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HomeMy WebLinkAboutC22-409 MOU_CO Dept. Early Childhood
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MEMORANDUM OF UNDERSTANDING
The State of Colorado Department of Early Childhood and the Board of County Commissioners or
other elected governing body of County, Colorado.
This Memorandum of Understanding (MOU) is made on this 1st day of January 2023 between the State
of Colorado Department of Early Childhood (CDEC) and the Board of the County Commissioners or
other elected governing body of County (the “County”).
CDEC is the sole state agency with the responsibility to administer or supervise the
administration of the Colorado Child Care Assistance Program as outlined in CRS §§ 26.5-
1-106 and CRS §§ 26.5-4-104.
The Colorado General Assembly enacted Senate Bill 97-120 in response to the passage of the
federal “Personal Responsibility and Work Opportunity Reconciliation Act of 1996” thereby adopting
the Colorado Child Care Assistance Program (“Child Care Program”); referred to as the “Program” for
the purposes of this MOU.
CRS §§ 26.5-4-115 requires CDEC, and each County, either acting singly or as a group of Counties, to
enter into an annual performance contract that includes but is not limited to, requirements and
provisions that address each party’s duties and responsibilities to work in a collaborative manner to
administer, financially support, and implement the Child Care Assistance Program using fair and
objective criteria.
CDEC and the County understand and agree that the services and assistance outlined in this MOU are
subject to available appropriations by the General Assembly, and the County . Neither party will be
obligated to provide services or assistance if adequate appropriations have not been made.
The following terms are agreed to by CDEC and the County:
1. MOU MEETS PERFORMANCE CONTRACT REQUIREMENT
The parties agree that the provisions of this MOU constitute compliance with CRS §§ 26.5-4-115.
2. TERM
The term of this MOU will be from January 1, 2023, through June 30, 2025. This MOU shall be
reaffirmed annually through an amendment that shall be signed by all applicable parties.
3. REQUIRED DUTIES OF THE COUNTY
a. The County will administer and implement the Child Care Assistance Program using fair and
objective criteria, and in compliance with Federal law, State Statute, and applicable
program regulations in 9 CCR 2503-8, 8 CCR 1403-1, 9 CCR 2501-1, and 11 CCR 2508-1.
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b. The County will not restrict eligibility or the provisions of services, nor will it impose
penalties that are inconsistent with State Statute or Federal law and applicable program
regulations, including the process and penalties outlined in 9 CCR 2503 -8, and 8 CCR 1403-
1.
c. The County will maintain sufficient records and will permit CDEC or its duly designated agents
and/or representatives of the federal government, to inspect the records and make such
records available to CDEC as specified in CRS §§ 6-17-100 and CRS §§ 26.5-4-118. The County
must also continue to report to CDEC in accordance with the Code of Federal Regulations
(CFR), title 45 of the Public Welfare Code, parts 98 AND 99, and State regulations, to include
9 CCR 2503-8, 8 CCR 1403-1 8 CCR 1403-1, 9 CCR 2501-1, and 11 CCR 2508-1, or any other
applicable regulation promulgated by CDEC and must report to CDEC in the future, as required
by law. In addition, counties or county departments that are covered entities, or contracting
parties to a Business Associate Agreement, pursuant to the Health Insurance Portability &
Accountability Act of 1996 (HIPAA), must comply with HIPAA, as required by law.
d. As specified by Program regulations and State statutes, counties shall have flexibility in
determining the approaches needed to achieve federal and state requirements and to utilize
allowable local level policies to manage their budget within their CCCAP Allocation. The
County agrees to provide CDEC with its adopted policies and any updated written information
when, or if, changes to these policies are made in the Program. The County agrees to provide
the information and policies as outlined in 8 CCR 1403-1 to CDEC prior to adopting the
aforementioned policies and to update their Child Care Program County Plan when changes
impact the administration of the Program.
e. In addition to what is required by statute or rule, the parties agree that information and
policies provided by the County to CDEC, as described in paragraph (d) herein, are for
informational purposes and are provided to assist CDEC in meeting its responsibilities, with
respect to the Child Care Program. Nothing in this MOU gives CDEC the authority to require
any county policies beyond what is required by statute, Program regulations, or the Child Care
Program County Plan. The County acknowledges that CDEC has the right to review, comment
upon, approve, or request reasonable additional information or clarification of any County
policies or records. Such requests will be made in writing and directed to the County
Department of Human/Social Services Director.
f. The County will utilize the technical assistance, training, and reporting or tracking resources
offered by CDEC in order to administer the Program and will meet performance measures of
timeliness and accuracy.
g. The County will meet timely processing requirements as outlined in 8 CCR 1403-1. Timeliness
requirements are measured from the date the county receives an application or re-
determination.
h. The County will meet established accuracy requirements that ensure compliance with Code
of Federal Regulations (CFR), title 45 of the Public Welfare Code, part 98, subpart K - Error
Reporting and the Federal Child Care Improper Payment Data Collection Instructions (DCI).
