110 CMR 7.303 - Guardianship Subsidy

As used in 110 CMR 7.303, the term guardianship, means guardianship of a minor.

(1) Definition of Guardianship Subsidy. The Department operates two guardianship subsidy programs to support the permanency of children who are in the Department's care or custody: a federally supported program governed by the provisions of Title IV-E of the Social Security Act, 42 U.S.C. § 673, (Title IV-E guardianship subsidy), and a state funded program created pursuant to M.G.L. c. 18B, §§ 2 and 3, (state guardianship subsidy). In both programs, the guardian will receive financial assistance which is intended to aid in the support of the child and is paid directly to the guardians of the child, and the child will receive medical assistance through the MassHealth program which is intended to provide the child with health insurance and is paid directly to the vendor according to the current MassHealth fee schedule. Financial assistance provided through guardianship subsidy may not exceed the amount that would have been authorized during the period had the child been in family foster care.

(2) Eligibility Criteria - Title IV-E Guardianship Subsidy. In order to be eligible for Title IV-E guardianship subsidy, the following criteria must be met:

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

(b) The child was removed from his or her home pursuant to a voluntary placement agreement or as a result of a judicial determination that continuation in the home would be contrary to the welfare of the child.

(c) Guardianship is the permanent plan for the child.

(d) The proposed guardian(s) is a kinship/relative foster home licensed by the Department or an agency under contract with the Department which licensure includes:

1. a fingerprint-based criminal records check of the national crime information databases; and

2. a child abuse and neglect check of the proposed guardian(s) and other adults living in the home of the proposed guardian(s) for Massachusetts and any state the proposed guardian(s) or other adults living in the home have lived within the five years prior to the license study.

(e) The proposed guardian(s) has not been convicted of :

1. a felony for child abuse or neglect, spousal abuse, a crime against a child or a crime involving violence, such as rape, sexual assault or homicide, but not including simple assault and battery; or

2. a felony for physical assault, battery or a drug or alcohol related offense committed in the five years prior to being licensed.

(f) The child has been residing in the home of the proposed guardian(s) for at least six consecutive months prior to the guardianship.

(g) The child has been eligible for Title IV-E foster care payments during at least six consecutive months he or she has resided with the proposed guardians prior to the guardianship.

(h) The Department has determined:

1. Returning home or adoption are not appropriate permanency options for the child;

2. The child demonstrates a strong attachment to the prospective kinship/relative guardian(s);

3. The kinship/relative prospective guardian(s) has a strong commitment to caring permanently for the child; and

4. If the child is 14 years of age or older, the child consents to the kinship/relative guardianship arrangement.

(i) The guardian(s) and the Department have entered into a guardianship subsidy agreement, signed by both the guardian(s) and Department prior to the guardianship being granted.

(3) Eligibility Criteria - Title IV-E Guardianship Subsidy for Sibling of Title IV-E Child. A child is eligible for a Title IV-E guardianship subsidy if:

(a) the child is the sibling of a child who:

1. has been deemed eligible for a guardianship subsidy under 110 CMR 7.303(2); or

2. is receiving a Title IV-E guardianship subsidy; and

(b) the child is placed with the same kinship/relative guardian(s); and

(c) the kinship/relative guardian(s) agree that the placement is appropriate.

The guardianships need not occur at the same time for the sibling to be Title IV-E eligible.

Comment: As long as the children are placed in the same kinship guardianship arrangement and one of the siblings is Title IV-E eligible for a guardianship subsidy, the other sibling(s) will be Title IV-E eligible, even if the sibling who is Title IV-E eligible has their guardianship finalized after the non-Title IV-E eligible sibling. The Non-Title IV-E sibling becomes eligible once the Title IV-E eligible sibling's guardianship is finalized and the guardianship agreement is modified.

(4) Eligibility Criteria - State Guardianship Subsidy. In order to be eligible for state guardianship subsidy, the following criteria must be met:

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

(b) Guardianship is the permanent plan for the child.

(c) The child has resided in the home of the proposed guardian(s) for at least six months, unless a shorter time has been approved by the Director of Areas.

(d) The proposed guardian(s) is licensed as a foster home by the Department or an agency under contract with the Department.

(e) If the child is age 14 or older, he or she consents to the guardianship.

(f) The guardian(s) and the Department have entered into a guardianship subsidy agreement, signed by both the guardian(s) and the Department prior to the guardianship being granted.

(5) Application for Guardianship Subsidy.

(a) Children in the Custody of the Department. Prior to completing the guardianship petition, the Department will inform the proposed guardian(s) about the guardianship subsidy program. Prior to the guardianship petition being filed in court, 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 guardianship subsidy, as applicable.

