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[Added: June 1999]
In June 1999, Dr. Rita Laws received a letter in response to a
series of Title IV-E Adoption Assistance Policy Questions from
Deputy Commissioner Carol Williams, Head of the Federal Children's
Bureau. Commissioner Williams' comments provide important support
for adoptive families who request administrative hearings as a
means of appealing the public agency's denial of their request
for adoption assistance. Of particular significance are:
DEPARTMENT OF HEALTH & HUMAN SERVICES
Administration on Children, Youth and Families
330 C Street, S.W.
Washington, D.C. 20447
June 3, 1999
Rita Laws, Ph.D.
rlaws@homes4kids.org
www.homes4kids.org
Dear Dr. Laws:
Thank you for your letter requesting clarification of several
adoption subsidy issues. The following are clarifications only and are
not to be interpreted as eligibility determinations specific to your children.
The Federal government has no statutory authority to make eligibility determination in individual cases. The role of the Federal government
under title IV-E is to guide and inform States' implementation of the
adoption assistance program, consistent with the statutory requirements,
through regulations and policy issuances.
Inquiry Number 1: Title IV-E Specialized Adoption Assistance
Rates for family foster care homes--must they be available to adoptive parents
if they are available to foster parents?
Response: Federal statute stipulates that the amount of
the adoption assistance payment is to be determined through agreement between
the adoptive parent(s) and the State or local agency administering
the program. In no case, however, may the amount of the adoption assistance
payment exceed the foster care maintenance payment which would have been
paid had the child been in a foster family home (42 USC Sec. 673(a)(3)
of the Social Security Act). The authority to set and implement adoption assistance
rates is vested, by statute, with the State. Any policies or laws developed
by States cannot be more restrictive than Federal statute.
If South Dakota's foster care rate structure includes level-of-care supplements for specified 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.
Inquiry Number 1-b: May States write regulations about
title IV-E specialized adoption assistance rates that restrict them to foster-adoptive parents only and deny them to adoptive parents who did not first
foster the child? Do these kinds of arbitrary restrictions not discourage
the adoption of children with severe disabilities? Is this legal? How can parents
find a place at the policy-making table?"
Response: The response is the same as above. The State
has the authority to develop its rate structure. The pending Oklahoma Difficulty of
Care Level 5 rate was established as an incentive for individuals to adopt
a specific class of foster children who qualify for funds from other Federal
programs. It is our understanding that there has been parent involvement
in the development of the pending regulations, since the issue was raised
by a foster parent who wanted to adopt the special needs children in
her care.
Inquiry Number 2: Can Administrative Law Judges (ALJs)
ignore Federal law or put State regulation/law over Federal law in cases involving
title IV-E Federal adoption subsidies?
Response: In situations where conflict exists between Federal
and State law, Federal law always takes precedence in the title IV-E program.
State laws are not to be more restrictive than Federal laws, policies,
or issuances. Policy Interpretation Questions (PIQs), which are issued
by the Children's Bureau, are a further interpretation or clarification
of Federal statute and have been upheld in courts of appeal. Please keepin
mind that a State may choose to make laws that are in conflict with Federal
laws; however, Federal reimbursement for such claims is not allowable.
Inquiry Number 2-b: Under what circumstances, if any, can
States or ALJs refuse to give a family a fair hearing?
Inquiry Number 2-c: Must ALJs and States follow any kind
of timeline in rendering title IV-E decisions and making retro payments?
Response: Federal regulations at 205.10 address when and
how a State implements its fair hearing process. Federal regulations at 45
CFR 1355.30 require that States have a fair hearing process in place. Further
guidance on fair hearings, as applicable to title IV-E, can be found in
PIQ 83-04.
Inquiry Number 3: What kind of access should adoptive parents
have to technical assistance from Regional DHHS offices prior to and after
a fair hearing?
Response: The role of the Federal Regional Offices is to
facilitate the State implementation of Federal statute, regulations and policy
issuances through technical assistance. The public may address inquiries
to the Federal government at any level. However, the preferred process
is that the State provides direct contact and technical assistance to adoptive
parents when there is an issue of concern. The States regularly consult
with the Federal Regional Offices to confirm their interpretation of Federal statute, regulations, and policy.
Inquiry Number 4: What are the line-by-line specific requirements
for the States to 'actively promote and publicize' adoption assistance
programs? Is it possible to require States to offer very specific types of
information as a way of promoting adoption assistance? Could a PIQ be written
for States with a sample brochure attached that includes a list of
parents' rights?
Response: The Federal government has no statutory authority
to specify how a State must promote the adoption assistance program. Federal
regulations at 45 CFR 1356.40 require that the State agency actively seek
ways to promote the adoption assistance program. As partners in the implementation of Federal statute, we prefer that each State have the flexibility
to decide which is the best manner for it to promote the adoption
assistance program. A PIQ is generated when a State submits an inquiry to
the Federal government and the response to the inquiry will have a significant implication for all States.
Inquiry Number 5: Can a State place foster children across
State lines as foster children, even though the intent is adoption, in order
to save money paid on adoption subsidies?
Response: Interstate placement of children is allowable;
however, in order for title IV-E eligibility to apply, all eligibility criteria
must be met. If out-of-state placement is for the purpose of foster care, the
child must be placed in an approved or licensed foster home. If the placement
is for the purpose of adoption, an adoption agreement must be signed
by all of the appropriate parties. The State with responsibility for placing
the child and paying the maintenance payments must look at its own established
foster care rate structure, as well as State law and policy governing
foster care and adoption assistance payments. If the placing State's 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
is allowable under title IV-E, since the statutory requirement in
Section 473(a)(3) of the Act governing the relationship between foster
care maintenance payments and adoption assistance payments would be
met.
Public Inquiry Number 6: Can a title IV-E and SSI eligible
child who is not in agency custody be eligible for adoption subsidy? Might another
PIQ be needed?
Response: There is no Federal statutory requirement that
a child be in the placement and care of the child welfare agency in order to be
eligible for adoption assistance subsidy. The eligibility requirements for
the adoption assistance program are found in section 473(a)(2) of the Social
Security 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
Supplemental Security Income (SSI) program, it does not specify 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. When children who meet the definition of
"special needs" at section 473(c) of the Act, whose goal is adoption
and who have no involvement with the State, 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.
Public Inquiry Number 7: Can States legally cut back or
eliminate service subsidies for children with special needs and if so, what can
be done to curb the problems that accompany such actions? Is there anything
in the Federal law that addresses the parents' rights, if any, when a
State cuts back or eliminates service subsidies for title IV-E children?
Response: Yes, States have the option to cut back or eliminate
service subsidies. There is no Federal law that addresses parent's rights
when States cut back or eliminate services. Many States administer
programs that pay for particular medical, mental health, and other post-placement services that are not covered by Medicaid or private insurance.
These service subsidies can be enormously helpful to adoptive families.
Federal statute provides that the title IV-E eligible child is also eligible
for title XX services. The funding level for title XX services varies
within each State and the services are contingent upon availability of
funds. Because service subsidies are hard to quantify and may be further
limited by fiscal and regulatory constraints, adoptive families should
become as knowledgeable as possible when exploring and negotiating them.
During the negotiation of the initial adoption assistance agreement, adoptive
families should secure as specific a commitment as possible regarding what
services are to be available in both the present and the future.
Sincerely,
Carol W. Williams, D.S.W.
Associate Commissioner
Children's Bureau