Adoption


Title IV-E of the Social Security act - ADOPTION ASSISTANCE PROGRAM

http://www.ssa.gov/OPHome/ssact/title04/0473.htm

SEC. 473. [42 U.S.C. 673] (a )
(1)
(A) Each State having a plan approved under this part shall enter into adoption assistance agreement (as defined in section 475(3)) with the adoptive parents of children with special needs.

(B) Under any adoption assistance agreement entered into by a State with parents who adopt a child with special needs, the State

(i) shall make payments of nonrecurring adoption expenses incurred by or on behalf of such parents in connection with the adoption of such child, directly through the state agency or through another public or nonprofit private agency, in amounts determined under paragraph (3), and
(ii) in any case where the child meets the requirements of paragraph (2), may make adoption assistance payments to such parents, directly through the State agency or through another public or nonprofit private agency, in amounts so determined,
(2) For purposes of paragraph (l)(B)(ii), a child meets the requirements of this paragraph if such child -
(A)
(i) at the time adoption proceedings were initiated, met the requirements of section 406 (a) or section 407 (as such sections were in effect on July 16, 1996) or would have met such requirements except for his removal from the home of a relative (specified in section 406(a) (as so in effect)), either pursuant to voluntary placement agreement with respect to which Federal payments are provided under section 474 (or 403 (as such section was in effect on July 16, 1996)) or as a result of a judicial determination to the effect that continuation therein would be contrary to the welfare of such child,
(ii) meets all of the requirements of title XVI with respect to eligibility for supplemental security income benefits or
(iii) is a child whose costs in a foster family home or child-care institution are covered by the foster care maintenance payments being made with respect to his or her minor parent as provided in section 475(4)(B) (B)(i) would have received aid under the State plan approved under section 402 (as in effect on July 16, 1996) in or for the month in which such agreement was entered into or court proceedings leading to the removal of such child from the home were initiated , or (ii)(i) would have received such aid in or for such month if application had been made therefore, or (ii) had been living with a relative specified in section 406 (a) (as in effect on July 16, 1996) within six months prior to the month in which such agreement was entered into or such proceedings were initiated and would have received such aid in or for such month if in such month he had been living with such a relative and application therefore had been made or (iii) is a child described in subparagraph (A)(ii) or (A)(iii), and c) has been determined by the State pursuant to subsection c) of this section, to be a child with special needs.

The last sentence of section 472(a) shall apply for purposes of subparagraph (B), in any case where the child is an alien described in t at sentence. Any child who meets the requirements of subparagraph c), who was determined eligible for adoption assistance payments under this part with respect to a prior adoption, who is available for adoption because the prior adoption has been dissolve and the parental rights of the adoptive parents have been terminated or because the child’s adoptive parents have died, and who fails to meet the requirements of subparagraphs (A) and (B) but would meet such requirements if the child were treated as if the child were in the same financial and other circumstances the child was in the last time the child was determined eligible for adoption assistance payments under this part and the prior adoption were treated as never having occurred, shall be treated as meeting the requirements of this paragraph for purposes of paragraph (l)(B)(ii).

(3) The amount of the payments to be made in any case under clauses (i) and (ii) of paragraph (1 )(B) shall be determined through an agreement between the adoptive parents and the State or local agency administering the program under this section, which shall take into consideration the circumstances of the adopting parents and the needs of the child being adopted, and may be readjusted periodically, with the concurrence of the adopting parents (which may be specified in adoption assistance agreement), depending upon changes in such circumstan4s. However, in no case may the amount of the adoption assistance payment made under clause (ii) of paragraph (1)(B) exceed the foster care maintenance payment which would have been paid during the period if the child with respect to whom the adoption assistance payment is made had been in a foster family home.

(4) Notwithstanding the preceding paragraph (A) no payment may be made to parents with respect to any child who has attained the age of eighteen (or, where the State determines that the child has a mental or physical handicap which warrants the continuation of assistance, the age of twenty-one), and (B) no payment may be made to parents with respect to any child if the State determines that the parents are no longer legally responsible for the support of the child or if the State determines that the child is no longer receiving any support from such parents. Parents who have been receiving adoption assistance payments under this section shall keep the State or local agency administering the program under this section informed of circumstances which would, pursuant to this subsection, make them ineligible for such assistance payments, or eligible for assistance payments in a different amount.

(5) For purposes of this part, individuals with whom a child (who has been determined by the State, pursuant to subsection c), to be a child with special needs) is placed for adoption in accordance with applicable State and local law shall be eligible for such payments, during the period of the placement on the same terms and subject to the same conditions as if such individuals had adopted such child.

(6)

(A) For purposes of paragraph (l)(B)(i), the term “nonrecurring adoption expenses” means reasonable and necessary adoption fees, court costs, attorney fees, and other expenses which are directly related to the legal adoption of a child with special needs and which are not incurred in violation of State or Federal law.
(B) A State’s payment of nonrecurring adoption expenses under an adoption assistance agreement shall be treated as an expenditure made for the proper and efficient administration of the State plan for purposes of section 474(aX3)(E).
(1) For purposes of title XIX, any child who is described in paragraph (3) is deemed to be a dependent child as defined in section 406 (as in effect as of July 16, 1996) and deemed to be a recipient of aid to families with dependent children under part A of this title (as so in effect) in the State where such child resides.
(2) For purposes of title XX, any child who is described in paragraph (3) is deemed to be a minor child in a needy family under a State program funded under part A of this title and deemed to be a recipient of assistance under such part.
(3) A child described in this paragraph is any child-

(a)
(i) who is a child described in subsection (a)(2), and
(ii) with respect to whom an adoption assistance agreement is in effect under this section (whether or not adoption assistance payments are provided under the agreement or are being made under this section), including any such child who has been placed for adoption in accordance with applicable State and local law (whether or not an interlocutory or other judicial decree of adoption has been issued), or
(b) with respect to whom foster care maintenance payments are being made under section 472.
(4) For purposes of paragraphs (1) and (2), a child whose costs in a foster family home or child-care institution are covered by the foster care maintenance payments being made with respect to the child’s minor parent, as provided in section 475(4)(B), shall be considered a child with respect to whom foster care maintenance payments are being made under section 472.
(C) For purposes of this section, a child shall not be considered a child with special needs unless-
(A) the State has determined that the child cannot or should not be returned to the home of his parents; and

(B) the State had first determined

(1) that there exists with respect to the child a specific factor or condition (such as his ethnic background, age, or membership in a minority or sibling group, or the presence of factors such as medical conditions or physical, mental, or emotional handicaps) because of which it is reasonable to conclude that such child cannot be placed with adoptive parents without providing adoption assistance under this section or medical assistance under title XIX, and
(2) that, except where it would be against the best interests of the child because of such factors as the existence of significant emotional ties with prospective adoptive parents while in the care of such parents as a foster child, a reasonable, but unsuccessful, effort has been made to place the child with appropriate adoptive parents without providing adoption assistance under this section or medical assistance under title XIX.

COLORADO
STATE SUBSIDY PROFILE
NACAC’s Adoption Subsidy Resource Center
information Updated: July 2001

State Subsidy Contact Person NACAC Subsidy Representative (parent/volunteer)
Sharen Ford Deborah Cave
Department of Human services (DHS) CO Coalition of Adoptive Families
1575 Sherman Street 519 W. Arrowhead St.
Denver, Colorado 80203-1714 Louisville, CO 80027
Phone: 330-866-3197 Phone: 303-665-9781
Fax: 303-866-5563 E-mail: cocafcave@yahoo.com
E-mail: sharen.ford@state.co.us

Adoption subsidies are available for children with special needs. Federal subsidies were created by Congress (through Public Law 96-272—the Adoption Assistance and Child Welfare Act of 1980) to encourage the adoption of special needs children and remove the financial disincentives to adoption for the families. Children may receive a federally funded subsidy under Title IV-E or a state-funded subsidy as per state guidelines. Below we have outlined information related to definitions of special needs, benefits available, and procedures in your state. Profiles for each state’s subsidy program are available on our web site at www.nacac.org. If you have additional questions, please call the North American Council on Adoptable Children (NACAC) at 651-644-3036 or our subsidy help line at 800.470-6665, or e-mail us at info@nacac.org. If you have state-specific questions, please call your State Subsidy Contact Person or the NACAC. Subsidy Representative (both listed above) for more information.

1. Colorado’s legal definition of special needs is as follows:

A child with special needs is affected by one or more of the following special, unusual, or significant factors: (a) physical disability, such as hearing, vision, or physical impairment, neurological conditions, disfiguring defects, and heart disease; (b) mental retardation, such as developmental delay or disability, perceptual or speech/language disability, or a metabolic disorder; c) emotional disturbance; (d) hereditary factors that have been documented by a physician Qr psychologist; (e) high risk infants (such as those that are HIV positive or drug or alcohol exposed in utero); (f) other conditions that act as a serious barrier to the child’s adoption. Conditions may include, but are not limited to, a healthy child over age seven or a sibling group that should remain intact.

2. The maximum basic monthly adoption assistance maintenance payment in Colorado is:
Basic Rates:
Age Rate
0-10 $293
11-14 $328
15-21 $352

The maximum subsidized adoption reimbursement is the child maintenance rate, either the state-set rate or the county-negotiated rate, plus the special need rate for an age group, if appropriate. The county shall negotiate a Title IV-E adoption assistance subsidy with the adoptive parents and may negotiate a state and county-only adoption assistance agreement with the adoptive parents for a rate for the age group and should renegotiate this rate at the time of each annual review.

Colorado counties negotiate rates based on the counties’ policy on adoption assistance rate negotiation.

3. Are there any unique aspects or guidelines surrounding Colorado’s maintenance payment program?
Colorado has a base rate. However, county departments are free to develop a “county” negotiated rate.
4. Specialized rates are based on the extraordinary needs of the child, and the additional parenting skill needed to raise the child. If Colorado often these rates, the criteria used to define them are as follows:
The establishment Qf specialized rates is based on whether or not the provider is giving extra services for extraordinary medical, physical, emotional, or behavioral problems.
5. What Medicaid services are available in Colorado? Who is the Medicaid contact person in Colorado?
The state contact person is Diane Maiden, 303-866-2823.

6. Children who have federally funded (Title IV-E) subsidy are automatically eligible for Medicaid benefits. However, it is the state’s decision whether state-funded (non-Title IV-E) children are eligible for Medicaid benefits in Colorado. Below is information on the Medicaid benefits available for state-funded children.

