NYS Subsidy Payment Regulations

Source: NYS Standards for Adoption Practice, Title 18 NYCRRR, Part 421, Section 421.24 Adoption With Subsidy.  See Subsidy Regulations (pdf) for full text of Section 421.24 including definitions, application procedures, payment for non-recurring adoption expenses, payment of medical subsidy, and fair hearing rights.


(c) Payments for the care and maintenance of a handicapped or hard-to-place child.


(1) A social services official must make monthly payments, for the care and maintenance of a handicapped or hard-to-place child, to the person(s) with whom the child has been placed out for adoption or by whom the child has been adopted. Such payments must be applied for either prior to adoption, or subsequent to the adoption if the person(s) adopting the child first became aware of the child’s physical or emotional condition or disability subsequent to the adoption and a physician certifies that the condition or disability existed prior to the child’s adoption. All applications for adoption subsidies must be made on forms and reviewed according to procedures as may be established by the department.


(2) Such payments must be made as follows:

(i) In the case of a child in the guardianship and custody or the care and custody of a social services official who is being adopted by the foster parent(s) with whom the child has been boarded, such payment must continue as a foster care payment until the date of the court order finalizing the adoption and must be made in accordance with Part 427 of this Title. Monthly payments for the care and maintenance of the child as an adopted child under the provisions of this subdivision must begin on the date of the court order finalizing the adoption.
(ii) In the case of a child in the guardianship and custody or the care and custody of a social services official who is placed with and is to be adopted by foster parent(s) other than the foster parent(s) with whom the child had been previously boarded and who is otherwise eligible for an adoption subsidy payment, such payment must initially be made as a foster care payment and must be made from the day of placement for adoption to the foster parent(s) with whom the child is placed, provided such placement does not result in a violation of section 378.3 or 378.4 of the Social Services Law and/or section 443.1(j) of this Title. If the placement would result in a violation of either of such sections, the person(s) adopting the child must be approved adoptive parent(s) and payment must be made as an adoption subsidy payment from the date of placement in accordance with the provisions of subparagraph (iii) of this paragraph. Foster care payments under this provision must be made in accordance with Part 427 of this Title. Except where the provisions of section 378.3 or 378.4 of the Social Services Law and/or section 443.1(j) of this Title require that adoption subsidy payments be made to the prospective adoptive parent(s) prior to finalization of the adoption, such payments must begin upon the date of the court order finalizing the adoption and must be made in accordance with the provisions of this section.
(iii) In the case of a child in the guardianship and custody or the care and custody of a social services official who is freed for and placed for adoption, is otherwise eligible for adoption subsidy payments and is to be adopted by approved adoptive parent(s) who are not also certified or approved foster parent(s), such payment must be made as an adoption subsidy payment from the date of placement with the approved adoptive parent(s).
(iv) In the case of a child in the guardianship and custody of a voluntary authorized agency who is freed for and placed out for adoption, and who is otherwise eligible for an adoption subsidy, an adoption subsidy payment for the care and maintenance of the child will be made from the date the department approves the subsidy agreement submitted for approval if:
(a) an approved home study has been completed; and

(b) a placement agreement has been signed and the child has been placed in the home.


(3) Payments must be made only pursuant to a written agreement between the social services official or agency and the person(s) with whom the child has been placed out for adoption or by whom the child has been adopted. The written agreement must include, but is not limited to, the following:

(i) the date on which the agreement is entered;

(ii) the first name and birthdate of the child for whom the payment is to be made;

(iii) the nature of the child’s handicap, if any, indicated both in terms of the diagnosing physician and in lay terms; or

(iv) the condition(s) which make the child hard-to-place, as determined from paragraph (a)(3) of this section; and

(v) the family’s annual income, as determined from paragraph (9) of this subdivision;

(vi) the amount to be paid monthly for the care and maintenance of the child, and the board rate upon which the amount of payment is based;

(vii) the provisions contained in paragraph (4) of this subdivision relating to payment when the child is out of the home and/or the custody of the adoptive parent(s);

(viii) the conditions under which the agreement may be modified;

(ix) a provision that whenever applicable board rate increases or whenever a change in the age of an adopted child qualifies such child to receive adoption subsidy payments at an increased rate, the social services official responsible for making adoption subsidy payments will adjust the adoption subsidy payments to reflect such increases; and

(x) such other provisions as the department, the social services official or the adopting parent(s) may agree to.


