leave means the family is not disenrolled from the subsidy program and gets to keep the slot, but that no child care services are provided to the family during the period of the leave. 83 A limited term service leave must be granted for medical leave and family leave. Family leave is a leave for the birth and care of a newborn child of the parent or placement with the parent of a child for adoption or foster care, or to care for the parent s child, spouse, or parent who has a health condition. 84 A parent who is granted a leave does not receive subsidized care for any children in the family, as the parent is presumed to be capable to provide care for the child(ren). Other reasons that may serve as a basis for a limited term service leave include, but are not limited to, a break in employment, school break, the child s 81 5 CAL. CODE REGS (m) CAL. CODE REGS CAL. CODE REGS (c) CAL. CODE REGS (a)(1)-(a)(3). 56

19 Child Care Subsidies in California visit with the noncustodial parent, or a family vacation. 85 A limited term service leave may not exceed 12 consecutive weeks, except that a leave from employment or training for medical or family leave may extend up to 16 weeks. Contractors are not required to grant any parent a limited term service leave, but if the contractor offers such leaves, the contractor must provide parents with equal access to the leaves, and may set a limit on the total number of leaves to be granted in a contract year. 86 Parents who are granted a limited term service leave must be certain to stay within the timeframe of the leave and to be in close communication with the contractor to ensure the parent is not disenrolled following a leave due to failure to document a renewed need for care (i.e., that the parent has returned to employment or training). ELIGIBILITY FOR CHILD CARE SUBSIDIES FOR IMMIGRANT FAMILIES IMMIGRANTS AND NON-CALWORKS CHILD CARE There are very few immigrant eligibility requirements for California s non- CalWORKs child care programs, either for parents or for children. CDE regulations confirm that the determination of eligibility for child care and development services shall be without regard to the immigration status of the child or the child s parent(s) unless they are under a final order of deportation from the United States Department of Justice. 87 Under federal Child Care and Development Block Grant regulations, the immigration status of parents and children is not an element of eligibility. But under the Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA), verification of the child s immigration status is required for receipt of federally-subsidized child care ( federal public benefit ), 88 because the child is identified as the primary beneficiary of the subsidized care. Fortunately, the federal Administration for Children and Families has issued guidance clarifying that state agencies are not required to verify a child s immigration status for federally-funded child care services under a variety of circumstances, including 85 5 CAL. CODE REGS (a) CAL. CODE REGS (b) CAL. CODE REGS (d). See CAL. DEP T OF EDUC., FUNDING TERMS AND CONDITIONS FOR CHILD DEVELOPMENT CONTRACTS FOR , 88 U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, ADMINISTRATION ON CHILDREN, YOUTH AND FAMILIES, ACYF-PI-CC-98-08, ( For implementing the verification requirements mandated by title IV of PRWORA, only the citizenship and immigration status of the child, who is the primary beneficiary of the child care benefit, is relevant for eligibility purposes. ) 57

20 Chapter 3: CDE Child Care, Including CalWORKs Stages 2 and 3 when the services are subject to public educational standards. 89 Moreover, nonprofit charitable organizations (which many APPs are) are not required to determine, verify, or otherwise ask for proof of immigration status. 90 In addition, federal regulations prohibit states from requiring parents to provide Social Security Numbers (SSNs) as a condition of receipt of child care assistance and from denying assistance to applicants on the basis of refusal to provide a SSN. 91 CDE requires its contractors to request the SSN of the head of each family applying for child care services. The CDE application form explains that reports will not individually identify any person or family by SSN, and also confirms that if the parent does not wish to provide a SSN the family may still receive child care assistance. 92 The signed form indicating the parent s decision must be maintained in the files of the local CDE contractor administering the subsidy. 93 Despite these protections, many immigrant parents with eligible children do not apply for subsidized child care due to lack of knowledge about their eligibility for services or out of concern that their own immigration status may become an issue. In addition, immigrant parents often have difficulty proving their income eligibility for child care subsidies. For additional information on the intersection of child care subsidies and immigration status, contact the Child Care Law Center. 89 U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, ADMINISTRATION ON CHILDREN, YOUTH AND FAMILIES, ACYF-PI-CC-98-08, (stating that services subject to public educational standards are not included in the definition of federal public benefits.) 90 8 U.S.C. 1642(d) (2012). 91 U.S. DEPARTMENT OF HEALTH & HUMAN SERVICES AGENCY, ADMIN. FOR CHILDREN & FAMILIES, CHILD CARE BUREAU, ACYF-PI-CC-00-04, SOCIAL SECURITY NUMBERS 1 (2000), (stating that Social Security Numbers are not required for CCDF recipients). 92 CDE Form 9600a, Child Care Data Collection Privacy Notice and Consent Form, available at: ( To ensure that children and families receiving child care services are counted only once, HHS and CDE are requesting the Social Security Number of the head of the family unit receiving child care assistance. If you do not wish to give your Social Security Number for this purpose, you may still receive child care assistance. ) 93 See, e.g., CDE Funding Terms and Conditions, CAPP (2009), at