Presentation Transcript

1. ADOPTION ASSISTANCE AND SUBSIDY

   Speaker: Jeanne Trudeau Tate Board Certified Adoption Attorney Offices in Tampa, Orlando, and Naples (813) 258-3355 jeanne@jtatelaw.com www.floridaAdoptionattorney.com
2. §63.085 Disclosure by adoption entity.— (2) DISCLOSURE TO ADOPTIVE PARENTS.— (a) At the time that an adoption entity is responsible for selecting prospective adoptive parents for a born or unborn child whose parents are seeking to place the child for adoption or whose rights were terminated pursuant to chapter 39, the adoption entity must provide the prospective adoptive parents with information concerning the background of the child to the extent such information is disclosed to the adoption entity by the parents, legal custodian, or the department. This subsection applies only if the adoption entity identifies the prospective adoptive parents and supervises the placement of the child in the prospective adoptive parents’ home. If any information cannot be disclosed because the records custodian failed or refused to produce the background information, the adoption entity has a duty to provide the information if it becomes available. An individual or entity contacted by an adoption entity to obtain the background information must release the requested information to the adoption entity without the necessity of a subpoena or a court order. In all cases, the prospective adoptive parents must receive all available information by the date of the final hearing on the petition for adoption. The information to be disclosed includes: 1. A family social and medical history form completed pursuant to s. 63.162(6). 2. The biological mother’s medical records documenting her prenatal care and the birth and delivery of the child. 3. A complete set of the child’s medical records documenting all medical treatment and care since the child’s birth and before placement. 4. All mental health, psychological, and psychiatric records, reports, and evaluations concerning the child before placement. 5. The child’s educational records, including all records concerning any special education needs of the child before placement. 6. Records documenting all incidents that required the department to provide services to the child, including all orders of adjudication of dependency or termination of parental rights issued pursuant to chapter 39, any case plans drafted to address the child’s needs, all protective services investigations identifying the child as a victim, and all guardian ad litem reports filed with the court concerning the child. 7. Written information concerning the availability of adoption subsidies for the child, if applicable. (b) When disclosing information pursuant to this subsection, the adoption entity must redact any confidential identifying information concerning the child’s parents, foster parents and their families, siblings, relatives, and perpetrators of crimes against the child or involving the child. (c) If the prospective adoptive parents waive the receipt of any of the records described in paragraph (a), a copy of the written notification of the waiver to the adoption entity shall be filed with the court.
3. What are you doing to provide this disclosure? Note it must be in writing. Note it must be done by the final hearing. Might include a waiver of right to obtain subsidy. Should cover who is eligible for subsidy and what subsidy entails. May want to refer your clients to subsidy experts if you are not. Query: Do you have a duty to refer the adoptive parents to a licensed agency so they can get subsidy? *Key: if no subsidy awarded pre-final hearing, much heavier burden to obtain
4. §409.166 Children within the child welfare system; adoption assistance program.— (2) DEFINITIONS.—As used in this section, the term: (a) “Special needs child” means: 1. A child whose permanent custody has been awarded to the department or to a licensed child-placing agency; 2. A child who has established significant emotional ties with his or her foster parents or is not likely to be adopted because he or she is: a. Eight years of age or older; b. Developmentally disabled; c. Physically or emotionally handicapped; d. Of black or racially mixed parentage; ore. A member of a sibling group of any age, provided two or more members of a sibling group remain together for purposes of adoption; and 3. Except when the child is being adopted by the child’s foster parents or relative caregivers, a child for whom a reasonable but unsuccessful effort has been made to place the child without providing a maintenance subsidy.
