WSR 01-08-045

PERMANENT RULES

DEPARTMENT OF

SOCIAL AND HEALTH SERVICES
(Children's Administration)

(Division of Program and Policy)

[ Filed March 30, 2001, 4:34 p.m. ]

Date of Adoption: March 30, 2001.

Purpose: The proposed rules replace WAC 388-70-510 to 388-70-595 as part of the department's rule migration and regulatory reform required under Executive Order 97-02. The proposed rules create part of a new chapter, WAC 388-27-0120 to 388-27-0390, Child welfare services -- Adoption support for children. The proposed rules describe programs and funding requirements to a degree not previously described in rule, with respect to the adoption support program and reflect federal guidelines issued by the United States Department of Health and Human Services which determine federally funded adoption assistance.

Citation of Existing Rules Affected by this Order: Repealing WAC 388-70-510, 388-70-520, 388-70-530, 388-70-540, 388-70-550, 388-70-560, 388-70-570, 388-70-580, 388-70-590, and 388-70-595.

Statutory Authority for Adoption: RCW 74.13.031.

Adopted under notice filed as WSR 00-17-189 on August 23, 2000.

Changes Other than Editing from Proposed to Adopted Version: An addition was made to WAC 388-27-0120 and 388-27-0135 to reflect federal guidelines in Policy Announcement ACYF-CB-PA-01-01 issued by the United States Department of Health and Human Services (DHHS). These guidelines must be used by states in determining a child's eligibility for federally funded adoption assistance. Where these WAC regulations conflict with the guidelines set forth in the federal policy announcement, the federal guidelines are to be used.

Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 2, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 0, Amended 0, Repealed 0.

Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.

Number of Sections Adopted on the Agency's Own Initiative: New 0, Amended 0, Repealed 0.

Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 42, Amended 0, Repealed 10.

Number of Sections Adopted Using Negotiated Rule Making: New 0, Amended 0, Repealed 0; Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 42, Amended 0, Repealed 10. Effective Date of Rule: Thirty-one days after filing.

March 27, 2001

Susan Bush

for Bonita H. Jacques, Chief

Office of Legal Affairs

2828.5ADOPTION SUPPORT PROGRAM

PART A: GENERAL
NEW SECTION
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; and

(3) 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.

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NEW SECTION
WAC 388-27-0125   What is the purpose of the adoption support program?   The adoption support program encourages the adoption of special needs children in the legal custody of public or private nonprofit child care agencies who would not be adopted if support for the child was not available.

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NEW SECTION
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) and other terms and conditions of the agreement.

"Adoption support cash payment" means basic monthly cash payments paid to the adoptive parent(s) by 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.

"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.

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PART B: ELIGIBILITY
NEW SECTION
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.

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NEW SECTION
WAC 388-27-0140   What constitutes a "special needs"?   To be considered a child with special needs the following three statements must be true:

(1) One or more of the following factors or conditions must exist:

(a) The child is of a minority ethnic background;

(b) The child is six years of age or older at the time of application for adoption support;

(c) The child is a member of a sibling group of three or more or of a sibling group in which one or more siblings meets the definition of special needs;

(d) The child is diagnosed with a physical, mental, developmental, cognitive or emotional disability; or

(e) The child is at risk for a diagnosis of a physical, mental, developmental, cognitive or emotional disability due to prenatal exposure to toxins, a history of serious abuse or neglect, or genetic history.

(2) The state has determined that the child cannot or should not be returned to the home of the biological parent; and

(3) The department or child placing agency that placed the child for adoption must document that except where it would be against the best interests of the child the department or child placing agency had made a reasonable but unsuccessful effort to place the child for adoption without adoption support.

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NEW SECTION
WAC 388-27-0145   What constitutes a reasonable effort to place a child for adoption without adoption support?   Reasonable effort to place a child without adoption support includes:

(1) A child registered for three months with the Washington adoption resource exchange (WARE) without finding an adoptive family; or

(2) A child for whom a documented, formal agency search was conducted for three months, without finding a family who would adopt the child without adoption support services; or

(3) A child for whom the placing agency's selected prospective adoptive family is unable to adopt the child without assistance from the adoption support program.

