922 KAR 1:050. Approval of adoption assistance.

922 KAR 1:050. Approval of adoption assistance.

RELATES TO: KRS 199.462, 199.555, 199.557, 205.639(2), (3), 216B.450(5), 600.020(20), (48), 620.020(5), Chapter 625, 45 C.F.R. 1356.40(b), 1356.41, 42 U.S.C. 673, 12102, 1382c(a)(3)

STATUTORY AUTHORITY: KRS 194A.050(1), 199.555(6), (10), 199.557(4)

NECESSITY, FUNCTION, AND CONFORMITY: KRS 194A.050(1) requires the secretary to promulgate, administer, and enforce those administrative regulations necessary to implement programs mandated by federal law or to qualify for the receipt of federal funds and necessary to cooperate with other state and federal agencies for the proper administration of the cabinet and its programs. KRS 199.555(10) requires the cabinet to establish and promulgate by administrative regulation criteria to be followed for the adoption of special needs children. KRS 199.557(4) requires the cabinet to implement federal Title IV-E adoption assistance payments in accordance with the administrative regulations promulgated by the cabinet. This administrative regulation establishes guidelines for the implementation of state-funded adoption assistance and federal Title IV-E adoption assistance.

Section 1. Definitions. (1) "Extraordinary medical expenses" is defined by KRS 199.555(4).

(2) "Federal Title IV-E adoption assistance" is defined by KRS 199.557(1).

(3) "Nonrecurring adoption expenses" is defined by KRS 199.555(3) or means expenses described in 42 U.S.C. 673(a)(1)(B)(i).

(4) "Postadoptive subsidy" means a payment for a special needs child that begins at the finalization of a special needs adoption.

(5) "Preadoptive subsidy" means a payment for a special needs child that begins with a preadoptive placement agreement and if foster care per diem ceases.

(6) "Secretary" means the Secretary of the Cabinet for Health and Family Services or designee.

(7) "State-funded adoption assistance" is defined by KRS 199.555(2).

Section 2. Adoption Assistance Criteria. (1) The Secretary shall

decide whether to pay and provide adoption assistance based on whether it is in the best interest of a child.

(2) A special needs child is a child for whom adoptive placement without financial assistance is unlikely in accordance with KRS 199.555(1) or 42 U.S.C. 673(c), because the child:

(a) Has a physical or mental disability;

(b) Has an emotional or behavioral disorder;

(d) Is a member of a sibling group in which the siblings are placed together;

(e) Has had previous adoption disruption or multiple placements;

(f) Is a member of a racial or ethnic minority and two (2) years old or older; or

(g)1. Is age seven (7) or older and has a significant emotional attachment or psychological tie to his foster family; and

2. The cabinet has determined that it would be in the child’s best interest to remain with the family.

Section 3. Eligibility. (1) A special needs child considered for state-funded adoption assistance shall:

(a) Be committed to the Cabinet for Health and Family Services; and

(b) Not have a parent with a legal claim to his custody.

(2) A special needs child considered for federal title IV-E adoption assistance shall:

(a) Meet the eligibility criteria established in 42 U.S.C. 673 at the time the adoption proceedings are initiated; and

(b) Not have a parent with a legal claim to his custody.

Section 4. Parental Standards. Parents receiving a child eligible for adoption assistance shall meet the same standards as those applied to other adoptive applicants in accordance with:

(1) 922 KAR 1:350; or

(2) 922 KAR 1:310.

Section 5. Adoption Agreement. (1) An adoptive parent and the secretary shall sign an:

(a) Adoptive placement agreement to set forth the terms of a child’s placement with the adoptive parent, if the child’s adoption has not been finalized; and

(b) Adoption assistance agreement to set forth:

1. Nonrecurring adoption expenses, prior to finalization of the adoption, if such expenses will be incurred by the adoptive parent during the adoption of a special needs child, in accordance with KRS 199.555(6) or 45 C.F.R. 1356.41; and

2. The scope and limits of the adoption assistance, prior to finalization of the adoption, in accordance with KRS 199.555(6) or 45 C.F.R. 1356.40(b).

(2) If a child is eligible for adoption assistance under 42 U.S.C. 673 (a)(2)(A)(i)(II), the requirement of Section(1)(a) of this section shall be waived.