Medicaid is available following finalization for non-JV-E children effective 7-1-98.
7. Parents can receive payment or reimbursement for certain nonrecurring adoption expenses directly related to the finalization of an adoption. Below are the allowed expenses and the limit per child.
The following nonrecurring costs are reimbursable: agency adoption fees (including health and psychological exams); transportation, food, and lodging for child and adoptive parents necessary to complete the adoptive placement or the legal adoption process; court costs; attorney fees; and replacement birth certificates.
Families should apply for this reimbursement prior to finalization of the adoption. International adoptees are not eligible for the program.
The reimbursement limit is $800 per child.
8. What specific (if any) Title XX social services (e.g., day care, respite care, etc.) are available to adopted children and their families in Colorado? How do I access them? Adopting families are eligible to receive—for TV-E eligible children—”special circumstance” day care services. These day care services are used to prevent disruption and to maintain the child in his or her own home. However, due to individual counties’ budget limitations, these services are sometimes unavailable. Families should contact~their county DHS office for further information. 9. In addition to monthly payments and health coverage, Colorado has indicated that the following services are available for children with special needs.
The county department may authorize the following types of adoption assistance subsidies:
Long-Term Subsidy—To partially meet a child’s daily needs on an indefinite basis. A long-term subsidy is made when the family’s financial situation precludes adoption and is unlikely to change or when a child’s need takes an excessive toll on the family’s financial and emotional resources. This sort of monthly payment
may continue until the family’s financial circumstances improve, the child’s circumstances change, or the subsidy terminates as outlined in Termination of Subsidy, Section 7.306.58 of the Subsidized Adoption rules.
Time-Limited Subsidy—To partially meet the everyday needs of the chjld for a specified period. These are start-up costs for those things that children placed for adoption do not always have, such as sufficient clothing. This subsidy partially covers unmet needs that are time-limited and non-renewable.
Medical Subsidy—Medical subsidies are payments made directly to adoptive parentt for a service already received or to a vendor for treatment of a physical or developmental disability or an emotional disturbance. A medical subsidy shall relate directly to the barrier or barriers identified at the time the initial subsidy is approved. Medical subsidies ate not available for treatment of any physical or developmental disability or emotional disturbance diagnosed after finalization of the adoption. Medical subsidies may be used to supplement any other available resource such as an adoptive family’s private insurance that pays for part but not all of the child’s treatment (physical, mental, and emotional). Medical subsidies can only be used for Medicaid cases if the service requested is something that would not be covered under the State Medicaid Plan and relates to the direct baffler/need identified at the time the child is placed for adaption. Subsidized adoption payment for medical services shall reflect the reasonable costs of those services in the child’s community.
Case Services Subsidy for non-medical cases—Case services are provided to meet identified special needs when the child is placed for adoption. These are needs which are not covered by maintenance or medical subsidies or Medicaid. The following are classified as reimbursable case services if they relate directly to a child’s special needs: (a) orthodontia work; (b) eye glasses or contacts; (c) prescribed medication; (d) special speech, occupational, and physical therapies if not available through other community and family resources; (e) special equipment; (f) psychological exams and out-patient therapy if not provided by Medicaid; (g) respite care.
Similarly, the following are classified as non-reimbursable case services: orthodontia work for cosmetic reasons; routine medication; psychological day treatment; psychological hospitalization; educational tutoring; school tuition; and day care.

10. If the additional assistance (listed above in question #9) is to cover specific services (e.g., counseling/mental health services, respite care, etc.), must these services be explicitly identified in the adoption assistance agreement?

Any service which is to be purchased on behalf of an eligible child would need to be detailed by item and fiscal limit in the adoption assistance agreement.

11. Is respite care provided through the adoption assistance program?

Yes—This program is available on a limited basis through the county department that placed the child for adoption.

12. How are residential treatment costs covered (if at all) for adoptive families? What procedures must a family follow to receive these services?

Should a child heed residential treatment servic9s, the family should contact their local county department of social services to seek family preservation services. The adoption assistance program will not specifically pay for residential placement. When a child is placed in residential treatment, adoption subsidy continues. ‘Medicaid is kept active. A placement fee is charged which is not greater than the subsidy payment when the child is placed through the county department of social services.
If the county department obtains custody of the child, the custodial county agency will pay the cost of residential care.

13. A deferred adoption assistance agreement is one in which the initial monthly maintenance amount is $0. Does Colorado offer such agreements?

Yes. More adoptive families are opting to do this when they adopt younger children for whom they have not been foster parents.

14. Does Colorado operate a subsidized guardianship program?

No.

PROGRAMMATIC PROCEDURES

15. Who makes the final determination of a child’s subsidy eligibility in Colorado? What roles, if any, do workers and administrators at the county, district, or regional level play in eligibility determination and/or assistance negotiation?

The county department shall determine the child’s eligibility for subsidized adoption. County workers, supervisors, administrators, and/or county directors participate in the assistance agreement negotiations.

16. Will Colorado consider my family income to determine my child’s subsidy package?

The county department shall not use an income eligibility requirement (means test) for prospective adoptive parents in determining eligibility for subsidized adoption. Subsidy amounts shall be based on the child’s need and the family’s circumstances.

17. When do subsidy payments begin?

Subsidy payments may be made at the time of adoptive placement.

18. Do children adopted from private agencies in Colorado receive the same subsidies as those children adopted from public agencies?

Yes. However, children who are in the custody of licensed non-profit private agencies must meet federal IV-E eligibility requirements to receive adoption assistance.

19. When my child turns 18, which benefits, if any, are available to our family?

Subsidy benefits may continue through the month of the child’s 18th birthday? or until age 21, when the county department has determined that the child has ~ developmental disability or physical disability which warrants continuation of assistance. The county department shall not use state subsidy funds for any child over 18 attending college.
20. A child’s adoption assistance agreement may be periodically reviewed b the state. What is the typical process used in Colorado?
There is an annual redetermination of eligibility for all ongoing subsidies. Th county department shall provide written notice of the redetermination requirement to the adoptive parent(s) no later than 60 days prior to the anniversary of the subsidy agreement. Families are asked to share changes in their circumstances. Requests for information vary since subsidies are based on the specific special needs of the child.
21. Can adoption assistance agreements be modified if requested by adoptive parents?
There are situations in Colorado that allow for a modification of an adoption assistance agreement. Families who’s% situation have changed may request (in writing) a modification from their county department. Agreements that have benefit/service that is no longer needed can be modified to reduce the level of service. Note: Because agreements are renewed annually, the county department would be able to modify an agreement if the funds which service the agreement are available. A family must contact the county from which they adopted the child. When appropriate, the county will send a denial letter if the family’s request P beyond the county’s ability to provide.
22. What are the exact steps a family must go through to access the fair hearing/appeal process in Colorado?
When the county department denies, reduces, or terminates an application fo adoption subsidy or the subsidy grant, the applicant or recipient shall have a right to appeal. The adoptive family is given at the time of the adoption the address of the Office of Appeals. At any time when the family receives an adverse action notice they may appeal through the fair hearing process.
23. Families may request a subsidy after the finalization of an adoption under certain circumstances. Below is the process by which families access a subsidy after finalization.
See Question #22 for the steps to follow.
SYSTEM OPERATION AND PROGRAM FUNDING

24. How is the subsidy program operated and funded in Colorado?

Colorado’s adoption system is operated as a state-supervised, county-administered program. This means that personnel at the state office are responsible for making policy decisions regarding the adoption assistance program, and provide guidance to county offices. The counties make decisions related to children’s subsidy.
Each county department of social services (county director) has the discretion to provide on behalf of a child with special needs a State County Only Subsidy (non-lV-E eligible): OR for IV-E eligible children: The federal contribution to Title IV-E-eligible children is 50.00% in Colorado. This is known as the Federal Financial Participation (FFP) rate. The remaining cost of the program is funded with 30% state funds and 20% county funds.

25. Below are other programs that may delineate Colorado’s adoption assistance program from others around the country.

None.

State of Kentucky
Title IV-E, Medicaid, and Other Applicable Benefits
http://cfc.state.ky.us/pandpprocess/title iv-e.htm

(Revised 09-01-2000)
Title IV-E
Eligibility
Required Title IVI Judicial Determination
AFDC Relatedness Test
Reimbursability & Six Month Redetermination Under Title tV-B Foster Care
Legal Responsibility
Reasonable Efforts
Best Interest Determination for a Voluntar Commitment A ~reement
Concurrent Receipt of Title IY-fi and 551
Reimbursable Placement
Need
Deprivation

Monitoring
Child Support ‘md Title lYE
Medicaid
Title [V-B Adoption Assistance

Title tV-B

Public Law 96-272, the Adoption Assistance and Child Welfare Act of 1980, became effective June 17, 1980. It amended Title IV of the Social Security Act to establish a new Part B, which provides for Federal payments to the states for foster care maintenance and adoption assistance payments made on behalf of certain eligible children. The objectives of this legislation are:

  1. To improve the quality of care provided to children in substitute care;
  2. To reduce the number of children who are removed from their own homes for placement in substitute care. Substitute care includes foster family, group home and institutional care;
  3. To return children from substitute care to their homes as soon as conditions in the’ home permit; and
  4. To facilitate the adoption or other permanent placement for those children who cannot be returned to their own homes.
There are two major components of Title IV-E: Eligibility and Reimbursability. Eligibility does not automatically confer federal benefits. The reimbursability criteria shall be met for the state to receive federal support for the child.

ELIGIBILITY

Eligibility is determined on a one-time basis when the child enters care. Once established, a child’s eligibility continues as long as the child remains under the care and responsibility of the Department.
A child shall meet two eligibility requirements for Title IV-E foster care:
  1. The child entered care (a) by a voluntary commitment agreement or (b) as the result of a court order with judicial determinations (I) (in the removal order) that it is in the best interest of the child to be removed or that it is contrary to the welfare of the child to remain in the home and (2) (within 60 days of placement) that reasonable efforts to prevent the child’s removal from the home were made or’ were not required. If a removal order is obtained and the child is not removed within 30 days of that order, it is necessary to obtain a new order (not necessarily commitment) authorizing removal of the child from the home which contains both contrary to welfare or best interest language and the reasonable efforts language.
  2. The child shall have lived with a parent or other specified relative within six months prior to the month of removal and shall have had a relationship to the AFDC program (per State AFDC rules as in force on July 16, 1996) in the month the agency worker signed the petition which led to the child’s removal from the home, or during the month the voluntary commitment was signed by the parent(s).

Title IV-E eligibility starts on the date the child is removed, when all other eligibility factors are present in the month the voluntary commitment was signed. There are only two instances where a child in continuous care shall lose eligibility for IV-E:

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  1. When the child reaches the age limit for the program; or,
  2. When the child came into care as the result of a voluntary commitment agreement and the Cabinet fails to acquire a court order with best interest granting custody of the child to the Cabinet within 180 days of the date of the agreement.
Title IV-E eligibility shall be determined by the Children’s Benefits Worker in the district that has family case responsibility. When a child is placed in another district, the Title IV-E case shall be maintained in the district that has family case responsibility.

