Administrative Code

Virginia Administrative Code
6/27/2022

Part I. General Provisions

8VAC20-790-10. Definitions.

The following words and terms when used in this part shall have the following meanings unless the context indicates otherwise:

"Administrative disqualification hearing" or "ADH" means an impartial review by a state hearing officer of a recipient's actions involving an alleged intentional program violation for the purpose of determining if the individual did or did not commit an intentional program violation.

"Applicant" means a person who has applied for child care services and the disposition of the application has not yet been determined.

"Assets" means resources owned by a person or company regarded as having value and available to meet debts and commitments.

"Background checks" means the checks for barrier crimes and offenses required under Article 5 (§ 22.1-289.034 et seq.) of Chapter 14.1 of Title 22.1 of the Code of Virginia, including the sworn statement or affirmation as is required by Article 5; the criminal history record check; and the Child Protective Services Central Registry check.

"Child care subsidy and services" or "Child Care Subsidy Program" means the department program that assists eligible low-income families with the cost of child care and those activities that assist eligible families in the arrangement for or purchase of child care for children for care that is less than a 24-hour day. It also includes activities that promote parental choice, consumer education to help parents make informed choices about child care, activities to enhance health and safety standards established by the state, and activities that increase and enhance child care and early childhood development resources in the community.

"Child experiencing homelessness" means a child who lacks a fixed, regular, and adequate nighttime residence and includes:

1. A child who is living in a car, park, public space, abandoned building, substandard housing, bus or train station, or similar settings;

2. A child who is sharing the housing of other persons due to loss of housing, economic hardship, or a similar reason (sometimes referred to as "doubled-up");

3. A child who is living in a motel, hotel, trailer park, or camping grounds due to lack of alternative adequate accommodations;

4. A child who is living in congregate, temporary, emergency, or transitional shelters;

5. A child who is abandoned in a hospital;

6. A child who is living in a primary nighttime residence that is a public or private place not designed for, or ordinarily used as, a regular sleeping accommodation for human beings; and

7. A child who is a migratory child as defined in § 1309 of the Elementary and Secondary Education Act of 1965, P.L. No. 89-10 (20 USC § 6399) who qualifies as homeless because he is living in circumstances described in clauses (i) through (iii) of 42 U.S.C. § 11432a(2)(8)..

"Child protective services" means the identification, receipt, and immediate response to complaints and reports of alleged child abuse or neglect for children under 18 years of age. It also includes assessment and arranging for and providing necessary protective and rehabilitative services for a child and his family when the child has been found to have been abused or neglected or is at risk of being abused or neglected.

"Child with special needs or disability" means (i) a child with a disability as defined in § 602 of the Individuals with Disabilities Education Act (20 USC § 1401); (ii) a child who is eligible for early intervention services under Part C of the Individuals with Disabilities Education Act (20 USC § 1431 et seq.); (iii) a child who is younger than 13 years of age and who is eligible for services under § 504 of the Rehabilitation Act of 1973 (29 USC § 794); and (iv) a child with a documented developmental disability, intellectual disability, emotional disturbance, sensory or motor impairment, or significant chronic illness who requires special health surveillance or specialized programs, interventions, technologies, or facilities.

"Conditional eligibility" means that eligibility has been approved for a period not to exceed 90 days to allow families with a child experiencing homelessness additional time to obtain required documentation needed to complete a final eligibility determination.

"Copayment" means the amount paid to the provider by the parent to contribute toward the cost of child care. Such amount shall be established by the department in accordance with the current Child Care and Development Fund Plan for Virginia, approved by the U.S. Department of Health and Human Services. Copayments do not include charges above the maximum reimbursable rate, or charges for registration, activities, or transportation.

"Department" means the Virginia Department of Education.

"Exit eligibility limit" means the maximum gross countable income amount that a family can receive to be considered income eligible at redetermination. Such amount shall be established by the department in the current Child Care and Development Plan for Virginia approved by the U.S. Department of Health and Human Services.

"Family" means any adult or emancipated minor and children related by blood, marriage, adoption, or an expression of kinship who function as a family unit.

"Federal poverty guidelines" means the income levels by family size, determined by the U.S. Department of Health and Human Services, used as guidelines in determining at what level families in the country are living in poverty.

"Fee" means a charge for a service and may include copayments, charges above the maximum reimbursable rate, or charges for registration, activities, or transportation.

"Fee Program" means a category in the child care subsidy program that assists low income, non-TANF families with child care services.

"Fiscal year" means the local department financial calendar that begins in June of each calendar year and runs through May of the following calendar year.

"Graduated phase out" means the period of time for child care subsidy and services to continue as determined by the local department at redetermination for recipients whose income exceeds the initial eligibility limit but is below the exit eligibility limit.

"Head Start" means the comprehensive federal child development programs that serve children from birth through age five years, pregnant women, and their families (as established by the Head Start Act (42 USC § 9801)).

