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[Current Status: Withdrawn in January 2001 by PA-01-01]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: Title IV-E Foster Care Maintenance Payments and Title IV-E Adoption Assistance Agreements in Interstate Placement Situations
LEGAL AND RELATED REFERENCES:
Sections 472 (b) (1) and (2), 472 (c), and 473 (a) (3) of the Social Security Act
INTERPRETATION TO:
Questions raised by Regions VI and X with regard to negotiation of adoption assistance agreements.
QUESTION 1:
Section 473(a)(3) of the Social Security Act (the Act) states that "in no case may the amount of the adoption assistance payment . . . exceed the foster care maintenance payment that would have been made during the period if the child with respect to whom the adoption assistance payment is made had been in a foster family home." Accordingly, if New Mexico finds a prospective adoptive home in California for one of its foster children, can New Mexico negotiate an adoption subsidy amount based on the higher foster family rate in California?
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RESPONSE:
Since New Mexico has responsibility for placement and care and is the placing and paying State, New Mexico would look at its own established foster care rate structure, as well as State law and policy governing foster care and adoption assistance payments. If New Mexico law or policy allows flexibility to pay amounts based upon the foster care board rate in the State in which the child is placed for adoption, this practice would be allowable under title IV-E since the statutory requirement in section 473 (a) (3) of the Social Security Act would be met.
QUESTION 2:
Similar to Question 1, there is a situation in which six children were placed by Oregon with a prospective adoptive family in Alaska. Rather than paying adoption assistance at the time of placement with this family, the family in Alaska was licensed as a foster family home and Oregon is paying foster care maintenance payments based upon Alaska's higher foster care rate structure. Since Oregon is already paying Alaska's higher foster care rate to this family for these children, can the adoption assistance agreements be negotiated for the higher amount since this, in fact, is the amount these children are receiving in foster care?
RESPONSE:
The response to this question would be determined by whether Oregon has the authority to pay the higher foster care maintenance payment in an interstate placement situation in accordance with its State law or policy. If it does have such authority, then the higher foster care maintenance payment would be allowable and the higher adoption assistance payment would meet the requirement set forth in section 473 (a) (3). On the other hand, if Oregon does not have such authority, then the amount paid to the prospective adoptive family while licensed as a foster family home that is above the amount allowed by Oregon would be considered an overpayment in a title IV-E foster care financial review. Likewise, any amount over the amount allowed by Oregon would also be considered an overpayment in a title IV-E adoption assistance financial review.
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QUESTION 3:
If a State has a "difficulty of care" rate that pays for special needs children in foster family homes, may the adoption subsidy include such level of care supplements?
RESPONSE:
Yes. If the State's foster care rate structure includes level-of-care supplements for certain foster children in its care, and such a child is placed in an adoptive home, the adoption assistance agreement may be negotiated up to the maximum amount the child would have received in that foster home.
QUESTION 4:
As some States move toward specialized foster family homes and level-of-care supplements, we are seeing a tendency for the rate structure of the foster family homes to approximate that of foster care facilities. In other States, however, there may not be any level-of-care supplements. Since there is such variation between State foster care rates, must the statute be read literally as to "foster family home?"
RESPONSE:
Yes. Sections 472 (b) (l) and (2) of the Act state that foster care maintenance payments may be made only on behalf of children who are "in the foster family home of an individual, or in a child care institution." [Emphasis added.] Section 472 (c) of the Act further defines both of these terms. When the statute at section 473 (a) (3) limits the amount of adoption assistance to no more than the child would have received in " a foster family home," it must be taken literally. Thus, the amount of the adoption assistance payment may not exceed the amount of the foster family home payment. Given the fact that foster care rates vary among States for a number of reasons, adoption assistance rates will likewise continue to vary.
Wade F. Horn, Ph.D.
Commissioner