Maine Focus

DHHS is paying more for child care — after saying it wasn’t allowed to

Posted June 22, 2017, at 6:08 a.m.
Last modified June 22, 2017, at 6:21 p.m.

The LePage administration is relaxing certain requirements for child care providers who look after children in their own homes, while unilaterally increasing the amount of money they receive for enrolling low-income children with state-funded subsidies.

The administration says it’s overhauling the way the state treats this particular type of child care setting because it wants to reverse a long-term decline in the number of in-home child care providers and make affordable child care more widely available in rural areas.

The Department of Health and Human Services is providing this financial boost to in-home child care operations, in the form of increased child care subsidy rates from the state, while leaving subsidy rates mostly untouched for the larger child care centers that enroll the vast majority of kids.

And DHHS is providing the monetary boost after opposing repeated attempts to raise those rates and after saying last year it lacked the legal authority to increase them on its own.

In relaxing the requirements in-home child care providers must meet to become licensed, DHHS has proposed eliminating a number of rights parents are currently guaranteed by state rules, such as the right to visit their children at any time during the day and the right to be informed of any licensing deficiencies.

Changes the administration has proposed to those rules would also allow in-home providers to take care of more children without expanding their staffs.

“Streamlining the licensing requirements also provides a small business opportunity for individuals who are interested in providing Family Child Care,” DHHS spokeswoman Samantha Edwards wrote in an email, adding that the department’s rulemaking process involved comparing Maine’s in-home child care licensing requirements with other states’ “while ensuring that the health and safety of Maine children is not compromised.”

More for some, but not for all

As recently as April, the Maine Department of Health and Human Services opposed legislation that would allow child care providers to collect higher rates from the state for enrolling children from low-income families who qualify for publicly funded child care assistance.

Jim Martin, then the director of DHHS’ Office of Child and Family Services, cited the “significant financial impact” and said in testimony to the Legislature’s Health and Human Services Committee, “This would be a strong and draconian regulatory approach, which would limit the ability to increase or reduce the rate in response to the needs of families and child care providers.”

The Legislature hasn’t yet passed any of the multiple proposals to raise Maine’s child care subsidy rates. But the absence of a law change didn’t deter DHHS from raising rates on its own in early June, relying in part on a balance of unspent federal welfare funds that has accrued over the past five years.

DHHS’ rate change targeted only family child care providers, the category of child care providers who operate out of their own homes and account for less than 30 percent of the state’s total child care capacity. DHHS left rates mostly unchanged for the larger child care centers that represent the vast majority of the state’s child care capacity and enroll two-thirds of the children whose families qualify for state-funded child care assistance.

On June 3, the state began reimbursing family child care providers, whose licenses limit them to caring for up to 12 children, at the 75th percentile of child care market rates in each county, up from the 50th percentile. The state raised subsidy rates for larger child care centers for only one age group — school-age children — and left the rest at the 50th percentile of market rates.

A rate set at the 75th percentile is higher than the rates charged by three-quarters of child care businesses in a county and lower than what the remaining quarter charge. The federal government encourages, but doesn’t require, states to set their subsidy rates at the 75th percentile in order to ensure equal access to child care for low-income children.

“The Department is working to expand access to child care for working Maine families especially in rural Maine,” Edwards wrote to the BDN. “Over the last decade, there were significant declines in the numbers of family home providers and nursery schools, which tend to be more affordable and more accessible, especially in rural Maine.”

But last year, the agency resisted calls to raise subsidy rates for any child care provider and said it lacked the legal authority to change them. In a document responding to public comments calling for a rate increase, the department wrote, “The change to the market rate percentile will require both statutory and rule changes.”

Child care subsidy rates fell to the 50th percentile in 2011 as part of Gov. Paul LePage’s first two-year budget, passed by a Republican-controlled Legislature.

Although the legal language making the change didn’t become a part of Maine’s compendium of statutes — it’s known as unallocated language — “unallocated language has the force of law,” said Tim Feeley, a spokesman for the Maine attorney general’s office. In order to change it, “You would need to enact something else with the force of law.”

In an email, Edwards wrote that the legislative directive was effective only for the two-year period covered by the 2011 budget bill. “[T]here was no requirement to maintain that rate in a future biennium,” she wrote.