"Income eligible" means that eligibility for assistance under the Child Care Subsidy Program is based on income and family size.

"In-home" means child care provided in the home in which all of the children in care reside and in which the provider does not reside.

"Initial eligibility limit" means the maximum gross countable income amount that a family can receive to be considered income eligible. Such amount shall be established by the department in the current Child Care and Development Plan for Virginia approved by the U.S. Department of Health and Human Services.

"Intentional program violation" or "IPV" means any action by an individual for the purpose of establishing or maintaining the family's eligibility for assistance under the Child Care Subsidy Program or for increasing or preventing a reduction in the amount of the assistance by (i) intentionally giving a false or misleading statement or misrepresenting, concealing, or withholding facts or (ii) any act intended to mislead, to misrepresent, conceal, or withhold facts, or to propound a falsity.

"Level one provider" means a child care provider that is not licensed by the department or is not approved (i) by a licensed family day system, (ii) under a local ordinance in accordance with §§ 15.2-741 and 15.2-914 of the Code of Virginia, or (iii) by the federal government.

"Level two provider" means a child care provider that is licensed by the department or is approved (i) by a licensed family day system, (ii) under local ordinance in accordance with §§ 15.2-741 and 15.2-914 of the Code of Virginia, or (iii) by the federal government.

"Local department" means the local department of social services of any county or city in this Commonwealth.

"Maximum reimbursable rate" means the maximum rate paid for child care services through the subsidy program that is established by the department and set out in the current Child Care and Development Fund Plan for Virginia filed with the U.S. Department of Health and Human Services.

"Need for child care" means the parents meet the income eligibility and employment or education requirements set forth in this chapter and require child care services for part of the day.

"Nonfraud overpayment" means an overpayment that is the result of a local department error or an inadvertent household or provider error.

"Parent" means the adult or emancipated minor, as defined in § 16.1-334 of the Code of Virginia, who acts as the primary caretaker or guardian of a child, including an individual acting in loco parentis. A parent may be by blood, marriage, or adoption and also means a legal guardian, person cohabiting with the natural or adoptive parent of a minor child, or other person standing in loco parentis.

"Provider" or "child care provider" means a person, entity, or organization providing child care services.

"Resource and referral" means services that provide information to parents to assist them in choosing a child care provider and may include assessment of the family's child care needs, collection and maintenance of information about child care needs in the community, and efforts to improve the quality and increase the supply of child care.

"Service plan" means the written, mutually agreed upon activities and responsibilities between the local department and the parent in the provision of assistance for child care services under the Child Care Subsidy Program.

"Superintendent" means Superintendent of Public Instruction or his designee.

"Supplemental Nutrition Assistance Program" or "SNAP" means the program administered by the U.S. Department of Agriculture to reduce hunger and increase food security.

"Supplemental Nutrition Assistance Program Employment and Training" or "SNAPET" means the program that provides job search, job search training, education, training, and work experience to nonpublic assistance SNAP recipients.

"TANF assistance unit" means a household composed of an individual or individuals who meet all categorical requirements and conditions of eligibility for TANF.

"TANF capped child" means a child who the TANF worker has determined ineligible for inclusion in the TANF assistance unit because the child was born more than 10 full months after the mother's initial TANF payment was issued.

"Temporary Assistance for Needy Families" or "TANF" means the program authorized in § 406 of the Social Security Act (42 USC § 606) and administered by the department through which a relative can receive monthly cash assistance for the support of his eligible children.

"Transitional child care" means the program that provides child care subsidy assistance to eligible former TANF recipients after the TANF case closes.

"Vendor" means a legally operating child care provider who is approved by the department to participate in the Child Care Subsidy Program. Multiple facilities or sites operated by the same person, entity, or organization are considered separate vendors.

"Vendor agreement" means the agreement between the department and a child care vendor that must be entered into and signed before child care payments under the Child Care Subsidy Program can be authorized.

"Virginia Initiative for Education and Work" or "VIEW" means the program of employment opportunities to assist individuals receiving Temporary Assistance for Needy Families in attaining the goal of self-sufficiency as implemented in the Commonwealth of Virginia.

Statutory Authority

§§ 22.1-16 and 22.1-289.046 of the Code of Virginia.

Historical Notes

Former 22VAC40-665-10 derived from Virginia Register Volume 35, Issue 2, eff. October 17, 2018; amended and renumbered, Virginia Register Volume 37, Issue 24, eff. July 1, 2021 .

8VAC20-790-20. Families and children to be served.

