After time to acclimate to the new Head Start Program Performance Standards (HSPPS) you may have noticed that, while there are a few new items, the requirements contain a lot of the same old rules we already know. However, in regards to the requirements for Head Start eligibility determinations it may seem as though these requirements have been in flux for the last year and a half. As you may recall, the Office of Head Start (OHS) issued the final rule on eligibility in February 2015 in an effort to update the regulations and to “clarify Head Start’s eligibility and enrollment process.”
Unfortunately, the February 2015 changes had some unintended consequences that resulted in confusion rather than clarity. Hence, in the June 2015 Notice of Proposed Rulemaking (NPRM) for the HSPPS, OHS asked the Head Start community to comment on the provisions that had “resulted in unnecessary complications in the eligibility process.” After reviewing the NPRM we made note of some the proposed changes but also made clear that those changes were not effective until sixty days after publication in the final rule. As we approach the November 7, 2016 effective date of the new HSPPS, it seems appropriate to revisit (a non-exhaustive list of) some of the latest updates to eligibility requirements.
More flexibility for income verification documents
One of the biggest areas of confusion in the aftermath of the eligibility final rule was the income verification. Prior to February 2015, Head Start regulations explicitly listed the IRS Form 1040 as one of the types of documents programs could use to verify a family’s income. In contrast, the eligibility final rule eliminated the IRS Form 1040 from the list and instead stated that programs may use “all W-2 forms, pay stubs or pay envelopes.” Under basic rules of statutory and regulatory construction, if a prior requirement lists A, B, and C and a new requirement lists only A and B, the public could infer that the drafter intended to exclude C and C is no longer an option. This general principle caused confusion as to whether programs could still use the Form 1040 despite its omission from the eligibility final rule.
To alleviate any further confusion, OHS adopted the language from 45 C.F.R. 1302.12(i) of the NPRM which states that programs may verify income based on “tax forms, pay stubs or other proof of income.” In addition to allowing various type of tax forms, the language allowing for “other proof of income” is consistent with the theme more flexibility in the HSPPS final rule. This flexibility permits programs to avoid being tripped up by technical document requirements and allows staff to better serve the most vulnerable populations, such as families involved in informal work environments.
Changes to the definition of family for pregnant women.
The eligibility final rule attempt to update the eligibility requirements to address Early Head Start services to pregnant woman also perplexed many members of the Head Start community. The HSPPS final rule eliminated the definition of family for a pregnant woman and adopted the NPRM’s proposed changes for defining family to be as follows:
“Family means all persons living in the same household who are supported by the child’s parent(s)’ or guardian(s)’ income; and are related to the child’s parent(s) or guardian(s) by blood, marriage, or adoption; or are the child’s authorized caregiver or legally responsible party.”
This still leaves the field without regulatory guidance as to how to determine the family size for a pregnant woman. Many members of the field noted in comments to the NPRM, it would be helpful to clearly define terms like “family” and “authorized” caregiver, however, OHS felt it was unnecessary to do so. Hopefully we will see more guidance on this issue in the T/TA OHS has promised to provide.
Income and Categorical Eligibility are different but still the same
The final rule for the HSPPS adopted the proposed changes in the NPRM by removing the separate sections for “income eligibility” and categorical eligibility, thus eliminating the longstanding format of earlier versions of the Head Start Program Performance Standards. The eligibility final rule that was issued in February 2015 caused some misunderstanding because it deemed the receipt of public assistance to be a type of income eligibility as opposed to a type of categorical eligibility.
In the past, some of our clients referred to categorically eligible individuals as “automatically” eligible. Knowing the troubled history of Head Start eligibility verification process and as attorneys, hearing our clients use the term “automatically” eligible made us nervous because such terminology might be construed to mean that eligibility staff could wave a magic wand to deem a family eligible for services with little to no homework. Instead, what many programs really meant and correctly understood the rule to be was that once eligibility staff determined and verified that a child’s family was receiving public assistance in the form of Temporary Assistance for Needy Families (TANF) or Supplementary Security Income (SSI), or the staff could verify that the child was homeless or in foster care, there was no need to collect additional income information like pay stubs or tax documents. Whereas if a child did not fall into one of those categories (so to speak), the program would need to collect more information about the child’s family size and income to determine and verify that the child was eligible for Head Start services. The new structure of the HSPPS did not change the substance of the rule and clarified the many ways in which children and families can meet the eligibility requirements and the process for how to determine and verify eligibility.
Don’t forget the importance of training
The effective dates for implementing and training on the eligibility final rule have come and gone, programs must still meet deadlines to train new eligibility staff within 90 days of hire and members of the governing body and policy council within 180 days of their new term.
Even if you have already trained your staff, governing body and policy council on the eligibility final rule you might want to make sure that everyone is up –to-date on the recent tweaks to the requirements in the HSPPS final rule. While you are at it, remember that the governing body and staff must be trained on all of the changes to the HSPPS.