WSR 04-06-024

PERMANENT RULES

DEPARTMENT OF

SOCIAL AND HEALTH SERVICES
(Children's Administration)

[ Filed February 23, 2004, 3:36 p.m. ]

Date of Adoption: February 19, 2004.

Purpose: The department is amending and repealing the following rules in compliance with the directives of ESSB 6387, section 202(8), chapter 371, Laws of 2002, to control rate and reimbursement decisions with families adopting special needs children. The only method of compliance available to the department in seeking to secure permanent families for special needs children and assist those families in accessing needed social services is to maximize use of federal funds. Amendment and repeal of current WACs brings the department in compliance with federal rules and allows federal funds to be captured.

Citation of Existing Rules Affected by this Order: Repealing WAC 388-27-0225, 388-27-0235, 388-27-0240, 388-27-0245 and 388-27-0270; and amending WAC 388-27-0120, 388-27-0130, 388-27-0135, 388-27-0155, 388-27-0160, 388-27-0165, 388-27-1075, 388-27-0190, 388-27-0195, 388-27-0200, 388-27-0210, 388-27-0215, 388-27-0220, and 388-27-0230.

Statutory Authority for Adoption: RCW 74.13.109, 74.13.031.

Other Authority: ESSB 6387, section 202(8), chapter 371, Laws of 2002; 42 U.S.C. 671-675.

Adopted under notice filed as WSR 04-01-088 on December 16, 2003, and WSR 04-02-026 on December 30, 2003.

Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 4, Repealed 1; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 0, Amended 0, Repealed 0.

Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.

Number of Sections Adopted on the Agency's Own Initiative: New 0, Amended 0, Repealed 0.

Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, Amended 10, Repealed 4.

Number of Sections Adopted Using Negotiated Rule Making: New 0, Amended 0, Repealed 0; Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 0, Amended 14, Repealed 5.
Effective Date of Rule: Thirty-one days after filing.

February 19, 2004

Brian H. Lindgren, Manager

Rules and Policies Assistance Unit

3234.3
AMENDATORY SECTION(Amending WSR 01-08-045, filed 3/30/01, effective 4/30/01)

WAC 388-27-0120   What is the legal basis of the department's adoption support program?   The legal authorities for the program are:

(1) Revised Code of Washington (RCW) 74.13.100 through 74.13.159;

(2) Chapter 42 United States Code (U.S.C.) ((673)) 671-675; and

(3) The U.S. Department of Health and Human Services (DHHS) policy ((announcement ACFY-CB-PA-01-01 (issued January 23, 2001) establishing)) guidelines for states to use in determining a child's eligibility for Title IV-E adoption assistance (contained in DHHS Policy Manual).

[Statutory Authority: RCW 74.13.031. 01-08-045, 388-27-0120, filed 3/30/01, effective 4/30/01.]


AMENDATORY SECTION(Amending WSR 01-08-045, filed 3/30/01, effective 4/30/01)

WAC 388-27-0130   What definitions apply to the adoption support program?   The following definitions apply to this chapter:

"Adoption" means the granting of an adoption decree consistent with chapter 26.33 RCW.

"Adoption support agreement" means a written contract between the adoptive parent(s) and the department that identifies the specific support available to the adoptive ((parents(s))) parent(s) and other terms and conditions of the agreement.

"Adoption support cash payment" means ((basic)) negotiated monthly cash payments paid pursuant to an agreement between the adoptive parent(s) ((by)) and the department after the child's adoption.

(("Adoption support special rate" means monthly cash payments in addition to the basic adoption support rate. The department may authorize payment of these funds only to meet documented exceptional expenses necessary to address the special needs condition of the child.

"Adoption support supplemental cash payment" means cash payments in addition to the adoption support basic monthly cash payments and the adoption support special rate. These supplemental payments enable the special needs child to receive services not funded by the monthly cash support payment or other resources. Note: Only children adopted on or after July 1, 1996 are eligible for supplemental cash payments.))