(3) The adoption assistance shall begin on the date that the:

(a) Adoptive placement agreement indicates the child’s date of placement; or

(b) Order of adoption is entered.

(4) The amount of state-funded adoption assistance or federal Title IV-E adoption assistance shall not exceed the amount which would be paid for foster care maintenance for the same child, in accordance with KRS 199.557(4) or 42 U.S.C. 673(a)(3), including medically-fragile, specialized medically fragile, and care plus resource home per diem reimbursements established by the Department for Community Based Services. A child placed in therapeutic foster care, as described in 922 KAR 1:310, shall not be eligible to receive adoption assistance to exceed a care plus resource home per diem reimbursement established by the Department for Community Based Services.

Section 6. Federal Title IV-E Adoption Assistance. (1) Unless a circumstance in accordance with subsection (2) of this section is met, federal title IV-E adoption assistance shall continue in accordance with KRS 199.557 and 42 U.S.C. 673(a)(4) until the child reaches age:

(a) Eighteen (18); or

(b) Twenty-one (21), if the child is determined to have a disability in accordance with subsection (3) of this section.

(2) In accordance with KRS 199.557 and 42 U.S.C. 673(a)(4), federal Title IV-E adoption assistance shall be terminated if the:

(a) Adoptive parent:

1. Is no longer legally responsible for the special needs child in accordance with KRS Chapter 625;

2. Becomes deceased; or

3. Requests discontinuation of the adoption assistance; or

(b) Special needs child:

1. Becomes deceased;

2. Marries;

3. Gains full-time employment;

4. Is considered an emancipated minor; or

5. Is inducted into military service.

(3) Disability determination.

(a) In accordance with KRS 199.557 and 42 U.S.C. 673(a)(4), an adopted special needs child shall have a disability that warrants continuation of the child’s federal Title IV-E adoption assistance if the child has been determined to meet the definition of permanent or total disability pursuant to 42 U.S.C. 1382c(a)(3) by either the:

1. Social Security Administration; or

2. Medical review team of the cabinet.

(b) The factors to be considered by the medical review team in making a child’s disability determination shall include:

1. The child’s medical history and subjective complaint regarding an alleged physical or mental disability, illness or impairment; and

2. Competent medical testimony relevant to whether:

a. A physical or mental disability, illness, or impairment exists; and

b. The disability, illness, or impairment is sufficient to reduce the child’s ability to gain full-time employment or pursue opportunities in a state or federal education program.

1. Age;

2. Employment history;

3. Educational background; and

4. Subjective complaint regarding the alleged effect of the physical or mental condition on the child’s ability to support and care for self.

(d) The child shall be referred, if necessary, for further appraisal of his or her abilities.

(e) If the medical review team makes the disability determination, the medical review team shall provide a written report of the determination under this subsection to the Secretary and the:

1. Child, if the child is age eighteen (18) or older; or

2. Adoptive parent, if the child is under age eighteen (18).

(4) In accordance with 42 U.S.C. 673, an adoptive parent shall be responsible for notifying the cabinet of any change in circumstance to avoid overpayment in accordance with subsection (2) of this section.

(5) Federal Title IV-E adoption assistance may include:

(a) Nonrecurring adoption expenses not to exceed $1,000 incurred in the adoption of a child who is considered a special needs child;

(b) Preadoptive subsidy; or

Section 7. State-funded Adoption Assistance. (1) Unless a circumstance in subsection (2) or (3) of this section is met, state-funded adoption assistance shall continue in accordance with KRS 199.555(8) until the child reaches:

(a) Age eighteen (18); or

(b) If the child is enrolled in high school or equivalent;

1. Age nineteen (19); or

2. The month of high school graduation or equivalency receipt, if the child’s graduation or receipt of equivalency precedes the child’s 19th birthday.