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NEW SECTION
WAC 388-27-0150   Under what circumstances would it be against the best interest of the child to search for a family that could adopt the child without adoption support?   Searching for a family that could adopt the child without adoption support is against the best interest of the child when:

(1) A foster parent desires to adopt a child who:

(a) Has been in the foster parent's home for six months or more before that child becomes legally free for adoption; and

(b) The child has close emotional ties to the current foster parent which, if severed, may cause emotional damage to the child; and

(c) The foster parent is identified as the adoptive parent of choice by the department or agency staff having responsibility for the child (RCW 26.33.190 and 74.13.109(4)); or

(2) The adoptive parent is a relative of specified degree as defined in RCW 74.15.020 (4)(a) and has an approved adoptive home study per RCW 26.33.109 and 74.13.109(4).

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NEW SECTION
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) 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.)

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PART C: APPLICATION
NEW SECTION
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.

(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.

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NEW SECTION
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) 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.

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PART D: AGREEMENT
NEW SECTION
WAC 388-27-0170   What is the nature and purpose of an adoption support agreement?   The adoption support agreement is a binding contract between the adoptive parent(s) and the department that identifies the terms and conditions that both parties must follow.

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NEW SECTION
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

(c) Inform the adoptive parents(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) 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).

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NEW SECTION
WAC 388-27-0180   If the adoptive family resides in or moves to another state, how is the child's participation in the adoption support services affected?   If the adoptive family resides in or moves to another state the child's participation in the adoption support program is affected as follows:

(1) Social services (Title XX) become the responsibility of the new state of residence.

(2) Medical benefits (Title XIX Medicaid) remain the responsibility of Washington state if the child is not eligible for federal Title IV-E adoption assistance. However, Washington state is no longer responsible if the child becomes eligible for the resident state's Title XIX program through the Interstate Compact on Adoption and medical assistance or other eligibility factors.

(3) Title XIX Medicaid benefits become the responsibility of the resident state if the child receives Title IV-E adoption assistance.

(4) Medicaid benefits included in Washington state's Medicaid plan, but not included in the resident state's plan, must remain the responsibility of Washington state and subject to Washington state plan limits.

(5) Washington state remains responsible for any cash payments made to the adoptive parent(s) on behalf of the child or any non-Medicaid counseling that has been pre-authorized by the adoption support program per WAC 388-27-0245.

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NEW SECTION
WAC 388-27-0185   When does the adoption support agreement become effective?   (1) Unless otherwise stated in the adoption support agreement, an adoption support agreement takes effect on the first day of the month following the month in which the court finalizes the adoption.

(2) If the child to be adopted needs support benefits prior to finalization, the assigned regional adoption support program manager may arrange an early effective date. To be eligible for an early effective date, the applicant must:

(a) Have an adoption support agreement signed by all parties;

(b) Sign the child's medical and family background report (DSHS 13-041) and a statement of the applicant's intention to adopt; and

(c) Have the department's designee sign "an exception to policy" statement.

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NEW SECTION
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.

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NEW SECTION
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 the benefits offered in the adoption support agreement whenever either the family's economic circumstances or the condition of the child changes.

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NEW SECTION
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 the department loses contact with the adoptive parent(s);

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

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

(5) 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.

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NEW SECTION
WAC 388-27-0205   Does the adoptive parent need to let the department know if the family's circumstances change?   The adoptive parent must inform the department's adoption support program of circumstances that might make the parent and the adoptive child either ineligible for adoption assistance payments or benefits or eligible for adoption assistance payments or benefits in different amounts. Such changes include but are not limited to:

(1) A significant change in the child's condition;

(2) A change in the marital status of the adoptive parent(s);

(3) A change in the legal or physical custody of the child; or

(4) A change in the adoptive family's mailing address.

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NEW SECTION
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) The adoptive parents are no longer providing financial support for the child;

(5) The child dies; or

(6) 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.)

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PART E: SERVICES
NEW SECTION
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) 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).

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NEW SECTION
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.

