Proposed Rule2024-15244
Increase Flexibility for Tribes in Child Care and Development Fund (CCDF) Eligibility
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Published
July 16, 2024
Issuing agencies
Health and Human Services Department
Abstract
The Department of Health and Human Services, Administration for Children and Families proposes to amend the Child Care and Development Fund (CCDF) regulations through this notice of proposed rulemaking (NPRM) to allow all Indian Tribes and Tribal Organizations operating CCDF programs, at their discretion, to establish and use eligibility criteria regardless of family income.
Full Text
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<title>Federal Register, Volume 89 Issue 136 (Tuesday, July 16, 2024)</title>
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[Federal Register Volume 89, Number 136 (Tuesday, July 16, 2024)]
[Proposed Rules]
[Pages 57835-57838]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-15244]
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DEPARTMENT OF HEALTH AND HUMAN SERVICES
45 CFR Part 98
RIN 0970-AD11
Increase Flexibility for Tribes in Child Care and Development
Fund (CCDF) Eligibility
AGENCY: Office of Child Care (OCC), Administration for Children and
Families (ACF), Department of Health and Human Services (HHS).
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Department of Health and Human Services, Administration
for Children and Families proposes to amend the Child Care and
Development Fund (CCDF) regulations through this notice of proposed
rulemaking (NPRM) to allow all Indian Tribes and Tribal Organizations
operating CCDF programs, at their discretion, to establish and use
eligibility criteria regardless of family income.
DATES: In order to be considered, written comments on this proposed
rule must be received on or before September 16, 2024.
ADDRESSES: You may submit comments, identified by docket number ACF-
2024-0010 and/or RIN number 0970-AD11, to the Federal eRulemaking
Portal: <a href="https://www.regulations.gov">https://www.regulations.gov</a>. Follow the instructions for
submitting comments.
Instructions: All submissions received must include the agency name
and docket number or RIN number for this rulemaking. All comments
received are a part of the public record and will be posted for public
viewing on <a href="http://www.regulations.gov">www.regulations.gov</a>, without change. That means all personal
identifying information (such as name or address) will be publicly
accessible. Please do not submit confidential information, or otherwise
sensitive or protected information. We accept anonymous comments. If
you wish to remain anonymous, enter ``N/A'' in the required fields.
Docket: Go to the Federal eRulemaking Portal at <a href="https://www.regulations.gov">https://www.regulations.gov</a> for access to the rulemaking docket, including any
background documents and the plain-language summary of the proposed
rule of not more than 100 words in length required by the Providing
Accountability Through Transparency Act of 2023, 5 U.S.C. 553(b)(4).
FOR FURTHER INFORMATION CONTACT: Megan Campbell, Office of Child Care,
202-690-6499 or <a href="/cdn-cgi/l/email-protection#9cf1f9fbfdf2b2fffdf1ecfef9f0f0dcfdfffab2f4f4efb2fbf3ea"><span class="__cf_email__" data-cfemail="c7aaa2a0a6a9e9a4a6aab7a5a2abab87a6a4a1e9afafb4e9a0a8b1">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Background
Effective Dates
Severability
II. Statutory Authority
III. Discussion of Proposed Changes
IV. Regulatory Process Matters
Paperwork Reduction Act
Regulatory Flexibility Act
Unfunded Mandates Reform Act of 1995
Executive Order 13132
Assessment of Federal Regulations and Policies on Families
Regulatory Review
VI. Tribal Consultation Statement
List of Subjects in 45 CFR Part 98
I. Background
In response to requests from Tribal Child Care and Development Fund
(CCDF) Lead Agencies for more flexibility on family income eligibility
to better meet community needs and to recent statutory changes to
eligibility in the Tribal Head Start program, this NPRM proposes a
regulatory change to allow all Tribal CCDF Lead Agencies to serve
Indian children (as defined by the Tribal Lead Agency) in their service
area regardless of family income or assets. This NPRM is also
responsive to Executive Order 14112, Reforming Federal Funding and
Support for Tribal Nations To Better Embrace Our Trust Responsibilities
and Promote the Next Era of Tribal Self-Determination, which directs
agencies to ``increase the accessibility, equity, flexibility, and
utility of Federal funding.'' This proposal will provide Tribal Nations
with more flexibility to better meet community needs, address calls for
greater Tribal sovereignty, and facilitate better alignment between
Tribal CCDF and Tribal Head Start programs.
The Child Care and Development Block Grant Act (42 U.S.C. 9857 et
seq.), hereafter referred to as the ``Act,'' together with section 418
of the Social Security Act (42 U.S.C. 618) authorize CCDF, which is the
primary Federal funding source to Tribes, States, and Territories
devoted to supporting families with low incomes access to child care
and to increasing the quality of child care for all children. CCDF
plays a vital role in supporting child development and family well-
being, facilitating parent employment, training, and education, and
improving the economic well-being of participating families. In FY
2024, 264 Tribal Lead Agencies representing 546 federally recognized
Tribal Nations received CCDF grants totaling $600 million.\1\ Annual
Tribal CCDF awards range from $70,000 to $88 million per year.