5. (4) ADOPTION ASSISTANCE.— (a) A maintenance subsidy shall be granted only when all other resources available to a child have been thoroughly explored and it can be clearly established that this is the most acceptable plan for providing permanent placement for the child. The maintenance subsidy may not be used as a substitute for adoptive parent recruitment or as an inducement to adopt a child who might be placed without providing a subsidy. However, it shall be the policy of the department that no child be denied adoption if providing a maintenance subsidy would make adoption possible. The best interest of the child shall be the deciding factor in every case. This section does not prohibit foster parents from applying to adopt a child placed in their care. Foster parents or relative caregivers must be asked if they would adopt without a maintenance subsidy. (b) The department shall provide adoption assistance to the adoptive parents, subject to specific appropriation, in the amount of $5,000 annually, paid on a monthly basis, for the support and maintenance of a child until the 18th birthday of such child or in an amount other than $5,000 annually as determined by the adoptive parents and the department and memorialized in a written agreement between the adoptive parents and the department. The agreement shall take into consideration the circumstances of the adoptive parents and the needs of the child being adopted. The amount of subsidy may be adjusted based upon changes in the needs of the child or circumstances of the adoptive parents. Changes shall not be made without the concurrence of the adoptive parents. However, in no case shall the amount of the monthly payment exceed the foster care maintenance payment that would have been paid during the same period if the child had been in a foster family home.
6. 65C-16.012 - Types of Adoption Assistance. (1) The intent of adoption assistance is to promote the adoption of special needs children who are in the department’s foster care program or in the care of a licensed private child placing agency. It is the responsibility of the department or the community based care agency adoption staff to inform prospective adoptive parents of the availability of all of the benefits listed below. (2) Maintenance Subsidy. A monthly payment may be made for support and maintenance of a special needs child until the child’s 18th birthday. Unless approved by the Secretary of the Department pursuant to subsection 65C-16.013(9), F.A.C., the amount of the payment may not exceed the standard foster care board rate for which the child would have been eligible had the adoption placement not taken place. Annual reevaluations of the continued need for subsidy are required. (3) Medical Subsidy. The cost of medical, surgical, hospital and related services needed as a result of a physical or mental condition of the child which existed prior to the adoption may be subsidized. The need for medical services for a condition recognized prior to adoption must be established and authorized prior to the placement for adoption, although the service might not be delivered until some time after finalization of the adoption. The need for medical subsidy must be supported by documentation of that need from the appropriate professional, such as a licensed physician or dentist, or qualified mental health professional, and must be reassessed annually. (4) Other Medical Services. Other medical services available may include on-going Medicaid coverage and continuing eligibility with Children’s Medical Services for children who were receiving such services prior to adoption. (5) Reimbursement for Non-recurring Adoption Expenses. Nonrecurring adoption expenses are those reasonable and necessary adoption fees, court costs, attorneys fees, and other expenses that are directly related to the legal adoption of a special needs child. (6) Adoption Benefit for State Employees. State employees who adopt a dependent child are entitled to financial assistance. (7) Tuition Waiver. Children who were in the custody of the department and who were adopted after May 5, 1997 are eligible for an exemption of undergraduate college tuition fees at Florida universities or community colleges. (8) Adoption assistance for eligible children will be paid irrespective of the child’s state of residence. Adoptive parents receiving adoption assistance are obligated to notify the department of any change of address. (9) The provision of all adoption assistance is contingent upon the availability of state and federal funds. Specific Authority 409.166 FS. Law Implemented 409.166 FS. History–New 2-14-84, Formerly 10M-8.18, 10M-8.018, Amended 8-19-03. Note: Subsidy can be long-term, time-limited and dormant.
