STATE PLAN FOR FOSTER CARE AND ADOPTION ASSISTANCE[182]
Sec. 471. [42 U.S.C. 671] (a) In order for a State to be eligible for payments under this part, it shall have a plan approved by the Secretary which—
(1) provides for foster care maintenance payments in accordance with section 472 and for adoption assistance in accordance with section 473;
(2) provides that the State agency responsible for administering the program authorized by subpart 1 of part B of this title shall administer, or supervise the administration of, the program authorized by this part;
(3) provides that the plan shall be in effect in all political subdivisions of the State, and, if administered by them, be mandatory upon them;
(4) provides that the State shall assure that the programs at the local level assisted under this part will be coordinated with the programs at the State or local level assisted under parts A and B of this title, under title XX of this Act, and under any other appropriate provision of Federal law;
(5) provides that the State will, in the administration of its programs under this part, use such methods relating to the establishment and maintenance of personnel standards on a merit basis as are found by the Secretary to be necessary for the proper and efficient operation of the programs, except that the Secretary shall exercise no authority with respect to the selection, tenure of office, or compensation of any individual employed in accordance with such methods;
(6) provides that the State agency referred to in paragraph (2) (hereinafter in this part referred to as the “State agency”) will make such reports, in such form and containing such information as the Secretary may from time to time require, and comply with such provisions as the Secretary may from time to time find necessary to assure the correctness and verification of such reports;
(7) provides that the State agency will monitor and conduct periodic evaluations of activities carried out under this part;
(8) subject to subsection (c), provides safeguards which restrict the use of or disclosure of information concerning individuals assisted under the State plan to purposes directly connected with (A) the administration of the plan of the State approved under this part, the plan or program of the State under part A, B, or D of this title or under title I, V, X, XIV, XVI (as in effect in Puerto Rico, Guam, and the Virgin Islands), XIX, or XX, or the supplemental security income program established by title XVI, (B) any investigation, prosecution, or criminal or civil proceeding, conducted in connection with the administration of any such plan or program, (C) the administration of any other Federal or federally assisted program which provides assistance, in cash or in kind, or services, directly to individuals on the basis of need, (D) any audit or similar activity conducted in connection with the administration of any such plan or program by any governmental agency which is authorized by law to conduct such audit or activity, and (E) reporting and providing information pursuant to paragraph (9) to appropriate authorities with respect to known or suspected child abuse or neglect; and the safeguards so provided shall prohibit disclosure, to any committee or legislative body (other than an agency referred to in clause (D) with respect to an activity referred to in such clause), of any information which identifies by name or address any such applicant or recipient; except that nothing contained herein shall preclude a State from providing standards which restrict disclosures to purposes more limited than those specified herein, or which, in the case of adoptions, prevent disclosure entirely;
(9) provides that the State agency will—
(A) report to an appropriate agency or official, known or suspected instances of physical or mental injury, sexual abuse or exploitation, or negligent treatment or maltreatment of a child receiving aid under part B or this part under circumstances which indicate that the child’s health or welfare is threatened thereby; and
(B) provide such information with respect to a situation described in subparagraph (A) as the State agency may have;
(10)[183] provides for the establishment or designation of a State authority or authorities which shall be responsible for establishing and maintaining standards for foster family homes and child care institutions which are reasonably in accord with recommended standards of national organizations concerned with standards for such institutions or homes, including standards related to admission policies, safety, sanitation, and protection of civil rights, provides[184] that the standards so established shall be applied by the State to any foster family home or child care institution receiving funds under this part or part B of this title, and provides that a waiver of any such standard may be made only on a case-by-case basis for non-safety standards (as determined by the State) in relative foster family homes for specific children in care[185];
(11) provides for periodic review of the standards referred to in the preceding paragraph and amounts paid as foster care maintenance payments and adoption assistance to assure their continuing appropriateness;
(12) provides for granting an opportunity for a fair hearing before the State agency to any individual whose claim for benefits available pursuant to this part is denied or is not acted upon with reasonable promptness;
(13) provides that the State shall arrange for a periodic and independently conducted audit of the programs assisted under this part and part B of this title, which shall be conducted no less frequently than once every three years;