REQUIRED TITLE IV-B JUDICIAL DETERMINATION

First, in the order that initially removes a child from his home, referred to as the removal order, the court shall specify that continuation in the home is contrary to the welfare of the child, or best interest language. A removal order may be a temporary custody order or an emergency custody order. Second, in any order within the first 60 days of the child’s placement, the court must explicitly state that reasonable efforts were made or were not required to prevent the child’s removal for one of the reasons specified in federal law and regulations. When either (a) the welfare/best interest language or (b) the reasonable efforts language is not contained in the judge’s order or court transcript within the required time, then the child is not IV-E eligible for as long as the child remains continuously out of the home. Except in the case of home visitation, each time a child is returned to and removed from the home, a new court order with the required IV-E judicial determinations must be obtained. Occasionally a child in out-of-home care is returned to the remoVal home for the purpose of a trial visit, and then it becomes necessary to remove the child. It is not necessary to obtain a new court order authorizing the second removal if the Social Service Worker has documented in a Visitation Agreement within the Case Plan for Out-of Home Care, OOHC- 1281, that the purpose of the child’s placement in the removal home is for a trial visit. If the child’s trial visit extends beyond six months, then it is necessary to obtain a new court order authorizing removal which contains the required judicial determinations, unless the court has ordered a longer trial home visit.

AFDC RELATEDNESS TEST

To be eligible for Title IV-E under AFDC rules as in force on July 16, 1996, the foster child must meet technical and financial eligibility factors. The month during which the child shall meet the IV-E AFDC-relatedness test is the month during which a voluntary commitment agreement was signed by the parent(s) or the month during which the petition that led to the child’s removal from the home was signed by an agency official. This is the eligibility month. (NOTE: the date that the child entered care does not necessarily define the time for which the child shall have met the AFDC relatedness test. Rather, it is the petition which directly led to the custody or supervision which defines the petition date for purposes of determining whether the child meets the AFDC-relatedness test.) A temporary custody petition may lead to temporary placement, which is then followed by a petition for continued placement. Assuming the child remained in a placement supervised by the department during the time between the temporary custody placement and the date of the court order granting continued placement, it is the temporary custody petition which determines the eligibility month. If the petition leading to the removal is not filed within six months of the commitment or custody order, the month of the commitment or custody order is the “removal month” looked to for eligibility determination. A child meets AFDC-relatedness when one of the following two tests is met:
  1. The child was eligible for AFDC (according to July 16, 1996 rules) in the removaj home in which the child lived during the removal month; or
  2. The child did not live with a specified relative in the removal month, but did live with such a relative in any of the preceding six months, and the child would have been eligible for AFDC (according to July 16, 1996 rules) in that relative’s home during that month had an application been made.
The AFDC relatedness test requires identification of the removal home. Normally the removal home is the home from which the child is both physically and legally removed by court action. However, in cases where, at the time of the court order, the child is living in a home other than the one from which the court orders the child to be removed, the agency must make a determination as to the removal home for eligibility purposes, in accordance with the latest federal guidance and pertinent case law. If the removal home is other than a parent’s or adoptive parent’s home, only the child’s income and resources are used to determine AFDC need. The circumstances which define Title JV-E eligibility are:
  1. Living with A Specified Relative;
  2. Deprived of Support of One or Both Parents;
  3. Need, which is an income and a resources test;
  4. US Citizen or legal alien; and
  5. Age.
REIMBURSABIILITY AND ANNUAL REDETERMINATION UNDER TITLE IV-E FOSTER CARE
Once eligibility is established, the Cabinet shall determine for every month that a child is in foster care whether the child’s care was reimbursable by the Federal government. A child may lose and regain reimbursability on a frequent basis depending on changes in the child’s circumstances. Conditions of reimbursability may vary from month to month. A redetermination shall occur every twelve months to establish whether the seven reimbursability criteria are met on a month to month basis.

The seven reimbursability criteria are:

  1. Legal responsibility for the child is with the Title IV-E agency;
  2. Court certification within the last 12 months that reasonable efforts are being made to finalize a permanency plan or that reasonable efforts to reunify the child and family are not required;
  3. A court order, which contains the appropriate judicial determination, obtained within 180 days for children removed as a result of a voluntary commitment agreement;
  4. Reimbursable placement;
  5. Need;
  6. Deprivation; and
  7. Under age 18, or under age 19 if in school and expected to graduate by age 19.
The procedures for eligibility and reimbursability may occur simultaneously.
LEGAL RESPONSIBILITY
Legal responsibility means that the Cabinet for Families and Children has legal responsibility for the care of the child.
REASONABLE EFFORTS
The Cabinet shall make reasonable efforts to prevent or eliminate the need for removal of the child from his home or to make it possible for the child to safely return to his home in order for a child to be eligible and reimbursable under Title IV-E. To verify that the requirement has been met, the Cabinet shall provide evidence of its actions to a court of competent jurisdiction, and the judge shall rule in a court order whether the agency has in fact made reasonable efforts and in making such reasonable efforts, the child’s health and safety shall be the paramount concern. There are four possible rulings from a judge which meet the intent of the law:
  1. That a reasonable effort was made to prevent the placement prior to the placement of the child;
  2. That a lack of preventive services was reasonable; or
  3. That a reasonable effort to prevent the placement was possible, and was not made, but a reasonable effort is being made to safely return the child to his home.
  4. Reasonable efforts shall not be required if a court of competent jurisdiction has determined that
  1. the parent has subjected the child to aggravated circumstance (as defined by state law, which may include but need not be limited to abandonment, torture, chronic abuse, and sexual abuse);
  2. the parent has
    1. committed murder of another child of the parent;
    2. committed voluntary manslaughter of another child of the parent;
    3. aided or abetted, attempted, conspired or solicited to commit such a murder or voluntary manslaughter; or
    4. committed a felony assault that results in serious bodily injury to the child or another child of the parent; or
  3. the parental rights of the parent to a sibling have been terminated involuntarily.
A court order within 60 days of placement signifying any one of these outcomes meets the reasonable effort requirement for initial Title IV-E eligibility. From the date of the court order which includes one of these four judgments, (assuming all other eligibility criteria are met) the child becomes initially eligible and remains for the duration of the child’s placement episode. Thereafter, the court must make an additional finding at least once every twelve months that reasonable efforts to finalize permanency for the child are being made, OR that efforts to reunite the child and family are not required. If such a determination is not made. Title TV-B reimbursability ceases at the end of the twelfth month following the last judicial finding of reasonable efforts and begins again in the month when such judicial determination is once again made.
BEST INTEREST DETERMiNATION FOR A VOLUNTARY COMMITMENT AGREEMENT
When a child is removed from the home pursuant to a voluntary commitment and the placement is expected to exceed 180 days, the agency shall file a petition seeking court ordered custody of the child. A court order containing the required TV-B judicial determination language that placement is in the child’s best interest and that reasonable efforts to prevent removal were made or are not required shall be obtained within 180 days or the child is not TV-B eligible or reimbursable for the duration of the out-of-home placement episode.
***CONCURRENT RECEIPT OF TITLE IV-B AND 551
The Social Security Act allows reimbursement of foster care payments under Title TV-B in any month in which a child receives SST benefits. A child may be TV-B reimbursable in a month when the child receives SST. If a child is eligible for both SST and TV-B benefits in a month in which the child is in foster care, the state shall report the amount of TV-B reimbursement to the Social Security Administration (SSA). When the Social Security Administration is informed that the child is receiving TV-B benefits, “the child’s SST payment shall be reduced dollar for dollar without application of any exclusion”, thus decreasing the SST benefit by the amount of the Title TV-B payment (SST Program Operation Manual). Factors to consider when determining whether to continue concurrent receipt of TV-B and SST include:
  1. Title TV-B maintenance cost reimbursement income exceeds the SST income limit;
  2. Suspension of SST shall exceed one year; and
  3. The extent of the child’s disability and likelihood of receiving SST again when the child is returned home, placed in an alternative permanent situation or reaches age 18 or 19 and is no longer eligible for Title TV-B.
The selection of concurrent receipt of TV-B or SST shall be made with the child’s best interest in mind. The fiscal advantage to the agency is a secondary consideration. The decision to request termination or suspension of SST benefits shall be made by the Family Services Office Supervisor with input from the Family Services Worker, Children’s Benefits Worker and the child’s parents.

REIMBURSABLE PLACEMENT

There are five types of out-of-home placements which meet the law’s definition of a TV-B reimbursable placement:
  1. An approved foster family home;
  2. A private non-medical group home licensed by the state;
  3. A public non-medical group home or child-care facility which has a licensed capacity of less than 26 beds;
  4. A relative foster home; or
  5. Pre-adoptive placement.

NEED

The child shall have a financial need in AFDC terms to maintain reimbursability. Need has two elements. First, when a child’s resources exceed $10,000 in any month (asset limit established under PL 106-169, Foster Care Independence Act of 1999), the child is not reimbursable, until the balance is spent down below $10,000. The second element of need is a child’s income. The income available to the child shall be less than the costs of the monthly maintenance in foster care. In any month where the child’s income after deductions exceeds this amount, the child is not reimbursable. In a need determination for continuing reimbursability, it is only the child’ s income and resources which are considered. In the test of need in reimbursability determination, the income and resources of the child’s parents are not considered unless the parents are contributing funds to the agency for the care of the child. When the parents are contributing toward the care of the child, the contribution is considered unearned income of the child to be counted in the need determination. Also, survivors benefits and other resources may accumulate in the child’s trust fund.

DEPRIVATION

To maintain IV-E reimbursability, a child in foster care shall continually be deprived of the care and support of one or both parents. As with the eligibility determination, this means that one or both parents is absent from the removal home, unemployed, disabled, or deceased. It is possible that the deprivation may change at any time between redeterminations. When termination of parental rights (TPR) has occurred during the last six months the deprivation factor is to be changed to absence. Status of the parent does not have to be verified after TPR.

AGE

A child loses IV-E eligibility and reimbursability at the beginning of the month following the child’s eighteenth birthday, unless the child is enrolled full-time in high school, or any equivalent course of study, and can be reasonably expected to graduate prior to the child’s nineteenth birthday. When the child meets this expectation, reimbursement may continue until the beginning of the month following the child’s graduation.

MONITORING

Staff shall monitor the case to ensure that IV-E foster care maintenance payments are being made correctly on the child’s behalf.

CHILD SUPPORT AND TITLE IV-B

Parents shall be responsible for the financial and medical support of their children even when the child is found eligible for Title IV-E.

MEDICAID

The Department for Community Based Services shall be responsible for maintaining compliance with Medicaid regulations pursuant to KRS - 205.510 through 205.630.