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\1\ <a href="https://www.acf.hhs.gov/occ/data/gy-2024-ccdf-tribal-allocations-based-appropriations">https://www.acf.hhs.gov/occ/data/gy-2024-ccdf-tribal-allocations-based-appropriations</a>.
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The Act does not explicitly apply most of its provisions to the
Tribal CCDF program, so with some exceptions and within certain
parameters, the Secretary of Health and Human Services has the
authority to determine many of the CCDF requirements for Tribal Lead
Agencies, including the family income eligibility requirements for
children to receive services from Tribal CCDF programs. Current Tribal
CCDF regulations at 45 CFR 98.81(b)(1) include different family income
eligibility requirements and flexibilities based on a Tribe's award
allocation size in FY 2016. Tribes who had allocations under $250,000
in 2016 (155 Tribal Lead Agencies) may serve any Indian child (as
defined by the Tribal Lead Agency) in the defined service area,
regardless of family income or assets. However, Tribal Lead Agencies
who had allocations above $250,000 in 2016 are subject to the same CCDF
income eligibility standard as States, set forth at 45 CFR
98.20(a)(2)--family income cannot be more than 85 percent of Grantee
Median Income and the family must pass an asset test.
This proposed rule would provide the 109 Tribal Lead Agencies with
medium and large allocations the flexibility to disregard family income
and assets in determining family eligibility for CCDF. This would
extend the flexibility Tribes with smaller allocations have to
disregard family income to all Tribal CCDF Lead Agencies. Tribes, at
their discretion, could continue to choose to use family income
criteria for eligibility, but this would no longer be a requirement.
This proposal does not alter existing flexibilities that permit Tribal
Lead Agencies to apply categorical eligibility criteria for families
under certain conditions.
Tribal Nations have requested greater flexibility for CCDF family
income eligibility. Tribes report the rules do not provide the
flexibility necessary for Tribal Nations to implement CCDF programs in
ways that best meet the needs of the children and families in their
communities. The significant variation between Tribal Nation child care
needs, infrastructure, and location as well as the individuality of the
546 federally-recognized Tribal Nations receiving CCDF make the 85
percent grantee median income eligibility threshold poorly suited to
Tribal Nations, hindering their ability to effectively and efficiently
using CCDF to serve children and families. OCC recently sought feedback
from Tribal Nations and other interested parties on areas where more
flexibility and/or
[[Page 57836]]
different program rules would better serve children, families, and
Tribal Nations through a formal Request for Information (RFI),
published in the Federal Register at 88 FR 48409 (July 27, 2023).
Throughout the RFI feedback process and other feedback processes,
Tribal Lead Agencies expressed appreciation for many CCDF flexibilities
but explained current categorical eligibility rules were complicated,
burdensome, and too limited and that standard family income eligibility
rules were too narrow to meet community needs. Many Tribal Lead
Agencies expressed support for changing eligibility requirements so
they can serve Indian children (as defined by the Tribal Lead Agency),
regardless of family income.
This proposal will also benefit Tribal Nations by better aligning
family income eligibility rules in the Tribal CCDF and Head Start
programs. At the request of Tribal Nations and the Biden-Harris
Administration, the Further Consolidated Appropriations Act, 2024 (Pub.
L. 118-47) included a legislative change to section 645 of the Head
Start Act, 42 U.S.C. 6840, to allow Tribal Head Start programs to serve
children in their service area regardless of family income. The Head
Start Act, unlike the CCDBG Act, required legislative action to make
this change. This important new Head Start flexibility better supports
Tribal sovereignty and allows Tribal Head Start programs to better meet
the needs of children and families in their communities. However, it
inadvertently makes CCDF more restrictive than Head Start, creating
unintended implementation challenges for Tribes and barriers to
effectively and efficiently using multiple types of early childhood
Federal funding to support comprehensive early learning services, child
development, and family well-being. This challenge is especially
salient since almost all Tribal Head Start grantees administer a Tribal
CCDF program. This proposal would better align Head Start and CCDF and
allow Tribal Nations the necessary flexibility to determine how early
childhood program family income eligibility determinations can best
support their communities.
Effective Dates
ACF proposes that the final rule become effective 60 days from the
date of publication of the final rule.
Severability
The provisions of this NPRM, once it becomes final, are intended to
be severable, such that, in the event a court were to invalidate any
particular provision or deem it to be unenforceable, the remaining
provisions would continue to be valid.
