208.046.  Child care assistance, income eligibility criteria, vouchers or direct reimbursement, when. — 1.  The department of elementary and secondary education shall promulgate rules to modify the income eligibility criteria for any person receiving state-funded child care assistance, either through vouchers or direct reimbursement to child care providers, as follows:

  (1)  Child care recipients eligible under this chapter and the criteria set forth in 5 CSR 25-200 may pay a fee based on adjusted gross income and family size unit based on a child care sliding fee scale established by the department of elementary and secondary education, which shall be subject to appropriations.  However, a person receiving state-funded child care assistance under this chapter and whose income surpasses the annual appropriation level may continue to receive reduced subsidy benefits on a scale established by the department, at which time such person will have assumed the full cost of the maximum base child care subsidy rate established by the department and shall be no longer eligible for child care subsidy benefits;

  (2)  The sliding scale fee may be waived for children with special needs as established by the department; and

  (3)  The maximum payment by the department shall be the applicable rate minus the applicable fee.

  2.  For purposes of this section, "annual appropriation level" shall mean the maximum income level to be eligible for a full child care benefit as determined through the annual appropriations process.

  3.  Any rule or portion of a rule, as that term is defined in section 536.010, that is created under the authority delegated in this section shall become effective only if it complies with and is subject to all of the provisions of chapter 536 and, if applicable, section 536.028.  This section and chapter 536 are nonseverable and if any of the powers vested with the general assembly pursuant to chapter 536 to review, to delay the effective date, or to disapprove and annul a rule are subsequently held unconstitutional, then the grant of rulemaking authority and any rule proposed or adopted after August 28, 2010, shall be invalid and void.