A. For an applicant to be eligible for child care subsidy and services, the applicant must have a child who, at the time of eligibility determination or redetermination:

1. Is younger than 13 years of age or is younger than the age of 18 years and physically or mentally unable to care for himself, or under court supervision;

2. Is a citizen or legal resident of the United States;

3. Is immunized according to requirements of the State Board of Health; however, families of a child experiencing homelessness that cannot provide documentation of their child's immunizations may be conditionally approved for services for a period not to exceed 90 days;

4. Is not eligible to attend public school during the part of the day when public education is available unless there is a documented reason for the child to be out of school;

5. Resides with the applicant or recipient for services;

6. Resides in the locality where application or redetermination for services is made;

7. Resides with a family whose income does not exceed the income limits established by the department in the current Child Care and Development Fund Plan for Virginia approved by the U.S. Department of Health and Human Services;

8. Resides with a family whose family assets do not exceed $1 million in value, as certified by the applicant; and

9. Resides with a family in which there is a need for child care services, arising from one of the following situations:

a. In a two-parent household, there must be a documented reason why one of the parents cannot provide the needed child care.

b. Parents who need child care to support the following approved activities:

(1) Employment;

(2) Education or training leading to employment;

(3) Child protective services; or

(4) Assigned VIEW or SNAPET activity.

B. At the option of the local department, a child born to a family 10 months or more after the initial date of approval for the Fee Program may receive child care services or be placed on the local department waiting list.

C. A child of an owner or operator of a family day home shall not be eligible to receive a child care subsidy if that child will be cared for in the home of the owner or operator.

Statutory Authority

§§ 22.1-16 and 22.1-289.046 of the Code of Virginia.

Historical Notes

Former 22VAC40-665-20 derived from Virginia Register Volume 35, Issue 2, eff. October 17, 2018; renumbered, Virginia Register Volume 37, Issue 24, eff. July 1, 2021.

8VAC20-790-30. Child care subsidy program categories.

Assistance under the Child Care Subsidy Program is provided through the following program categories, to the extent that funding is available:

1. TANF. Child care subsidy and services are made available to recipients of TANF. TANF child care includes needed child care for:

a. A TANF-capped child;

b. A child who receives Supplemental Security Income (SSI) if the parent is on the TANF grant and if the child would have been in the public assistance unit were it not for the receipt of SSI; and

c. Children who are not in the TANF assistance unit but who are financially dependent upon the parent who is in the TANF assistance unit.

2. Income eligible programs.

a. Transitional child care. Child care subsidy and services are made available to eligible children of:

(1) Former TANF recipients for up to the 12 months following TANF case closure to support parental employment and

(2) Former VIEW participants when the individual is enrolled in an accredited public institution of higher learning or other postsecondary school licensed or certified by the State Board of Education or the State Council of Higher Education for Virginia and is taking courses as part of a curriculum that leads to a postsecondary credential, such as a degree or an industry-recognized certification, or license, and

If the family is found income eligible, and there is a need for child care.

b. Head Start wrap-around child care. Head Start wrap-around child care subsidy and services are made available to eligible Head Start enrolled children. The program is for extended day and extended year child care beyond times covered by federally funded Head Start programs.

c. SNAP child care. Child care subsidy and services are made available to children of parents in Virginia's SNAP Education and Training (SNAPET) program to allow participation in an approved activity.

d. Fee Program child care. Fee child care subsidy and services are made available to children in eligible low-income families who are not receiving TANF or SNAPET and who meet the eligibility criteria for child care.

Statutory Authority

§§ 22.1-16 and 22.1-289.046 of the Code of Virginia.

Historical Notes

Former 22VAC40-665-30 derived from Virginia Register Volume 35, Issue 2, eff. October 17, 2018; amended, Virginia Register Volume 36, Issue 2, eff. October 17, 2019; renumbered, Volume 37, Issue 24, eff. July 1, 2021.

8VAC20-790-40. Case management.

A. Applicants for child care subsidy and services must be at least 18 years of age unless they are an emancipated minor .

B. Applicants are required to sign an application, to provide verification of identity, and to cooperate with an assessment by the local department of social services.

C. At initial eligibility determination, a family with a child experiencing homelessness that cannot provide the required documentation may be conditionally approved for services for a period not to exceed 90 days. The final eligibility determination shall be completed once the 90 days has expired or full documentation is provided. Any payments made prior to the final eligibility determination shall not be considered an error or improper payment. Families with a child experiencing homelessness shall receive priority placement on the waiting list, if applicable.

D. Consumer education, including education on the selection and monitoring of quality child care and how to access information regarding their selected vendor as to the (i) health and safety requirements met by the vendor; (ii) licensing or regulatory requirements met by the vendor; (iii) date the vendor was last inspected and any history of violations; and (iv) any voluntary quality standards met by the vendor, must be provided to parents to assist them in gaining needed information about the availability of child care services and providers. Parents must also be provided information on how to obtain a developmental screening for their child.

E. The department shall establish scales for determining financial eligibility for the income eligible child care subsidy program categories in subdivision 2 of 8VAC20-790-30.

1. Recipients in the TANF child care program category shall be considered income eligible based on their receipt of TANF; the local department shall not be required to verify their income.