(b) Children in the Custody of Guardian(s). The guardian(s) of a child whose guardianship was sponsored by the Department may assert the right to a state guardianship subsidy in extenuating circumstances as set forth in 110 CMR 7.303(11) and (12). Where such circumstances are alleged, the guardian(s) must write to the Department's Subsidy Unit. The request must include the following information: name, address and telephone number of the guardian(s) and child; a brief statement of the reason(s) why the guardian(s) believe that extenuating circumstances exist for entering into a guardianship subsidy agreement after the guardianship has been finalized; and the court and date when the Department sponsored guardianship was granted. A subsidy administrator/designee shall decide whether extenuating circumstances exist and, if so, whether the child meets the eligibility criteria for a state guardianship subsidy. The Department is under no obligation to provide guardianship subsidy after a guardianship petition is granted unless there are extenuating circumstances as set forth in 110 CMR 7.303(11) and the child meets the eligibility criteria for a state guardianship subsidy. If the subsidy is denied, the guardian(s) will be provided notice of their right to appeal the denial through the Department's Fair Hearing process.

(6) Guardianship Subsidy Agreement. If the Department determines that the child is eligible for a Title IV-E guardianship subsidy, the type of assistance and, as applicable, the amount of assistance, will be determined through discussion and negotiation with the guardian(s), taking into consideration the circumstances of the guardian(s) and the needs of the child who is the subject of the guardianship. If the Department determines that the child is not eligible for a Title IV-E guardianship subsidy but is eligible for a state guardianship subsidy, the Department will inform the guardian(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 guardian(s) and the needs of the child, and of the right of the guardian(s) to challenge the denial of the child's Title IV-E eligibility in a fair hearing.

In both subsidy programs, the Department will provide the guardian(s) with a guardianship 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 guardianship subsidy may be increased, decreased or terminated, the verification requirements, the additional services and assistance which the child or guardian may be eligible for and the process for applying and the circumstances under which the Department will pay for nonrecurring expenses associated with obtaining the guardianship. If the child is eligible for a Title IV-E guardianship subsidy the agreement will remain in effect regardless of the state residence of the kin guardian. The Department will inform the guardian(s) in writing that the guardianship subsidy agreement must be signed and returned to the Department prior to finalization of the child's guardianship and before the subsidy may be initiated.

(7) Arrangements Prior to Finalization of Guardianship; Initiation of Benefits. Except as provided in 110 CMR 7.303(11), only guardian(s) who have completed a guardianship subsidy agreement with the Department prior to finalization of the guardianship of the child are entitled to receive a guardianship subsidy. Guardianship subsidy benefits shall begin no earlier than the finalization of the guardianship unless the Department determines that an earlier state date is in the best interest of the child.

(8) Verification Requirement.

(a) Guardianship subsidy agreements are verified periodically at the discretion of the Department. At the time of the verification, the amount of the subsidy may be adjusted based on a change in the circumstances of the guardianship family and/or the child's needs, or the subsidy may be terminated for the reasons set forth in 110 CMR 7.303(12). A Title IV-E guardianship subsidy may be adjusted only after negotiation with, and agreement by, the guardian(s) except the Department may terminate the subsidy after providing written notice of the decision and the right to a fair hearing for the reasons set forth in 110 CMR 7.303(12). If the Department modifies the subsidy, the Department will notify that guardian(s) in writing of the Department's decision, the reasons for it, and of the right of the guardian(s) to a fair hearing to challenge a decision to reduce or terminate the guardianship subsidy.

(b) The periodic verification process will include verification that the child is still living with the guardian(s), the guardian(s) continue to be legally responsible for the child, whether the guardian(s) has received third-party payments on behalf of the child, whether the guardian(s) has moved and whether the child remains in school, if of school age. For youth whose subsidy is extended beyond age 18, the verification process will include specific documentation that the youth continues to meet the criteria for an extended subsidy set forth in 110 CMR 7.303(13).

(c) The Department may periodically check the names and other identifying information of recipients of guardianship subsidy with the Title IV-A (the Department of Transitional Assistance) and the Title IV-D (the Department of Revenue/Child Support Enforcement) agencies to assist the Commonwealth with federal reimbursement and to prevent fraud in Commonwealth programs.

(9) Denial. If a request for a guardianship subsidy is denied, the Department shall notify the proposed guardian(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 guardianship subsidy after finalization of the guardianship shall be governed by the provisions set forth in 110 CMR 7.303(11), as applicable.

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

(11) Extenuating Circumstances - State Guardianship Subsidy.