(14) provides (A) specific goals (which shall be established by State law on or before October 1, 1982) for each fiscal year (commencing with the fiscal year which begins on October 1, 1983) as to the maximum number of children (in absolute numbers or as a percentage of all children in foster care with respect to whom assistance under the plan is provided during such year) who, at any time during such year, will remain in foster care after having been in such care for a period in excess of twenty-four months, and (B) a description of the steps which will be taken by the State to achieve such goals;
(15) provides that—
(A) in determining reasonable efforts to be made with respect to a child, as described in this paragraph, and in making such reasonable efforts, the child’s health and safety shall be the paramount concern;
(B) except as provided in subparagraph (D), reasonable efforts shall be made to preserve and reunify families—
(i) prior to the placement of a child in foster care, to prevent or eliminate the need for removing the child from the child’s home; and
(ii) to make it possible for a child to safely return to the child’s home;
(C) if continuation of reasonable efforts of the type described in subparagraph (B) is determined to be inconsistent with the permanency plan for the child, reasonable efforts shall be made to place the child in a timely manner in accordance with the permanency plan (including, if appropriate, through an interstate placement) and to complete whatever steps are necessary to finalize the permanent placement of the child;
(D) reasonable efforts of the type described in subparagraph (B) shall not be required to be made with respect to a parent of a child if a court of competent jurisdiction has determined that—
(i) the parent has subjected the child to aggravated circumstances (as defined in State law, which definition may include but need not be limited to abandonment, torture, chronic abuse, and sexual abuse);
(ii) the parent has—
(I) committed murder (which would have been an offense under section 1111(a) of title 18, United States Code[186], if the offense had occurred in the special maritime or territorial jurisdiction of the United States) of another child of the parent;
(II) committed voluntary manslaughter (which would have been an offense under section 1112(a) of title 18, United States Code[187], if the offense had occurred in the special maritime or territorial jurisdiction of the United States) of another child of the parent;
(III) aided or abetted, attempted, conspired, or solicited to commit such a murder or such a voluntary manslaughter; or
(IV) committed a felony assault that results in serious bodily injury to the child or another child of the parent; or
(iii) the parental rights of the parent to a sibling have been terminated involuntarily;
(E) if reasonable efforts of the type described in subparagraph (B) are not made with respect to a child as a result of a determination made by a court of competent jurisdiction in accordance with subparagraph (D)—
(i) a permanency hearing (as described in section 475(5)(C)), which considers in-State and out-of-State permanent placement options for the child, shall be held for the child within 30 days after the determination; and
(ii) reasonable efforts shall be made to place the child in a timely manner in accordance with the permanency plan, and to complete whatever steps are necessary to finalize the permanent placement of the child; and
(F) reasonable efforts to place a child for adoption or with a legal guardian, including identifying appropriate in-State and out-of-State placements may be made concurrently with reasonable efforts of the type described in subparagraph (B);
(16) provides for the development of a case plan (as defined in section 475(1)) for each child receiving foster care maintenance payments under the State plan and provides for a case review system which meets the requirements described in section 475(5)(B) with respect to each such child;
(17) provides that, where appropriate, all steps will be taken, including cooperative efforts with the State agencies administering the program funded under part A and plan approved under part D, to secure an assignment to the State of any rights to support on behalf of each child receiving foster care maintenance payments under this part;
(18) not later than January 1, 1997, provides that neither the State nor any other entity in the State that receives funds from the Federal Government and is involved in adoption or foster care placements may—
(A) deny to any person the opportunity to become an adoptive or a foster parent, on the basis of the race, color, or national origin of the person, or of the child, involved; or
(B) delay or deny the placement of a child for adoption or into foster care, on the basis of the race, color, or national origin of the adoptive or foster parent, or the child, involved;
(19) provides that the State shall consider giving preference to an adult relative over a non-related caregiver when determining a placement for a child, provided that the relative caregiver meets all relevant State child protection standards;
(20)(A) unless an election provided for in subparagraph (B) is made with respect to the State,[188] provides procedures for criminal records checks, including fingerprint-based checks of national crime information databases (as defined in section 534(e)(3)(A) of title 28, United States Code[189]), for any prospective foster or adoptive parent before the foster or adoptive parent may be finally approved for placement of a child regardless of whether foster care maintenance payments or adoption assistance payments are to be made on behalf of the child under the State plan under this part, including procedures requiring that—
