42 USC 9858c - Application and plan

U.S Code last checked for updates: Nov 22, 2024

§ 9858c.

Application and plan

(a)

Application

To be eligible to receive assistance under this subchapter, a State shall prepare and submit to the Secretary an application at such time, in such manner, and containing such information as the Secretary shall by rule require, including—

(1)

an assurance that the State will comply with the requirements of this subchapter; and

(2)

a State plan that meets the requirements of subsection (c).

(b)

Period covered by plan

(c)

Requirements of a plan

(1)

Lead agency

(2)

Policies and procedures

The State plan shall: 1

 So in original. Subpars. (D) and following do not continue from introductory provisions.

(A)

Parental choice of providers

Provide assurances that—

(i)

the parent or parents of each eligible child within the State who receives or is offered child care services for which financial assistance is provided under this subchapter are given the option either—

(I)

to enroll such child with a child care provider that has a grant or contract for the provision of such services; or

(II)

to receive a child care certificate as defined in section 9858n(2) of this title;

(ii)

in cases in which the parent selects the option described in clause (i)(I), the child will be enrolled with the eligible provider selected by the parent to the maximum extent practicable; and

(iii)

child care certificates offered to parents selecting the option described in clause (i)(II) shall be of a value commensurate with the subsidy value of child care services provided under the option described in clause (i)(I);

and provide a detailed description of the procedures the State will implement to carry out the requirements of this subparagraph.

(B)

Unlimited parental access

(C)

Parental complaints

(D)

Monitoring and inspection reports

(E)

Consumer and provider education information

The plan shall include a certification that the State will collect and disseminate (which dissemination may be done, except as otherwise specified in this subparagraph, through resource and referral organizations or other means as determined by the State) to parents of eligible children, the general public, and, where applicable, providers—

(i)

information about the availability of the full diversity of child care services that will promote informed child care choices and that concerns—

(I)

the availability of child care services provided through programs authorized by this subchapter and, if feasible, other child care services and other programs provided in the State for which the family may be eligible, as well as the availability of financial assistance to obtain child care services in the State;

(II)

if available, information about the quality of providers, as determined by the State, that can be provided through a Quality Rating and Improvement System;

(III)

information, made available through a State Web site, describing the State process for licensing child care providers, the State processes for conducting background checks, and monitoring and inspections, of child care providers, and the offenses that prevent individuals and entities from serving as child care providers in the State;

(IV)

other programs for which families that receive child care services for which financial assistance is provided under this subchapter may be eligible, including the program of block grants to States for temporary assistance for needy families established under part A of title IV of the Social Security Act (42 U.S.C. 601 et seq.), Head Start and Early Head Start programs carried out under the Head Start Act (42 U.S.C. 9831 et seq.), the program carried out under the Low-Income Home Energy Assistance Act of 1981 (42 U.S.C. 8621 et seq.), the supplemental nutrition assistance program established under the Food and Nutrition Act of 2008 (7 U.S.C. 2011 et seq.), the special supplemental nutrition program for women, infants, and children established under section 1786 of this title, the child and adult care food program established under section 1766 of this title, and the Medicaid and State children’s health insurance programs under titles XIX and XXI of the Social Security Act (42 U.S.C. 1396 et seq., 1397aa et seq.);

(V)

programs carried out under section 619 and part C of the Individuals with Disabilities Education Act (20 U.S.C. 1419, 1431 et seq.);

(VI)

research and best practices concerning children’s development, including social and emotional development, early childhood development, and meaningful parent and family engagement, and physical health and development (particularly healthy eating and physical activity); and

(VII)

the State policies regarding the social-emotional behavioral health of young children, which may include positive behavioral intervention and support models, and policies on expulsion of preschool-aged children, in early childhood programs receiving assistance under this subchapter; and

(ii)

information on developmental screenings, including—

(I)

information on existing (as of the date of submission of the application containing the plan) resources and services the State can deploy, including the coordinated use of the Early and Periodic Screening, Diagnosis, and Treatment program under the Medicaid program carried out under title XIX of the Social Security Act (42 U.S.C. 1396 et seq.) and developmental screening services available under section 619 and part C of the Individuals with Disabilities Education Act (20 U.S.C. 1419, 1431 et seq.), in conducting developmental screenings and providing referrals to services, when appropriate, for children who receive assistance under this subchapter; and

(II)

a description of how a family or eligible child care provider may utilize the resources and services described in subclause (I) to obtain developmental screenings for children who receive assistance under this subchapter who may be at risk for cognitive or other developmental delays, which may include social, emotional, physical, or linguistic delays.

