Date of Adoption: September 15, 2003.

     Purpose: The department must amend and repeal 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. These rules will replace emergency rules filed as WSR 03-11-067.

     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, 388-27-0175, 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 74.13.031.

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

     Under RCW 34.05.350 the agency for good cause finds that immediate adoption, amendment, or repeal of a rule is necessary for the preservation of the public health, safety, or general welfare, and that observing the time requirements of notice and opportunity to comment upon adoption of a permanent rule would be contrary to the public interest; and that state or federal law or federal rule or a federal deadline for state receipt of federal funds requires immediate adoption of a rule.

     Reasons for this Finding: ESSB [6387], chapter 371, Laws of 2002, directed the department to control rate and reimbursement decisions with families adopting special needs children. Immediate amendment and repeal of the following rules are necessary to make the state eligible to capture federal funds in compliance with chapter 42, U.S.C. 671-675 and maximize the department's ability to assist families in accessing social services for difficult to place children. The department has filed notice of intent to adopt permanent rules, WSR 03-11-090, and we are working with stakeholders on drafting rules for formal proposal.

     Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 4, Repealed 1; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 0, Amended 10, Repealed 4.

     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 0, Repealed 0.

     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: Immediately.

September 10, 2003

Jim Schnellman

for Brian H. Lindgren, Manager

Rules and Policies Assistance Unit

     (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.]

     "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)) 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.]

     Reviser's note: The typographical error in the above section occurred in the copy filed by the agency and appears in the Register pursuant to the requirements of RCW 34.08.040.
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.]

     (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.]

     (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.]

     (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.]

     (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 (and may be revised every five years);

     (d) 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))); 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.]

     Reviser's note: The typographical error in the above section occurred in the copy filed by the agency and appears in the Register pursuant to the requirements of RCW 34.08.040.
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.]

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

     (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.]

     (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.]

     (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.]

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

     (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.]

     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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