Current through Register Vol. 41, No. 3, September 23, 2024
A. The
purpose of adoption assistance is to facilitate adoptive placements and ensure
permanency for children with special needs.
B. For a child to be eligible for adoption
assistance he must have been determined to be a child with special needs in
accordance with §§
63.2-1300
and
63.2-1301
of the Code of Virginia and meet the following criteria:
1. Be younger than 18 years of age and meet
the requirements set forth in § 473 of Title IV-E of the Social Security
Act (
42 USC §
673); or
2. Be younger than 18 years of age and in the
placement and care of a child-placing agency at the time the petition for
adoption is filed and be placed by the child-placing agency with the
prospective adoptive parents for the purpose of adoption, except for those
situations in which the foster parents have filed a petition for adoption under
§
63.2-1229
of the Code of Virginia.
C. Adoption assistance may include the
following payments or services where appropriate:
1. Title IV-E maintenance payments if the
child meets federal eligibility requirements.
2. State-funded maintenance payments when the
local department determines that (i) the child does not meet the requirements
in § 473 of Title IV-E of the Social Security Act (
42 USC §
673) and (ii) the child is a child with
special needs pursuant to §
63.2-1301B
of the Code of Virginia.
3.
State-funded special service payments used to help meet the child's physical,
mental, emotional, or dental needs (i) when the child is in the custody of the
local board or in the custody of a licensed child-placing agency and placed for
adoption, (ii) when the child meets the criteria of a child with special needs
set out in §
63.2-1300
of the Code of Virginia, and (iii) when the adoptive parents are capable of
providing permanent family relationships needed by the child in all respects
except financial.
4. Nonrecurring
expense payments when an adoption assistance agreement is entered into prior to
or at the time of the finalization of the adoption. Claims for nonrecurring
expense payments must be filed within two years of the date of the final decree
of adoption.
D. For the
child who meets the requirements in § 473 of Title IV-E of the Social
Security Act (
42 USC §
673) or who is receiving state-funded
maintenance payments and has a special medical need as specified in §
32.1-325
of the Code of Virginia and in the Virginia DSS Medicaid Eligibility manual,
M0310.102 2b, the adoption assistance agreement shall include a statement
indicating the child's Medicaid eligibility status.
E. Additional criteria for the payments and
services specified in subsection C of this section are as follows:
1. A maintenance payment, whether under Title
IV-E or state funded, shall be approved for a child who is eligible for
adoption assistance unless the adoptive parent indicates, or it is determined
through negotiation, that the payment is not needed.
a. The amount of all payments shall be
negotiated by a representative of the department with the adoptive parents,
taking into consideration the needs of the child and circumstances of the
adoptive parents.
b. The amount of
maintenance payments made shall not exceed the foster care maintenance payment
that would have been paid during the period if the child had been in a foster
family home.
c. The maintenance
payments shall not be reduced below the amount specified in the adoption
assistance agreement without the concurrence of the adoptive parentsor a
statewide reduction.
d. The
maintenance payment specified in the adoption assistance agreement may only be
increased if the child is already receiving the maximum amount allowed and (i)
the child reaches an age at which the foster care maintenance rate would
increase or (ii) statewide increases are approved for foster care maintenance
rates.
e. The adoptive parents
shall be required under the adoption assistance agreement to keep the local
department informed of the circumstances that would make them ineligible for a
maintenance payment or eligible for a different amount of maintenance payment
than that specified in the adoption assistance agreement.
f. Maintenance payments shall cease being
made to the adoptive parents for the child who has not yet reached the age of
18 years if (i) the adoptive parents are no longer legally responsible for the
support of the child or (ii) the child is no longer receiving any support from
the adoptive parents.
2.
The special service payment shall be directly related to the child's special
needs listed on the adoption assistance agreement. Special service payments
shall be time limited based on the needs of the child and can be modified
beyond the original provision of the agreement when the local department and
the adoptive parents agree to the modification in a signed and dated addendum.
Subsection K of this section addresses addendums to an existing agreement.
a. A special service payment may be used for
a child eligible for Medicaid to supplement payments not covered by
Medicaid.
b. Payments for special
services are negotiated by a representative of the department with the adoptive
parents, taking into consideration:
(1) The
special needs of the child;
(2)
Alternative resources available to fully or partially defray the cost of
meeting the child's special needs; and
(3) The circumstances of the adoptive family,
including the family's income.
c. The rate of payment shall not exceed the
prevailing rate for the provision of such special services within the child's
community.
d. The special services
adoption assistance payments shall be separate and distinct from the
maintenance payments and nonrecurring expenses on the adoption assistance
form.
3. The adoptive
parent shall be reimbursed, upon request, for the nonrecurring expenses of
adopting a child with special needs.
a. The
total amount of reimbursement shall be based on actual costs and shall not
exceed $2,000 per child per placement or an amount established by federal
law.
b. Payment of nonrecurring
expenses may begin as soon as the child is placed in the adoptive home and the
adoption assistance agreement has been signed.
c. Nonrecurring expenses include those items
set out in §
63.2-1301D
of the Code of Virginia.
4. When the adoptive parents decline a
specific payment or agree to a reduced payment amount and their family
circumstances or the child's needs change, the adoptive parents may request a
change to the agreement and an addendum to the adoption assistance agreement
can be negotiated. The requirements for addendums to an existing adoption
assistance agreement are in subsection K of this section.
