110 CMR, § 7.209 - Adoption Subsidy

(1) Definition of Adoption Subsidy. The Department operates two adoption subsidy programs to support the adoption of children with special needs: a federally supported program governed by the provisions of Title IV-E of the Social Security Act, 42 U.S.C. § 673, (hereinafter "Title IV-E adoption subsidy"), and a state funded program created pursuant to M.G.L. c. 18B, § 21, (hereinafter state adoption subsidy"). In both programs, adoption subsidy consists of financial assistance and/or medical assistance through the State's Division of Medical Assistance and is provided on behalf of a child with special needs after the child has been adopted. Financial assistance is intended to aid in the support of the child with special needs and is paid directly to the adoptive parent(s). Medical assistance is intended to supplement family health insurance for the child with special needs and is paid directly to the vendor according to the current Division of Medical Assistance fee schedule. Financial assistance provided through adoption subsidy may not exceed the amount that would have been authorized during the period had the child been in family foster care.

(2) Definition of Child with Special Needs. A child is a "child with special needs" if the Department determines that the child meets the following three criteria.

(a) The child cannot or should not be returned to the home of his parents. Evidence that the child is legally free for adoption meets this criterion.

(b) At least one of the following circumstances applies:

1. The child has one or more special needs as a result of a mental, emotional or physical impairment, behavioral disorder, or medical condition that has been diagnosed by a licensed professional who is qualified to make the diagnosis.

2. The child is difficult to place for one or more of the following reasons:

a. The child is a member of a sibling group of two to be adopted together and one of the children is eight years of age or older;

b. The child is a member of a sibling group of three or more to be adopted together; or

c. The child is a member of an ethnic or cultural minority for whom reasonable, but unsuccessful, efforts to place the child in an adoptive home were made and documented.

3. The child's birth and/or family history places the child at risk of having special needs but, due to the child's age, a reliable diagnosis cannot be made.

(c) Reasonable efforts have been made to place the child for adoption in the most appropriate home without providing adoption subsidy. The requirement to make such efforts may be waived for any child whose best interests would not be served by a new placement because the child has developed significant emotional or psychological ties with the pre-adoptive parent(s) while in the care of such parent(s), and the pre-adoptive parent(s) cannot adopt the child without adoption subsidy.

(3) Eligibility Criteria - Title IV-E Adoption Subsidy. In order to be eligible for Title IV-E adoption subsidy, a child must meet the following criteria.

(a) The child is a child with special needs as defined in 110 CMR 7.209(2).

(b) The child is in substitute care and in the custody of the Department, or the child is in the custody of a licensed nonprofit placement agency, as defined in M.G.L. c. 28A, § 9, which has placed the child for adoption.

(c) Adoption is the plan for the child.

(d) The child resides in the pre-adoptive home.

(e) The child is a U.S. citizen or a qualified alien within the meaning of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996.

(f) If the child is in substitute care and in the custody of the Department, one of the following is established:

1. The child has been eligible for Title IV-E foster care payments; or

2. The costs of the child's foster care have been covered by Title IV-E foster care payments made on behalf of his/her minor parent; or

3. The child is S.S.I. eligible.

(g) If the child has been placed for adoption in a pre-adoptive home by a licensed non-profit placement agency, as defined in M.G.L. c. 28A, § 9, one of the following is established:

1. The child is S.S.I. eligible; or

2. The child meets the following criteria.

a. At the time the adoption proceedings were initiated, the child met or would have met the AFDC requirements as they existed in July 16, 1996 but for the child's removal from his/her home, either as a result of an adoption surrender or voluntary placement agreement, or a judicial determination to the effect that continuation in the home would be contrary to the child's welfare.

b. A court document(s) establishes that the child's removal from the home was the result of a judicial determination to the effect that continuation in the home would be contrary to the child's welfare. Provided however, if the child's removal from his/her home was the result of an adoption surrender or voluntary placement agreement, a court document(s) establishes that there was a judicial determination within 180 days of the initial placement with the agency to the effect that such placement is in the child's best interests.