TITLE IV-E ADOPTION ASSISTANCE

To be eligible for Title IV-E Adoption Assistance, the following criteria shall be met: There shall be a written adoption assistance agreement between the State agency and the prospective parents of a minor child. It shall be signed and in effect at the time of the final decree of adoption. A copy of the signed agreement shall be given to each party. The agreement shall, at a minimum specify:
  1. The duration of the agreement;
  2. The nature and amount of payment, services and assistance;
  3. That the child is eligible for Medicaid services under Title XIX and social services under Title XX (effective October 1, 1983);
  4. That the agreement (if made on or after October 1, 1983) shall remain in effect regardless of the State in which the child is a resident at any given time; and
  5. That Kentucky shall remain financially responsible for any medical and social services agreed to be provided under the terms of the agreement, if the child moves to another state, and such services are not available in the receiving state (if the agreement was entered into after October 1, 1983).
The child shall meet Special Needs Criteria; three criteria shall be met:
  1. The state shall determine that the child cannot or may not be returned to the home of his parents (e.g., parental rights are terminated);
  2. The child shall have a specific special need which indicates that the child cannot be placed with adoptive parents without providing adoption assistance. Such problems may include ethnic background, age, or the presence of factors such as medical conditions, or physical, mental or emotional disabilities, a sibling group of three or more, or a child who has experienced severe, physical or sexual abuse or whose background includes mental illness; and
  3. The state shall show that a reasonable, but unsuccessful effort was made to place the child with appropriate adoptive parents without providing adoption assistance. This criterion need not be met if the state can show that such a placement effort is not in the best interests of the child, because of the existence of significant emotional ties with prospective parents while in their care as a foster child.
The child shall have a relationship to the AFDC program or the Supplemental Security Income Program (SSI). The child shall maintain eligibility as long as the on-going criteria of age and legal responsibility are met. Age: To receive adoption assistance payments, a child shall be under the age of 18.

Legal Responsibility: No payments may be made if the adoptive parents are no longer legally and financially responsible for the support of the child, or if the child is no longer receiving any support from the parents.

A child may receive Title IV-E Adoption Subsidy payments and SSI benefits concurrently. When there is concurrent receipt of payments from both programs, SSJ shall count dollar-for-dollar, the amount of the IV-E Adoption Assistance, thus decreasing the SSI benefit by the amount of the adoption assistance payment. In addition, the adoption assistance payment shall be reduced to reflect the amount of SSI received. Once the adoption is finalized, the parent’s income is taken into consideration when determining the child’s continuing eligibility for SSI. Children with special needs adopted after October 1, 1997, who were initially eligible for IV-E adoption assistance and whose adoptions were dissolved, will be able to continue their IV-E eligibility when adopted again.

Sources for Laws and Policies Governing Adoption & Adoption Subsidies
CSFPA/COCAF Education Conference 2002
Federal Child Welfare Policy Manual
Chapter 8 — Title IV-E
http://cbl .acf.dlihs.gov/programs/cb/cwpm/

Chuidreffs Bureau November 6, 2001, Information Memorandum
(Amending the section of PA-0 1-01 pertaining to the eligibility of children for Title IV-E adoption assistance who are placed with private agencies through voluntary agreements and are subsequently placed for adoption):
http://cb1.acf.dhhs.gov/programs/cb/laws/imlim0108.htm

Social Security Act
http://wvvw.ssa.gov/OP Home/ssact/comp-toc.htm

Code of Federal Regulations, Title 45--Public Welfare
Chapter XIII—Office of Human Development Services, Department of Health and
Human Services
Part 1356—Requirements Applicable to Title IV-E
1356.40 — Adoption Assistance Program
http://www.access.gpo.gov/nara/cfr/waisidx 00/45cfr1 356 00.html

Adoption Policy Resource Center:
www.fpsoLcom/adoption/advocates.html

State Colorado Department of Human Services (CDHS) Rules and Regulations, Volume 7
http://www.cdhs.state.co.us/pls/cdhs/rule volumes$.volumes
(See COCAF web site, www.cocaf.org, Legislation Page, for details)

Colorado Revised Statutes
http://I98.l87.l28.1 2/colorado/lpext.dll?fAemplates&f1Ft5-main.htm&2.O
Click on ‘plus sign’ to the left of ‘Colorado Statutes’ on the left hand side of the page. Titles 19 (Children’s Code), and 26 (Human Services Code), contain pertinent sections.

North American Council on Adoptable Children (NACAC)
Colorado Subsidy Profile:
http://www.nacac.org/stateprofiles/colorado.html

Summary of State Adoption Assistance Programs, July 2002:
http://www.nacac.org/AAPchart.html

ADOPTION SAVES BILLIONS FOR U.S. TAXPAYERS
Subsidized adoption is the right thing to do
1 Section 9-1-2. Federal and state administrative costs, adjusted to 2002 dollars. Sedlak, A., and Broadhurst, D. (1993). Study of Adoption Assistance Impact and Outcomes (Contract #105-89-1607). Rockville, MD: Westat, Inc. 2 Section 9-2. Ibid.
A service provided by Adoption Subsidy Advocate
http://www.fpso1.com/adoption/po1icy/vo1untary.htm1
Federal Children’s Bureau Corrects Policy on Children Relinquished to Private Agencies

On November 6, 2001 the federal Children’s Bureau issued an Information Memorandum, ACYF-CB4M 01-08, announcing that children who came into the care of private agencies through voluntary agreements could be eligible for federal Title IV-E adoption assistance. The announcement reverses the policy change set forth in federal Policy Announcement (P.A.) 01-01 and restores a long standing interpretation of the Children’s Bureau regarding the eligibility of children placed by private agencies. The change was initially signaled in an October, 2001, a Secretary U.S. Department of Health and Human Services to Senator Mike DeWine, Ohio and other amendment promised by Secretary Thompson and stipulated that the new policy “should be followed as having been other members of Congress who had inquired about the policy. The new policy was to be inserted in Section 8.2B.13 of the Child Welfare dealing with eligibility provisions.

Guidance for Adoptive Families and Advocates

The policy amendment states that a special needs child who comes into the care of a private agency through a voluntary agreement or relinquishment may be eligible for IV-E adoption assistance if

What does this mean? Essentially, the amendment restores the policy that was in effect prior to the to issuance of P.A. 01-Olin January of 2001. In cases where a child comes into to care of a private agency through some form of voluntary agreement resulting in a voluntary termination of parental rights,
  1. There must be a petition filed with the court to review and approve the placement within six months of the date that the child is placed in a pre-adoptive home.
  2. The court must make a determination or finding that continuation in the home is contrary to the child’s welfare
Federal adoption assistance law at 42 U.S.C. 673 refers to the requirement for a judicial determination “to the effect that continuation in the home was contrary to the child’s welfare.” The use of this phrase suggests a concern that all placements be reviewed by a court to assure that they are in the child’s best interest. In the past a judicial determination that a placement was in the child’s best interest has been viewed as the equivalent of a determination “that continuation in the home was contrary to the child’s welfare. In petitioning the court for a judicial determination, parents and advocates would be well advised to ask the judge to rule on the specific language that continuation in the home is contrary to the child’s welfare simply to avoid any controversy with a public agency who may insist on a literal interpretation of the policy revision. If the use of such a phrase appears awkward when describing a voluntary placement, the petitioner might request that the judge determine “continuation in the home is contrary to the child’s welfare because all parties have agreed that placement for adoption is in the child’s best interest. Alternatively, one might ask the judge to determine that in light of the birth parent(s)’ decision to place their child for adoption and the approval of the adoptive family, continuation in the home is contrary to the child’s welfare.” If for some reason, the judicial determination finds that the placement is in the best interest of the child or that adoption is in the child’s interest, and agency refuses to accept the language as evidence of eligibility for IV-B adoption assistance, the parent(s) should contest the agency’s conclusion. If the agency issues a formal denial, the family should request an administrative hearing. Federal law, once again, qualifies the language of the desired judicial determination by use of the phrase “to the effect that continuation in the home was contrary to the child’s welfare.” Adoptive parents and advocates should point this out and emphasize that: b) Federal financial participation is available only for voluntary foster care maintenance expenditures made within the first 180 days of the child’s placement in foster care unless there has been a judicial determination by a court of competent jurisdiction, within the first 180 days of such placement, to the effect that the continued voluntary placement is in the best interests of the child.

The requirement for a review and judicial determination in the case a child placed voluntarily in foster care is strikingly similar to the corrected requirement for a judicial determination in the case case of a child placed voluntarily in the care of a private agency for the purpose of adoption. If foster care regulations interpret that a phrase “to the effect that continued voluntary placement is in the best interests of the child” satisfies the requirement for TV-B foster care eligibility, then it is more than reasonable to assume that similar language satisfies the judicial determination requirement for adoption assistance.

When issued P.A. 01-01 held that “the method of removal has the following implications for the AFDC-eligible child’s eligibility for title TV-B adoption assistance. Unless a child is meets the eligibility requirements for 551, he or she must not only satisfy the AFDCrelatedness standard but one of the following:

Since children in the care of private agencies are not eligible for TV-B foster care payments, the initial placement of the child into the care or custody of a private agency had to be the result of a judicial determination or the child was not eligible for adoption assistance. Tn short, the normal practice in which a birth parent signed a voluntary agreement with a private agency to place her child for adoption, rendered the child ineligible, unless he or she qualified for 551. The policy change announced by TM 0 1-08, which amends Section 8.2B.13 of the Child Welfare Policy Manual, retains the requirement that the child must be judicially removed in order to receive adoption assistance, but drops the stipulation that the initial placement must be made through a judicial determination. The revised policy allows for a judicial determination to follow a voluntary relinquishment to a private agency.

Retroactive Effect of the Policy Correction
TM 01-08 further noted the states “must enter into an adoption assistance agreement with the family” in any case where a child adopted after February 18, 2000 had been denied adoption assistance, but would have been eligible under the revised policy.

days of the child’s placement in foster care unless there has been a judicial determination by a court of competent jurisdiction, within the first 180 days of such placement, to the effect that the continued voluntary placement is in the best interests of the child.

The requirement for a review and judicial determination in the case a child placed voluntarily in foster care is strikingly similar to the corrected requirement for a judicial determination in the case of a child placed voluntarily in the care of a private agency for the purpose of adoption. If foster care regulations interpret that a phrase “to the effect that continued voluntary placement is in the best interests of the child” satisfies the requirement for TV-B foster care eligibility, then it is more than reasonable to assume that similar language satisfies the judicial determination requirement for adoption assistance.

When issued P.A. 01-01 held that “the method of removal has the following implications for the AFDC-eligible child’s eligibility for title TV-B adoption assistance. Unless a child is meets the eligibility requirements for 551, he or she must not only satisfy the AFDC relatedness standard but one of the following:

Since children in the care of private agencies are not eligible for TV-B foster care payments, the initial placement of the child into the care or custody of a private agency had to be the result of a judicial determination or the child was not eligible for adoption assistance. Tn short, the normal practice in which a birth parent signed a voluntary agreement with a private agency to place her child for adoption, rendered the child ineligible, unless he or she qualified for 551. The policy change announced by TM 0 1-08, which amends Section 8.2B.13 of the Child Welfare Policy Manual, retains the requirement that the child must be judicially removed in order to receive adoption assistance, but drops the stipulation that the initial placement must be made through a judicial determination. The revised policy allows for a judicial determination to follow a voluntary relinquishment to a private agency.

Retroactive Effect of the Policy Correction

TM 01-08 further noted the states “must enter into an adoption assistance agreement with the family” in any case where a child adopted after February 18, 2000 had been denied adoption assistance, but would have been eligible under the revised policy.