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NEW SECTION
WAC 388-27-0225   What are the current maximum rates available for basic adoption support monthly cash payments and special rate?   Effective July 1, 2000 the maximum basic monthly adoption support rates as established by the state legislature are:

Age of Child Maximum Rate
Less than six years old $316.62
Six through eleven years old $390.11
Twelve years or older $462.24
Special rate $147.94

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NEW SECTION
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:

(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) 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) Under no circumstances may the amount of the basic adoption support monthly rate the department pays for the child exceed the adoption support rate established by the legislature for a child of that age.

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NEW SECTION
WAC 388-27-0235   How does the department evaluate a request for adoption support special rate cash payments?   (1) The adoption support program may pay the special rate of up to an additional one hundred forty-seven dollars and ninety-four cents per month for children whose diagnosed condition requires adaptive or specialized support in order for the child to participate in the typical environment to the fullest extent possible.

(2) The department and the adoptive parents will jointly determine the level of adoption support special rate payments (if any) that may be needed to meet the specialized support of the child.

(3) The department will not authorize special rate payments for services available through other departmental or community resources/services.

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NEW SECTION
WAC 388-27-0240   How does the department evaluate a request for adoption support supplemental cash payments?   The department and the adoptive parents will jointly determine the level of adoption support supplemental cash payments.

(1) Supplemental cash payments are to assist the family in purchasing goods and services that are necessary to meet the physical, mental, developmental, cognitive or emotional needs of the child when those goods and services are not otherwise available through other resources.

(2) Supplemental cash payments must not be used to compensate the parent for difficulty of care (i.e., for the parents' time and energy spent caring for the child).

(3) Not all children are eligible to receive supplemental cash payments.

(4) Services necessary to meet the child's physical, mental, developmental cognitive or emotional needs may include:

(a) Special diets;

(b) Minor modifications to the environment to meet the medical needs of the child;

(c) Additional supervision needs required for the safety of the child or others which result from the child's disabilities; or

(d) Other costs to meet the child's needs as mutually agreed upon by the department and the adoptive parent.

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NEW SECTION
WAC 388-27-0245   What specific department requirements apply to supplemental cash payments?   (1) If the child was adopted on or after July 1, 1996 the child may be eligible for additional support through supplemental cash payments.

(2) For supplemental cash payments, the department must:

(a) Base the payments upon needs documented and identified by the adoptive parent, the child's social worker, and/or the other professionals who are providing services to the child;

(b) Review payments annually (or as specified in the agreement) to determine the level of continued payments;

(c) Continue or modify payments based upon documented needs and mutual agreement between the adoptive parent(s) and the department.

(3) Under no circumstances may the total amount of payment to the family exceed the amount of the foster care maintenance payment that would be paid for that child if that child were in foster care.

(4) The department will not authorize supplemental cash payments for services available through other departmental or community resources/services.

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NEW SECTION
WAC 388-27-0250   What specific department requirements apply to medical services?   (1) While an adoption support agreement remains in effect, the department's medical program rules apply to the adopted child.

(2) The department must make all medical payments according to established department procedures and directly to the child's physician(s) or service provider(s).

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NEW SECTION
WAC 388-27-0255   What specific department requirements apply to outpatient counseling and/or mental health services not covered by Medicaid?   When the department's adoption support program directly pays for a child's counseling and/or mental health services, the following conditions apply:

(1) The adoptive parent must obtain written authorization from the department's adoption support program before the service is rendered;

(2) The adoptive parents' primary health care coverage must be billed prior to billing the department's adoption support program;

(3) The department will pay the adoption support program's authorized rate minus any payment made by the primary (and other) insurer;

(4) The department may grant verbal authorization for no more than three counseling sessions prior to providing the required written authorization;

(5) The child's therapist or other treatment provider must submit a written treatment plan prior to authorization for continued treatment;

(6) The department may authorize counseling as follows:

(a) Up to six hours of outpatient counseling per month for up to twelve months; or

(b) Up to a total of twenty hours per quarter when critical need warrants;

(7) The department may extend the authorization for counseling (beyond the initial time period authorized) upon receipt of an updated treatment plan and documentation supporting the need for additional treatment from the treatment provider and a parent's request for continuing counseling (DSHS 10-214);

(8) The department may authorize this service for only one provider at a time unless a second provider is required for a different service.