F. All adoption assistance payments,
services, and agreements shall be negotiated with the adoptive parents by a
representative of the department, taking into consideration the needs of the
child, the circumstances of the family, and the limitations specified in
subsections B, C, and E of this section. Documentation supporting the requests
for payments and services shall be provided by the adoptive parents and for
consideration in the negotiation of the adoption assistance agreement. Income
shall not be the sole factor in considering the family's circumstances during
the negotiations. Available family and community resources shall be explored as
an alternative or supplement to the adoption assistance payment.
G. An adoption assistance agreement shall be
entered into by the local board and the adoptive parents or a child who has
been determined eligible for adoption assistance. Local departments shall use
the adoption assistance agreement form developed by the department. In cases in
which the child is in the custody of a licensed child-placing agency, the
agreement shall be entered into by the local board, the licensed child-placing
agency, and the adoptive parents. All adoption assistance agreements shall be
negotiated by a representative of the department.
H. When a child is determined to be eligible
for adoption assistance prior to the adoption being finalized, the adoption
assistance agreement shall:
1. Be signed prior
to or at the time of entry of the final order of adoption;
2. Specify the payment types, monthly
amounts, special services to be provided; and
3. Remain in effect and governed by the laws
of the Commonwealth of Virginia regardless of the state to which the adoptive
parents may relocate.
I.
Application for adoption assistance after finalization of the adoption shall be
for state-funded maintenance payments as set out in §
63.2-1301B
of the Code of Virginia. The application for adoption assistance shall be
submitted within one year of diagnosis of the condition that establishes the
child as a child with special needs.
J. The adoptive parents shall annually submit
a signed adoption assistance affidavit to the local department by the end of
the month in which the adoption assistance agreement was effective pursuant to
§
63.2-1302C
of the Code of Virginia.
K.
Adoption assistance agreements may be modified beyond the original provisions
of the agreement to the extent provided by law when the local department and
the adoptive parents agree in writing to new or renewed special services or
provisions in an addendum signed and dated by the local department and the
adoptive parents. The local departments shall use the addendum form provided by
the department and the changes to the agreement shall be negotiated by a
representative of the department.
L. The local department is responsible for:
1. Maintaining payments and services
identified in the adoption assistance agreement and any addendum in effect,
regardless of where the family resides;
2. Notifying adoptive parents who are
receiving adoption assistance that the annual affidavit is due;
3. Discussing with the adoptive parents the
child's unique needs and their ability to manage the needs of the
child;
4. Assisting the adoptive
parents in coordinating services to meet the child's special needs related to
adoption assistance upon request;
5. Providing services to prevent disruption
and strengthen family well-being, when requested by the adoptive parents;
and
6. Providing training, when
requested, to the adoptive parents as part of an already established local
department curriculum. If the local department does not provide the necessary
training when requested, the local department shall identify potential training
sources and assist the adoptive parent in accessing the training.
M. Adoption assistance shall be
terminated when the child reaches the age of 18 years unless:
1. The child has a physical or mental
disability or an educational delay resulting from the child's disability that
warrants continuation of the adoption assistance. If a child has a physical or
mental disability that warrants continuation of the adoption assistance, the
adoption assistance payments may continue until the child reaches the age of 21
years if the local department and adoptive parents sign an addendum to the
agreement to extend the agreement to the specified age. If the sole reason for
continuing the agreement beyond the age of 18 years is educational delay, then
state-funded adoption assistance may continue until the youth graduates from
high school or until the youth's 21st birthday, whichever is earlier, if the
local department and the adoptive parents sign an addendum to the agreement to
extend the agreement to the end of the month of high school graduation or until
the youth's 21st birthday, whichever is earlier or
2. The initial adoption assistance agreement
became effective on or after the youth's 16th birthday and the youth turned 18
years of age on or after July 1, 2016. Adoption assistance may continue until
the youth reaches 21 years of age if the youth meets one of the following
criteria:
a. Completing secondary education or
an equivalent credential;
b.
Enrolled in an institution that provides post-secondary or vocational
education;
c. Participating in a
program or activity designed to promote employment or remove barriers to
employment;
d. Employed at least 80
hours a month; or
e. Is incapable
of doing any of the activities described in subdivisions 2 a through 2 d of
this subsection due to a medical condition, which incapability is supported by
regularly updated information in the program participant's case
record.
N.
Adoption assistance shall not be terminated before the child's 18th birthday
without the consent of the adoptive parents unless:
1. The child is no longer receiving support
from the adoptive parents; or
2.
The adoptive parents are no longer legally responsible for the support of the
child.
O. Local boards
of social services are responsible for informing adoptive parents in writing of
their right to appeal decisions relating to the child's eligibility for
adoption assistance and decisions relating to payments and services to be
provided within 30 days of receiving written notice of such decisions. In
accordance with §
63.2-1304
of the Code of Virginia applicants for, and recipients of, adoption assistance
shall have the right to appeal adoption assistance decisions by a local board
or licensed child-placing agency in granting, denying, changing, or
discontinuing adoption assistance.
Statutory Authority: §§
63.2-217
and
63.2-319
of the Code of Virginia.