2. At initial eligibility determination, income eligibility shall be determined by measuring the family's countable income and size against the percentage of the federal poverty guidelines for their locality. The family's income cannot exceed 85% of the state median income.

3. At redetermination, if a recipient family's countable income exceeds the initial eligibility limit, they shall be considered income eligible until their countable income meets or exceeds the exit eligibility limit established by the department. The family's income cannot exceed 85% of the state median income.

F. Families receiving child care subsidy and services shall be required to pay a copayment unless their gross monthly income is at or below the federal poverty guidelines and they are recipients of TANF, participants in the SNAPET program, or families where all children participate in the Head Start program. The copayment amount will be based on a scale set out in the current Child Care and Development Fund Plan for Virginia. Copayments may be increased at redetermination and during graduated phase out if the family's countable income exceeds the initial eligibility limit but is below the exit eligibility limit. Local departments shall be required to act on changes reported by the family that would reduce the family's copayment during the 12-month eligibility period.

G. Income to be counted in determining income eligibility includes all earned and unearned income received by the family except the following:

1. Supplemental Security Income;

2. TANF benefits;

3. Transitional payments of $50 per month to former VIEW participants;

4. Diversionary assistance payments;

5. General relief;

6. SNAP benefits;

7. Value of U.S. Department of Agriculture donated food;

8. Benefits received under Title VII, Nutrition Program for the Elderly of the Older Americans Act of 1965;

9. Value of supplemental food assistance under the Child Nutrition Act of 1996 and lunches provided under National School Lunch Act;

10. Earnings of a child younger than the age of 18 years;

11. Earned income tax credit;

12. Lump sum child support arrears payments;

13. Scholarships, loans, or grants for education except any portion specified for child care;

14. Basic allowance for housing for military personnel living on base;

15. Clothing maintenance allowance for military personnel;

16. Payments received by AmeriCorps volunteers;

17. Tax refunds;

18. Lump sum insurance payments;

19. Monetary gifts for one-time occasions or normal annual occasions;

20. Payments made by non-financially responsible third parties for household obligations, unless payment is made in lieu of wages;

21. Loans or money borrowed;

22. Money received from sale of property;

23. Earnings less than $25 a month;

24. Capital gains;

25. Withdrawals of bank deposits;

26. GI Bill benefits;

27. Reimbursements, such as for mileage;

28. Foreign government restitution payments to Holocaust survivors;

29. Payments from the Agent Orange Settlement Fund or any other fund established for settlement of Agent Orange product liability litigation; and

30. Monetary benefits provided to the children of Vietnam Veterans as described in 38 USC § 1823(c).

The amount of wages subject to garnishment and the amount of child support paid to another household shall be deducted from the family's income.

H. The eligibility period for TANF (nonVIEW), transitional child care, Fee Program, and Head Start begins with the effective date of the approval of the child care subsidy and services application. The eligibility period for VIEW and SNAPET participants begins with the date of referral from the VIEW or SNAPET program.

I. Recipients will be eligible for child care subsidy and services for a minimum of 12-months before eligibility is redetermined unless:

1. Their countable income exceeds 85% of state median income. Temporary increases in income will not affect eligibility or family copayments, including monthly income fluctuations, which when taken in isolation, may incorrectly indicate that a recipient's income exceeds 85% of state median income.

2. There is a finding that the recipient committed an intentional program violation.

3. The recipient is no longer a resident of Virginia.

4. The recipient requests that their child care subsidy and services case be closed.

5. The recipient is a family of a child experiencing homelessness that was approved as conditionally eligible and failed to provide necessary documentation to the local department within 90 days, or the recipient is determined ineligible after full documentation is provided.

J. Recipients will retain eligibility despite any change in residency within the state.

K. Recipients will retain eligibility despite any eligible child turning 13 years of age during the 12-month eligibility period.

L. The beginning date of service payment for TANF (nonVIEW), transitional child care, Fee Program, and Head Start participants may begin with the date the applicant is determined eligible and a vendor approved by the department is selected. The beginning date of service payment for VIEW or SNAPET participants may begin with the date of referral from the VIEW or SNAPET program if the applicant is determined eligible and a vendor approved by the department is selected.

1. Eligibility must be determined within 30 days of receipt of a signed application or referral from VIEW or SNAPET by the local department.

2. Payment cannot be made to any provider prior to the effective date of their approval by the department as a vendor.

M. Eligibility will be redetermined in the final month of the 12-month eligibility period described in subsection I of this section, at which time the recipient will be contacted in order to have all eligibility criteria be reevaluated. The local department's contact with the recipient should not unduly disrupt a parent's work schedule. Recipients shall not be required to appear in person for eligibility redetermination.

N. Child care case managers shall prepare a written service plan for each child care case with the applicant or recipient. The service plan shall state the activities and responsibilities of the local department and the parent in the provision of child care services. The VIEW Activity and Service Plan will serve as the service plan for parents active in VIEW. If the parents are SNAPET participants, the SNAPET Plan of Participation will serve as the service plan.