(i) in any case involving a child on whose behalf such payments are to be made in which a record check reveals a felony conviction for child abuse or neglect, for spousal abuse, for a crime against children (including child pornography), or for a crime involving violence, including rape, sexual assault, or homicide, but not including other physical assault or battery, if a State finds that a court of competent jurisdiction has determined that the felony was committed at any time, such final approval shall not be granted; and
(ii) in any case involving a child on whose behalf such payments are to be made in which a record check reveals a felony conviction for physical assault, battery, or a drug-related offense, if a State finds that a court of competent jurisdiction has determined that the felony was committed within the past 5 years, such final approval shall not be granted; and
(B)[190] subparagraph (A) shall not apply to a State plan if, on or before September 30, 2005, the Governor of the State has notified the Secretary in writing that the State has elected to make subparagraph (A) inapplicable to the State, or if, on or before such date, the State legislature, by law, has elected to make subparagraph (A) inapplicable to the State;
(C)[191] provides that the State shall—
(i) check any child abuse and neglect registry maintained by the State for information on any prospective foster or adoptive parent and on any other adult living in the home of such a prospective parent, and request any other State in which any such prospective parent or other adult has resided in the preceding 5 years, to enable the State to check any child abuse and neglect registry maintained by such other State for such information, before the prospective foster or adoptive parent may be finally approved for placement of a child, regardless of whether foster care maintenance payments or adoption assistance payments are to be made on behalf of the child under the State plan under this part;
(ii) comply with any request described in clause (i) that is received from another State; and
(iii) have in place safeguards to prevent the unauthorized disclosure of information in any child abuse and neglect registry maintained by the State, and to prevent any such information obtained pursuant to this subparagraph from being used for a purpose other than the conducting of background checks in foster or adoptive placement cases; and[192]
(D)[193] provides procedures for criminal records checks, including fingerprint-based checks of national crime information databases (as defined in section 534(e)(3)(A) of title 28, United States Code), on any relative guardian, and for checks described in subparagraph (C)[194] of this paragraph on any relative guardian and any other adult living in the home of any relative guardian, before the relative guardian may receive kinship guardianship assistance payments on behalf of the child under the State plan under this part;
(21) provides for health insurance coverage (including, at State option, through the program under the State plan approved under title XIX) for any child who has been determined to be a child with special needs, for whom there is in effect an adoption assistance agreement (other than an agreement under this part) between the State and an adoptive parent or parents, and who the State has determined cannot be placed with an adoptive parent or parents without medical assistance because such child has special needs for medical, mental health, or rehabilitative care, and that with respect to the provision of such health insurance coverage—
(A) such coverage may be provided through 1 or more State medical assistance programs;
(B) the State, in providing such coverage, shall ensure that the medical benefits, including mental health benefits, provided are of the same type and kind as those that would be provided for children by the State under title XIX;
(C) in the event that the State provides such coverage through a State medical assistance program other than the program under title XIX, and the State exceeds its funding for services under such other program, any such child shall be deemed to be receiving aid or assistance under the State plan under this part for purposes of section 1902(a)(10)(A)(i)(I); and
(D) in determining cost–sharing requirements, the State shall take into consideration the circumstances of the adopting parent or parents and the needs of the child being adopted consistent, to the extent coverage is provided through a State medical assistance program, with the rules under such program;
(22) provides that, not later than January 1, 1999, the State shall develop and implement standards to ensure that children in foster care placements in public or private agencies are provided quality services that protect the safety and health of the children;
(23) provides that the State shall not—
(A) deny or delay the placement of a child for adoption when an approved family is available outside of the jurisdiction with responsibility for handling the case of the child; or
(B) fail to grant an opportunity for a fair hearing, as described in paragraph (12), to an individual whose allegation of a violation of subparagraph (A) of this paragraph is denied by the State or not acted upon by the State with reasonable promptness,
(24) include a certification that, before a child in foster care under the responsibility of the State is placed with prospective foster parents, the prospective foster parents will be prepared adequately with the appropriate knowledge and skills to provide for the needs of the child and that such preparation will be continued, as necessary, after the placement of the child;