7. Chafee Foster Care Independence Program Established In 2001, this Federal Program offers funds to the state’s foster youth to attend colleges, universities, and vocational training institutions. Students may receive up to $5,000 a year up to the youth’s 23rd birthday as long as they receive funds before their 21st birthday. The funds may be used for tuition, books, computers, school supplies, qualified living expenses, housing, child care, health insurance, groceries, and transportation. Youth who are eligible for the program are generally those who: (1) Are adopted from, or enter into a kinship guardianship from foster care after their 16th birthday; (2) Have a high school diploma or GED; (3) Are legally present in the US; (4) Have assets (bank account, car, home, etc.) of $10,000 or less; (5) Are age 18, 19 or 20 at the time of the first application; and (6) Have been accepted into or be enrolled in a degree, certificate, or other accredited program at a college, university, technical or vocational school
8. 65C-16.013Determination of Maintenance Subsidy Payments. (1) The purpose of adoption subsidy is to make available to prospective adoptive parents financial aid which could enable them to adopt a special needs child. Every adoptive family must be advised of the availability of adoption subsidy and the purpose for which it is intended. Placement without subsidy must be the placement of choice unless it can be shown that such placement is not in the best interest of the child. (2) The child’s and the family’s need for subsidy must be determined prior to placement. When this need is not determined prior to placement, and the adoptive parents feel they have been wrongly denied subsidy benefits on behalf of an adopted child, they have the right to request a fair hearing pursuant to Chapter 120, F.S. If, through the fair hearing process, subsidy is approved, the effective date of the subsidy will be the date the family officially requested subsidy. Retroactive payment dating back to the date of placement will not be approved. (3) Medical or mental health evaluations may be required to document the need for maintenance subsidy. When this is the case, these evaluations must be no more than 12 months old at the time of initial subsidy determination. (4) Efforts to place the child in a non-subsidized placement must be documented in the child’s record. Documentation of this exploration shall be one of the following: (a) List of other families considered; (b) Letters to agencies specifically seeking a home for the child; and (c) Registration of the child on the adoption exchange. It is not the intent of this requirement that a child remain unnecessarily in foster care while the department searches for a non-subsidized placement, if a family who can meet the special needs of the child is available, but requires a subsidy. (5) The one exception to the requirement to explore placement without subsidy is when it has been determined that the child’s adoption by his current caretaker, with whom he/she has established significant emotional ties, is the placement of choice. However, the current caretaker must be asked if he/she will adopt the child without subsidy. This exploration must be documented in the child’s record. The caretaker must understand that being an adoptive parent includes different parental rights and responsibilities. Some of these responsibilities are financial, and adoption subsidy, unlike foster care board rate payments, is not intended to cover the complete cost of the child’s care. The maintenance subsidy payment is intended to assist the adoptive parent in supporting the extra costs associated with adopting a child with special needs.
9. 65C-16.014-Post Adoption Services. (1) After finalization, the adoptive family may require temporary case management support, information and referral assistance and related services. The need for medical assistance must be established prior to the adoption placement, although the service might not actually be needed until a later date. When this need is not established prior to the placement and the adoptive parents feel they have been wrongly denied services on behalf of an adopted child, they have the right to request a fair hearing. If, through the fair hearing process, a service is approved, the effective date of the service will be the date the family officially requested the service. Retroactive payment dating back to the date of placement will not be approved. (2) A service must be terminated when the condition for which it was granted no longer exists or on the child’s 18th birthday, whichever occurs first. Children needing residential mental health services will be referred to the district’s Alcohol, Drug Abuse and Mental Health Program Office, children’s program for services. (3) The cost for a service will not be paid when those costs can be or are covered by the adopting family’s medical insurance, Children’s Medical Services, Children’s Mental Health Services, Medicaid, Agency for Persons with Disabilities or local school districts. (4) The adoptive parents must obtain the approval of the community based care provider or sub-contractor agency prior to planning for the use of a service. The adoptive parents must submit a copy of the bill for the service to the community based care provider or sub-contractor agency to initiate reimbursement. The bill must be clearly legible and must specify the name of the child, the service rendered and the date of the service, in addition to the charge for the service. Specific Authority 409.166 FS. Law Implemented 409.166 FS. History–New 2-14-84, Formerly 10M-8.21, 10M-8.021, Amended 12-23-97, 8-19-03, 11-30-08.
10. Relevance of Adoptive Parent’s income Not relevant with state adoption assistance. Is relevant with Title IV assistance. Does it matter if child is eligible for SSI? It is not necessary that a child be eligible for Supplemental Security Income (SSI) in order to qualify for subsidy. If a child has SSI, it still may be prudent to apply for subsidy. SSI is income-based and can be discontinued if one’s income increases beyond the eligibility threshold amount; however, as mentioned about, state subsidy is not income-based and is not subject to discontinuance if one’s income increases in the future. However, it should be noted that the amount of other benefits already in place for a child, if any, such as SSI, may be affected if adoption assistance is awarded. It is possible that the amount of SSI or other benefits may be reduced if subsidy is awarded.