O. Recipients shall be required to:

1. Report to the local department the following changes within 10 calendar days of the change:

a. Countable income that exceeds 85% of the state median income.

b. Recipient is no longer a resident of Virginia or the county in which they are receiving services.

2. Pay all fees owed to the vendor not paid for under the Child Care Subsidy Program or reimbursements owed to the local department; failure to do so may result in case closure at redetermination.

3. Reimburse the local department for any overpayment made as a result of fraud, intentional program violation, or an inadvertent household error.

The local department shall inform recipients of child care subsidy and services of these responsibilities.

P. Adequate documentation supporting the reasons for termination must be filed in the case record. Eligibility in the Fee Program is limited to a total of 72 months per family. Receipt of assistance in any other program category does not count toward the 72-month limitation.

Q. When sufficient funds are not available, local departments of social services must screen applicants for potential eligibility and place them on the department's waiting list unless the family declines placement.

R. Applicants and recipients will be afforded due process through timely written notices of any action determining or affecting their eligibility for services or copayment amount. Such written notice shall include the reason for the action and the notice of appeal rights and procedures, including the right to a fair hearing if the applicant or recipient is aggrieved by the local department's action or failure to act on an application. If a recipient requests an appeal prior to the effective date of any proposed action and if the continuation of services is requested by the parent, child care services will continue until a decision is rendered by a hearing officer. If the decision of the local department is upheld by the hearing officer, the recipient must repay the amount of services paid during the appeal process.

Statutory Authority

§§ 22.1-16 and 22.1-289.046 of the Code of Virginia.

Historical Notes

Former 22VAC40-665-40 derived from Virginia Register Volume 35, Issue 2, eff. October 17, 2018; amended and renumbered, Virginia Register Volume 37, Issue 24, eff. July 1, 2021.

8VAC20-790-50. Parental choice.

Families who receive child care subsidy and services shall have the right to choose a provider from among child care providers operating legally and that are approved by the department to participate in the Child Care Subsidy Program as a vendor. Local departments shall not establish any policies that limit parental choice of providers.

Statutory Authority

§§ 22.1-16 and 22.1-289.046 of the Code of Virginia.

Historical Notes

Former 22VAC40-665-60 derived from Virginia Register Volume 35, Issue 2, eff. October 17, 2018; renumbered, Virginia Register Volume 37, Issue 24, eff. July 1, 2021.

8VAC20-790-60. Access to children.

A. Vendors shall allow parents unlimited access to their children when they are in care.

B. Vendors shall allow state and local department staff unlimited access to children in care.

Statutory Authority

§§ 22.1-16 and 22.1-289.046 of the Code of Virginia.

Historical Notes

Former 22VAC40-665-60 derived from Virginia Register Volume 35, Issue 2, eff. October 17, 2018; renumbered, Virginia Register Volume 37, Issue 24, eff. July 1, 2021.

8VAC20-790-70. Vendor requirements.

A. Vendors who participate in the subsidy program must be at least 18 years of age.

B. Vendors shall permit and cooperate with inspections by staff from the department and local departments of social services.

C. Vendors shall comply with the regulations applicable to the vendor's type of child care, including all requirements to conduct background checks.

D. Vendors shall comply with the subsidy program vendor requirements as outlined in Parts II ( 8VAC20-790-140 et seq.) and III ( 8VAC20-790-490 et seq.) of this chapter applicable to the vendor's type of care.

E. All vendors who participate in the Child Care Subsidy Program shall enter into a vendor agreement with the department. The vendor's signature or electronic submission confirms its agreement to comply with the applicable sections of this chapter and the terms of the agreement, including payment processes, electronic submission and tracking of attendance, absences, and vendor requirements. Vendors shall be subject to monitoring inspections to ensure compliance with this chapter and with the vendor agreement.

F. Employees of any division within the department or a local department of social services cannot participate in the subsidy program as a vendor.

G. Vendors shall provide notice to individuals required under this chapter to undergo background checks of the opportunity to challenge the results of the background checks in accordance with the procedures described in this subsection in the case of criminal checks, or by contacting the local department of social services that reported such individual to be named on the Child Protective Services Central Registry.

1. Federal Bureau of Investigation (FBI): If an individual is denied employment or the opportunity to provide volunteer or contractual services because of information appearing on the individual's FBI record and it comes to the individual's attention that he is not the person of the record, the individual may initiate a challenge of the information contained in the record. The facility is required by state and federal laws to provide the individual with a copy of the challenge procedures. The challenge procedures can be found at https://www.fbi.gov/services/cjis/identity-history-summary-checks.