(4) Eligibility Criteria - State Adoption Subsidy. In order to be eligible for state adoption subsidy, the child must meet the following criteria.

(a) The child is a child with special needs as defined in 110 CMR 7.209(2).

(b) The child is in substitute care and in the custody of the Department.

(c) Adoption is the plan for the child.

(d) The child resides in the pre-adoptive home.

(5) Application for Adoption Subsidy.

(a) Children with Special Needs in the Custody of the Department. When a child has been legally freed for adoption and placed in a pre-adoptive home, after informing the child's pre-adoptive parents about the adoption subsidy program, the Department social worker shall refer the child to the Subsidy Unit and provide information relevant to a determination of eligibility. The Subsidy Unit shall determine the child's eligibility for Title IV-E or state adoption subsidy, as applicable.

(b) Children with Special Needs in the Custody of a Licensed Nonprofit Placement Agency, as Defined in M.G.L. c. 28A, § 9. The pre-adoptive parent(s) or the placement agency may request an application for adoption subsidy by contacting the Department's Subsidy Unit. The application must be completed with the information necessary for an eligibility determination pursuant to 110 CMR 7.209(3) and returned to the Subsidy Unit. The Subsidy Unit will determine the child's eligibility for Title IV-E adoption subsidy.

(c) Adopted Children with Special Needs in the Custody of their Parents. The parent(s) of an adopted child with special needs may assert the right to an adoption subsidy in extenuating circumstances as set forth in 110 CMR 7.209(11) and (12). Where such circumstances are alleged, the adoptive parent(s) must write to the Department's Fair Hearing Unit to request a fair hearing and send a copy of the request to the Department's Subsidy Unit. The request for a fair hearing must include the following information: name, address and telephone number of the adoptive parent(s) and child; a brief statement of the reason(s) why the adoptive parent(s) believe that extenuating circumstances exist for entering into an adoption subsidy agreement after the adoption has been finalized; and whether the adoptive parent(s) adopted through the Department or licensed nonprofit placement agency as defined in M.G.L. c. 28A, § 9. A hearing officer shall decide whether extenuating circumstances exist and, if so, whether the child meets the eligibility criteria for adoption subsidy. The Department is under no obligation to provide adoption subsidy after a child has been adopted unless there are extenuating circumstances set forth in 110 CMR 7.209(5) and the child meets the eligibility criteria for Title IV-E or state adoption subsidy.

(6) Adoption Subsidy Agreement. If the Department determines that the child is eligible for a Title IV-E adoption subsidy, the type of assistance and, as applicable, the amount of assistance, will be determined through discussion and negotiation with the pre-adoptive parent(s), taking into consideration the circumstances of the pre-adoptive parent(s) and the needs of the child being adopted. If the Department determines that the child is not eligible for a Title IV-E adoption subsidy but is eligible for a state adoption subsidy, the Department will inform the pre-adoptive parent(s) of the determination, the type of assistance and, as applicable, the amount of assistance to be provided, taking into consideration the circumstances of the pre-adoptive parent(s) and the needs of the child being adopted, and of the right to challenge the denial of the child's Title IV-E eligibility in a fair hearing. Except as provided in 110 CMR 7.209(7), in both subsidy programs, the Department will provide the pre-adoptive parent(s) with an adoption subsidy agreement describing the subsidy program for which the child is eligible, the type of assistance and, if applicable, amount of assistance, and the circumstances under which the adoption subsidy may be terminated. The Department will inform the pre-adoptive parent(s) in writing that the adoption subsidy agreement must be signed and returned to the Department prior to finalization of the child's adoption and before the subsidy may be initiated.

(7) Deferred Subsidy Agreement.