(2) The cabinet shall temporarily suspend state-funded adoption assistance during the period of time the adopted child:

(a)1. Resides in:

a. Foster care as defined in KRS 620.020(5);

b. A residential treatment facility as defined in KRS 600.020(48);

c. A psychiatric residential treatment facility as defined by KRS 216B.450(5);

d. A psychiatric hospital as defined by KRS 205.639(2) or (3) beyond thirty (30) consecutive calendar days; or

e. Detention:

(i) As defined in KRS 600.020(20);

(ii) Outside the adoptive home; and

(iii) For a period of thirty (30) calendar days or more; or

2. Is absent from the home of the adoptive parents for a period of thirty (30) consecutive calendar days or more, unless the child is absent due to medical care or school attendance; and

(b) Receives care and support for the child’s special needs from a local, state, or federal public agency.

(3) State-funded adoption assistance shall be terminated if the:

(a) Adoptive parent:

1. Is no longer legally responsible for the special needs child in accordance with KRS Chapter 625;

2. Becomes deceased; or

3. Requests discontinuation of the adoption assistance; or

(b) Special needs child:

1. Becomes deceased;

2. Marries;

3. Gains full-time employment;

4. Is considered an emancipated minor; or

5. Is inducted into military service.

(4) In accordance with KRS 199.555(9), an adoptive parent shall be responsible for notifying the cabinet of any circumstance to avoid overpayment in accordance with subsection (2) or (3) of this section.

(5) State-funded adoption assistance may include:

(a) Payment for extraordinary medical expenses related to the child’s special needs that:

1. Existed prior to the adoption; and

2. Are not reimbursable by another source;

(b) Nonrecurring adoption expenses not to exceed $1,000 incurred in the adoption of a child who is considered a special needs child;

(d) Postadoptive subsidy.

Section 8. Annual Family Contact. (1) Annual contact with the adoptive family shall be made by mail or home visit to determine that the:

(a) Child remains in the adoptive home;

(b) Parent continues to provide care and support for the child; and

(2) The cabinet may conduct a home visit after an adoption assistance annual contact is made by mail:

(a) If:

1. The adoptive parent requests a home visit;

2. The special needs of the child change, as indicated by the adoptive parent;

3. Attempts to update information by additional mail or phone contact have failed; or

4. The cabinet receives information that is contrary to the information verified by the adoptive parent during the annual contact; or

(b) In accordance with 922 KAR 1:330.

Section 9. Adoption Assistance Renegotiation. (1) The cabinet may renegotiate adoption assistance before or after the adoption is finalized in accordance with KRS 199.555(6), (9), and 42 U.S.C. 673, and if there is a change in the:

(a) Child’s special needs; or

(b) Circumstances of the adoptive parent, including a situation that negatively affects the stability of the placement.

(2) Extraordinary medical expenses may be reimbursed through state-funded adoption assistance if conditions in KRS 199.555(6) are met.

(3) In accordance with 42 U.S.C. 673(a)(3), an adoptive parent shall be in concurrence with the renegotiated amount of federal Title IV-E adoption assistance.

(4) State-funded adoption assistance and federal Title IV-E adoption assistance shall not be changed by a move by the adoptive parents out of the state or country.

Section 10. Service Appeal. An applicant for adoption assistance or an adoptive family shall be granted an administrative hearing in accordance with 922 KAR 1:320.

Section 11. Notice of Change. Cabinet staff shall provide notice of a reduction, discontinuance, or termination of adoption assistance:

(1) Ten (10) calendar days in advance; and

(2) In accordance with 922 KAR 1:320, Section 6.

Section 12. State-funded Adoption Assistance Limitation. The number of state-funded adoption assistance cases and the amount of state-funded adoption assistance paid per case shall be limited by available funds for the state-funded adoption assistance program.

Section 13. Training. Contingent upon the availability of funding, the Department for Community Based Services shall offer training to adoptive parents receiving state-funded adoption assistance or federal Title IV-E adoption assistance consistent with training offered to resource home parents as specified in 922 KAR 1:350. (DCW-9; 1 Ky.R. 295; eff. 1-8-75; Am. 17 Ky.R. 138; eff. 9-13-90; 20 Ky.R. 2405; eff. 3-23-94; 25 Ky.R. 1477; 1893; eff. 2-17-99; Recodified from 905 KAR 1:050, 6-3-99; 27 Ky.R. 1110; 1499; eff. 12-21-2000; 30 Ky.R. 1659; 2066; 2466; eff. 6-16-04; 34 Ky.R. 477; 1063; 1497; eff. 12-17-2007.)