The parties acknowledge that the performance measures of timeliness and accuracy are, as
of the signing of this MOU, the only mandated performance goals. The County’s agreement
to meet the performance measures is relevant to CDEC’s anticipation that CDEC will, in turn,
be able to meet the performance measures required by Federal guidelines.
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4. DUTIES OF CDEC
a. In consultation with the Counties, CDEC will oversee the implementation of the Child Care
Program, statewide, and will develop standardized forms that streamline the application
process, the delivery of services, and the tracking of participants.
b. CDEC will monitor the County’s provision of child care services and, if necessary, perform
the duties outlined in CRS §§ 26.5 Article 4, Part 1.
c. CDEC exercises oversight of and responsibility for the development, implementation,
maintenance, and enhancement of the State Child Care Automated Tracking System (CHATS)
and its application relative to the Child Care Program. Because the State Child Care
Automated Tracking System is a system that utilizes decision tables run by a rules engine for
determining eligibility and amount of benefits to the extent allowed by law, the County will
not be penalized or required to follow a remediation plan due to service disruptions or for
erroneous decisions made by the State Child Care Automated Tracking System. Without
limitation, this applies to erroneous eligibility decisions, erroneous determination of the
amount of benefits, erroneous decisions resulting in overpayments and subsequent
recoveries, and erroneous decisions resulting in underpayments and subsequent supplemental
payments of claims.
d. CDEC will not penalize counties for not meeting the required eligibility performance
measures when it is due to a system service disruption that impacts a county’s ability to
meet timeliness and accuracy rates.
CDEC acknowledges that liability to third parties resulting from erroneous, inaccurate , or
inadequate State Child Care Automated Tracking System notices to Child Care Program
households, is properly the State’s liability. CDEC will not take recovery action against the
County for any claim, including a legal claim, that is defined in this paragraph c as a State
Child Care Automated Tracking System caused error. This provision does not apply to any
errors, claims, or issues caused by the County’s inaccurate data entry in the system, the
County’s failure to follow clear, reasonable, and lawful instruction, or failure to follow
applicable program regulations in 9 CCR 2503-8, 8 CCR 1403-1, 9 CCR 2503-8 or any other
applicable regulation promulgated by CDEC . This provision does apply to the State Child Care
Automated Tracking System training and data entry rules and/or any rules that are part of the
State Child Care Automated Tracking System rule engine.
e. CDEC will consider county recommendations and feedback provided to the Rules Advisory
Committee (RAC) and/or RAC County Subcommittee related to proposed policies or proposed
rule changes that may impact performance measures and help meet federal guidelines.
f. CDEC will formally communicate in writing the established Performance Measures by
outlining the requirements for timeliness and accuracy via a Program memo.
g. CDEC will use valid data from the State Child Care Automated Tracking System and other
sources, as necessary, to accurately calculate the County’s performance measures. Prior to
submitting its calculation to the federal government, CDEC will provide the County with the
individual data variables and supporting information used in the calculations, so that the
County may review the data to ensure the accuracy, validity, and proper calculation of the
accuracy rates.
h. CDEC will provide counties with reports that summarize the results of the Q uality Assurance
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reviews on a monthly basis
i. CDEC will develop and provide ongoing technical assistance, training, and reporting for
tracking resources to help the County administer the program and to meet performance
measures. A CDEC technical issue that cannot be resolved within 48 hours will be factored
into a County’s timeliness rate as a mitigating factor during the time that the issue is
unresolved.
j. CDEC will develop and provide online, on-demand, or one on one training for Program
staff.
k. CDEC will provide reports on County performance monthly.
l. The amount identified for a county’s level of spending, as required by section 26.5 -4-110(6)
C.R.S., shall be identified annually in the Allocation Agency Letter.
m. CDEC will ensure that requests for CHATS Pilot/LMS or CHATS access for County CCCAP staff
are processed within two (2) business days of the request.
n. CDEC will ensure, via agreement with LCO’s, that Counties are only responsible for CCCAP
timeliness once the application is received by the county .