II. Statutory Authority
This proposed regulation is being issued under the authority
granted to the Secretary of Health and Human Services by the CCDBG Act
of 1990, as amended (42 U.S.C. 9857, et seq.), and section 418 of the
Social Security Act (42 U.S.C. 618).
III. Discussion of Proposed Changes
We propose to revise 45 CFR 98.81(b)(1) to allow all CCDF Tribal
Lead Agencies the flexibility to determine family eligibility for CCDF
without regard to family income and assets. The proposal amends Sec.
98.81(b)(1)(ii) to allow Tribal Lead Agencies to disregard family
income requirements described in Sec. 98.20(a)(2), while retaining the
ability for Tribal Lead Agencies with a Tribal median income below a
level determined by the Secretary to deem any child in their service
area categorically eligible, regardless of family income, work, or
training status. Currently, the 40 percent of Tribal Lead Agencies with
medium and large allocations, as defined in CCDF regulations, are
subject to the requirements at Sec. 98.20(a)(2) that children must be
in families with incomes below 85 percent Grantee Median Income and
with assets under $1 million in order to be eligible for CCDF. Tribes
with small allocations are not subject to the requirements at Sec.
98.20(a)(2) and are therefore already have the flexibility to serve
Indian children (as defined by the Tribal Lead Agency) regardless of
family income. Extending the flexibility to serve any Indian Child in
the service area regardless of family income to all Tribal Lead
Agencies better supports Tribal sovereignty and self-determination, and
it gives Tribes the ability to prioritize services in the way that best
meets the needs of Tribal Nations and communities. It will create
better opportunities for Tribes to align CCDF programs with other
Tribal early childhood programs, including Tribal home visiting, Early
Head Start, Head Start, and tribally funded preschool.
This proposal does not make any other changes to current Tribal
CCDF family eligibility rules, including existing Tribal categorical
eligibility flexibilities, which remain unchanged.
IV. Regulatory Process Matters
Paperwork Reduction Act
Under the Paperwork Reduction Act (44 U.S.C. 3501 et seq., as
amended) (PRA), all Departments are required to submit to the Office of
Management and Budget (OMB) for review and approval any reporting or
recordkeeping requirements inherent in a proposed or final rule. As
required by this Act, we will submit any proposed revised data
collection requirements to OMB for review and approval.
The proposed rule modifies the previously approved ACF-118-A CCDF
Tribal Plan information collection, but ACF has not yet initiated the
OMB approval process to implement these changes. ACF will publish a
Federal Register notice soliciting public comment on specific revisions
to this information collection and the associated burden estimate and
will make available the proposed form and instructions for review.
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Relevant
CCDF title/code section in the OMB control Expiration Description
proposed rule No. date
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ACF-118-A (CCDF Tribal Plan) Part Sec. 98.81 0970-0198 4/30/2025 The proposed rule would
I and Part II. provide new flexibilities
which Tribal lead agencies
with medium and large
allocations will be required
to report on in the CCDF
plans.
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The table below provides current approved annual burden hours and
estimated annual burden hours for these existing information
collections that are modified by this proposed rule.
Annual Burden Estimates
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Current Proposed
Total number Total number of approved estimated Proposed
Instrument of responses per average Current annual average burden estimated
respondents respondent burden hours burden hours hours per annual burden
per response response hours
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ACF-118A Part I (for all tribes)........................ 265 1 120 10,600 120 10,600
ACF-118-A Part II (for medium and large Tribes only).... 106 1 24 848 24 848
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Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) (see 5 U.S.C. 605(b) as
amended by the Small Business Regulatory Enforcement Fairness Act)
requires Federal agencies to determine, to the extent feasible, a
rule's impact on small entities, explore regulatory options for
reducing any significant impact on a substantial number of such
entities, and explain their regulatory approach. The term ``small
entities,'' as defined in the RFA, comprises small businesses, not-for-
profit organizations that are independently owned and operated and are
not dominant in their fields, and governmental jurisdictions with
populations of less than 50,000. HHS considers a rule to have a
significant impact on a substantial number of small entities if it has
at least a 3 percent impact on revenue on at least 5 percent of small
entities. The Secretary proposes to certify, under 5 U.S.C. 605(b), as
enacted by the RFA (Pub. L. 96-354), that this rulemaking would not
result in a significant impact on a substantial number of small
entities, as this rulemaking primarily impacts tribes receiving Federal
CCDF grants. Therefore, an initial regulatory flexibility analysis is
not required for this document.
Unfunded Mandates Reform Act of 1995
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, establishes requirements for Federal agencies to assess the
effects of regulatory actions on State, local, and Tribal governments,
and the private sector. Under section 202 of the UMRA, the Department
generally must prepare a written statement, including a cost-benefit
analysis, for proposed and final rules with ``Federal mandates'' that
may result in expenditures by State, local or Tribal governments, in
the aggregate, or the private sector, of $100 million in 1995 dollars,
updated annually for inflation. In 2024 the threshold is approximately
$183 million. This proposed rule does not impose an unfunded mandate on
State, local, or Tribal governments or the private sector of more than
$183 million per year. Therefore, ACF is not required to provide a
statement, including a cost-benefit analysis, of the impacts of the
proposed changes.
