Does a Mississippi YMCA or Boys and Girls Club lose its child care licensing exemption if it accepts payment from the state's Child Care Payment Program?

Subject

Licensure Exemption for National-Affiliate Membership Organizations Receiving Subsidy Payments

Recipient

Daniel Edney, MD, State Health Officer, Mississippi State Department of Health

Plain-English summary

The Mississippi Child Care Licensing Law (Sections 43-20-1 et seq.) generally requires child care facilities to be licensed by the State Department of Health. Section 43-20-5(a)(iv) carves out an exemption for "[a]ny membership organization affiliated with a national organization that charges only a nominal annual membership fee, does not receive monthly, weekly or daily payments for services, and is certified by its national association as being in compliance with the association's minimum standards and procedures including, but not limited to, the Boys and Girls Club of America, and the YMCA."

The state health officer asked: if a YMCA or Boys and Girls Club participates in subsidy programs like the Mississippi Child Care Payment Program (CCPP) administered by the Department of Human Services, does that knock them out of the exemption?

The AG said the answer turns on whether the subsidy payments amount to "monthly, weekly or daily payments for services" within Section 43-20-5(a)(iv). That is a fact-specific question and the AG cannot decide fact questions under Section 7-5-25. But, for guidance, the AG noted that the source of the payment (state subsidy versus parent-paid tuition) is immaterial; what matters is the timing pattern. If a CCPP or similar program pays the entity monthly, weekly, or daily for services, the exemption does not apply, even though the entity would otherwise meet the exemption's other requirements.

What this means for you

YMCA and Boys and Girls Club directors and boards

The opinion holds that an otherwise-qualifying national-affiliate organization falls outside the Section 43-20-5(a)(iv) exemption if it is determined to receive "monthly, weekly or daily payments" for services through a subsidy program. Whether a particular CCPP arrangement amounts to those payments is a fact question the AG did not decide. The opinion is explicit that meeting the exemption's other requirements (nominal membership fee, national certification) does not preserve the exemption once that payment pattern exists.

State Department of Health licensing staff

The opinion says the source of the payment is immaterial under Section 43-20-5(a)(iv); a state-paid subsidy is treated the same as any other payment. The dispositive question the statute poses is whether the entity receives monthly, weekly, or daily payments for services, which the AG identifies as a case-by-case factual determination outside its opinion authority.

Child care subsidy program participants

The opinion does not address parents directly. Its holding bears on whether the YMCA or Boys and Girls Club program a family uses must be licensed: if the program is determined to receive qualifying subsidy payments, the exemption it might otherwise claim does not apply.

Citizens, parents, and journalists

The exemption in Section 43-20-5(a)(iv) covers national-affiliate organizations that charge only a nominal membership fee and "do not receive monthly, weekly or daily payments for services." The opinion clarifies that participating in a subsidy program can defeat that exemption based on the payment timing, regardless of where the money comes from.

Common questions

What is the Child Care Payment Program (CCPP)?
A Mississippi Department of Human Services program that helps low-income working families pay for child care. CCPP pays providers directly on behalf of eligible families.

What exactly is the licensure exemption?
Section 43-20-5(a)(iv) exempts national-affiliate membership organizations that charge only a nominal annual membership fee, do not receive monthly/weekly/daily payments for services, and are certified compliant by their national association.

Does any state payment defeat the exemption?
According to the opinion, the trigger is whether the entity receives "monthly, weekly or daily payments" for services. The AG said the source of the payment is immaterial; whether a given subsidy arrangement fits that timing is a factual question it did not resolve.

What licensure does an exemption-disqualified YMCA need?
The opinion does not spell out the specific license, but the underlying statute is the Mississippi Child Care Licensing Law, Sections 43-20-1 et seq., administered by the State Department of Health.

Background and statutory framework

The Mississippi Child Care Licensing Law, Sections 43-20-1 et seq., requires child care facilities to be licensed by the State Department of Health. Section 43-20-5(a) lists exemptions, including Subsection (a)(iv) for certain national-affiliate membership organizations.

The exemption has three conjunctive requirements:

1. Affiliation with a national organization charging only a nominal annual membership fee
2. No "monthly, weekly or daily payments for services"
3. Certification by the national association of compliance with its minimum standards and procedures.