5. JOINT CDEC AND COUNTY DUTIES
a. CDEC and Counties will work together in partnership to communicate performance
expectations and results to jointly achieve federally required performance outcome
measures related to timeliness and accuracy as described in Section 3.
b. As needed, the State and Counties will convene meetings, workshops, focus groups, or other
forums to share information, best process, or targeted strategies to achieve the spirit and
intent of this MOU document and related federal and state performance requirements.
c. The State and the Counties will work together to ensure that the information entered and
reported in the State Child Care Automated Tracking System and the Colorado Benefits
Management System (for the purposes of data matching and Colorado Works Child Care
cases) are as accurate as possible. The State shall work to address any system issues in a
timely manner, and Counties will enter accurate client and provider information in the
applicable state systems.
6. REMEDIATION PLANS
a. The County, in consultation with CDEC, may develop a remediation plan if, during the term of
this MOU, the County engages in any of the following actions:
i. Spending federal or state Child Care Program funds in a manner disallowed by Federal or
State law, which could include receipts or recoveries that are not reported;
ii. Failing to meet the established performance measures;
iii. Restricting eligibility or the provision of services, or imposing penalties in a manner
inconsistent with a federally compliant state law and state plan, and applicable program
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regulation;
iv. Failing to meet timely processing requirements or Child Care Program federal improper
payment error rate guidelines, in accordance with the federal fiscal year and as
described in section 3.
7. PENALTIES
a. According to CRS §§ 26.5-4-115, a county or group of counties may be penalized for not
meeting any obligation under this performance contract and may include a reduction in a
future county block grant allocation.
b. Subject to the limitations set forth herein, if CDEC is subject to a federal penalty, and the
County’s remediation plan was insufficient, CDEC may impose penalties on the County
pursuant to this MOU only if during the term of this MOU, the County engages in any of the
following actions:
i. Spending federal or state Child Care Program funds in a manner disallowed by Federal or
State law, which could include receipts or recoveries that are not reported;
ii. Failing to meet the negotiated performance measures;
iii. Restricting eligibility or the provision of services, or imposing penalties in a manner
inconsistent with a federally compliant state law and state plan, and applicable program
regulation.
iv. Failing to meet timely processing and accuracy requirements as described in section 3.
c. A penalty will not be imposed on the County for failing to adhere to a state regulation that
conflicts with federal law.
d. The county will not be penalized or required to follow a remediation plan if:
i. The County can demonstrate by a preponderance of evidence that CDEC provided
inaccurate guidance, training, or data with regards to performance under this MOU; and,
ii. That the County’s reliance on this information is the proximate cause for the imposed
penalties. If the County can only demonstrate that it is the proximate cause for part of
the penalty, the County will not be liable for that portion of the penalty.
iii. The CDEC fails to provide monthly timeliness reports to the County
8. PROCEDURES FOR IMPOSING A REMEDIATION PLAN OR PENALTIES
a. The process for a penalty or remediation plan against the County or group of Counties by
CDEC will be as follows:
i. CDEC will provide the County with written notice of the County’s failure to meet any
performance measure outlined in this MOU. This notification will include all ass ociated
documentation that supports CDEC’s determination of the performance failure. Upon
receiving such notice, the County has sixty (60) days to contest, explain, offer evidence
of mitigating factors, and/or submit a remediation plan to correct the alleged
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performance problem.
ii. If the County’s remediation plan does not rectify the performance problem, CDEC may
determine the appropriate level of penalty. CDEC shall take into consideration as a
mitigating factor any alleged violation of a state regulation, if that regulation exceeds or
conflicts with the requirements of the federal law. CDEC will provide the County one
hundred eighty (180) days written notice of the proposed penalty before imposing any
penalty. This notification will include the rationale of imposing the penalty, as well as all
associated documentation, a calculation of the proposed penalty, and an indication of
what constitutes a remedy or correction that will allow the County to avert the penalty, if
any remedy or correction is possible. Upon receiving such notice, the County has ninety
(90) days to contest, explain or offer evidence of mitigating factors, before CDEC imposes
the penalty.
iii. If a penalty is imposed by the Federal Government as a result of a county’s actions, CDEC
will impose a penalty against that county proportionate to the county’s responsibility
which cannot be greater than that imposed by the Federal Government. If CDEC has
incurred a penalty due to the failure of more than one County to meet its obligations
under the terms of this MOU, the County will only be penalized for its share of the
penalty.
b. CDEC will provide the County with all documents received from the federal government
related to any proposed or imposed federal penalty within twenty (20) days of receipt,
together with all CDEC documents related to the actions giving rise to that federal penalty,
or that related to the penalty process or how the County’s share of the penalty was
determined. If CDEC fails to provide the required documentation within the twenty (20)
days, CDEC may not hold the County liable for that penalty.