2. Virginia State Police: In instances where it comes to an individual's attention that his name or other descriptive information is a matter of record in the Central Criminal Records Exchange, and he is not the person of the record, then the individual may initiate a challenge of the information contained in the record as provided at http://www.vsp.state.va.us/CJIS_CCRE.shtm. The individual must report this information to a local sheriff, police, or State Police Headquarters and request to be fingerprinted for the purpose of challenging a criminal record. The individual to be fingerprinted must show personal identification. The official taking the fingerprints must document on letterhead paper that he has reviewed the individual's personal identification and obtained the fingerprints. This letter and the fingerprints are to be mailed to the following address: Manager Central Criminal Records Exchange Virginia Department of State Police, P.O. Box 27472, Richmond, VA 23261-7472. Within five workdays, the individual who initiated the challenge will receive written confirmation of the fingerprint search results, whether he is or is not the person of the record, and record modifications taken, if applicable.

3. If an individual successfully challenges information on a background check in accordance with these procedures, the vendor may submit a request for a new background investigation in order to obtain an accurate record.

H. Disputes between the vendor and the department regarding the payment for services rendered, enforcement or termination of the vendor agreement, or disqualification from participating in the Child Care Subsidy Program may be appealed by the vendor pursuant to the Virginia Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia), as provided in this subsection. This shall be the sole remedy for such disputes.

1. Within 30 days of the date of a written notice of department action against a vendor, the vendor may request an appeal in writing with the department.

2. Upon receiving the vendor's notice of appeal, the department shall schedule an informal conference at which the vendor may provide such further information or present any additional facts for the department to reconsider its action. The department shall issue a written decision within 15 business days from the conclusion of the informal conference. The vendor may waive the holding of the informal conference and request the formal hearing described in subdivision 3 of this subsection in its initial request for an appeal to the department.

3. The vendor may appeal the decision from the informal conference by requesting an administrative hearing within 30 days of the date of the decision from the informal conference. The administrative hearing shall be held in accordance with § 2.2-4020 of the Code of Virginia and shall be presided over by a hearing officer designated by the Supreme Court of Virginia pursuant to subsection A of § 2.2-4024 of the Code of Virginia. Within 30 days of the administrative hearing, the hearing officer shall recommend a decision to the Superintendent of Public Instruction of the Virginia Department of Education. The superintendent shall issue a final decision within 30 days of receipt of the hearing officer's recommended decision in accordance with subsection C of § 2.2-4021 of the Code of Virginia.

4. The vendor may seek court review of the superintendent's decision in accordance with Article 3 (§ 2.2-4018 et. seq.) of the Virginia Administrative Process Act.

Statutory Authority

§§ 22.1-16 and 22.1-289.046 of the Code of Virginia.

Historical Notes

Former 22VAC40-665-70 derived from Virginia Register Volume 35, Issue 2, eff. October 17, 2018; amended and renumbered, Virginia Register Volume 37, Issue 24, eff. July 1, 2021.

8VAC20-790-80. Determining payment amount.

A. Maximum reimbursable rates.

1. The department will establish maximum reimbursable rates for child care subsidies for all localities in the state by type of care, level of regulatory oversight, age of child, and unit of service. Such rates shall be available in Appendices F and G of the Child Care Subsidy Program Guidance Manual on the department's website.

2. For children with special needs or disability, payment over the maximum reimbursable rate is allowed when this is appropriate as determined and documented by the local department. The maximum reimbursable rate for children with special needs may not exceed twice the rate for care of children who do not have special needs.

3. Vendors will be paid for the amount of care approved up to the maximum reimbursable rate of the locality in which the vendor is located. The department will pay the rates providers charge the general public, up to the maximum reimbursable rate. Level two vendors will be paid a higher maximum reimbursable rate established by the department.

4. Parents who choose a vendor that charges a rate higher than the maximum reimbursable rate set by the department shall be responsible for payment of the additional amount, if charged by the vendor, unless the local department elects to pay the additional amount out of local funds.

B. For in-home child care, the payment rate must be at least minimum wage, but not more than the maximum reimbursable rate for the number of children in care.

C. A single annual registration fee, if charged, will be paid to level two vendors only. The registration fee must not exceed $100 nor be higher than the fee the vendor charges the general public. If the requirement for payment of another registration fee is beyond the control of the recipient or due to extenuating circumstances, an additional registration fee may be paid. The cost of transportation services provided by the vendor, if any, shall be included in the total cost of care. The total cost of care, excluding the single annual registration fee but including other fees and transportation, must not exceed the maximum reimbursable rate.

D. Level two providers may be paid up to 10 holidays on which no child care services are provided as identified in the vendor agreement. Certified preschools, religious exempt centers, and voluntary registered family day homes that are classified as level one providers may be paid for holidays on which no child care services are provided in accordance with the provisions of the vendor agreement. All other level one providers will not receive payment for any holiday unless services are provided on such day.

E. Level two providers may be paid for up to 36 days the child is absent per fiscal year.

Statutory Authority

§§ 22.1-16 and 22.1-289.046 of the Code of Virginia.