(a) Initial Determination. If the Department determines that a child meets the eligibility criteria set forth in 110 CMR 7.209(3) or (4) and is at risk in the future of having special needs as set forth in 110 CMR 7.209(2)(b)3., the Department will provide a deferred subsidy agreement. In such cases, the Department will inform the pre-adoptive parent(s) that financial and/or medical assistance may be provided at a future date if the parent requests a re-determination of the decision to provide a deferred subsidy as set forth in 110 CMR 7.209(7)(b), but that no such request will be considered for at least one year from the date of the initial deferred subsidy agreement. The Department will also inform the pre-adoptive parent(s) in writing that the deferred subsidy agreement must be signed and returned prior to finalization of the child's adoption to preserve the child's eligibility and of the right to a fair hearing to challenge the Department's decision as provided in 110 CMR 10.06(5)(d). A deferred subsidy agreement shall terminate on the child's 18^th birthday.

(b) Re-determination. If an adoptive parent of a child who is the subject of a deferred subsidy agreement submits a request for re-determination to the Subsidy Unit along with documentation from a qualified professional diagnosing the child's special needs, the Department shall determine whether the child meets the criteria sets forth in 110 CMR 7.209(2)(b)1., and, if so, whether there is reasonable cause to believe that the child's mental, emotional or physical impairment, behavioral disorder or medical condition is related to the child's birth or family history prior to adoption. If the Department concludes that the child meets said requirements, the Department will enter into a Title IV-E or state adoption subsidy agreement, as applicable, as set forth in 110 CMR 7.209(6). If said requirements are not met, the Department will notify the adoptive parent in writing of the results of the re-determination, including the rationale for its decision, and of the right to challenge the Department's decision to deny an adoption subsidy agreement.

(8) Arrangements Prior to Finalization of Adoption; Initiation of Benefits. Except as provided in 110 CMR 7.209(11) and 7.209(12), only adoptive parents who have completed an adoption subsidy agreement with the Department prior to finalization of the adoption of their child with special needs shall be entitled to receive an adoption subsidy. Adoption subsidy benefits shall begin no earlier than the finalization of the adoption unless the Department determines that an earlier start date is in the best interest of the child.

(9) Re-evaluation Requirement. Adoption subsidy agreements are re-evaluated periodically at the discretion of the Department, or in the case of Title IV-E adoption subsidies, as agreed to by the Department and the adoptive parent(s). At the time of the re-evaluation, the amount of the subsidy may be adjusted based on a change in the circumstances of the adoptive family and/or the child's special needs, or the subsidy may be terminated for the reasons set forth in 110 CMR 7.209(13). A Title IV-E adoption subsidy may be adjusted only after negotiation with, and agreement by, the adoptive parent except the Department may terminate the subsidy after providing written notice of the decision and the right to a fair hearing. In the case of a state adoption subsidy, the Department will notify the adoptive parent(s) in writing of the Department's decision upon re-evaluation and the reasons for it, and of the right to a fair hearing to challenge a decision to reduce or terminate the adoption subsidy.

(10) Denial. If a request for an adoption subsidy is denied, the Department shall notify the pre-adoptive parent(s) in writing of the denial. A statement of reasons shall be included along with notice of the right to request a fair hearing to appeal the decision. Requests for adoption subsidy after finalization of the adoption shall be governed by the provisions set forth in 110 CMR 7.209(11) and (12), as applicable.

(11) Extenuating Circumstances - Title IV-E Adoption Subsidy.

(a) If, after the adoption of a child with special needs as defined herein, an adoptive parent believes that he/she has been wrongly denied access to a Title IV-E adoption subsidy, the adoptive parent(s) has the right to request a fair hearing to establish that:

1. extenuating circumstances exist for entering into an adoption subsidy agreement after the adoption has been finalized; and

2. the child meets the criteria for Title IV-E adoption subsidy. The adoptive parent(s) shall have the burden of proof on both issues. Extenuating circumstances shall be limited to the following:

a. relevant facts regarding the child's special needs, birth history or family history, which would have established that the child is a child with special needs as defined in 110 CMR 7.209(2), were known to the Department but not presented to the adoptive parent(s) prior to the finalization of the adoption;

b. the Department previously denied a Title IV-E adoption subsidy based on a means test of the adoptive family;

c. the Department made an erroneous determination that the child was ineligible for a Title IV-E adoption subsidy;

d. the Department or its contracted agency failed to advise the adoptive parent(s) of the availability of an adoption subsidy before the child's adoption; or

e. the adoptive parent(s) adopted a child with special needs in Massachusetts through a licensed nonprofit placement agency, as defined in M.G.L. c. 28A, § 9, prior to April 14, 2000, and said agency failed to advise the adoptive parent(s) of the availability of an adoption subsidy or advised the adoptive parent(s) that such subsidies were not available.