ACF
Administration for Children and Families
U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES
  1. Log No: ACYF-CB-IM-01-08
  2. Issuance Date: November 06, 2001
  3. Originating Office: Administration for Children and Families
  4. Key Words: Adoption Assistance Eligibility for Children who are Voluntarily Relinquished to Private, Nonprofit Agencies (Amends Policy on Voluntary Relinquishments in ACYF-CB-PA-O1-O1) INFORMATION MEMORANDUM
State Agencies Administering title IV-E of the Social Security Act, Indian Tribes and Indian Tribal Organizations

SUBJECT:

Title JV-E Adoption Assistance for Children who are Voluntarily Relinquished to Private, Nonprofit Agencies (Amends Policy on Children who are Voluntarily Relinquished to a Private, Nonprofit Agency set forth in ACYF-CB-PA-O1-O1)

LEGAL AND RELATED REFERENCES:

Sections 472(a)(2), 472(c)(2) and 473 of the Social Security Act; and sections 8.2B. 10 and 8.2B. 13 of the Administration for Children and Families (ACF) Child Welfare Policy Manual. (The policies in these sections of the ACF Child Welfare Policy Manual were set forth in ACYF-CB-PA-0l-0l and subsequently incorporated into the policy manual.)

PURPOSE:

The purpose of this Information Memorandum is to announce an amendment to the policy on voluntary relinquishments to private, nonprofit agencies that was set forth in ACYF-CB-PA-0l-0l. With this amendment, title IV-E adoption assistance is available in certain circumstances for otherwise eligible children who are voluntarily relinquished to a private, nonprofit agency.

INFORMATION:

The policy on voluntarily relinquishments applies the title IV-E adoption assistance eligibility criteria to all children without regard to whether a child is relinquished to a public agency or to a private, nonprofit agency. The attached, revised sections of the ACF Child Welfare Policy Manual convey the amended policy regarding the eligibility of children for title IV-E adoption assistance when they are voluntarily relinquished Accordingly, Section 8.2B.l0 has been revised and no longer restricts the responsibility for placement and care of voluntarily relinquished children to the State agency. Section 8.2B. 13 has been revised to allow eligibility in certain circumstances for otherwise eligible children who are voluntarily relinquished to a private, nonprofit agency.

EFFECTIVE DATE:

We previously permitted otherwise eligible children who were voluntarily relinquished to private, nonprofit agencies to be eligible for title IV-E adoption assistance in certain circumstances. That policy should be followed as having been continuously in effect with no break.’ For any child who was adopted without assistance after February 18, 2000 that the State determines would have been eligible in accordance with the policy as stated in Section 8.2B. 13 of the Child Welfare Policy Manual, the State must enter into an adoption assistance agreement with the family. The State must provide assistance in accordance with the agreement retroactive to the date as of which the child would have been eligible and in the adoptive home, consistent with Federal, State and local laws. Federal financial participation is available from that date for eligible children.

INQUIRIES TO: Regional HUB Directors/Regional Administrators, Regions J-X

Wade F. Horn, Ph.D.
Assistant Secretary
for Children and Families
ACF
8.2B.13 TITLE IV-E,
Adoption Assistance Program, Eligibility, Voluntary relinquishments Question:
Is a child who is voluntarily relinquished to a private, nonprofit agency eligible for title IV-E adoption assistance?
Answer:
As authorized by section 473(a)(2)(A)(i) of the Act, a child is eligible for title IV-E adoption assistance if s/he is removed from the home by way of a voluntary placement agreement with respect to which title IV-E foster care payments are provided, or as the result of a judicial determination that to remain in the home would be contrary to the child’s welfare. However, a child who is voluntarily relinquished to either a public or private, nonprofit agency will be considered judicially removed in the following circumstances:
  1. the child is voluntarily relinquished either to the State agency (or another public agency (including Tribes) with whom the State has a title IV-E agreement), or to a private, nonprofit agency; and
  2. there is a petition to the court to remove the child from home within six months of the time the child lived with a specified relative; and
  3. there is a subsequent judicial determination to the effect that remaining in the home would be contrary to the child’s welfare.
Under these circumstances, the AFDG-eligible child will be treated as though s/he was judicially removed rather than voluntarily relinquished. If the State agency subsequently determines that the child also meets the three criteria in the definition of a child with special needs in section 473(c) of the Act, the child is eligible for title lV-E adoption assistance. It however, there is no petition to remove the child from the home or no subsequent judicial determination, the child cannot be considered judicially removed for the purpose of title IV-E adoption assistance eligibility. Furthermore, if the court merely sanctions the voluntary relinquishment without making a determination that it is contrary to the child’s welfare to remain in the home, the child is not eligible for title lV-E adoption assistance.
Adoption Assistance Program, Eligibility, Responsibility for placement and care Question:
Must the State have responsibility for placement and care of a child for that child to be eligible for title IV-E adoption assistance?
Answer:
The eligibility requirements for adoption assistance in section 473(a)(2) of the Act do not specify that the State title IV-E agency must have placement and care responsibility for a child to qualify for adoption assistance. There are some situations, however, in which the criteria dictate that a child be under the placement and care responsibility of the State agency or that of another public agency (including Tribes) with whom the State has a title IV-E agreement in order to be eligible for title IV-E adoption assistance. These are:

  • a child who is placed pursuant to a voluntary placement agreement and who must have had a title IV-E foster care maintenance payment paid on his or her behalf under the agreement, consistent with section 472(a)(2) of the Act; and
  • a child who is eligible for title IV-E adoption assistance based upon his or her minor parent’s eligibility for title IV-E foster care while in the custody of the State agency, consistent with section 473(a)(2)(A)(iii) of the Act.
ACF
ADOPTION POLICY RESOURCE CENTER
A Checklist on Title lV-E Adoption Assistance and
State Adoption Subsidies for Adoptive Parents Contents: ? General Information and Orientation ? Application ? Financial Support and Adoption Related Services o Title IV-E Adoption Assistance and Reimbursement of Non-Recurring Adoption Expenses o State Funded Monthly Payment and Service Subsidies ? After the Final Decree of Adoption GENERAL INFORMATION AND ORIENTATION
  • Do you have complete information on the medical history and significant pre adoptive experiences of the child? Do you have a complete medical history of the child’s biological parents? Has every effort been made to obtain such information?
  • Have you had an extensive discussion with agency adoption professionals about the present and anticipated needs of the child and about the information and services that will be required to meet those needs?
  • Have you received training or preparation aimed at helping the child to understand issues pertaining to loss, grief, self identity and other typical problems that may surface during the course pf an adoption? Have you been encouraged to inquire about such training and informed where it might be obtained?
  • Have you had an extensive discussion about your family’s resources, particularly concerning the availability of information, financial resources and support services that will enable you to successfully incorporate the child into a new family?
  • Have you been encouraged to view adoption assistance/subsidy programs and post adoption services as essential parts of a post adoption support plan for a child who either has, or is at risk to develop some special needs?
  • Have you been encouraged to see the negotiation of subsidy benefits as analogous to securing a comprehensive health insurance plan for your child?
  • Do you have detailed information about all of the adoption assistance and adoption subsidy programs? (Title IV-E adoption assistance; reimbursement of non-recurring adoption expenses, state funded monthly payment subsidy; state funded service subsidy, post adoption service subsidy, SSI, etc.)
  • Have you been encouraged to explore the child’s eligibility for all adoption assistance and state funded adoption subsidy programs?
  • Have you applied for federal Title IV-E adoption assistance?
  • Have you or the agency explored eligibility for the federal Supplemental Security Income (S SI) program?
  • Have you applied for reimbursement of non-recurring adoption expenses. [Families may be eligible for reimbursement of up to $2,000 for expenses incurred in the adoption of a special needs child].
  • Have you explored the child’s eligibility for a state funded adoption service subsidy that pays for medical treatment, mental health therapy and other services associated with special needs?
  • Have you explored the child’s eligibility for a state funded monthly payment subsidy, particularly if the child is not eligible for IV-E adoption assistance?
  • Do you understand that, according to federal law, agencies cannot refuse to act on an application for federal Title JV-E adoption assistance or reimbursement of nonrecurring adoption expenses? The agency must respond in writing to each application.
FINANCIAL SUPPORT AND ADOPTION RELATED SERVICES
Title IV-E Adoption Assistance and Reimbursement of Non-Recurring Adoption Expenses
  • Do you understand that the child’s eligibility for federal Title JV-E adoption assistance does not depend upon your income and financial resources, but only on the child’s situation? States may not impose a means test as a condition for federal adoption assistance.
  • Do you understand that if the child is determined eligible for Title JV-E adoption assistance, then the child is categorically eligible for Medicaid and Title XX services and that the parent(s) may receive a monthly payment on behalf of the child?
  • Do you understand that the amount of adoption assistance is determined by an individual written agreement with the agency?
  • Do you understand that the amount of monthly adoption assistance payment specified in the written agreement should be determined after an extensive discussion with the agency about the child’s present and future needs and the resources that will be needed to fully incorporate the adoptive child into the family?
  • Do you understand that if an agreement for IV-E adoption assistance or reimbursement of non recurring expenses is not signed prior to finalization, the subsidy can only be awarded by appeal through administrative fair hearing?
  • Do you understand that federal Title TV-B adoption assistance is paid for though a combination of federal and non federal funding and that the federal portion is the same as the federal share of the state’s Medicaid program? The federal share of TV-B ranges from 50 to 80 percent. In Ohio, for example, the federal share is approximately 60 percent. State or a combination of state and county funds are used to supply the non-federal share.
  • Do you understand that federal financial participation (reimbursement) in TV-B adoption assistance is limited to monthly payments that do not exceed the family foster care payment rate? The family foster care payment rate is the level of support that the individual child would have received in a suitable family foster home, including one receiving difficulty of care payments for a special or exceptional needs child. There are no federal restrictions on how much a state may actually pay, but any amount of monthly subsidy payment above the individual child’s family foster care rate, would not be eligible for federal funds.
  • Do you understand that you have the right of appeal though a request for an administrative fair hearing if the agency declares the child ineligible or denies the child any benefit associated with federal adoption assistance programs? (Title TV-B adoption assistance or reimbursement of nonrecurring adoption expenses)
  • Do you understand that when an agency denies the child’s eligibility for the Title TV-B adoption assistance program, or a written request for an amount of TV-B adoption assistance, or an application for reimbursement of non-recurring adoption expenses, the agency must communicate the denial in writing, along with information about how to request an administrative fair hearing?
State Funded Monthly Payment and Service Subsidies
  • Do you understand that if the child is not eligible for Title TV-B adoption assistance, he or she may be eligible for a state funded monthly payment adoption subsidy?
  • Do you understand that some states have state funded service subsidies which are designed to pay for medical, mental health or other services and supplies that are not covered by other resources such as private health insurance or Medicaid?
  • Do you understand that your child may be eligible for both Title TV-B adoption assistance and a state funded service subsidy?
  • Tn negotiating a service subsidy have you and the agency considered the child’s anticipated needs as well as his or her current needs?
  • Are the written provisions on the service subsidy agreement clearly and explicitly stated so that you know exactly what services will be covered and how much the agency will pay for each service if it is not available though health insurance, Medicaid or other resources? Does the agreement specify how much the agency will pay to cover specific services if the need arises in the future?
  • Do you understand that failure to complete an agreement for a state funded adoption payment or service subsidy prior to finalization could place it in jeopardy or force the parent into an appeals process?
  • Are you confident that the combination of Title IV-B adoption assistance or state funded payment subsidy, reimbursement of non-recurring adoption expenses and state adoption service subsidy, arranged through written agreements with the agency, comprises an adequate plan of post adoptive support for the child?
  • If you don’t understand any of the items on this checklist, have you contacted an adoptive parent support group or another reliable source of information for clarification or guidance?
AFTER THE FINAL DECREE OF ADOPTION
  • Do you understand that some states have service subsidies which adoptive families may apply for after the adoption has been finalized? These post adoption service subsidies are designed to help address problems that have either arisen or become more serious after the adoption.
  • Do you understand that existing Title IV-B adoption assistance agreements and state funded adoption subsidy agreements may be amended at any time by mutual agreement between the adoptive parents and the agency?
  • Do you understand that if you failed to obtain federal Title IV-B adoption assistance or an agreement for reimbursement of non recurring adoption expenses prior to finalization of the adoption, you may apply by appealing through the state’s administrative fair hearing system? (Adoptive parents are particularly encouraged to do so if they were unaware of their child’s special needs or the existence of adoption programs at the time of adoption, or if an agency error prevented them from receiving IV-B adoption assistance).
  • Do you understand that if the child is found eligible for federal Title IV-B adoption assistance folldwing a state hearing, the child will be eligible for future adoption assistance payments, Medicaid and Title XX services as if the adoption had not been finalized?
  • Do you understand that in filing an appeal for an administrative fair hearing to determine your child’s eligibility for IV-B adoption assistance, you may also request that retroactive adoption assistance payments be made back to the date of finalization or placement if your child is found eligible? (If you decide to pursue retroactive benefits, you should make a written request for retroactive adoption assistance payments part of your petition for an administrative fair hearing to reconsider your child’s eligibility for the federal adoption assistance program.)
  • Do you understand that if your state has no established policy on eligibility for IV-B adoption assistance after finalization or retroactive payments that you may be denied at the initial hearing and at the administrative review steps in the hearing process? Do you understand that in such cases, it may be necessary to file for a judicial review by a local court in order to have a chance of obtaining the benefits your child needs?
Article provided by Adoption Advocates via the Adoption Policy Resource Center http://www.fpsol.com/adoption/advocates.htm1
May be reproduced and redistributed for non-commercial purposes if attribution is maintained.
ACF
Adoption Subsidies: What to Know Before the Negotiation Starts
CSFPA/COCAF 2002 Education Conference
October 10, 2002
Presenter Deborah Cave
(Much of the information below was provided by the North American Council on Adoptable Children — NACAC — at their Adoption Subsidy Training Workshop, 12/01)