"Applicant" means a person or couple applying for adoption support on behalf of a child the person or couple plans to adopt.

"Child placing agency" means a private nonprofit agency licensed by the department under chapter 74.15 RCW to place children for adoption or foster care.

"Department" means the department of social and health services.

"Extenuating circumstances" means a finding by an administrative law judge or a review judge that one or more certain qualifying conditions or events prevented an otherwise eligible child from being placed on the adoption support program prior to adoption.

"Medical services" means services covered by Medicaid (and administered by the medical assistance administration) unless defined differently in the adoption support agreement.

"Negotiation" means the process of working toward an agreement between the department and the adoptive parent on the terms of the adoption support agreement, including any amount of monthly cash payment.

"Nonrecurring costs" means reasonable, necessary, and directly related adoption fees, court costs, attorney fees, and other expenses the adoptive parent incurs when finalizing the adoption of a special needs child. Total reimbursement from the department may not exceed one thousand five hundred dollars.

"Placing agency" means the agency that has the legal authority to place the child for adoption. This may be the department or a private nonprofit child placing agency.

"Program" means the department's adoption support program.

"Reconsideration" means the limited state-funded support available to an eligible child whose adoption was finalized without a valid adoption support agreement in place.

"Resident state" (for purposes of the child's Medicaid eligibility) means the state in which the child physically resides. In some cases this may be different from the state of the parent's legal residence.

"Special needs" means the specific factors or conditions that apply to the child and that may prevent the child from being adopted unless the department provides adoption support services. See WAC 388-27-0140 for a detailed description of the factors or conditions.

[Statutory Authority: RCW 74.13.031. 01-08-045, 388-27-0130, filed 3/30/01, effective 4/30/01.]


AMENDATORY SECTION(Amending WSR 01-08-045, filed 3/30/01, effective 4/30/01)

WAC 388-27-0135   What are the eligibility criteria for the adoption support program?   For a child to be eligible for participation in the adoption support program, the department must first determine that adoption is the most appropriate plan for the child. If the department determines that adoption is in the child's best interest, the child must:

(1) Be less than eighteen years old when the department and the adoptive parents sign the adoption support agreement;

(2) Be legally free for adoption;

(3) Have a "special needs" factor or condition according to the definition in this rule (see WAC 388-27-0140); and

(4) Meet at least one of the following criteria:

(a) Is in state-funded foster care or child caring institution or was determined by the department to be eligible for and likely to be so placed (For a child to be considered "eligible for and likely to be placed in foster care" the department must have opened a case and determined that removal from the home was in the child's best interest.); or

(b) Is eligible for federally funded adoption assistance as defined in Title IV-E of the Social Security Act, the Code of Federal Regulations, the U.S. Department of Health and Human Services ((policy announcement, ACFY-CB-PA-01-01 (issued January 23, 2001))) establishing guidelines for states to use in determining a child's eligibility for Title IV-E adoption assistance((, and any policy issuances of the Department of Health and Human Services)).

[Statutory Authority: RCW 74.13.031. 01-08-045, 388-27-0135, filed 3/30/01, effective 4/30/01.]


AMENDATORY SECTION(Amending WSR 01-08-045, filed 3/30/01, effective 4/30/01)

WAC 388-27-0155   Are there other factors affecting a child's eligibility for adoption support?   (1) A child is not eligible for adoption support program services and payments if the adopting parent is the birth parent or stepparent of the child.

(2) The department must not use the adoptive parents' income as a basis for determining the child's eligibility for the adoption support program((.

(3))), however, the department must consider income and other financial circumstances of the adopting family as one factor in determining the amount of any adoption support cash payments to be made. (See WAC 388-27-0230((, 388-27-0235, and 388-27-0240 for details)).)

[Statutory Authority: RCW 74.13.031. 01-08-045, 388-27-0155, filed 3/30/01, effective 4/30/01.]