Historical Notes

Former 22VAC40-665-80 derived from Virginia Register Volume 35, Issue 2, eff. October 17, 2018; amended and renumbered, Virginia Register Volume 37, Issue 24, eff. July 1, 2021.

8VAC20-790-90. Complaints in the child care setting.

All complaints regarding possible child abuse or neglect occurring in a child care setting must be referred to the child protective services unit at the local department serving the area where the vendor is located. All other complaints must be referred to the department's hotline, which will be provided to parents during intake at initial eligibility determination and will be available on the department's website .

Statutory Authority

§§ 22.1-16 and 22.1-289.046 of the Code of Virginia.

Historical Notes

Former 22VAC40-665-90 derived from Virginia Register Volume 35, Issue 2, eff. October 17, 2018; amended and renumbered, Virginia Register Volume 37, Issue 24, eff. July 1, 2021.

8VAC20-790-100. Recipient intentional program violation and disqualification.

A. When it is suspected that there has been a deliberate misrepresentation of facts by a recipient in order to receive benefits, services, or payments, the local department shall investigate whether or not an intentional program violation was committed. If the local department finds clear and convincing evidence that an intentional program violation has occurred, the case will be referred for an administrative disqualification hearing. The local department may also refer the case to the attorney for the Commonwealth for criminal prosecution.

B. Recipients found to have committed an intentional program violation either through an administrative disqualification hearing or by a court of competent jurisdiction shall be ineligible to participate in the Child Care Subsidy Program for a period of three months upon the first finding, 12 months upon the second finding, and permanently upon the third finding.

C. In cases where a nonfraud overpayment occurred due to an inadvertent household error, the parent will not be disqualified from participating in the subsidy program as long as a repayment schedule is entered into with the local department and payments are made according to that schedule.

D. Administrative disqualification hearings shall be held in accordance with the following:

1. Prior to submitting the request for an ADH to the state hearing authority, the local department shall provide written notification to the individual suspected of an intentional program violation that the individual can waive his right to an ADH by signing a waiver request and returning it to the local department within 10 days from the date notification is sent to the individual in order to avoid submission of the request for an ADH.

2. If a signed waiver is received, no ADH is conducted and the disqualification period is imposed.

3. The local department shall request an ADH be scheduled by submitting a written request to the state hearing authority. The form must include the following information:

a. Identifying information;

b. Summary of the allegations;

c. Summary of the evidence; and

d. Copies of documents supporting the allegations.

The referral is to be signed and dated by the supervisor or local department director.

4. The hearing officer will schedule a date for the ADH and provide written notice to the individual suspected of committing an IPV at least 30 days in advance of the date the ADH has been scheduled. The notice shall contain at a minimum:

a. The date, time, and place of the hearing;

b. The charges against the individual;

c. A summary of the evidence, and how and where the evidence can be examined;

d. A statement that the decision will be based solely on information provided by the local department of social services if the individual fails to appear at the hearing;

e. A statement that the individual or representative will, upon receipt of the notice, have 10 days from the date of the scheduled hearing to present good cause for failure to appear in order to receive a new hearing;

f. A statement that a determination of intentional program violation will result in a disqualification period, and a statement of which penalty is applicable to the case scheduled for a hearing;

g. A listing of the individual's rights, including the right to:

(1) Examine the contents of his case file and all documents and records to be used by the agency at the hearing at a reasonable time before the date of the hearing as well as during the hearing;

(2) At his option, present his case himself or with the aid of an authorized representative;

(3) Bring witnesses;

(4) Establish all pertinent facts and circumstances;

(5) Advance any arguments without undue interference; and

(6) Question or refute any testimony or evidence, including opportunity to confront and cross-examine adverse witnesses; and

h. If there is an individual or organization available that provides free legal representation, the notice shall advise the affected individual of the availability of the service.

5. The time and place of the ADH shall be arranged so that the hearing is accessible to the individual suspected of committing an IPV. The individual may request a postponement of the ADH if the request for postponement is made at least 10 days in advance of the date of the scheduled hearing. The ADH shall not be postponed for more than a total of 30 days and the state hearing authority may limit the number of postponements.

6. The ADH can be held even if the individual fails to appear. The individual has 10 days after the date of the scheduled ADH to present reasons indicating a good cause failure to appear.

7. Even though the individual is not present, the hearing officer shall carefully consider the evidence and determine if an IPV was committed, based on clear and convincing evidence.

8. If the recipient is found to have committed an IPV, but a hearing officer later determines there was good cause for not appearing, the previous decision will no longer be valid and a new ADH shall be conducted. The hearing officer who conducted the original hearing may conduct the new hearing. The good cause decision shall be entered into the hearing record by the hearing officer.