(9) The department encourages adoptive parents to seek an annual assessment of the functioning of the adoptive child within the family to determine if there are mental health services needed to help maintain and/or strengthen the adoptive placement.

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NEW SECTION
WAC 388-27-0260   If the adoptive parent requests residential placement services for the parent's adopted child, what department requirements apply?   (1) The adoption support program must not pay for residential treatment placements. See RCW 74.13.080 and WAC 388-25-0025.

(2) If the adoptive parent requests residential treatment services for a child:

(a) For treatment of a mental illness, the department must refer the family to the local regional support network (RSN);

(b) If a diagnosis of physical, mental, developmental, cognitive or emotional disability is present, department staff must refer the child to the division of developmental disabilities (DDD) to determine eligibility of services for which the child might be eligible; or

(c) For reasons other than treatment of mental illness or developmental disabilities, department staff must refer the adoptive parent to the child welfare services intake at the local office of the division of children and family services (DCFS).

(3) The adoption support program manager may assist the adoptive parent in arranging residential service for the child but must not be responsible for the child's placement or for the payment of the residential service.

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NEW SECTION
WAC 388-27-0265   What are the consequences of the department placing the adopted child in foster care, group care, or residential treatment?   (1) If a child is on active status with Washington state's adoption support program and the department places the child in foster care, group care, or residential treatment, the department may report to the division of child support that good cause exists for not pursuing collection of support payments.

(2) The department must review the adoption support agreement and must discontinue any cash payments to the adoptive parent during the child's out-of-home placement unless the adoptive parent(s) documents continuing expenses directly related to the child's needs.

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NEW SECTION
WAC 388-27-0270   What department requirements apply to child care services?   For children adopted on or after July 1, 1996 the adoption support program may authorize childcare. The following conditions must exist:

(1) In a two-parent home, both parents must be employed out of the home;

(2) In a single parent home, the parent must be employed out of the home;

(3) The department must make payment directly to the child care provider at the department rate for child care in that geographic area;

(4) The child must be less than twelve years of age;

(5) The childcare facility must have a valid license;

(6) The total (gross) income of the adoptive family must not exceed eighty-five percent of the state median income adjusted for family size (SMIAFS);

(7) The adoptive parent may be expected to participate in the cost of childcare, depending on individual circumstances; and

(8) If the family qualifies for the state childcare program the family must use that program first. The adoption support program may assist the family in making the co-payment to the state childcare program. The adoption support program must determine assistance with the co-payment on an individual case-by-case basis.

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PART F: REVIEW
NEW SECTION
WAC 388-27-0275   When does the department review an adoption support agreement?   (1) The adoption support program must review an agreement:

(a) At least once every five years; or

(b) When the adoptive parents request a change in the terms of the agreement.

(2) The department may review an adoption support agreement:

(a) Whenever variations in medical opinions, prognosis, or costs warrant a review; or

(b) At the department's request.

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NEW SECTION
WAC 388-27-0280   What is involved in the review process?   (1) The review process provides an opportunity for the adoptive parent to describe any changes in family circumstances or the child's condition and request a change in the terms of the adoption support agreement.

(2) The adoptive parent must provide supporting documentation upon department request.

(3) The department may request a copy of the adoptive parents' most recently filed IRS form 1040. If not required to file a federal tax return the adoptive parent(s) must submit a financial statement upon department request.

(4) The adoptive parent must request that the child's medical provider complete an EPSDT (early periodic screening, diagnosis and treatment) exam and submit a report of the results to the adoption support program.

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NEW SECTION
WAC 388-27-0285   What is the department's responsibility when the adoptive parent(s) requests a review of the adoption support agreement?   The adoption support program must initiate a review of the adoption support agreement no later than thirty days after receiving the adoptive parents' request for review of the agreement.