(4) Where more than one child is placed with the same person(s) for adoption subject to payments for care and maintenance, a separate written agreement must be completed for each child.


(5) The written agreement authorizing monthly payments will remain in effect until the child’s 21st birthday. No payments may be made if the social services official determines that the adoptive parents are no longer legally responsible for the support of the child or the child is no longer receiving any support from such parents. Such written agreement must state that it will be the responsibility of the adoptive parent(s) to inform the appropriate State or local official when they are no longer legally responsible for the child or no longer providing any support to the child.


(6) The written agreement shall not be affected by amelioration, remission or cure of the handicapping condition, if any.


(7) The amount of the monthly payment must be determined in accordance with paragraphs (11) and (12) of this subdivision.


(8) The income of the person(s) adopting a handicapped or hard-to-place child shall not be considered by the local social services official in determining whether or not to enter into such an agreement.


(9) Once an agreement to provide a subsidy payment is made, the annual income of the person(s) adopting the child will be considered only for the purpose of determining the amount of the monthly payment to be made, according to the provisions of paragraphs (11) and (12) of this subdivision.


(10) Computation of annual income shall be subject to the following provisions:

(i) Only income earned as wages or salary from employment and/or net income from nonfarm self-employment or net income from farm self-employment as defined in section 404.5(b)(5) of this Title shall be considered in computing annual income. The income of persons other than the adopting parent(s) shall not be considered.

(ii) As evidence of income, a social services official may request wage stubs, or the most recent W-2, or an employer’s statement of wages, or, in the case of income other than wages or salary, a copy of the adopting person’s latest Federal income tax return.

(iii) When a person adopting is 62 years old or older, or will be subject to mandatory retirement from present employment within five years of the date of adoptive placement, such person’s income shall be disregarded in computing annual income.


(11) If the annual income of the person(s) adopting a handicapped or hard-to-place child pursuant to the provisions of this section, as determined by the applicable provisions of paragraph (10) of this subdivision, is equal to or less than the applicable State income standard, the monthly payment for care and maintenance of the adopted child must be 100 percent of the applicable board rate, unless the person(s) adopting voluntarily and, in writing, request and agree to a lower rate.


(12)

(i) If the annual income of the person(s) adopting a handicapped or hard-to-place child pursuant to the provisions of this section, as determined by the applicable provisions of paragraph (10) of this subdivision, is greater than the applicable State income standard, a social services district has two options in determining the amount to be paid for care and maintenance of the child. Unless the person(s) adopting voluntarily and, in writing, request and agree to a lower amount, such amount must be either:

(a) 100 percent of the applicable board rate regardless of the annual income of the person(s) adopting; or

(b) an amount less than 100 percent, but not less than 75 percent, of the applicable board rate, as determined in accordance with the following formula. The social services district must:

(1) calculate the annual income of the person(s) adopting pursuant to the applicable provisions of paragraph (10) of this subdivision;

(2) determine what percentage such annual income is of the applicable State income standard; and

(3) use the following schedule to determine the amount to be paid based on the percentage calculated in subclause (2) of this clause:


ADOPTION SUBSIDY PAYMENTS SCHEDULE

Annual income of person(s) adopting – Amount of adoption subsidy payment percentage of applicable State income standard

Over 100% but not more than 110% – 95% of Applicable Board Rate

Over 110% but not more than 120% – 90% of Applicable Board Rate

Over 120% but not more than 130% – 85% of Applicable Board Rate

Over 130% but not more than 140% – 80% of Applicable Board Rate

Over 140% – 75% of Applicable Board Rate


(ii) The social services district must use the same option for all subsidized adoptions. If a social services district wishes to change from one option to the other option, the district must inform the department in writing of the intended change at least 30 days prior to the effective date of the change. The district must use the newly selected option in all new subsidy agreements entered into on or after the effective date of the change. Subsidy agreements finalized before the effective date of the change will not be affected by the change.


(13) The department may authorize the social services official to approve or disapprove the written agreement on behalf of the department pursuant to section 453(2) of the Social Services Law.

(i) The standards for authorization include, but are not limited to, the following:

(a) the social services district must submit a written request to the department requesting authorization to approve adoption subsidy agreements concerning hard-to-place and/or handicapped children;

(b) the social services district must have an adequate number of staff who have been properly trained in the requirements of the Federal and State adoption assistance program and the agreement approval process;

(c) the social services district must have a satisfactory and effective system in place to complete the review and approval of written adoption subsidy agreements;

(d) the social services district must assume responsibility for maintaining the necessary files and documentation for federal and State audits and fair hearings, and for providing information to the department related to such audits and hearings; and

(e) the social services district must be willing to assume fiscal responsibility for those cases which the district has been authorized by the department to approve.