9. CIRCUMSTANCES FOR CDEC ASSUMING ADMINISTRATION
a. As outlined in CRS §§ 26.5-4-115 (2), if the County continues to knowingly or consistently
fail to meet its obligation specified in this MOU, CDEC, at its sole discretion, may assume
the County’s administration and implementation of the Child Care Program.
In that event, CDEC will provide the County with ninety (90) days of written notice before
assuming these duties. Upon receipt of such notice, the County shall have the opportunity to
contest, explain, offer evidence of mitigating factors, or correct the failure before CDEC
assumes the duties.
b. If the County continues to consistently fail to meet its obligation specified in this MOU, the
County at its sole discretion may ask CDEC to assume the County’s administration and
implementation of the Child Care Program.
c. If CDEC assumes the County’s administration and implementation of the Child Care Program,
it may retain the unused portion of the allocation that was provided to the County, as part of
the County’s block grant for its administration and implementation of the Program, in
accordance with the formulas described in CRS §§ 26.5-4-110. CDEC will, in consultation and in
conjunction with the County, develop or modify automated systems to meet the reporting
requirements of CRS §§ 26.5-4-114.
d. CDEC has no authority to require counties to pay MOE (Maintenance of E ffort) for any program
other than CCCAP.
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10. DISCRETIONARY MATTERS
The parties agree that all portions of Part 1 of Article 4 of Title 26.5 that grant discretion to CDEC
or the County regarding the administration of the Child Care Program in the County, will not be
affected by the execution of this MOU except as explicitly stated herein.
11. SEVERABILITY
To the extent that this MOU is executed, and the performance of the obligations of the parties
may be accomplished within the intent of the MOU, the terms of the MOU are severable. Thus,
should any term or provision herein be declared invalid or become inoperative for any reason, such
invalidity or failure shall not affect the validity of any other term or provision herein. The waiver
of any break of term, herein shall not be construed as a waiver of any other term, or of the same
term upon subsequent breach.
12. INTEGRATION OF UNDERSTANDING
This MOU is intended as the complete integration of the understanding between the parties
concerning the matters negotiated between them and incorporated in this MOU. No prior or
contemporaneous addition, deletion, or other amendments hereto shall have any force or effect
whatsoever, unless embodied in writing. No subsequent notation, renewal, addition, deletion, or
other amendments hereto shall have any force or effect unless embodied in a written amendment
executed by the parties.
The parties recognize the nature of the relationship between the County and State. This
relationship is governed more broadly by pertinent provisions of the Colorado Constitution and of
State Statutes, the State Plan, and Program regulations. The parties further recognize that this
MOU is not intended to supersede or change the relationship between the County and the State as
established by any legal authority.
13. NO THIRD-PARTY BENEFICIARY
This MOU is binding on CDEC, and the County or group of Counties, as well as their respective
successors and assigns. It is agreed that the enforcement of the terms and conditions of the MOU are
reserved for CDEC and the County or group of Counties to the extent permitted by law. Nothing
contained in this MOU allows a claim or right of action by a third party. Any third-party receiving
services or benefits under the provisions of this MOU is deemed an incidental beneficiary.
14. DISPUTE RESOLUTION
According to CRS §§ 26.5-4-115, if a disagreement concerning this performance contract arises
between the County or group of Counties and the CDEC, either party may request resolution of the
disagreement through an independent dispute resolution process that is agreed upon by the parties. If
necessary to assure services are available within the County or group of counties, the Department may
enter into a temporary agreement with the County or group of Counties or with another public or
private agent until the disagreement is resolved.
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DEPARTMENT DIRECTOR,
STATE OF COLORADO DEPARTMENT OF EARLY CHILDHOOD
Executive Director or Designee
COUNTY OF COLORADO,
by and through the BOARD OF COUNTY COMMISSIONERS
Chairman
ATTEST:
County Clerk to the Board
Date:
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EAGLE
12/20/2022