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[Current Status: Withdrawn in January 2001 by PA-01-01]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 Security Act, Indian Tribes and Indian Tribal Organizations
SUBJECT: Clarification Regarding ACY-PIQ-88-06, Dated December 2, 1988, and Situations Which Would Constitute "Extenuating Circumstances" for the Purpose of a Fair Hearing for Denial of Title IV-E Adoption Assistance
LEGAL AND RELATED REFERENCES:
Sections 473 (a) and (c), 471(a)(12) and 1132(a) of the Social Security Act, 45 CFR 1356.40(b)(l), 45 CFR 95.7, ACYF-PIQ-83-4, Dated October 26, 1983 and ACYF-PIQ-88-06, Dated December 2, 1988
BACKGROUND:
Policy Interpretation Question, ACYF-PIQ-88-06, dated December 2, 1988, set forth conditions, after the finalization of an adoption, under which a State may reverse an earlier decision to deny title IV-E adoption assistance benefits. It stated that Federal regulations at 45 CFR 1356.40(b)(1) require that the adoption assistance agreement be signed and in effect at the time of or prior to the final decree of adoption. However, if the adoptive parents were denied benefits and there are extenuating circumstances, the adoptive parents may request a fair hearing. The policy issuance goes on to state that, if the hearing determines that all of the facts relevant to the child's eligibility were not presented at the time of the request for assistance, the State may reverse the earlier decision to deny benefits under title IV-E.
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INTERPRETATION TO:
Questions raised with regard to what constitutes "extenuating circumstances" for the purpose of a fair hearing under the title IV-E adoption assistance program.
QUESTION 1:
The case situation described in ACYF-PIQ-88-06 spoke to a child's medical condition which was not properly diagnosed prior to adoption as being grounds for a fair hearing. Would a change in Federal statute, regulation or policy constitute grounds for a fair hearing as well?
RESPONSE:
No. Changes in Federal statute, regulation or policy normally are effective only prospectively. Since the previous statute, regulation or policy is in effect until such a change is made, a change would not constitute grounds for a fair hearing.
QUESTION 2:
With respect to the State agency's responsibilities in the administration of the program, some concern has been expressed over the seeming paradox between notifying and advising prospective adoptive parents of the adoption assistance program and making a reasonable, but unsuccessful, effort to place a child without adoption assistance as required by section 473(c)(2)(B) of the Social Security Act. Please clarify this issue.
RESPONSE:
In an effort to find an adoptive home for a child, the agency should first look at a number of families in order to locate the most suitable family for the child. Once the agency has determined that placement with a certain family would be the most suitable for the child, then full disclosure should be made of the child's background, as well as known and potential problems. If the child meets the State's 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 a subsidy. If they say that they cannot adopt the child without a subsidy, the agency would meet the requirement in 473(c)(2)(B) that there be a reasonable, but unsuccessful, effort to place the child without providing adoption assistance.
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It was the intent of Congress, with the establishment of the adoption assistance program, to increase significantly the number of children placed in permanent homes. Thus, it is reasonable to conclude that it was not the intent of Congress that a child remain unnecessarily in foster care while the agency "shops" for a family which might be less suitable but is willing to adopt the child without a subsidy, if it has already found a suitable placement for the child.
QUESTION 3:
Would grounds for a fair hearing exist if the State agency fails to notify or advise adoptive parents of the availability of adoption assistance for a child with special needs?
RESPONSE:
Yes. The very purpose of the title IV-E adoption assistance program is to encourage the adoption of hard-to-place children. State notification to potential adoptive parents about its existence is an intrinsic part of the program and the incentive for adoption that was intended by Congress. Thus, notifying potential adoptive parents is the State agency's responsibility in its administration of the title IV-E adoption assistance program. Accordingly, the State agency's failure to notify the parents may be considered an "extenuating circumstance" which justifies a fair hearing.
QUESTION 4:
Would grounds for a fair hearing exist if the State agency erroneously determines that a child is ineligible for adoption assistance?