AMENDATORY SECTION(Amending WSR 01-08-045, filed 3/30/01, effective 4/30/01)

WAC 388-27-0160   How does a prospective adoptive parent apply for adoption support services?   There are two ways a prospective adoptive parent (applicant) may apply for adoption support services:

(1) An applicant may apply through the social worker of the child to be adopted. The social worker must:

(a) Register the child with the adoption support program; and

(b) Submit the applicant's completed program application along with a completed worksheet used to assist the family and the department in determining services and amount of monthly cash payment, if needed, based on the needs of the child and family circumstances.

(2) An applicant may also apply directly to the adoption support program for adoption support services if:

(a) The child does not have an assigned social worker; or

(b) The applicant and the social worker have a dispute regarding the content of the program application.

[Statutory Authority: RCW 74.13.031. 01-08-045, 388-27-0160, filed 3/30/01, effective 4/30/01.]


AMENDATORY SECTION(Amending WSR 01-08-045, filed 3/30/01, effective 4/30/01)

WAC 388-27-0165   What requirements apply to an application for ongoing adoption support?   (1) The application must include a copy of the child's medical and family background report signed by the adoptive parent(s) (DSHS 13-041 minus the attachments). It must also include copies of medical and/or therapist reports that document the child's physical, mental, developmental, cognitive or emotional disability or risk of any such disability.

(2) If the applicant is requesting a cash payment, the applicant and the department must mutually determine both the type and amount according to the requirements of WAC 388-27-0230 ((and 388-27-0235)).

(3) ((If the applicant is requesting a supplemental cash payment, the applicant and the department must mutually determine the services for which the payment will be used and the expected duration of those services according to the requirements of WAC 388-27-820.

(4))) If the applicant is requesting reimbursement of nonrecurring costs, the applicant must include this request in the application. (See WAC 388-27-0380 and 388-27-0385 for the type and amount of expenses the department may reimburse.)

(((5))) (4) The applicant must furnish a copy of the applicant's most recently filed federal income tax return. If the applicant is not required to file a federal income tax return, the applicant must submit a financial statement with the applicant's adoption support application.

[Statutory Authority: RCW 74.13.031. 01-08-045, 388-27-0165, filed 3/30/01, effective 4/30/01.]


AMENDATORY SECTION(Amending WSR 01-08-045, filed 3/30/01, effective 4/30/01)

WAC 388-27-0175   What must be included in an adoption support agreement?   The adoption support agreement must:

(1) State the amount of cash payments (if any) the department must make to the adoptive parent(s) on behalf of the child;

(2) Include an itemized list of the additional services (including Title XIX Medicaid and Title XX social services) for which the child is eligible;

(3) Contain statements that:

(a) Assure that participation in the adoption support program must continue, as long as the child is eligible, regardless of where the adoptive family resides;

(b) Inform the adoptive parent(s) ((that the agreement must be reviewed (and may be revised) at least once every five years; and)) of specific circumstances that may warrant further renegotiation and adjustment of the payment as agreed to by the adoptive parents and the department;

(c) Inform the adoptive parent(s) that the agreement must be reviewed every five years. Terms of the agreement may be modified according to WAC 388-27-0200;

(d) Inform the adoptive ((parents(s))) parent(s) that the department may suspend a child from the program within thirty days of any changes in circumstances (of the child or family) that affect the child's eligibility for program payments if the adoptive parent has failed to notify the department of the changes((.

(d))); and

(e) Define the circumstances under which the agreement may be terminated.

(4) Be signed by all relevant parties before the final adoption decree is issued (45 C.F.R. Sec. 1356.40).

[Statutory Authority: RCW 74.13.031. 01-08-045, 388-27-0175, filed 3/30/01, effective 4/30/01.]


