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[Current Status: Withdrawn in January 2001 by PA-01-01]
U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES
Administration on Children, Youth and Families
TO: State Agencies Administering or Supervising the Administration of Title IV-E of the Social Security Act and Indian Tribes and Indian Tribal Organizations
SUBJECT: Request for Clarification of State Adoption Subsidy Requirements in Relation to Section 473 (a) (2) of the Social Security Act (the Act)
SUMMARY OF REPLY:
Title IV-E does not require that States, in all cases, have responsibility for placement and care (or custody) of a child as a prerequisite to adoption assistance under the Federal program. Further, there are no tittle IV-E provisions which would allow States to attach eligibility requirements for adoption assistance under that title in addition to those cited in the Federal statute.
LEGAL AND RELATED REFERENCES:
Section 473 of the Social Security Act: ACYF-PIQ-85-3, Issued March 19, 1985. ACYF-PIQ-85-4, Issued April 16, 1985
QUESTION:
In some States, statutory requirements for adoption subsidy programs limit eligibility under title IV-E to children who are committed or relinquished to the State agency. Are these provisions consistent with the requirements of title IV-E, section 473(a) (2), of the Social Security Act?
INTERPRETATION:
No. State statutes which limit access to the Title IV-E Adoption Assistance Program by the addition of eligibility requirements beyond
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those required under the Federal statute are not in conformance with title IV-E. The Act establishes the eligibility criteria in section 473(a)(2) as the sole criteria. It does not set forth the listed criteria as minimums or as examples of eligibility criteria.
The eligibility requirements for the Adoption Assistance Program are found in section 473(a)(2) of the Act. While this section references the requirements of the title IV-A AFDC program, the title IV-E foster care program, and the title XVI SSI program, it does not specify, in addition, that a child must be under the legal custody or responsibility of the title IV-E administering agency, through commitment or relinquishment, to be eligible for title IV-E adoption assistance.
While it is necessary for a child to be under the responsibility of the State agency in order to be eligible for title IV-E foster care (section 472(a)(2) requirement), there will be other situations in which children with special needs are in care under the responsibility of private, non-profit agencies without the involvement of the State agency. When adoption is the goal for such children, and they are determined to be AFDC or SSI-eligible, the title IV-E agency may not exclude them from consideration or approval, if they are otherwise found eligible for adoption assistance in accordance with section 473.
If a State does not have responsibility for placement and care of the otherwise eligible child, the child may be eligible for title IV-E adoption assistance under any of the following circumstances:
1. At the time the adoption petition is filed, the child is eligible for; AFDC while living with a specified relative (section 473(a)(2)(A)(i):
2. The child meets the eligibility requirements for the SSI program prior to the finalization of the adoption (section 473(a)(2)(A)(ii);
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3. The AFDC-eligible child is placed in foster care through a voluntary placement agreement (or relinquishment) with a private, non-profit agency (no title IV-E payment is made) and a judicial determination is subsequently made (following an initiation of court proceedings within six months of removal of the child from the home of a relative) to the effect that continuation in the home would be contrary to the welfare of the child. This action would satisfy the requirements in sections 473(a)(2)(A)(i) and 473(a)(2)(B)(ii)(II) and the child would be considered judicially removed.
In any of the-above circumstances, the adoption assistance agreement must be negotiated between the prospective adoptive parents and the State title IV-E agency, with the involvement of other relevant agencies, as appropriate (section 475(3)).
Dodie Livingston
COMMISSIONER