(F)

Compliance with State licensing requirements

(i)

In general

(ii)

License exemption

(G)

Training and professional development requirements

(i)

In general

(ii)

Requirements

The plan shall provide an assurance that such training and professional development—

(I)

shall be conducted on an ongoing basis, provide for a progression of professional development (which may include encouraging the pursuit of postsecondary education), reflect current research and best practices relating to the skills necessary for the child care workforce to meet the developmental needs of participating children, and improve the quality of, and stability within, the child care workforce;

(II)

shall be developed in consultation with the State Advisory Council on Early Childhood Education and Care (designated or established pursuant to section 642B(b)(1)(A)(i) of the Head Start Act (42 U.S.C. 9837b(b)(1)(A)(i))), and may engage training providers in aligning training opportunities with the State’s training framework;

(III)

incorporates 2

 So in original. Probably should be “incorporate”.

knowledge and application of the State’s early learning and developmental guidelines (where applicable), the State’s health and safety standards, and incorporates social-emotional behavior intervention models, which may include positive behavior intervention and support models;

(IV)

shall be accessible to providers supported through Indian tribes or tribal organizations that receive assistance under this subchapter; and

(V)

to the extent practicable, are appropriate for a population of children that includes—

(aa)

different age groups;

(bb)

English learners;

(cc)

children with disabilities; and

(dd)

Native Americans, including Indians, as the term is defined in section 5304 of title 25 (including Alaska Natives within the meaning of that term), and Native Hawaiians (as defined in section 7517 of title 20).

(iii)

Information

(iv)

Construction

(H)

Child-to-provider ratio standards

(i)

Standards

The plan shall describe child care standards for child care services for which assistance is made available in accordance with this subchapter, appropriate to the type of child care setting involved, to provide for the safety and developmental needs of the children served, that address—

(I)

group size limits for specific age populations, as determined by the State;

(II)

the appropriate ratio between the number of children and the number of providers, in terms of the age of the children in child care, as determined by the State; and

(III)

required qualifications for such providers, as determined by the State.

(ii)

Construction

(I)

Health and safety requirements

The plan shall include a certification that there are in effect within the State, under State or local law, requirements designed to protect the health and safety of children that are applicable to child care providers that provide services for which assistance is made available in accordance with this subchapter. Such requirements—

(i)

shall relate to matters including health and safety topics consisting of—

(I)

the prevention and control of infectious diseases (including immunization) and the establishment of a grace period that allows homeless children and children in foster care to receive services under this subchapter while their families (including foster families) are taking any necessary action to comply with immunization and other health and safety requirements;

(II)

prevention of sudden infant death syndrome and use of safe sleeping practices;

(III)

the administration of medication, consistent with standards for parental consent;

(IV)

the prevention of and response to emergencies due to food and allergic reactions;

(V)

building and physical premises safety, including identification of and protection from hazards that can cause bodily injury such as electrical hazards, bodies of water, and vehicular traffic;

(VI)

prevention of shaken baby syndrome and abusive head trauma;

(VII)

emergency preparedness and response planning for emergencies resulting from a natural disaster, or a man-caused event (such as violence at a child care facility), within the meaning of those terms under section 5195a(a)(1) of this title;

(VIII)

the handling and storage of hazardous materials and the appropriate disposal of biocontaminants;

(IX)

for providers that offer transportation, if applicable, appropriate precautions in transporting children;

(X)

first aid and cardiopulmonary resuscitation; and

(XI)

minimum health and safety training, to be completed pre-service or during an orientation period in addition to ongoing training, appropriate to the provider setting involved that addresses each of the requirements relating to matters described in subclauses (I) through (X); and

(ii)

may include requirements relating to nutrition, access to physical activity, or any other subject area determined by the State to be necessary to promote child development or to protect children’s health and safety.