(b) If a hearing officer determines that extenuating circumstances exist and the child meets the eligibility criteria for Title IV-E adoption subsidy, the hearing officer may direct the Department to provide Title IV-E adoption subsidy from a date beginning no earlier than the date the adoptive parent notified the Department in writing that an adoption subsidy was wrongly denied or withheld. The type of assistance and, if applicable, the amount of assistance, shall be determined in accordance with 110 CMR 7.209(6) as applicable to Title IV-E adoption subsidies.

(12) Extenuating Circumstances - State Adoption Subsidy.

(a) If, after the adoption of a child with special needs as defined herein, the adoptive parent(s) believes that he/she has been wrongly denied access to a state adoption subsidy, the adoptive parent(s) has a right to request a fair hearing to establish that:

1. extenuating circumstances exist for entering into an adoption assistance agreement after the adoption has been finalized; and

2. the child is eligible for a state adoption subsidy. The adoptive parent(s) shall have the burden of proof on both issues. Extenuating circumstances shall be limited to the following:

a. relevant facts regarding the child's special needs, birth history or family history, which would have established that the child is a child with special needs as defined in 110 CMR 7.209(2), were known to the Department but not presented to the adoptive parent(s) prior to the finalization of the adoption; or

b. the Department failed to advise the adoptive parent(s) of the availability of an adoption subsidy before the child's adoption.

(b) If a hearing officer determines that extenuating circumstances exist and that the child meets the eligibility criteria for state adoption subsidy, the hearing officer may direct the Department to provide adoption subsidy from a date beginning no earlier than the date the adoptive parent notified the Department in writing that an adoption subsidy was wrongly denied or withheld. The Department shall determine the type of assistance and, if applicable, the amount of financial assistance in accordance with 110 CMR 7.209(6) as applicable to state adoption subsidies.

(13) Termination of Adoption Subsidy. The Department will terminate an adoption subsidy when any of the following occurs and provide written notice to the adoptive parent(s) of the termination and of the right to a fair hearing to challenge the action:

(a) the child with special needs turns 18 years of age. In exceptional circumstances, the Department in its discretion may continue a Title IV-E adoption subsidy until the child turns 21 or a state adoption subsidy until the child turns 22 years of age;

(b) the child's mental, emotional or physical impairment, behavioral disorder or medical condition is corrected or cured provided this condition of termination is contained in the initial adoption subsidy agreement and was accepted by the parent(s);

(c) the adoptive parent(s) are no longer legally responsible for the support of such child; or

(d) the child is no longer receiving assistance from the adoptive parent(s).

(14) Responsibilities of Adoptive Parents. Adoptive parent(s) receiving an adoption subsidy shall inform the Department of any change of address and of circumstances which would make the child ineligible for adoption subsidy, and shall cooperate with the Department in providing requested information at the time the adoption subsidy is re-evaluated. If the adoptive parent(s) fails to carry out these responsibilities, the Department may suspend, reduce or terminate the adoption subsidy and take appropriate action to recoup financial assistance incorrectly paid. The Department shall provide written notice of said action and of the right to a fair hearing to challenge the Department's action. If the adoptive parent(s) request a hearing in a timely manner, the adoption subsidy shall continue pending the results of the hearing.

(15) Continuing Eligibility for Adoption Subsidy. If a child with special needs who has been determined eligible by the Department for adoption subsidy and has been adopted, then reenters substitute care and becomes available for adoption again because the rights of the adoptive parents were terminated, voluntarily or involuntarily, or because the child's adoptive parents have died, the child shall be eligible for an adoption subsidy in the event of a subsequent adoption.

Notes

110 CMR, § 7.209