The original Social Security Act (the Act) is iLL. 74-271 (149 Stat. 620), approved S~l4/35. The Act has been amended in part, several times.

There are several Titles of importance to adoptive entitles within the Act:

Part A - Block Grants to States or TANE
Part B — Child and Family Services
Subpart I-- Child Welfare Services
Subpart 2 — Promoting Safe and Stable Families (PS SF)
Part D — Child Support and Establishment of Paternity
Public Law 96-272. the Adoption Assistance arid Child Welfare Act of 1980, became effective June 17. 1980. It amended Title IV of the Social Security Act to establish a new’ Part F. which prox ides for Federal payments to the states or foster care maintenance and adoption assistance warrants [adoption subsidies3 made on behalf of certain eligible children.
Part F — Federal Payments frr Foster Care and Adoption Assistance
The discussion below will be focusing on Section 473 of Title TV-B of the 1980 Social Security Act.

There are two possible mechanisms for receiving subsidies: being eligible for Federal IV-B program, or receiving a State Subsidy.

V FEDERAL LV-E Adoption Subsidy Assistance Eligibility

in order to be eligible for Federal TV-B Adoption Assistance, the child MUST meet their state’s legal definition of special needs. Each state defines ~special need< differently. The following three conditions must all be met in order to meet the ‘special needs’ definition:

  1. the State has determined that the child cannot or should not be returned to the home of his parents; and
  2. the State had first determined:
    1. that there exists with respect to the child a specific factor or condition (such as his ethnic background, age, or membership in a minority or sibling gro up, or the presence of frictors su&h as medical conditions or physical, mentat or emotional handicaps) because of which it is reasonable to conclude that such child carn~ot be placed with adoptive parents without providing adoption assistance under this section or medical assistance under title XIX, and
    2. that, except where it would be against the best interests of the chiki because of such thetors as the existence of significant emotional ties with prospective adoptive parents while in the care of such pareras as a foster child, a reasonable, but tmsuecessffll, effort has been made to place the child with appropriate adoptive parents without providing adoption assistance under this section or medical assishmce wider tide XIX, (see page 6 ofPAA)1-O1, top paragraph). in order to satisfy 2(A), the child only needs to meet ONE of the characteristics within the State’s definhion of ‘special need).
The State must determine that the child meets the definition of a child with special needs prior to finalization of the adoption

In addition to meeting The definition of special needs’. the child must also meet one of the following 4 criteria:

  1. AFDC (Aid to Families with Dependent Children) eligibility:
  2. 881 (Supplemental Security Income) eligibility;
  3. Miner parent has child in foster care; or
  4. Death or dissolution of prior adoption.
These criteria are described in greater detail below.

1. AFDC

AFDC has been replaced by TANE, Temporary Aid to Needy Families (1996). In order to meet AFDC eligibility, both of the following must be true:

  • The child must be needy — need exists in the child’s home if resources available to the family are below $ 101)00. (PA-FLU -01). Financial family must be lower income (e.g.. food stamps, public assistance, etc.); and
  • Deprivation — deprivation exists in the home if there is a death of a parent, an absent parent, or a parent with a mental or physical incapacity such that the parent cannot support or care of the child, and the child is living with a specified relative.
  • The AFDC requirement for living with a dependent relative is satisfied at any point beginning 6 months prior to the month in which the child’s removal was initiated or the voluntary placement was signed.
The statute recognizes two types of removal of the child from the home. lithe child is removed from the home:

pursuant to a judicial determination, the determination must indicate that it was contrary to the child’s welfare to remain in the home (wording very important). This ruling must now be made at the first court hearing that sanctions the removal of the child.

  • pursuant to a voluntary placement agreement, the child must receive Title IW-E foster care payments while in care to be eligible for Title P1-B adoption subsidy.
AFDC eligibility must be met at 2 points in time:
  • at the time of removal from his home; and
  • in the month the adoption petition is initiated.
Once a child is in foster care, need is based upon the resources available to the child. There after. resources available to the child must be below the $10,000 limit at the time of she adoption petition. A TPR can serve as proof of deprivation at the time of the adoption petition (PA-U 1-01).

Voluntary relinquishment. Does not meet the statutory requirements. However, the state agency may petition the court within 6 months of the child living with a specified relative and obtain a judicial determination. In this case, the child has a judicial determination, and may obtain 1½ the Adoption Assistance (pg. 8 PA-Ol-O I). 2. SSI

  • Child must be eligible for SSI at the time the adoption petition is filed.
There are no additional criteria that a child must meet to be eligible for Title JIM—B adoption assistance when eligibility is based on a special needs child meeting SM requirements (PA-U 1-01). If a child qualifies for 881, it makes NO difference how the child was removed from the home, or who has care and custody.

3. Foster Child has a baby while in Foster Care

  • Foster child receives Title TV-B foster care that covers both the minor parent and the child at the time the adoption petition is filed (initiated): AND
  • Prior to finalization, the child of the minor parent is determined to meet the definition of a child with special needs.
The child of the minor parent does not have to be removed pursuant to a voluntary placement or as a result of a judicial determination. If the minor parent and child are separated in foster care PRIOR to adapt ion petition, the child’s eligibility must then be determined based on the child’s current and individual circumstances.

4. Death/Dissolution

  • If a child receiving TV-B subsidy is returned to care because adoptive parents die or the adoption is dissolved, s/he retains eligibility for the subsidy in a subsequent adoption.
  • The only determination that must be made by the State prior to finalization of a subsequent adoption is that the child still meets the State’s definition of ‘special needs. The child must be re-adopted to receive benefits.
The manner of the child’s removal from the adoptive home, including whether the child is voluntarily relinquished to an individual or private agency, is irrelevant

II STATE Adoption Subsidy

  • Child must meet state’s definition of special needs.
  • Subsidies cannot exceed the family foster care rate.
* Rates are to be individually negotiated. IlI Additional information
  • If the family moves across state lines, the subsidy continues to be paid by state of origin.
  • If the family moves across state lines, Medicaid is paid by state of residence.
  • Children adopted through Independent and international adoptions are not eligible for adoption subsidy.
Deborah Cave
President. Colorado Coalition of Adoptive Families, COCAF
cocafcave@yahoo.com

COCAF
P.O. Box 28254 #16
Lakewood C 0 80228
303.620-5150
www.cocaf.org

U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES
Administration on Children, Youth and Families
http://www.acf.dhhs.gov/programs/cb/laws/pa/pa0101 .htm
  1. Log No: ACYF-CB-PA-01-0l
  2. Issuance Date: January 23, 2001
  3. Originating Office: Children's Bureau
  4. Key Words: Adoption Assistance Eligibility
POLICY ANNOUNCEMENT
State Agencies Administering title IV-E of the Social Security Act, Indian Tribes and Indian Tribal Organizations

SUBJECT:

Title IV-E doption Assistance (Eligibility and Ancillary Policies)

LEGAL AND RELATED REFERENCES:

Sections 403, 431(b), 471(a)(18), 471(a)(20)(A), 473 and 474(e) of the Social Security Act: Public Law 100-203. Section 9133; Public Laws 99-514, 100-205, 104-188, 104- 193, 104-208, 105-33. 105-89. and 106-169; 8 USC 1641(b); 45 CFR Parts 5 1356.40. and 1356.41; ACYF-PA-88-0 1; ACYF-PIQ-89-0 1; ACYF-PIQ-90-02; ACYFCB-PIQ-98-02; ACYF-CB-PIQ-99-01; and ACYF-CB-IM-00-0)

WITHDRAWN ISSUANCES:

ACYF-PIQ-82-01 (Q&A #1)
i- CY LPIQ-82-02
CYF-PIQ-87-05 (with ACYF-CB-L ‘1-00-0) effective 2/18/2000) ACYF-PIQ-82-16 (1. 2. 3, and 5)
ACYF-PA-8 8-01
C T-PIQ-82-18 (2. 3, 4 and 5)
ACYF-PIQ-88-06
CYF-PIQ-85-04
CYF-PIQ-89-02 (Q&As 1,2 and 5)
CYF-PiQ-85-05 (Q&As 5 and 6)
ACYF-PIQ-90-02 (Q&As 1. 2, 4. 5 and 6)
ACYF-PIQ-86-05
ACYF-PIQ-91-04
ACYF-PA-87-03
ACYF-PIQ-92-02

PURPOSE

This announcement provides comprehensive guidelines for States to use in determining a child's eligibility for title IV-E adoption assistance. Although the Children’s Bureau has issued numerous policy issuances on this topic in the past, we continue to receive requests for policy clarification in this area. In an effort to be responsive to continuing questions and provide a comprehensive issuance on title IV-E adoption assistance eligibility, we carefully reviewed the statute, as well as all of the current title IV-E adoption assistance eligibility and ancillary policies. As a result, this issuance not only contains current policies, but we also have taken this opportunity to revise some of the existing policies and practices in order to bring them in line with the statute. Those are discussed fully in the appropriate sections below. In addition, the withdrawn policy issuances and the previous and revised policies are highlighted in Appendix B. To the extent that there are conflicting requirements in earlier issuances that may not have been withdrawn with this issuance, the requirements set forth in this Policy Announcement prevail.