(J)

Compliance with state and local health and safety requirements

(K)

Enforcement of licensing and other regulatory requirements

(i)

Certification

The plan shall include a certification that the State, not later than 2 years after November 19, 2014, shall have in effect policies and practices, applicable to licensing or regulating child care providers that provide services for which assistance is made available in accordance with this subchapter and the facilities of those providers, that—

(I)

ensure that individuals who are hired as licensing inspectors in the State are qualified to inspect those child care providers and facilities and have received training in related health and safety requirements, and are trained in all aspects of the State’s licensure requirements;

(II)

require licensing inspectors (or qualified inspectors designated by the lead agency) of those child care providers and facilities to perform inspections, with—

(aa)

not less than 1 prelicensure inspection, for compliance with health, safety, and fire standards, of each such child care provider and facility in the State; and

(bb)

not less than annually, an inspection (which shall be unannounced) of each such child care provider and facility in the State for compliance with all child care licensing standards, which shall include an inspection for compliance with health, safety, and fire standards (inspectors may inspect for compliance with all 3 standards at the same time);

(III)

require the ratio of licensing inspectors to such child care providers and facilities in the State to be maintained at a level sufficient to enable the State to conduct inspections of such child care providers and facilities on a timely basis in accordance with Federal, State, and local law; and

(IV)

require licensing inspectors (or qualified inspectors designated by the lead agency) of child care providers and facilities to perform an annual inspection of each license-exempt provider in the State receiving funds under this subchapter (unless the provider is an eligible child care provider as described in section 9858n(6)(B) of this title) for compliance with health, safety, and fire standards, at a time to be determined by the State.

(ii)

Construction

(L)

Compliance with child abuse reporting requirements

(M)

Meeting the needs of certain populations

The plan shall describe how the State will develop and implement strategies (which may include alternative reimbursement rates to child care providers, the provision of direct contracts or grants to community-based organizations, offering child care certificates to parents, or other means determined by the State) to increase the supply and improve the quality of child care services for—

(i)

children in underserved areas;

(ii)

infants and toddlers;

(iii)

children with disabilities, as defined by the State; and

(iv)

children who receive care during nontraditional hours.

(N)

Protection for working parents

(i)

Minimum period

(I)

12-month period

(II)

Fluctuations in earnings

(ii)

Redetermination process

(iii)

Period before termination

(iv)

Graduated phaseout of care

(O)

Coordination with other programs

(i)

In general

(ii)

Optional use of combined funds

(iii)

Rule of construction

(P)

Public-private partnerships

(Q)

Priority for low-income populations

(R)

Consultation

(S)

Payment practices

The plan shall include—

(i)

a certification that the payment practices of child care providers in the State that serve children who receive assistance under this subchapter reflect generally accepted payment practices of child care providers in the State that serve children who do not receive assistance under this subchapter, so as to provide stability of funding and encourage more child care providers to serve children who receive assistance under this subchapter; and

(ii)

an assurance that the State will, to the extent practicable, implement enrollment and eligibility policies that support the fixed costs of providing child care services by delinking provider reimbursement rates from an eligible child’s occasional absences due to holidays or unforseen 4

 So in original. Probably should be “unforeseen”.

circumstances such as illness.

(T)

Early learning and developmental guidelines

(i)

In general

The plan shall include an assurance that the State will maintain or implement early learning and developmental guidelines (or develop such guidelines if the State does not have such guidelines as of November 19, 2014) that are appropriate for children from birth to kindergarten entry, describing what such children should know and be able to do, and covering the essential domains of early childhood development for use statewide by child care providers. Such guidelines shall—

(I)

be research-based, developmentally appropriate, and aligned with entry to kindergarten;

(II)

be implemented in consultation with the state 5

 So in original. Probably should be capitalized.

educational agency and the State Advisory Council on Early Childhood Education and Care (designated or established pursuant to section 642B(b)(I)(A)(i) 6

 So in original. Probably should be “642B(b)(1)(A)(i)”.

of the Head Start Act (42 U.S.C. 9837b(b)(1)(A)(i)); 7

 So in original. Another closing parenthesis probably should precede the semicolon.

and

(III)

be updated as determined by the State.