Executive Order 13132
Executive Order 13132 requires Federal agencies to consult with
State and local government officials if they develop regulatory
policies with federalism implications. Federalism is rooted in the
belief that issues that are not national in scope or significance are
most appropriately addressed by the level of government close to the
people. This rulemaking would not have substantial direct impact on the
States, on the relationship between the Federal Government and the
States, or on the distribution of power and responsibilities among the
various levels of government. Therefore, in accordance with section 6
of Executive Order 13132, this action does not have sufficient
federalism implications to warrant the preparation of a federalism
summary impact statement.
Assessment of Federal Regulations and Policies on Families
Assessment of Federal Regulations and Policies on Families section
654 of the Treasury and General Government Appropriations Act of 2000
requires Federal agencies to determine whether a policy or regulation
may negatively affect family well-being. If the agency determines a
policy or regulation negatively affects family well-being, then the
agency must prepare an impact assessment addressing seven criteria
specified in the law. HHS believes it is not necessary to prepare a
family policymaking assessment (see Pub. L. 105-277) because the action
it takes in this NPRM would not have any impact on the autonomy or
integrity of the family as an institution.
Regulatory Review
We have examined the impacts of the rule under Executive Order
12866, Executive Order 13563, the Regulatory Flexibility Act (5 U.S.C.
601-612), and the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4).
Executive Orders 12866 and 13563 direct us to assess all benefits,
costs, and transfers of available regulatory alternatives and, when
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety, and other advantages; distributive impacts; and
equity). A regulatory impact analysis must be prepared for rules deemed
significant under section 3(f)(1) of E.O. 12866, as amended by E.O.
14094.
The Office of Information and Regulatory Affairs has determined
that this proposed rule is not a significant regulatory action under
section 3(f)(1) of E.O. 12866, as amended by E.O. 14094, and does not
require a full regulatory impact analysis. This proposed rule has,
however, been designated ``a significant regulatory action'' under
section 3(f) of Executive Order 12866, as amended by Executive Order
14094. In FY 2024, OCC estimates that up to $173 million is allocated
to Tribal Lead Agencies that could be impacted by the proposed change.
Further, these Tribal Lead Agencies have discretion on whether to adopt
this flexibility based on their unique needs. This proposed rule does
not stipulate any new requirements.
VI. Tribal Consultation Statement
Executive Order 13175, Consultation and Coordination with Indian
Tribal Governments, requires agencies to consult with Indian tribes
when regulations have substantial direct effects on one or more Indian
tribes, on the relationship between the Federal Government and Indian
tribes, or on the distribution of power and responsibilities between
the Federal Government and Indian tribes. The proposed changes included
in this NPRM are in response to requests from Tribal Nations for
greater flexibility for CCDF family income eligibility that OCC has
received through formal consultation with Tribal Leaders and through
the Request for Information
[[Page 57838]]
(RFI) OCC published in July 2023. Additional discussion of proposed
changes in section 3 of the preamble serves as the Tribal impact
statement. We intend to notify Tribal lead agencies about the
opportunity to provide comment on the NPRM no later than the day of
publication. Further, shortly after publication of the NPRM, we will
host consultation with Tribal Leaders and hold briefing sessions with
Tribal lead agencies and any other interested tribe on the contents of
the NPRM.
Jeff Hild, Principal Deputy Assistant Secretary for the
Administration for Children and Families, performing the delegable
duties of the Assistant Secretary, approved this document on May 22,
2024.
(Catalog of Federal Domestic Assistance Program Number 93.575, Child
Care and Development Block Grant; 93.596, Child Care Mandatory and
Matching Funds)
List of Subjects in 45 CFR Part 98
Child care, Grant programs--social programs.
Dated: July 8, 2024.
Xavier Becerra,
Secretary, Department of Health and Human Services.
For the reasons set forth in the preamble, we propose to amend 45
CFR part 98 as follows:
PART 98--CHILD CARE AND DEVELOPMENT FUND
0
1. The authority for part 98 continues to read as follows:
Authority: 42 U.S.C. 618, 9858.
0
2. Amend Sec. 98.81 by revising paragraph (b)(1)(ii) to read as
follows.
Sec. 98.81 Application and Plan procedures.
* * * * *
(b) * * *
(1) * * *
(ii) The basis for determining family eligibility may be determined
by the Tribe notwithstanding family income as described in Sec.
98.20(a)(2).
* * * * *
[FR Doc. 2024-15244 Filed 7-12-24; 8:45 am]
BILLING CODE 4184-87-P
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