AMENDATORY SECTION(Amending WSR 01-08-045, filed 3/30/01, effective 4/30/01)

WAC 388-27-0190   If the department implements adoption support services prior to the adoption, may the adoptive parent(s) continue to receive department-funded foster care payments while also receiving adoption support payments?   (1) The adoptive parent(s) may not continue to receive department-funded foster care payments for a child while also receiving adoption support payments for the same child.

(2) If the adoptive parent(s) receives department-funded foster care for the child to be adopted, the department's social worker assigned to the child must terminate that coverage on the last day of the month preceding the month in which the adoption support becomes effective.

(3) Foster care payments are paid after the month of service. Adoption Support payments are paid prior to the month ((of service)).

(4) The adoptive parent(s) may not receive foster care payments and adoption support cash ((or supplemental)) payments for the same child for the same month ((of service)).

(5) If the adoptive parent is adopting a relative child and has been receiving a nonneedy relative grant the adoptive parent must notify the community services office financial services specialist that the adoption has been finalized. The adoptive parent may not receive both the grant and adoption support payments for the same month for the same child.

[Statutory Authority: RCW 74.13.031. 01-08-045, 388-27-0190, filed 3/30/01, effective 4/30/01.]


AMENDATORY SECTION(Amending WSR 01-08-045, filed 3/30/01, effective 4/30/01)

WAC 388-27-0195   May the adoptive parent(s) change the benefits contained in the adoption support program?   The adoptive parent may submit a written request asking that the department ((reexamine)) renegotiate the benefits offered in the adoption support agreement whenever either the family's economic circumstances or the condition of the child changes.

[Statutory Authority: RCW 74.13.031. 01-08-045, 388-27-0195, filed 3/30/01, effective 4/30/01.]


AMENDATORY SECTION(Amending WSR 01-08-045, filed 3/30/01, effective 4/30/01)

WAC 388-27-0200   When may the department modify the terms of the adoption support agreement?   The department's adoption support program may modify the terms of an adoption support agreement:

(1) At the request of the adoptive parent(s);

(2) When specific circumstances warrant renegotiation and adjustment of monthly cash payment as agreed to by the adoptive parents and the department;

(3) When the department loses contact with the adoptive parent(s);

(((3))) (4) When the child is placed outside of the adoptive parents' home at department expense;

(((4))) (5) If the adoptive parent is no longer providing for the child's daily care and living expenses; or

(((5))) (6) If the adoptive parent fails to notify the department's adoption support program within thirty days of a change of circumstance which affects the adopted child's continuing eligibility for adoption support program cash payments or services.

[Statutory Authority: RCW 74.13.031. 01-08-045, 388-27-0200, filed 3/30/01, effective 4/30/01.]


AMENDATORY SECTION(Amending WSR 01-08-045, filed 3/30/01, effective 4/30/01)

WAC 388-27-0210   Under what circumstances would the adoption support agreement be terminated?   The adoption support agreement is terminated according to the terms of the agreement or if any one of the following events occurs:

(1) The child reaches eighteen years of age; (If a child is at least eighteen but less than twenty-one years old and is a full-time high school student or working full time toward the completion of a GED (high school equivalency) certificate and continues to receive financial support from the adoptive parent(s), the department may extend the terms of the adoption support agreement until the child completes high school or achieves a GED. Under no circumstances may the department extend the agreement beyond the child's twenty first birthday.) Adoption support benefits will automatically stop on the child's eighteenth birthday unless the parent(s) requests continuation per this rule and have provided documentation of the child's continuation in school. To prevent disruption in services the parent should contact the adoption support program at least ninety days prior to the child's eighteenth birthday if continued services are to be requested.

(2) ((The adoptive parents request termination of the agreement;

(3))) The adoptive parents no longer have legal responsibility for the child;

(((4))) (3) The adoptive parents are no longer providing financial support for the child;

(((5))) (4) The child dies; or

(((6))) (5) The adoptive parents die. (A child who met federal Title IV-E eligibility criteria for adoption assistance will be eligible for adoption assistance in a subsequent adoption.)