The Boys and Girls Club of America and the YMCA are listed as illustrative examples, not as the only qualifying entities.

The CCPP is administered by the Mississippi Department of Human Services and pays child care providers on behalf of eligible families. The payment structure typically involves regular reimbursements based on attendance, which the AG's reasoning suggests would generally constitute "monthly, weekly or daily payments for services."

The fact question (does a particular CCPP arrangement equate to monthly, weekly, or daily payments for services?) is a case-by-case determination outside the AG's Section 7-5-25 opinion authority.

Citations

• Miss. Code Ann. § 7-5-25 (AG opinion authority limited to questions of law)
• Miss. Code Ann. § 43-20-1 (Child Care Licensing Law et seq.)
• Miss. Code Ann. § 43-20-5(a)(iv) (national-affiliate membership organization exemption)

Source

• Landing page: https://attorneygenerallynnfitch.com/divisions/opinions-and-policy/recent-opinions/
• Original PDF: https://attorneygenerallynnfitch.com/wp-content/uploads/2023/08/D.Edney-August-17-2023-Licensure-Exemption-Status-of-Entities-Participating-in-the-Child-Care-Payment-Program-or-Other-Subs.pdf

Original opinion text

August 17, 2023
Daniel Edney, MD, State Health Officer
Mississippi State Department of Health
Post Office Box 1700
Jackson, Mississippi 39215-1700
Re:

Licensure Exemption Status of Entities Participating in the Child Care
Payment Program or Other Subsidy Programs

Dear Dr. Edney:
The Office of the Attorney General has received your request for an official opinion.
Question Presented
Are entities affiliated with a national organization that charges only a nominal annual membership
fee, including but not limited to the Boys and Girls Club of America and the YMCA, exempt from
licensure requirements pursuant to Mississippi Code Annotated Section 43-20-5(a)(iv) if they
participate in subsidy programs such as the Child Care Payment Program administered by the
Mississippi Department of Human Services?
Brief Response
Your question turns on whether receiving funding through a subsidy program would equate to
"receiv[ing] monthly, weekly or daily payments for services," as provided in Section 43-20-5(a)(iv); this is a question of fact that must be determined on a case-by-case basis. If it is
determined that an entity receives "monthly, weekly or daily payments" from a subsidy program,
the entity will not meet the requisite exemption requirements of Section 43-20-5(a)(iv).
Applicable Law and Discussion
Sections 43-20-1 et seq., are collectively known as the "Mississippi Child Care Licensing Law,"
and Section 43-20-5(a) sets forth certain exemptions from the provisions of the chapter. Relevant
here, Section 43-20-5(a)(iv) exempts:

[a]ny membership organization affiliated with a national organization that charges
only a nominal annual membership fee, does not receive monthly, weekly or daily
payments for services, and is certified by its national association as being in
compliance with the association's minimum standards and procedures including,
but not limited to, the Boys and Girls Club of America, and the YMCA.
(emphasis added).
Based on this exemption, you ask whether entities affiliated with a national organization that
charges only a nominal annual membership fee, such as the Boys and Girls Club and the YMCA,
are exempt from licensure requirements if they participate in subsidy programs such as the Child
Care Payment Program ("CCPP") administered by the Mississippi Department of Human Services.
This question turns on whether receiving funding through a subsidy program would equate to
"receiv[ing] monthly, weekly or daily payments for services." This is a question of fact that must
be determined on a case-by-case basis. Pursuant to Section 7-5-25, the Attorney General shall
issue written opinions upon prospective questions of law; we cannot opine upon questions of fact.
This said, for informational purposes, we note that the source of "payment," as provided in Section
43-20-5(a)(iv), is immaterial. Accordingly, it is the opinion of this office that if it is determined
that an entity receives "monthly, weekly or daily payments" from a subsidy program such as the
CCPP, the entity will not meet the requisite exemption requirements of Section 43-20-5(a)(iv),
even if the entity would meet the requirements but for its participation in the subsidy program.
If this office may be of any further assistance to you, please do not hesitate to contact us.
Sincerely,
LYNN FITCH, ATTORNEY GENERAL
By:

/s/ Maggie Kate Bobo
Maggie Kate Bobo
Special Assistant Attorney General