Policy Research Articles and Reports

Vermont Supreme Court Decision Affirms A Child's Eligibility for Federal Adoption Assistance on Grounds That He Would Have Qualified for SSI

[Added: December 1998]

In June 1998, the Vermont Supreme Court, ruled in favor of an adoptive family in a case involving a post finalization application for Title IV-E adoption assistance. Because of the issues involved in the case, the decision could have far reaching significance for adoptive families. The court accepted the parents’ argument that their child met the eligibility requirements for federal adoption assistance because he would have qualified for the Supplemental Security Income (SSI) program prior to adoption had an application been submitted. The question of whether a child could claim potential SSI eligibility as means of qualifying for adoption assistance has been a source of considerable controversy in administrative appeals. Because IV-E adoption assistance is a federal entitlement program, the Vermont Supreme Court’s decision provides adoptive families in similar situations across the country with a strong argument in their favor. The text of the decision can be found in the Legal section of this Web site.

In addition to meeting the definition of special needs, children must also satisfy one of two major eligibility requirements for Title IV-E adoption assistance. They must either meet the AFDC relatedness test or the qualifying standards for SSI.

AFDC Relatedness

AFDC relatedness is satisfied if a child was placed into a foster care or a pre-adoptive home from a birth family or relative home in Reconciliation Act of 1996" (P.L. 104-193) ushered in welfare reform and eliminated which the child would have qualified for federal welfare (AFDC) benefits. It is not necessary for the birth or relative family to have actually been receiving welfare benefits on behalf of the child. The ultimate criteria is that the child would have qualified for welfare benefits had an application been completed.

When "The Personal Responsibility and Work Opportunity the AFDC program, federal officials set June 1, 1995 as the "drop back" date for the purpose of determining eligibility for IV-E adoption assistance. The AFDC regulations in effect on that date will be used as the standard for AFDC relatedness.

SSI Relatedness

The other path to Title IV-E adoption assistance runs through the children’s SSI program. If a child meets all of the requirements for SSI prior to the adoption, then the AFDC connection is not necessary. Furthermore, federal law at 42 U.S. Code Section 673 states that if a child meets the eligibility requirements for SSI and special needs, he or she qualifies for IV-E adoption assistance regardless of whether or not a state or private agency was involved in the placement. Children placed through independent of inter-country adoptions are potentially eligible.

SSI eligibility consists of an income means test and a disability determination. Prior to finalization of the adoption, the income of the prospective yet not legal adoptive parents is not deemed as income to the child for SSI purposes. Only the child’s income is counted. Since relatively few children in pre-finalized adoptive homes have incomes, the disability determination is the only requirement for obtaining SSI in most cases.

Parents applying for Title IV-E adoption assistance after finalization faced several significant obstacles in attempting to use the SSI path.

The Income Means Test

The adoptive parents’ income is deemed as income to the child after finalization. In most instances, the family’s income is too high for the child to qualify for SSI. The Social Security officials who administer SSI are often unfamiliar with the use of SSI eligibility to qualify for adoption assistance which has no income means test. Parents whose incomes exceed the means standard for SSI after finalization must establish that prior to the adoption only the child’s income was at issue.

The Disability Determination

Social Security officials generally conduct the income means test first. If the family does not qualify, they do not proceed with the disability determination. Because Social Security officials have little or no connection with the adoption assistance program, adoptive parents often have difficulty getting the agency to conduct a disability determination. Advocates recommend that parents refuse to take no for an answer and try to work their way up the bureaucratic chain explaining that they need a disability statement for the IV-E adoption assistance program.

Retroactive Eligibility

A third, and perhaps the most formidable difficulty facing adoptive families involves the claim that the child met the disability requirements for SSI prior to finalization of the adoption. If years have passed since the adoption, families must argue that the child would have qualified had an application been made. In some situations, the child existing disability is such that he or she would obviously have met the disability standard at an earlier age. The connection is somewhat more tenuous in other cases.

Adoptive families have encountered resistance in their appeals for adoption assistance over the fact that an SSI eligibility determination had not been made prior to finalization of the adoption. The Vermont Supreme Court decision provides adoptive parents with a powerful response to this objection.

The court agreed that, with respect to adoption assistance, the child’s eligibility under the statute must be determined on the basis of the child’s circumstances prior to the final decree of adoption. The issue question then was "how to interpret the eligibility standards when, through no fault of their own, the adoptive parents were deprived of the opportunity to make an application at the proper time?"

The court concluded that it was inconsistent to allow parents to apply for adoption assistance after finalization and then categorically deprive them of the means to meet the eligibility requirements.. The court reasoned that

if, as the federal Department of Health and Human Services advised SRS [Vermont Department of Social and Rehabilitation Services], the circumstances of this case justify a post-adoption application for benefits, then it follows that these circumstances also permit a post-adoption application for diagnosis of a condition that meets the SSI disability criteria to substitute for the normal pre-adoption diagnosis of such a condition. Otherwise, the remedy for the failure to inform the parents of the program would be illusory because the parents could not show what the diagnosis would have been if the child had been examined for this purpose at the time. As a simple matter of logic, mitigating the unfair deprivation of an opportunity to seek benefits is useless unless there is also a mitigation of the similar deprivation of an opportunity to build the requisite medical record.

The Supreme Court decision removes the obstacles that have plagued adoptive families attempting to utilize SSI disability standards as a means of qualifying their child for IV-E adoption assistance after finalization. In particular it affirms three crucial points:

1. The absence of an SSI eligibility determination is not a fatal impediment.

2. The state cannot take the view that since there was no previous SSI eligibility determination, there is no way to address the issue and therefore the child is ineligible. To claim that no decision can be made is to deny parent applicants reasonable access to IV-E adoption assistance as set forth in federal Policy Interpretation Question (PIQ) 92-02.

3. An attempt must be made to reconstruct the child’s edibility for SSI prior to finalization. If the Social Security administration cannot or will not conduct such a reconstruction, the state agency in charge of adoption assistance may do so and indeed must do so.