BACKGROUND

Legislative Context
The adoption Assistance and Child Welfare Act of 1980 (Pub. L. 96-272), among other things, created the first Federal adoption assistance program under title IV-E at section 473 of the Social Security Act (the Act). The legislative history’ indicates that Congress was concerned primarily with moving children in State foster care systems into permanent adoptive homes when appropriate. The title IV-E adoption assistance program, therefore, was developed to provide permanency for children with special needs in public foster care by assisting States in providing ongoing financial and medical assistance on their behalf to the families who adopt them.
Under the original program, children who were otherwise eligible for Aid to Families with Dependent Children (AFDC) and removed from their homes and children who were eligible for Supplemental Security Income (S SI) benefits could qualify for title IV-E adoption assistance. Later amendments to the program allowed children who were voluntarily placed for foster care and children of minor parents in foster care to be eligible for the program.2 When AFDC was abolished in 1996, a look back provision continued to link a child’s eligibility to the previous AFDC criteria.
The Tax Reform Act of 1986 (Public Law 99-514) further amended the title IV-E adoption assistance program. An amendment to section 473(a)(l) requires States to reimburse adoptive parents for the nonrecurring expenses incurred in the adoption of a child with special needs, as defined in section 473(c) of the Act.
Title IV-E was further amended in 1996 by section 1808 of the Small Business Job Protection Act (Public Law 104-1 88) by adding a new State plan requirement (section 471(a)(18) of the Act). This provision prohibits the delay or denial of a foster or adoptive placement based on the race, color or national origin of the prospective foster parent, adoptive parent, or child involved. Section 1808 also includes a penalty structure and coiTective action planning provision at section 474(d) of the Act for any State or entity of the State that violates section 471(a)(18). The title IV-E adoption assistance program was amended most recently by the Adoption and Safe Families Act of 1997, Public Law 105-89. An amendment to section 473(c) allows children who were pre Jously eligible for title IV-E adoption assistance to retain their eligibility for the program in a subsequent adoption in the event of the adoptive parents death or dissolution of the adoption. There is no comparable provision for title lN7-E foster care, however.
The Adoption and Safe Families Act of 1997 also includes a safety provision ‘for children who are placed in foster homes or with adoptive parents.~ With respect to the placement of children in adoptive homes, the provision requires that each State (unless the State opts out of the requirement) conduct a criminal records check on prospective adoptive parents prior to approving the adoptive placement for a child. Any State that opts out of the original record check requirement must document in each case how safety considerations with respect to the adoptive parents have been addressed.
The Foster Care Independence Act of 1999 (Public Law 106-169), enacted on December 14, 1999 added language to section 472(a) of the Act that increased the resource limit for a title IV-E foster child from $1,000 to $10,000. This provision is extended to include eligibility for title IV-E adoption assistance under section 473 of the Act. POLICY ANNOUNCEMENT Requirements for Title IV-E Adoption Assistance Eligibility A State is required to enter into an adoption assistance agreement with the adoptive parents of a child with special needs (as defined in section 473(c) of the Act) and provide adoption assistance if the child meets specific requirements. There are four ways that a child can be eligible for title IV-E adoption assistance:

  1. 1. Child is AFDC-eligible for and meets the definition of a child with special needs Adoption assistance eligibility that is based on a child’s AFDC eligibility is predicated on a child meeting the criteria for such both at the time of removal6 and in the month the adoption petition is initiated.7 In addition, the State must determine that the child meets the definition of a child with special needs prior to finalization of the adoption. The method of removal has the following implications for the AFDC-eligible child’s eligibility for title IV-E adoption assistance:
    • If the child is removed from the home pursuant to a judicial determination, such determination must indicate that it was contrary to the child’s welfare to remain in the home; or
    • If the child is removed front the home pursuant to a voluntary placement agreement cut, that child must actually receive title IV-E foster care payments to be eligible for title IV-E adoption assistance.
  2. Child is eligible ‘for Supplemental Security Income (SSD benefits and uteets the definition of a child with special needs1 A child is eligible for adoption assistance if, at the time the adoption petition is filed, the child meets the requirements for title XVI SSI benefits, and prior to the finalization of the adoption is determined by the State to be a child with special needs. There are no additional criteria that a child must meet to be eligible for title IV-E adoption assistance when eligibility is based on a special needs child meeting SSI requirements. Specifically, how a child is removed from his or her home or whether the State has responsibility for the child’s placement and care is irrelevant in this situation. Unlike AFDC eligibility that is determined by the State child welfare agency, only a designated Social Security Administration claims representative can determine SSI eligibility and provide the appropriate eligibility documentation to the State. The child’s eligibility for SSI benefits must be established into later than at the time the adoption petition is filed.
  3. Child is eligible as a child of a minor parent and meets the definition of a child with special needs9 A child is eligible for title IV-E adoption assistance lit this circumstance if:
    • the child’s parent is in foster care and receiving title IV-E foster care maintenance payments that cover both the minor parent and the child at the time the adoption petition is initiated; and
    • prior to the finalization of the adoption, the child of the minor parent is determined by the State to meet the definition of a child with special needs.
    There are no additional criteria that must be met in order for a child to be eligible for title IV-E adoption assistance if the child’s eligibility is based on his or her minor parent’s receipt of foster care while placed with the minor parent in foster care. As with SSI, there is no requirement that a child must have been removed from home pursuant to a voluntary placement agreement or as a result of a judicial determination. However, if the child and minor parent have been separated in foster care prior to the time of the adoption petition, the child’s eligibility for title IV-E adoption assistance must be determined based on the child’s current and individual circumstances, consistent with section 473 of the Act.10
  4. Child is eligible due to prior title IV-E adoption assistance eligibility and meets the definition of a child with special needs in the situation where a child is adopted and receives title IV-E adoption assistance, but the adoption later dissolves or the adoptive parents die. a child may continue to be eligible for title IV-E adoption assistance in a subsequent adoption. The only determination that must be made by the State prior to the finalization of the subsequent adoption is whether the child is a child with special needs, consistent with the requirements in section 473(c) of the Act. Need and eligibility factors of sections 473 (a)(2)(A) and (B) of the Act must not be redetermined when such a child is subsequently adopted because the child is to be treated as though his or her circumstances are the same as those prior to his or her previous adoption.11 Since title IV-E adoption assistance eligibility need not be re-established in such subsequent adoptions, the manner of a child’s removal from the adoptive home, deciding whether the child is voluntarily relinquished to an individual or private agency, is irrelevant.

Special Needs Determinations

An integral part of establishing adoption assistance eligibility requires the State to determine that the child is a child with special needs in accordance with all three criteria defined in section 473(c) of the Act:

  • First, the State must determine that the child cannot or should not be returned to the home of his or her parents (section 473 (c)(l) of the Act); and
  • Second, the State must determine that there exists a specific factor or condition because of which it is reasonable to conclude that the child cannot be placed with adoptive parents without providing title IV-E adoption assistance or title XIX medical assistance.12 Such a factor or condition may include (but is not limited to) ethnic background, age or membership in a minority or sibling group, the presence of a medical condition, or physical, mental or emotional disabilities. For example. in some States ethnic background alone may inhibit the ability of a child to be adopted. while in other States a combination of factors, sue t as minority status and age, may be factors. It is important to note that in each case the State must conclude that, because of a specified factor or factors, the particular child cannot be placed with adoptive parents without providing assistance; and
  • Finally, the State must determine that in each case a reasonable, b it unsuccessful, effort to place the child with appropriate parents without providing adoption assistance has been made.1 Such an effort might include the use of adoption exchanges, referral to appropriate specialized adoption agencies, or other such activities. The only exception to this requirement is when it would not be in the best interests of the child because of such factors as the existence of significant emotional ties with prospective adoptive parents while in the care of those parents as a foster child. The exceptions also extends to other circumstances that are not in the child’s best interest, as well as adoption by a relative, in keeping with the statuary emphasis on the placement of children with relatives.
The State must document in each child’s case record the specific factor(s) that make the child difficult to place and describe the efforts to place the child for adoption without providing assistance. In an effort to find an appropriate adoptive home for a child, and meet the requirement that a reasonable, but unsuccessful, effort be made to place the child without adoption assistance, it is not necessary for the agency to ‘shop” for a family while the child remains in foster care. Once the agency has determined that placement with a certain family is in the child’s best interest, the agency should make full disclosure about the child’s background, as well as known or potential problems. If the agency has determined that the child cannot or should not return home and the child meets the statutory definition of special needs with regard to specific factors or conditions, then the agency can pose the question of whether the prospective adoptive parents are willing to adopt without assistance. If they say they cannot adopt the child without adoption assistance. the requirement in section 473(c)(2)(B) for a reasonable, but unsuccessful, effort to place the child without providing adoption assistance will be ntet.14

Determining Need and Deprivation

If a child’s eligibility for title IV-E adoption assistance is based upon his or her eligibility for AFDC as a dependent child, the State must determine that the child would have been AFDC-eligible in the home from which s/he was removed. To meet the AFDC criteria, the child must be both a needy child and a child who is deprived of parental support or whose principal wage earner parent is unemployed. Need exists in the child’s home if the

resources available to the family are below $10,000. Deprivation exists in the home in situations where there is death of a parent, an absent parent, or a parent with a mental or physical incapacity to the extent that the parent cannot support or care for the child. At the point of the removal of a child from his or her home, a termination of parental rights (TPR) alone is not proof that deprivation exists. The factors noted here must be established based on the circumstances in that home.

In addition, the child must meet the need and deprivation requirements at the time of the adoption petition. Once a child is in foster care, need is based upon the resources available to the child. Hence, the resources available to the child must be below the $10~000 limit at the time of the adoption petition. After a child has been determined deprived in the home from which s/he is removed, a TPR can serve as proof of deprivation at the time of the petition.