RESPONSE:
Yes. If the basis for denial of adoption assistance is the erroneous determination by the State that the child does not meet the eligibility criteria set forth in section 473 of the Act, the adoptive parents may request a fair hearing under section 471(a)(12) of the Act. if the hearing determines that the state erred in its assessment of the child's eligibility for adoption assistance, the State may reverse the earlier decision to deny benefits under title IV-E.
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QUESTION 5:
May a State establish policies defining the factual circumstances which constitute an extenuating circumstance for the purpose of a fair hearing?
RESPONSE:
It is permissible, for States to have written guidance regarding the types of situations which would constitute the grounds for a fair hearing in order to assist fair hearing officers. However, State policies may not define the grounds for a fair hearing more narrowly than Federal policy. (See 45 CFR 205.10, ACYF-PIQ-83-4, dated October 26, 1983, and ACYF-PIQ-88-06, dated December 2, 1988, for guidance.) The types of situations which would constitute grounds for a fair hearing include: (1) relevant facts regarding the child, the biological family or child's background are known and not presented to the adoptive parents prior to the legalization of the adoption; (2) denial of assistance based upon a means test of the adoptive family; (3) erroneous determination by the State that a child is ineligible for adoption assistance; and (4) failure by the State agency to advise adoptive parents of the availability of adoption assistance.
If applicants or recipients of financial benefits or service programs under titles IV-B or IV-E believe that they have been wrongly denied financial assistance or excluded from a service program, they have a right to a hearing. It is the responsibility of the fair hearing officer to determine whether extenuating circumstances exist and whether the applicant or recipient was wrongly denied eligibility.
QUESTION 6:
May a State agency change its eligibility determination and provide adoption assistance based upon extenuating circumstances without requiring the applicant to obtain a favorable ruling in a fair hearing?
RESPONSE:
No. However, if the State and the parents are in agreement, a trial-type evidentiary hearing would not be necessary. The undisputed documentary evidence could be presented to the
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fair hearing officer for his or her review and determination on the written record.
QUESTION 7:
Who has the burden of proving extenuating circumstances and adoption assistance eligibility at a fair hearing?
RESPONSE:
The Federal statute does not address the point explicitly. We would expect States to conclude that the adoptive parents have the burden of proving extenuating circumstances and adoption assistance eligibility at a fair hearing. However, as stated in the previous response, if the State agency is in agreement that a family had erroneously been denied benefits, it would be permissible for the State to provide such facts to the family or present corroborating facts on behalf of the family to the fair hearing officer.
QUESTION 8:
After the legalization of an adoption, if a fair hearing determines that a child has been wrongly denied benefits under the title IV-E adoption assistance program, what is the earliest date from which assistance may be provided?
RESPONSE:
Prior to the passage of the Tax Reform Act of 1986, the statute required that there be an interlocutory or final decree of adoption prior to receipt of adoption assistance. Therefore, after the effective date of a State's title IV-E State plan, the earliest date from which adoption assistance may be provided is from the time of the interlocutory or final decree of adoption for those children adopted on or before October 1, 1986. As of October 1, 1986, with the passage of the Tax Reform Act of 1986, the requirement that there be an interlocutory decree prior to providing adoption assistance was rescinded and adoption assistance payments may begin when the adoption assistance agreement is signed and the child is placed in the adoptive home.
If a State chooses to pay adoption assistance retroactively from the earliest date of the child's eligibility in accordance with Federal and State statutes, regulations and policies, the State
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may claim Federal financial participation for this expenditure. For cases in which there was no signed adoption assistance agreement, the earliest date of eligibility would be that of the interlocutory or final decree for assistance provided before October 1, 1986, or placement in an adoptive home for assistance provided after October 1, 1986. States should sign a new agreement backdated to the earliest date of eligibility for the child. The two-year restriction in section 1132(a) of the Social Security Act applies to the date of claim for actual expenditures, and, thus, would not apply in this situation.
Wade F. Horn, Ph.D.
Commissioner