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NEW SECTION
WAC 388-27-0290   What if the department does not respond to a request for a review of an adoption support agreement within thirty days?   If the department does not respond to an adoptive parent's request for a review of an adoption support agreement within thirty days, the adoptive parent has the right to an administrative hearing (see RCW 74.13.127).

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NEW SECTION
WAC 388-27-0295   What requirements apply to the review of a support agreement?   (1) The adoptive parent and the department must negotiate any changes in the agreement that result from a review;

(2) Changes in the terms of the agreement may be retroactive to the date the department received the written request; and

(3) If the department modifies the terms of the agreement, the adoptive parent and the department must sign a new agreement.

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NEW SECTION
WAC 388-27-0300   After a review, what if the department and the adoptive parent cannot agree on the terms of the adoption support agreement?   If the department proposes service changes without the adoptive parent's consent, the department must give written notification of those changes. In that notice, the department must clearly state the department's reasons for the proposed changes and inform the adoptive parent of the adoptive parent's right to an administrative hearing.

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PART G: POST-FINALIZATION REQUESTS FOR ASSISTANCE
NEW SECTION
WAC 388-27-0305   May an adoptive parent apply for adoption support services after the adoption has been finalized?   Federal and state laws and rules require that a prospective adoptive parent must apply for adoption assistance prior to adopting a special needs child and that the prospective adoptive parent must have a valid adoption support agreement, signed by all parties, before the adoption is finalized.

However, both state and federal governments have recognized that in some situations there may have been extenuating circumstances that prevented the child from being placed on the adoption support program prior to adoption. For these situations separate remedies have been created depending on which eligibility criteria are met by the child.

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NEW SECTION
WAC 388-27-0310   If a child met federal Title IV-E eligibility for adoption assistance before the adoption, but was not placed on the adoptive support program, what may the adoptive parent do after adoption finalization to obtain adoption support services for the adopted child?   For a child who met the Title IV-E eligibility criteria for adoption assistance prior to adoption, federal rules allow for a possible finding of extenuating circumstances through an administrative hearing process. In these situations the adoptive parent must request a review by an administrative law judge or a review judge to obtain an order authorizing the department to enter into a post-adoption agreement to provide adoption support services to a special needs child.

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NEW SECTION
WAC 388-27-0315   What constitutes "extenuating circumstances"?   An administrative law judge or a review judge may make a finding of extenuating circumstances if one or more of the following situations exist:

(1) Relevant facts regarding the child, the biological family or child's background were known by the agency placing the child for adoption and not presented to the adoptive parents prior to the legalization of the adoption;

(2) The department denied adoption assistance based upon a means test of the adoptive family;

(3) Erroneous determination or advice by the department or private child placing agency that a child is ineligible for adoption assistance; or

(4) Failure by the placing agency to advise adoptive parents of the availability of adoption assistance.

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NEW SECTION
WAC 388-27-0320   What is the effective date of an adoption support agreement that results from a finding of extenuating circumstances?   The effective date of an adoption support agreement the department and the adoptive parent have entered into as a result of a finding of extenuating circumstances may not be before the date the department received the written request from the adoptive parent for participation in the adoption support program. Under no circumstances may the department back date an adoption support agreement more than two years from the date of an order of an administrative law judge or review judge authorizing the department to enter an adoption support agreement after finalization of the adoption.

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NEW SECTION
WAC 388-27-0325   If a child did not meet federal Title IV-E eligibility for adoption assistance before the adoption, what may the adoptive parent do after adoption finalization to obtain adoption support services for the adopted child?   For children ineligible for federal Title IV-E Adoption Assistance, the department may provide limited support through the state-funded adoption support reconsideration program.

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NEW SECTION
WAC 388-27-0330   What is the adoption support reconsideration program?   (1) The adoption support reconsideration program allows the department to register an eligible adopted child for limited state-funded support (see RCW 74.13.150).

(2) The reconsideration program provides for payment of medical and counseling services to address the physical, mental, developmental, cognitive, or emotional disability of the child that resulted in the child's eligibility for the program.

(3) There is a twenty thousand dollar per child lifetime cap on this program.