(ii)

Prohibition on use of funds

The plan shall include an assurance that funds received by the State to carry out this subchapter will not be used to develop or implement an assessment for children that—

(I)

will be the sole basis for a child care provider being determined to be ineligible to participate in the program carried out under this subchapter;

(II)

will be used as the primary or sole basis to provide a reward or sanction for an individual provider;

(III)

will be used as the primary or sole method for assessing program effectiveness; or

(IV)

will be used to deny children eligibility to participate in the program carried out under this subchapter.

(iii)

Exceptions

Nothing in this subchapter shall preclude the State from using a single assessment as determined by the State for children for—

(I)

supporting learning or improving a classroom environment;

(II)

targeting professional development to a provider;

(III)

determining the need for health, mental health, disability, developmental delay, or family support services;

(IV)

obtaining information for the quality improvement process at the State level; or

(V)

conducting a program evaluation for the purposes of providing program improvement and parent information.

(iv)

No Federal control

Nothing in this section shall be construed to authorize an officer or employee of the Federal Government to—

(I)

mandate, direct, control, or place conditions (outside of what is required by this subchapter) around adopting a State’s early learning and developmental guidelines developed in accordance with this section;

(II)

establish any criterion that specifies, defines, prescribes, or places conditions (outside of what is required by this subchapter) on a State adopting standards or measures that a State uses to establish, implement, or improve such guidelines, related accountability systems, or alignment of such guidelines with education standards; or

(III)

require a State to submit such guidelines for review.

(U)

Disaster preparedness

(i)

In general

(ii)

Statewide child care disaster plan

(iii)

Disaster plan components

The components of the disaster plan, for such an emergency or disaster, shall include—

(I)

evacuation, relocation, shelter-in-place, and lock-down procedures, and procedures for communication and reunification with families, continuity of operations, and accommodation of infants and toddlers, children with disabilities, and children with chronic medical conditions;

(II)

guidelines for the continuation of child care services in the period following the emergency or disaster, which may include the provision of emergency and temporary child care services, and temporary operating standards for child care providers during that period; and

(III)

procedures for staff and volunteer emergency preparedness training and practice drills.

(V)

Business technical assistance

(3)

Use of block grant funds

(A)

General requirement

(B)

Child care services and related activities

(i)

In general

(ii)

Report by the Assistant Secretary for Children and Families

(I)

In general

(II)

Penalty for noncompliance

For any fiscal year that the report of the Secretary described in subclause (I) indicates that a State has failed to give priority for services in accordance with clause (i), the Secretary shall—

(aa)

inform the State that the State has until the date that is 6 months after the Secretary has issued such report to fully comply with clause (i);

(bb)

provide the State an opportunity to modify the State plan of such State, to make the plan consistent with the requirements of clause (i), and resubmit such State plan to the Secretary not later than the date described in item (aa); and

(cc)

if the State does not fully comply with clause (i) and item (bb), by the date described in item (aa), withhold 5 percent of the funds that would otherwise be allocated to that State in accordance with this subchapter for the first full fiscal year after that date.

(III)

Waiver for extraordinary circumstances

(iii)

Child care resource and referral system

(I)

In general

(II)

Local or regional organizations

The local or regional child care resource and referral organizations supported as described in subclause (I) shall—

(aa)

provide parents in the State with consumer education information referred to in paragraph (2)(E) (except as otherwise provided in that paragraph), concerning the full range of child care options (including faith-based and community-based child care providers), analyzed by provider, including child care provided during nontraditional hours and through emergency child care centers, in their political subdivisions or regions;

(bb)

to the extent practicable, work directly with families who receive assistance under this subchapter to offer the families support and assistance, using information described in item (aa), to make an informed decision about which child care providers they will use, in an effort to ensure that the families are enrolling their children in the most appropriate child care setting to suit their needs and one that is of high quality (as determined by the State);