(a) If, after the finalization of a guardianship of a child who had been in the Department care or custody, the guardian(s) believes that he or she has been wrongly denied access to a state guardianship subsidy, the guardian(s) has a right to submit an application, and supporting documentation, for a state funded guardianship subsidy to establish that:

1. extenuating circumstances exist for entering into a state funded guardianship assistance agreement after the guardianship has been finalized. Extenuating circumstances shall be limited to the following:

a. the Department failed to submit or process an application for guardianship subsidy prior to the guardianship legalization;

b. the Department failed to advise the guardian(s) of the availability of a guardianship subsidy before the child's guardianship is finalized;

c. The Department failed to advise the guardian(s) of the requirement that the guardianship subsidy agreement must be signed and entered into prior to the allowance of the guardianship petition; or

d. The Department was in the process of finalizing the guardianship subsidy application and a Court finalized the guardianship before the guardianship agreement could be signed by both parties; and

2. the child is eligible for a state guardianship subsidy.

(b) If the Department's subsidy administrator/designee determines that extenuating circumstances exist and that the child meets the eligibility criteria for state funded guardianship subsidy, the Department will provide guardianship subsidy from a date beginning no earlier than the date the guardian(s) notified the Department in writing that a guardianship 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 7.303(5) and (6) as applicable to state guardianship subsidies.

(c) If a request for a guardianship subsidy is denied, the Department shall notify the proposed guardian(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.

(12) Termination of Guardianship Subsidy. The Department will terminate a guardianship subsidy when any of the following occurs and provide written notice to the guardian(s) of the termination and of the right to a fair hearing to challenge the action;

(a) the child turns 18 years of age, unless prior to age of 18 the guardian requests an extension of the guardianship subsidy and the child meets the criteria for an extension set forth at 110 CMR 7.303(13).

(b) the guardian(s) are no longer legally responsible for the child;

(c) the child is no longer receiving assistance from the guardian(s); or

(d) the child or guardian has died; or

(e) the youth over 18 years of age no longer meets the criteria for an extension of the guardianship subsidy; or

(f) the youth over 18 years of age has reached the age of 21 for an extended federally supported guardianship subsidy or has reached the age of 22 for a state funded guardianship subsidy.

(13) Extension of Guardianship Subsidy Over Age 18. For the purpose of 110 CMR 7.303(13), young adult shall mean a person between the ages of 18 and 23.

(a) State Funded: If requested by the guardian(s), the Department may extend a guardianship subsidy up to the age of 22 for a young adult who is enrolled in a school, vocational program or a college program.

(b) Federally Supported: If requested by the guardians, the Department may extend a federally supported guardianship subsidy to a young adult who reaches the age of 18 up to age 21 if one of the following criteria are met:

1. the young adult has a mental or physical handicap which warrants the continuation of assistance; or

2. the state has adopted the expanded definition of child pursuant to 42 USC 465(8)(B) and the guardianship subsidy was entered into after the child turned age 16, and the young adult will be:

a. completing a secondary school or the equivalent; or

b. enrolled in post-secondary or vocational school; or

c. participating in a program or activity that promotes or removes barriers to employment; or

d. employed 80 hours a month; or

e. incapable of any in 110 CMR 7.303(13)(b)2.a. through d. due to a documented medical condition.

(c) Documentation: The Department will require documentation from the guardian to support a request for an extension of a guardianship subsidy over age 18 and may periodically require the guardian to provide documentation that the youth over 18 continues to meet the criteria for an extended guardianship subsidy.

1. For an extension based on a mental or physical handicap, or based on the young adult being incapable of doing any of the activities outlined in 110 CMR 303(13)(2)(b)1.a. through d., the Department will require documentation of the young adult's mental or physical handicap or condition by a licensed professional qualified to make the diagnosis.

2. For an extension based on the criteria set forth in 110 CMR 7.303(13)(2)(b) a. through d., the Department will require documentation from the school, program or employer verifying the young adult's enrollment, participation or employment including the amount of time the young adult is involved.

(14) Successor Guardian.

(a) When a guardian dies, or is no longer capable of caring for the child who is the subject of a guardianship subsidy, and a successor guardian is appointed by a court of competent jurisdiction, the Department may authorize the guardianship subsidy to be transferred to the successor guardian who resides within the state of Massachusetts. The guardianship subsidy provided to a successor guardian will be a state guardianship subsidy, not a Title IV-E subsidy. Prior to the subsidy being transferred the Department will:

1. Conduct a background check of the successor guardian, which includes both a check of the Criminal Offender Record Information system and the Department's statewide automated child welfare information system to determine whether the successor guardian might impair their ability to assume and carry out the responsibilities of being the child's guardian.

2. Conduct a home visit of the successor guardian and complete a physical standards review of the home.

(b) The determination of whether to transfer the subsidy to a successor guardian is solely with the discretion of the Department is subject to appropriation and it not the subject for a fair hearing.

Notes

110 CMR 7.303