(4) The program requires the adoptive parent and the department to sign an adoption support reconsideration agreement specifying the terms, conditions, and length of time the child will receive limited support.

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NEW SECTION
WAC 388-27-0335   How does a child qualify for the adoption support reconsideration program?   To be eligible for the adoption support reconsideration program, a child must:

(1) Have resided, immediately prior to adoption finalization, in a department funded pre-adoptive placement or in department funded foster care;

(2) Have a physical or mental handicap or emotional disturbance that existed and was documented before adoption or was at high risk for future physical or mental handicap or emotional disturbance due to conditions to which the child was exposed before adoption;

(3) Reside in Washington state with an adoptive parent who lacks the financial resources to care for the child's special needs; and

(4) Be covered by a primary basic health insurance program.

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NEW SECTION
WAC 388-27-0340   How does an adoptive parent apply for the adoption support reconsideration program?   To apply, the adoptive parent must complete an application for adoption support reconsideration and attach:

(1) A written cost estimate of the child's proposed corrective-rehabilitative services;

(2) A current medical evaluation of the child including the cause(s) of the condition requiring corrective-rehabilitative services;

(3) A written statement explaining the child's current medical and counseling needs;

(4) A written statement giving the department permission to request and review pre-adoption information held by the adoption agency facilitating the child's adoption; and

(5) A copy of the adoptive parents' most recently filed IRS 1040 federal income tax form.

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NEW SECTION
WAC 388-27-0345   What types of services does the department provide through the adoption support reconsideration program?   The reconsideration program provides some support for counseling and medical services needed to treat the child's qualifying condition.

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NEW SECTION
WAC 388-27-0350   What department requirements apply to adoption support reconsideration services?   (1) The department must authorize, in writing, any services paid by the adoption support reconsideration program before the services are provided.

(2) The department must base the authorized level of service on the child's needs and must limit the level of service to established program rates.

(3) The department must limit medical services to those services that would be available to the child if the child were eligible for Medicaid coverage.

(4) The department must make no cash payments to the family.

(5) The department must make payment directly to the provider of the authorized service.

(6) The adoptive parents' basic health insurance must provide primary coverage and must be used before billing the reconsideration program. The adoption support reconsideration program must be the secondary insurer.

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NEW SECTION
WAC 388-27-0355   Under what conditions or circumstances would a child become ineligible for the adoption support reconsideration program?   (1) Eligibility for adoption support reconsideration services ends according to the terms of the adoption support reconsideration agreement or when the child:

(a) Reaches eighteen years of age;

(b) Is eligible for the federal Title IV-E adoption assistance program and has been placed on that program;

(c) Has received twenty thousand dollars in department paid medical, dental, and/or counseling services; or

(d) Is no longer the financial responsibility of the adoptive parent(s).

(2) If the parent dies, the reconsideration agreement becomes invalid. Neither the agreement nor the child's eligibility for the program are transferable to a subsequent adoption.

(3) The department may suspend services when the child:

(a) Resides outside the adoptive parents' home for more than thirty continuous days; or

(b) Is no longer covered by primary basic health insurance.

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NEW SECTION
WAC 388-27-0360   What happens if the state no longer funds the adoption support reconsideration program?   If the department no longer has funds available for the program, a child's participation in the program will cease. The department will terminate the adoption support reconsideration agreement.

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PART H: APPEAL RIGHTS
NEW SECTION
WAC 388-27-0365   Does an adoptive parent have the right to appeal department decisions regarding adoption support issues?   (1) An adoptive parent has the right to an administrative hearing to contest the following department actions:

(a) Denial of a child's initial eligibility for the adoption support program or the adoption support reconsideration program;

(b) Failure to respond with reasonable promptness to a written application or request for services;

(c) Denial of a written request to modify the level of payment or service in the agreement;

(d) A decision to increase or decrease the level of the child's adoption support payments without the concurrence of the adoptive parent(s);

(e) Denial of a request for nonrecurring adoption expenses; or

(f) Termination from the program.