But unallocated language typically remains in effect until the Legislature specifically repeals it or changes it. In a 2014 case, the Maine Supreme Judicial Court noted, “an unallocated provision of law is a law nonetheless” that the Legislature has to specifically repeal.

“If it’s unallocated language, it has the force of law until it’s superseded, and if they haven’t followed that, they’re breaking the law as the Legislature directed them to do,” said Michael Carey, an associate at the Lewiston law firm Brann & Isaacson and a former Democratic lawmaker.

The question is whether the Legislature’s rate change constituted a one-time directive to DHHS, and determining that requires understanding the Legislature’s intent, said Carey. “Trying to divine the legislative intent is a little bit iffy,” he said.

The increase in rates for family child care providers follows several years of contraction for Maine’s child care subsidy program. Between 2007 and 2015, the number of Maine child care providers accepting state-funded vouchers dropped more than 60 percent. In that same period, the number of children attending child care with the help of a state subsidy fell by half, to a monthly average of 2,800 children in 2015, according to the federal Office of Child Care.

“While it’s encouraging that they want to increase the rate of pay for family child care providers, we cannot comprehend why they would not want to do that across the board for all providers,” said Rita Furlow, senior policy analyst for the Maine Children’s Alliance.

A number of child care providers interviewed this year by the BDN said that, even though they still accept children with subsidies, they accept fewer today than in previous years because reimbursement rates haven’t kept pace with the costs of providing care.

That trend will likely continue with rate increases limited to family child care, said Steven Brier, executive director of the nonprofit Little Dolphin School, a child care center with sites in Westbrook and Scarborough.

“I think that for people who are trying to do the right thing and trying to take some of these children, it’s going to limit the amount of children they can take,” he said.

Even for those who will see the rate hike, the raise won’t change other aspects of the child care subsidy program that make it difficult for child care providers to enroll children with vouchers.

The state is “weeks behind paying, so what I do this week, I’m not going to see until next month,” said Becki Yahm, who runs 4 Seasons Preschool and Child Care in Gorham. “That’s the biggest thing with providers. It’s still a month behind, so I’m not going to see that pay rate until next month.”

Relaxed regulation

The number of licensed family child care providers has fallen 29 percent in the last decade — to 1,177 in 2016 from 1,658 in 2007 — while the number of child care centers has risen nearly 13 percent, according to DHHS licensing data.

To stem the decline, DHHS is also banking on relaxed licensing requirements for family child care businesses — even though a 2015 survey of Maine child care providers conducted for DHHS found that only 2 percent of child care providers no longer in business cited “challenges in meeting regulatory requirements” as the reason.

Under the stripped-down licensing requirements proposed earlier this year by DHHS’ division of licensing and regulatory services, parents would no longer have the right to be informed of any licensing deficiencies, and they would lose the right to visit during the day. In-home child care providers would no longer be required to give parents a copy of state licensing rules to review.

The new requirements — which haven’t yet taken effect, and don’t require the Legislature’s approval — also allow family child care providers to look after additional children with the same staff.

If the revised requirements take effect as they’re currently written, family child care providers would no longer have to count their own children toward child-to-staff member ratios that are designed to ensure an appropriate level of supervision for children based on their age.

A single staff member at a child care facility, for example, can supervise a maximum of four children up to age 2 ½. Under the rewritten regulations, a child care provider’s own infant or toddler wouldn’t count as one of the four.

The revised rules would provide another way for a family child care provider to look after more children with the same size staff. Current regulations require a lower child-to-staff ratio for the youngest children, up to age 2 ½, but the new rules would only require the lower child-to-staff ratio for those up to age 2.

Weakening the child-to-staff member ratio requirements is of particular concern to those worried about the quality of care, said Tara Williams, executive director of the Maine chapter of the National Association for the Education of Young Children, a national organization that accredits child care facilities that voluntarily meet a set of standards meant to encourage high-quality early childhood education.

Infants and toddlers “need a close proximity of care,” she said. “Just the level of caregiving that’s demanded by this age group is high, and then there are other things for their development. A high frequency of verbal interactions is really important for their cognitive development.”

“Both of these things just have the possibility of negatively impacting the health and safety in care and the quality of the program,” she said.

Maine Focus is a journalism and community engagement initiative at the Bangor Daily News. Questions? Email mainefocus@bangordailynews.com.

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