(cc)

collect data and provide information on the coordination of services and supports, including services under section 619 and part C of the Individuals with Disabilities Education Act [20 U.S.C. 1419, 1431 et seq.], for children with disabilities (as defined in section 602 of such Act (20 U.S.C. 1401));

(dd)

collect data and provide information on the supply of and demand for child care services in political subdivisions or regions within the State and submit such information to the State;

(ee)

work to establish partnerships with public agencies and private entities, including faith-based and community-based child care providers, to increase the supply and quality of child care services in the State; and

(ff)

as appropriate, coordinate their activities with the activities of the State lead agency and local agencies that administer funds made available in accordance with this subchapter.

(C)

Limitation on administrative costs

(D)

Assistance for certain families

(E)

Direct services

From amounts provided to a State for a fiscal year to carry out this subchapter, the State shall—

(i)

reserve the minimum amount required to be reserved under section 9858e of this title, and the funds for costs described in subparagraph (C); and

(ii)

from the remainder, use not less than 70 percent to fund direct services (provided by the State) in accordance with paragraph (2)(A).

(4)

Payment rates

(A)

In general

(B)

Survey

The State plan shall—

(i)

demonstrate that the State has, after consulting with the State Advisory Council on Early Childhood Education and Care designated or established in section 642B(b)(1)(A)(i) of the Head Start Act (42 U.S.C. 9837b(b)(1)(A)(i)), local child care program administrators, local child care resource and referral agencies, and other appropriate entities, developed and conducted (not earlier than 2 years before the date of the submission of the application containing the State plan) a statistically valid and reliable survey of the market rates for child care services in the State (that reflects variations in the cost of child care services by geographic area, type of provider, and age of child) or an alternative methodology, such as a cost estimation model, that has been developed by the State lead agency;

(ii)

demonstrate that the State prepared a detailed report containing the results of the State market rates survey or alternative methodology conducted pursuant to clause (i), and made the results of the survey or alternative methodology widely available (not later than 30 days after the completion of such survey or alternative methodology) through periodic means, including posting the results on the Internet;

(iii)

describe how the State will set payment rates for child care services, for which assistance is provided in accordance with this subchapter—

(I)

in accordance with the results of the market rates survey or alternative methodology conducted pursuant to clause (i);

(II)

taking into consideration the cost of providing higher quality child care services than were provided under this subchapter before November 19, 2014; and

(III)

without, to the extent practicable, reducing the number of families in the State receiving such assistance to carry out this subchapter, relative to the number of such families on November 19, 2014; and

(iv)

describe how the State will provide for timely payment for child care services provided under this subchapter.

(C)

Construction

(i)

No private right of action

(ii)

No prohibition of certain different rates

Nothing in this subchapter shall be construed to prevent a State from differentiating the payment rates described in subparagraph (B)(iii) on the basis of such factors as—

(I)

geographic location of child care providers (such as location in an urban or rural area);

(II)

the age or particular needs of children (such as the needs of children with disabilities and children served by child protective services);

(III)

whether the providers provide child care services during weekend and other nontraditional hours; or

(IV)

the State’s determination that such differentiated payment rates may enable a parent to choose high-quality child care that best fits the parent’s needs.

(5)

Sliding fee scale

(d)

Approval of application

(Pub. L. 97–35, title VI, § 658E, as added Pub. L. 101–508, title V, § 5082(2), Nov. 5, 1990, 104 Stat. 1388–237; amended Pub. L. 102–401, § 3(a), Oct. 7, 1992, 106 Stat. 1959; Pub. L. 102–586, § 8(c)(1), Nov. 4, 1992, 106 Stat. 5036; Pub. L. 104–193, title VI, § 605, Aug. 22, 1996, 110 Stat. 2281; Pub. L. 105–33, title V, § 5602(1), Aug. 5, 1997, 111 Stat. 645; Pub. L. 113–186, § 5(a), (b), Nov. 19, 2014, 128 Stat. 1972; Pub. L. 114–95, title IX, § 9215(p)(1), Dec. 10, 2015, 129 Stat. 2170.)

cite as: 42 USC 9858c

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