Adoption Assistance Agreements

Title IV-E adoption assistance is available on behalf of a child if s/he meets all of the eligibility criteria and the State agency offers into an adoption assistance agreement with the prospective adoptive parent(s) prior to the finalization of the adoption. The agreement must be signed by all parties to the agreement (namely, the adoptive parents and a State agency representative) in order to meet the requirements for an adoption assistance payment.

Once an adoption assistance agreement is signed and in effect, it can be terminated under three circumstances only. Nantely, (1) the child has attained the age of 18 (or the age of 21 if the State has determined that the child has a mental or physical disability which would warrant continuation of assistance); (2) the State determines that the adoptive parents are no longer legally responsible for support of the child; or (3) the State determines that the adoptive parents are no longer providing any support to the child.

A parent is considered no longer legally responsible for the support of a child when parental rights have been initiated or when the child becomes an emancipated minor, marries. or enlists in the military. We have defined “any support’ as various forms of financial support. The State may determine that payments for family therapy, tuition, clothing, maintenance of special equipment in the home. or services for the child’s special needs. are acceptable forms of financial support. Consequently, the State may continue the title IV-E adoption subsidy if it determines that the parent is, lit fact, providing some part of financial support to the child even in situations where the child is placed in some form of out-of-home care.19

Nonrecurring Expenses of Adoption

The State must enter into an adoption assistance agreement prior to the finalization of the adoption and reimburse (up to $2000, or at State option a lower limit) the nonrecurring adoption expenses incurred by any parent who adopts a child with special needs. The only eligibility criterion to be applied for reimbursement of the nonrecurring expenses of adoption is that the State determine that the child meets the definition of special needs, in accordance with section 473(c) of the Act. A child does not have to be eligible for AFDC, title IV-E foster care, or SSI in order for the adoptive parents to receive reimbursement for their nonrecurring adoption expenses. Nor does the child have to be under the responsibility for placement and care of the State agency in order for the adoptive parents to be reimbursed for the nonrecurring expenses of adoption.

The term nonrecurring adoption expenses is defined as the reasonable and necessary adoption fees, court costs, attorney fees and other expenses which are directly related to the legal adoption of a child with special needs, which are not incurred in violation of State or Federal law, and which have not been reimbursed from other sources or funds20

Federal financial participation is available at the matching rate of 50 percent for State expenditures up to $2000 for each adoptive placement.

Discussion of Adoption Assistance Eligibility Issues

Voluntary Placements

The statute allows a child who has been removed from home pursuant to a voluntary placement agreement to be eligible for adoption assistance in limited situations. An otherwise eligible child must be placed for foster care via a voluntary placement agreement, and have title IV-E foster care maintenance payments paid on his or her behalf pursuant to that voluntary agreement, to be subsequently eligible for adoption assistance21 Therefore, a child must have been under the State title IV-E agency’s responsibility for placement and care, or that of another public agency (including Tribes) with whom the title IV-E agency has an agreement at the time of the voluntary placement agreement. to be eligible for a title IV-E foster care maintenance payment and, subsequently, for adoption assistance.

Previous policy (ACYF-PIQ-87-05 and ACYF-PIQ-85-04) allowed title IV-F adoption assistance eligibility for children who were placed via a voluntary placement agreement to a private, non-profit agency (regardless of whether there was a title IV-E agreement with the State agency) if there was a subsequent judicial determination within six months of the date the child last liver with the specified relative to the effect that to remain in the home would be contrary to the child’s welfare. These policies have been withdrawn because they are inconsistent with ACY ~-PIQ-89-0I.

The state recognizes two types of removals: (1) children who are removed as a result of a voluntary placement agreement with respect to which title IV-E foster care payments were made; and (9) children who are removed as a result of a judicial determination to the effect that to remain in the home would be contrary to the child’s welfare. Accordingly. children who are removed as a result of a voluntary placement agreement are removed via an avenue for removal authorized by the state. However, removal is one of two requirements. The second requirement is that the child have title IV-E foster care maintenance payments paid on his or her behalf pursuant to the agreement. Accordingly, children placed pursuant to a voluntary placement agreement under which a title IV-E foster care maintenance payment is not made are not eligible to receive title IVF adoption assistance.

Voluntary Relinquishments

A voluntary relinquishment does not meet the statutory requirements for either of the two types of removals of a child from his or her home authorized by section 473(a)(2)(A)(i) of the Act. Specifically, when a child is removed front the home by way of a voluntary relinquishment, the removal is neither the result of a voluntary placement agreement nor the result of a judicial determination that the children in the home would be contrary to the child’s welfare, as defined in the statute. However, we have considered a child who has been placed with the State agency or another public agency (including Tribes) with which the State has a title IV-E agreement via a voluntary relinquishment to meet the section 473(a)(2)(A)(i) requirements for a judicial removal in the following specific circumstance:22 The State must petition the court within six months of the child living with a specified relative and obtain a judicial determination to the effect that remaining in the home would be contrary to the child’s welfare. As such, the child shall then be treated as though s/he were judicially removed rather than voluntarily relinquished, if the petition to remove the child from the home and the subsequent judicial determination does not occur, the child cannot be considered judicially removed for the purpose of title IV-E adoption assistance eligibility. Furthermore, if the court merely sanctions the voluntary relinquishment without making a determination that it is contrary to the child’s welfare to remain in the home, the child is not eligible for title IV-E adoption assistance.

Previous policy (ACYF-PIQ-87-05) allowed relinquishments to private non-profit agencies. This policy, however, conflicted with ACYF-PIQ-89-0l, which restricts the eligibility of relinquished children to those relinquished to the State or local agency only. Accordingly, ACYF-PIQ-87-05 was withdrawn by ACYF-CB-IM-00-02 on February 18, 2000 and the later policy prevails. There are two circumstances tinder witich the nature of a child’s removal from his or her home is irrelevant:

  1. when a child is SSI-eligible at the time adoption proceedings are initiated and the State determines that the child meets the statutory definition of special needs prior to the finalization of the adoption; and
  2. in a subsequent adoption when a child received title IV-E adoption assistance in a previous adoption that dissolved or in which the adoptive parents died, if the State determines that the child continues to be a child with special needs.
Under these two circumstances, in additional eligibility criteria should be applied to determine title IV-E adoption assistance eligibility, including whether a child had been voluntarily relinquished.

Responsibility for Placement and Care

The eligibility requirements for adoption assistance in section 473(a)(2) of the Act do not specify that the State title IV-E agency must have placement and care responsibility for a child to qualify for adoption assistance. There are some situations, however, in which the criteria dictate that a child be under the placement and care responsibility of the State agency or that of another public agency (including Tribes) with whom the State has a title IV-E agreement in order to be eligible for title IV-E adoption assistance. These are:

  • a child who is placed pursuant to a voluntary placement agreement and who must have had a title IV-E foster care maintenance payment paid on his or her behalf under the agreement;23 and
  • a child who is voluntarily relinquished to the State agency if there is a petition to the court within six months of the date the child was last with the specified relative that leads to a judicial determination that to remain in the home would be contrary to the child’s welfare.24

Judicial Determinations

To fulfill the eligibility criteria in section 473(a)(2)(A)(i) of the Act when a child’s removal from the home is the result of court action, there must be a judicial determination to the effect that to remain in the home would be contrary to the child’s welfare. Since a child’s removal from the home must occur as a result of such a judicial determination, the determination must be made in the first court ruling that sanctions (even temporarily) the remova1 of a child from the home. If the determination is not made in the first court ruling pertaining to removal from the home, the child is not eligible for title IV-E adoption assistance. The contrary to the welfare finding must be explicit and made on a case-by-case basis. Items such as home pro tune orders, affidavits, and bench notes are not acceptable substitutes for a court order. Only an official transcript is sufficient evidence of the judicial determination. A judicial determination regarding reasonable efforts to prevent removal or reunition family. Although required for title IV-E foster care is not a requirement for title IV-E adoption assistance eligibility.

Prior to the publication of the contrary to the welfare requirements in regulation at 45 CER 1356.2 1(c), States were allowed up to six months after a child’s removal to obtain a contrary to the welfare determination, consistent with the Departmental Appeals Board (DAB) decision #1508. Children removed from their homes and placed in title IV-E foster care after the effective date of this issuance must have the contrary to the welfare determination in the first court order removing the child from the home.

Termination of Parental Rights

One of the criteria for establishing that a child has special needs is a determination by the State that the child cannot or should not be returned to the home of his or her parents.25 Previous guidance stated that this means that the State must have reached that decision based on evidence by an order from a court of competent jurisdiction terminating parental rights, the existence of a petition for a termination of parental rights (TPR), or a signed relinquishment by the parents.26 It has been brought to our attention that there are situations in which adoptions are legal without a TPR. Specifically, in some Tribes adoption is legal without a TPR or a relinquishment from the biological parent(s), and there is at least one State that allows relatives who have cared for a related child for a period of time to adopt without first obtaining a TPR.

After consideration, we believe that our earlier policy in ACYF-PIQ-89-02 (Q/A #1) is an unduly narrow interpretation of the statute and supersede that policy with this issuance. Consequently, if a child can be adopted in accordance with State or Tribal law without a TPR or relinquishment, the requirement of section 473(c)(l) of the Act will be satisfied, so long as the State or Tribe has documented the valid reason why the child cannot or should not be returned to the home of his or her parents.

Child’s immigrant status27

The Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PR ‘ORA), Public Law 104-l93,28 limited Federal public benefits to qualified aliens. Adoption assistance under title IV-E of the Act is considered a federal public benefit for the purposes of the PRWORA,29 and, thus, is limited to qualified aliens. The definition of a qualified alien, at 8 USC 164 1(b), includes certain permanent residents, flees, and refugees. Children who are illegal aliens or undocumented immigrants are not eligible for adoption assistance since they are not qualified aliens.

In addition, section 403 of PRWORA requires a qualified alien entering the United States on or after the date of enactment of PRWORA (August 92 1996), unless excepted. to live in the United States for five years before becoming eligible for Federal public benefits. In accordance with section 403(c)(2)(F) of PRWORA, however, Federal payments for foster care and adoption assistance are excluded from this five-year residency requirement if the child and the foster or adoptive parents with whom s/he is placed are both qualified aliens. Accordingly, if a foster or adoptive parent is not a qualified alien, a child who is otherwise eligible under section 473 of the Act must meet the five-year residency requirement to receive title IV-E adoption assistance.

International Adoptions

As noted earlier in this document, the Federal adoption assistance program under title IV-E was intended to provide permanency for children with special needs in public foster care by assist lug States in providing ongoing financial and medical assistance to the families who adopt them. As a result, the statutory requirements for title IV-E adoption assistance eligibility are geared to needy children in public child welfare systems and are difficult, if not impossible, to apply to children who are adopted from abroad. Therefore, although the statute does not categorically e