11. Interstate Adoptions Which State Is Responsible for Entering into an Adoption Assistance Agreement in an Interstate Adoption? General rule: Florida provides adoption assistance to out-of-state adoptive parents for an otherwise eligible child only if Florida DCF (or its community based contracted provider) was involved with removal of the child from the birth parents. If this child was not sheltered or removed from the birth parents by Florida DCF, the adoptive parents should contact the equivalent child protective services entity in their home state to explore and apply for State adoption assistance.
12. Caution When Pursuing Custody/Guardianship of Foster Child If foster parents or relatives agree to obtain custody or guardianship of a foster child (without a kinship guardianship subsidy, if applicable), they might be jeopardizing child’s eligibility for an adoption subsidy if they subsequently adopt. Some states have specifically required the child to be in the legal custody of social services or a licensed private child placing agency just prior to the adoption to be eligible for an adoption subsidy. See e.g., Becker v. Iowa Dept. of Human Services, 661 N.W. 2d 125 (Iowa 2003); Batiste v. Arkansas Dept. ofHuman Services, 204 S.W. 3d 521 (Ark. App 2005); But see, In the Matter of the Adoption of Jamison Nicholas, 639 S.E. 2d 821 (W.V. 2006); C.B. and J.B. v.Commonwealth of Pa, 786 A.2d 176 (Pa. 2001). Need to also consider implications from Troxelv. Granville, 530 U.S. 57, 120 Ct 2054 (2000).
13. 42 USC 673: Adoption and guardianship assistance program (a) Agreements with adoptive parents of children with special needs; State payments; qualifying children; amount of payments; changes in circumstances; placement period prior to adoption; nonrecurring adoption expenses (1)(A) Each State having a plan approved under this part shall enter into adoption assistance agreements (as defined in section 675(3) of this title) with the adoptive parents of children with special needs. (B) Under any adoption assistance agreement entered into by a State with parents who adopt a child with special needs, the State— (i) shall make payments of nonrecurring adoption expenses incurred by or on behalf of such parents in connection with the adoption of such child, directly through the State agency or through another public or nonprofit private agency, in amounts determined under paragraph (3), and (ii) in any case where the child meets the requirements of paragraph (2), may make adoption assistance payments to such parents, directly through the State agency or through another public or nonprofit private agency, in amounts so determined. (2)(A) For purposes of paragraph (1)(B)(ii), a child meets the requirements of this paragraph if— (i) in the case of a child who is not an applicable child for the fiscal year (as defined in subsection (e)), the child— (I)(aa)(AA) was removed from the home of a relative specified in section 606(a) of this title (as in effect on July 16, 1996) and placed in foster care in accordance with a voluntary placement agreement with respect to which Federal payments are provided under section 674 of this title (or section 603 of this title, as such section was in effect on July 16, 1996), or in accordance with a judicial determination to the effect that continuation in the home would be contrary to the welfare of the child; and (BB) met the requirements of section 672(a)(3) of this title with respect to the home referred to in subitem (AA) of this item; (bb) meets all of the requirements of subchapter XVI with respect to eligibility for supplemental security income benefits; or (cc) is a child whose costs in a foster family home or child-care institution are covered by the foster care maintenance payments being made with respect to the minor parent of the child as provided in section 675(4)(B) of this title; and (II) has been determined by the State, pursuant to subsection (c)(1) of this section, to be a child with special needs; or (ii) in the case of a child who is an applicable child for the fiscal year (as so defined), the child— (I)(aa) at the time of initiation of adoption proceedings was in the care of a public or licensed private child placement agency or Indian tribal organization pursuant to— (AA) an involuntary removal of the child from the home in accordance with a judicial determination to the effect that continuation in the home would be contrary to the welfare of the child; or (BB) a voluntary placement agreement or voluntary relinquishment; (bb) meets all medical or disability requirements of subchapter XVI with respect to eligibility for supplemental security income benefits; or (cc) was residing in a foster family home or child care institution with the child's minor parent, and the child's minor parent was in such foster family home or child care institution pursuant to— (AA) an involuntary removal of the child from the home in accordance with a judicial determination to the effect that continuation in the home would be contrary to the welfare of the child; or (BB) a voluntary placement agreement or voluntary relinquishment; and