(ii) The department may require social services districts to comply with additional standards to ensure that a social services district complies with State and Federal adoption assistance requirements, and may revoke the authority of a social service official to approve written adoption subsidy agreements when the social services district fails to comply with the Federal or State statutory and regulatory standards relating to the administration of the adoption assistance program.


(14) Except where the social services district has been authorized by the department to approve or disapprove written adoption subsidy agreements, all written agreements for payments for the care and maintenance of handicapped or hard-to-place children must be submitted to the department for approval or disapproval, in accordance with the provisions of title 9 of article 6 of the Social Services Law and this section. A disapproval must be in writing and must state the reasons therefor. If an agreement is not disapproved in writing by the department or the social services district, where the social services district has been authorized by the department to approve or disapprove the written agreement within 30 days after its receipt, it will be deemed approved except that:

(i) in the case of an agreement submitted pursuant to section 453(d) of the Social Services Law, approval will be granted contingent upon commitment of the guardianship and custody of the child to an authorized agency; and

(ii) in the case of an agreement submitted by a voluntary authorized agency to a social services official, the voluntary agency may submit the agreement directly to the department for approval or disapproval if the agreement is not approved or disapproved by the social services official within 30 days of submission.(15) Neither the written agreement nor the amount of the payment is subject to an annual review,


(15) Neither the written agreement nor the amount of the payment is subject to an annual review,except as provided for by paragraph (17) of this subdivision. However, the adopting person(s) may request a review of the agreement and/or a change in the amount paid under the agreement. Such review or change may be granted at the discretion of the social services official in accordance with the regulations, and subject to the approval of the department if the agreement was approved by thedepartment, as set forth in paragraph (14) of this subdivision.


(16) The social services official may adjust the monthly payment in accord with the provisions of the schedules in paragraphs (9) and (12) of this subdivision and changes made thereto by the department pursuant to the provisions of section 453(3) of the Social Services Law. Except as provided for by paragraph (17) of this subdivision, any change in the amount of the monthly payment must be made by amendment to the written agreement and must require the consent of the adoptive parent(s) and the approval of the department if the agreement was approved by the department, as set forth in paragraph (14) of this subdivision.


(17) Whenever the applicable board rate increases due to an increase in the board rate, and/or the clothing replacement allowance or whenever a change in the age of an adopted child qualifies such child to receive adoption subsidy payments at an increased rate, the social services official responsible for making adoption subsidy payments must adjust the adoption subsidy payments to reflect such increases. A review must be conducted by such official to ensure that such adjustments are included in the adoption subsidy payments made to the persons who have entered into adoption subsidy agreements. The official must provide such person(s) with appropriate notice of such adjustments. Such notice will constitute an amendment to the adoption subsidy agreement and must be attached to such agreement. Such adjustments in payments are neither subject to the approval of the department nor subject to the consent of the adoptive parent(s).


(18) Upon the death of the person(s) who adopted the child prior to the 21st birthday of the child, payments made pursuant to this subdivision must continue and must be made to the legal guardian of the child until the child has attained the age of 21. All provisions of this section applicable to maintenance payments made to the person(s) who adopted the child will be applicable to maintenance payments made to the legal guardian of the child.


(19) The social services official on an annual basis in a written notification must remind the adoptive parents of their obligation to support the adopted child and to notify the social services official if the adoptive parents are no longer providing any support or are no longer legally responsible for the support of the child. Where the adopted child is school age under the laws of the state in which the child resides, such notification must include a requirement that the adoptive parents must certify that the adopted child is a full-time elementary or secondary student or has completed secondary education. For the purposes of this paragraph, an elementary or secondary school student means an
adopted child who is:

(i) enrolled, or in the process of enrolling, in a school which provides elementary or secondary education, in accordance with the laws where the school is located;
(ii) instructed in elementary or secondary education at home, in accordance with the laws in which the adopted child’s home is located;
(iii) in an independent study elementary or secondary education program, in accordance with the laws in which the adopted child’s education program is located, which is administered by the local school or school district; or
(iv) incapable of attending school on a full-time basis due to the adopted child’s medical condition, which incapacity is supported by annual information submitted by the adoptive parents as part of this certification.

Last modified: February 1, 2012