9. The hearing officer shall:

a. Identify those present for the record;

b. Advise the individual that he may refuse to answer questions during the hearing and that anything said or signed by the individual concerning the charges may be used against him in a court of law;

c. Explain the purpose of the ADH, the procedure, and how and by whom a decision will be reached and communicated;

d. Consider all relevant issues and determine if an IPV was committed, based on clear and convincing evidence;

e. Request, receive, and make part of the record all evidence determined necessary to render a decision;

f. Regulate the conduct and course of the hearing consistent with due process to ensure an orderly hearing; and

g. Advise the local department to obtain a medical assessment at the local department's expense if the hearing officer considers it necessary.

10. The individual alleged to have committed an IPV shall be given adequate opportunity to:

a. Examine all documents and records to be used at the ADH at a reasonable time prior to the ADH as well as during the ADH. The contents of the case file, including the application form and documents of verification used by the local department to establish the alleged IPV, shall be made available;

b. Present his case himself or with the aid of an authorized representative;

c. Bring witnesses;

d. Establish all pertinent facts and circumstances;

e. Question or refute any testimony or evidence, including the opportunity to confront and cross-examine witnesses; and

f. Advance arguments without any undue influence.

11. The hearing officer shall prepare a written report of the hearing, which shall include findings, conclusions, decisions, and appropriate recommendations. The decision shall specify the reasons for the decision, identify the supporting evidence, identify pertinent regulations, and respond to reasoned arguments made by the individual or representative.

12. If the individual is found to have committed an IPV, the written decision shall advise the individual that disqualification shall occur.

Upon receipt of the notice of a decision from the hearing officer finding that the individual committed an IPV, the local department shall inform the individual of the reason for the disqualification and the date the disqualification will take effect.

Statutory Authority

§§ 22.1-16 and 22.1-289.046 of the Code of Virginia.

Historical Notes

Former 22VAC40-665-100 derived from Virginia Register Volume 35, Issue 2, eff. October 17, 2018; renumbered, Virginia Register Volume 37, Issue 24, eff. July 1, 2021.

8VAC20-790-110. Vendor agreement termination and vendor disqualification.

A. A vendor agreement may be terminated for the following:

1. The vendor's license to operate a child care facility is revoked, suspended, or denied.

2. The vendor's business location changes; ownership of the vendor's business is assigned, sold, or otherwise transferred; the vendor's business structure changes; the vendor's employer identification number changes; or the vendor's legal operating status becomes invalid for any reason.

3. A deliberate misrepresentation of facts to the department or a local department of social services by a vendor in order to receive payments it was not entitled to receive or acceptance by the vendor of payments that the vendor knows, or should reasonably have known, the vendor was not entitled to receive.

4. The vendor fails to notify the department of a change in circumstances that affects payments received by the vendor.

5. The vendor's violation of any term of the vendor agreement, of any requirement under this chapter, or of any state laws and regulations related to the vendor's license or its exemption from licensure, including the requirements for background checks of the vendor's employees, volunteers, and other individuals who come into contact with children.

B. When it is suspected that there has been a deliberate misrepresentation of facts by a vendor in order to receive payments it was not entitled to receive, the local department shall investigate. If there is clear and convincing evidence that such an act has occurred, the case will be referred to the Division of Child Care and Early Childhood Development for termination of the vendor agreement and possible disqualification from participation in the Child Care Subsidy Program. The local department may also refer the case to the attorney for the Commonwealth for criminal prosecution.

C. Vendors will be permanently disqualified from participating in the Child Care Subsidy Program upon the first criminal conviction of fraud or upon a finding by the department or local department that the vendor deliberately misrepresented facts in order to receive payments it was not entitled to receive.

D. Vendors found to be repeatedly in violation of their vendor agreement or of the requirements of this chapter for reasons other than acts by the vendor described in subsection B of this section may be disqualified to participate in the Child Care Subsidy Program for a minimum period of one year.

E. Individuals affiliated with vendors as owners, partners, directors, officers, shareholders, limited liability company members, and managers shall be subject to disqualification under this section.

Statutory Authority

§§ 22.1-16 and 22.1-289.046 of the Code of Virginia.

Historical Notes

Former 22VAC40-665-105 derived from Virginia Register Volume 35, Issue 2, eff. October 17, 2018; renumbered, Virginia Register Volume 37, Issue 24, eff. July 1, 2021.

8VAC20-790-120. Repayment.

A. In addition to any criminal punishment, anyone who causes the local department to make an overpayment to a vendor shall be required to repay the amount of the overpayment.

B. Any overpayment must be refunded to the department by the locality. If an overpayment was made as a result of an error by the local department, the local department will not seek to recoup those funds from the parent or the vendor.

Statutory Authority

§§ 22.1-16 and 22.1-289.046 of the Code of Virginia.

Historical Notes

Former 22VAC40-665-110 derived from Virginia Register Volume 35, Issue 2, eff. October 17, 2018; renumbered, Virginia Register Volume 37, Issue 24, eff. July 1, 2021.

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