[Statutory Authority: RCW 74.13.031. 01-08-045, 388-27-0210, filed 3/30/01, effective 4/30/01.]


AMENDATORY SECTION(Amending WSR 01-08-045, filed 3/30/01, effective 4/30/01)

WAC 388-27-0215   What benefits may the adoptive parent or child receive from the adoption support program?   The adoption support program may provide one or more of the following benefits:

(1) Reimbursement for nonrecurring adoption finalization costs;

(2) Cash payments;

(3) ((Supplemental cash payments (only for adoptions finalized on or after July 1, 1996);

(4))) Payment for counseling services as pre-authorized (see WAC 388-27-0255 for conditions and terms)((;

(5))); or

(4) Medical services through the department's Medicaid program((; or

(6) Child care as pre-authorized per WAC 388-27-0270 (for children adopted on or after July 1, 1996))).

[Statutory Authority: RCW 74.13.031. 01-08-045, 388-27-0215, filed 3/30/01, effective 4/30/01.]


AMENDATORY SECTION(Amending WSR 01-08-045, filed 3/30/01, effective 4/30/01)

WAC 388-27-0220   What factors affect the amount of adoption support benefits a child receives?   The department bases the amount of support it provides on the child's needs and the family's circumstances, but limits ((the amount to the rates set by these rules, federal laws and rules, and the state legislature)) the cash payment to an amount that does not exceed the foster care maintenance rate the child would receive if the child was in a foster family home. Specific circumstances as agreed to by the adoptive parent and the department in the agreement, may warrant future renegotiation and adjustment of the payment determined in an assessment of the child.

[Statutory Authority: RCW 74.13.031. 01-08-045, 388-27-0220, filed 3/30/01, effective 4/30/01.]


AMENDATORY SECTION(Amending WSR 01-08-045, filed 3/30/01, effective 4/30/01)

WAC 388-27-0230   How does the department evaluate a request for ((basic)) adoption support monthly cash payments?   (1) ((To determine the amount of basic monthly cash payment to be made, the department considers the child's physical, mental, developmental, cognitive and emotional condition and expenses as well as the adoptive family's)) The amount of the adoption support monthly cash payment is determined through the discussion and negotiation process between the adoptive parents and representatives of the department based upon the needs of the child and the circumstances of the family. The payment that is agreed upon should combine with the parents' resources to cover the ordinary and special needs of the child projected over an extended period of time. Anticipation and discussion of these needs are part of the negotiation of the amount of the adoption assistance payment.

(2) Family circumstances to be considered include:

(a) Size, including the adopted child;

(b) Normal living expenses, including education and childcare expenses;

(c) Exceptional circumstances of any family member;

(d) Income;

(e) Resources and savings plans;

(f) Medical care and hospitalization needs;

(g) Ability to purchase or otherwise obtain medical care; and

(h) Additional miscellaneous expenses related to the adopted child.

(((2))) (3) The department and the adoptive parents will jointly determine the level of adoption support cash payments needed to meet the basic needs of the child without creating a hardship on the family.

(((3))) (4) Under no circumstances may the amount of the ((basic)) adoption support monthly ((rate)) cash payment the department pays for the child exceed the ((adoption support rate established by the legislature for a child of that age)) amount of foster care maintenance payment that would be paid if the child were in a foster family home.

[Statutory Authority: RCW 74.13.031. 01-08-045, 388-27-0230, filed 3/30/01, effective 4/30/01.]


REPEALER

     The following sections of the Washington Administrative Code are repealed:
WAC 388-27-0225 What are the current maximum rates available for basic adoption support monthly cash payments and special rate?
WAC 388-27-0235 How does the department evaluate a request for adoption support special rate cash payments?
WAC 388-27-0240 How does the department evaluate a request for adoption support supplemental cash payments?
WAC 388-27-0245 What specific department requirements apply to supplemental cash payments?
WAC 388-27-0270 What department requirements apply to child care services?

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