(2) The adoptive parent must submit a request for an administrative hearing to the office of administrative hearings within ninety days of receipt of the department's decision to deny a request or failure to respond to a request.

(3) The office of administrative hearings must apply the rules in WAC 388-27-0120 through 388-27-0390 as they pertain to the issues being contested.

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NEW SECTION
WAC 388-27-0370   What information about adoption support agreements may be used in an administrative hearing?   Adoption and adoption support files are confidential, and information contained in those files may not be disclosed without the consent of the person who is the subject of the file. By requesting an administrative hearing to challenge a department decision relating to adoption support the adoptive parent is agreeing that the department may release factual information about the case during the course of the proceedings. Actions taken by the department and decisions by administrative law judges or review judges in adoption support cases which do not directly involve the case being heard may not be cited or relied upon in any administrative proceeding (RCW 26.33.340 and 74.04.060).

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PART I: NONRECURRING COSTS
NEW SECTION
WAC 388-27-0375   Will the department reimburse an adoptive parent for nonrecurring adoption expenses?   The department may agree to reimburse some or all of an adoptive parent's nonrecurring adoption expenses if:

(1) The child has a qualifying factor or condition identified in WAC 388-27-0140(1);

(2) Washington state has determined that the child cannot or should not be returned to the home of the child's biological parent; and

(3) Except where it would be against the best interest of the child, the department or a child placing agency has made a reasonable but unsuccessful effort to place the child with appropriate adoptive parents without the benefit of adoption assistance; and

(4) The child has been placed for adoption according to applicable state and local laws or Tribal laws.

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NEW SECTION
WAC 388-27-0380   What types of nonrecurring adoption expenses will the department reimburse?   The department may reimburse:

(1) Court costs directly related to finalizing an adoption;

(2) Reasonable and necessary adoption fees;

(3) Reasonable and necessary attorney fees directly related to finalizing an adoption; and

(4) Costs associated with an adoption home study, including:

(a) Health and psychological examination;

(b) Placement supervision before adoption;

(c) Transportation, lodging, and food costs incurred by the adoptive parent(s) and child during pre-placement visits; and

(d) Other costs directly related to finalizing the legal adoption of the child.

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NEW SECTION
WAC 388-27-0385   Is there a limit to the amount of nonrecurring adoption expenses that the department will reimburse?   Department reimbursement of nonrecurring adoption expenses must not exceed one thousand five hundred dollars per child.

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NEW SECTION
WAC 388-27-0390   How does an adoptive parent get reimbursed for nonrecurring adoption expenses?   (1) Before the adoption is finalized, the adoptive parent must sign an agreement with the department specifying the nature and amount of nonrecurring adoption expenses. This agreement may be part of an adoption support agreement or it may be a separate agreement specific to the reimbursement for nonrecurring adoption finalization costs. The department will make no reimbursement payments unless such an agreement exists.

(2) Upon finalization of the adoption, the adoptive parent may request reimbursement. A copy of the adoption decree and documentation supporting actual costs incurred must accompany the request for reimbursement.

(3) The department must reimburse documented actual costs or the amount specified in the signed agreement, whichever is less.

(4) The department will not reimburse nonrecurring adoption expenses that are reimbursable from other sources (for example: IRS, military, or the adoptive parent's employer).

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REPEALER

     The following sections of the Washington Administrative Code are repealed:
WAC 388-70-510 Adoption support for children -- Legal basis -- Purpose.
WAC 388-70-520 Adoption support for children -- Definitions.
WAC 388-70-530 Adoption support for children -- Eligible child.
WAC 388-70-540 Adoption support for children -- Application.
WAC 388-70-550 Adoption support for children -- Types and amounts of payments.
WAC 388-70-560 Adoption support for children -- Criteria governing amount of payment.
WAC 388-70-570 Adoption support for children -- Agreement for adoption support.
WAC 388-70-580 Adoption support for children -- Review of support payment.
WAC 388-70-590 Adoption support for children -- Appeal from secretary's decision -- Hearing.
WAC 388-70-595 Reimbursement for nonrecurring adoption finalization costs.

Washington State Code Reviser's Office