(25) provide that the State shall have in effect procedures for the orderly and timely interstate placement of children; and procedures implemented in accordance with an interstate compact, if incorporating with the procedures prescribed by paragraph (26), shall be considered to satisfy the requirement of this paragraph;
(26) provides that—
(A)(i) within 60 days after the State receives from another State a request to conduct a study of a home environment for purposes of assessing the safety and suitability of placing a child in the home, the State shall, directly or by contract—
(I) conduct and complete the study; and
(II) return to the other State a report on the results of the study, which shall address the extent to which placement in the home would meet the needs of the child; and
(ii) in the case of a home study begun on or before September 30, 2008, if the State fails to comply with clause (i) within the 60-day period as a result of circumstances beyond the control of the State (such as a failure by a Federal agency to provide the results of a background check, or the failure by any entity to provide completed medical forms, requested by the State at least 45 days before the end of the 60-day period), the State shall have 75 days to comply with clause (i) if the State documents the circumstances involved and certifies that completing the home study is in the best interests of the child; except that
(iii) this subparagraph shall not be construed to require the State to have completed, within the applicable period, the parts of the home study involving the education and training of the prospective foster or adoptive parents;
(B) the State shall treat any report described in subparagraph (A) that is received from another State or an Indian tribe (or from a private agency under contract with another State) as meeting any requirements imposed by the State for the completion of a home study before placing a child in the home, unless, within 14 days after receipt of the report, the State determines, based on grounds that are specific to the content of the report, that making a decision in reliance on the report would be contrary to the welfare of the child; and
(C) the State shall not impose any restriction on the ability of a State agency administering, or supervising the administration of, a State program operated under a State plan approved under this part to contract with a private agency for the conduct of a home study described in subparagraph (A);[195]
(27) provides that, with respect to any child in foster care under the responsibility of the State under this part or part B and without regard to whether foster care maintenance payments are made under section 472 on behalf of the child, the State has in effect procedures for verifying the citizenship or immigration status of the child;[196]
(28)[197] at the option of the State, provides for the State to enter into kinship guardianship assistance agreements to provide kinship guardianship assistance payments on behalf of children to grandparents and other relatives who have assumed legal guardianship of the children for whom they have cared as foster parents and for whom they have committed to care on a permanent basis, as provided in section 473(d);[198]
(29)[199] provides that, within 30 days after the removal of a child from the custody of the parent or parents of the child, the State shall exercise due diligence to identify and provide notice to all adult grandparents and other adult relatives of the child (including any other adult relatives suggested by the parents), subject to exceptions due to family or domestic violence, that—
(A) specifies that the child has been or is being removed from the custody of the parent or parents of the child;
(B) explains the options the relative has under Federal, State, and local law to participate in the care and placement of the child, including any options that may be lost by failing to respond to the notice;
(C) describes the requirements under paragraph (10) of this subsection to become a foster family home and the additional services and supports that are available for children placed in such a home; and
(D) if the State has elected the option to make kinship guardianship assistance payments under paragraph (28) of this subsection, describes how the relative guardian of the child may subsequently enter into an agreement with the State under section 473(d) to receive the payments;[200]
(30)[201] provides assurances that each child who has attained the minimum age for compulsory school attendance under State law and with respect to whom there is eligibility for a payment under the State plan is a full-time elementary or secondary school student or has completed secondary school, and for purposes of this paragraph, the term “elementary or secondary school student” means, with respect to a child, that the child is—
(A) enrolled (or in the process of enrolling) in an institution which provides elementary or secondary education, as determined under the law of the State or other jurisdiction in which the institution is located;
(B) instructed in elementary or secondary education at home in accordance with a home school law of the State or other jurisdiction in which the home is located;
(C) in an independent study elementary or secondary education program in accordance with the law of the State or other jurisdiction in which the program is located, which is administered by the local school or school district; or
(D) incapable of attending school on a full-time basis due to the medical condition of the child, which incapability is supported by regularly updated information in the case plan of the child;[202]
(31)[203] provides that reasonable efforts shall be made—
(A) to place siblings removed from their home in the same foster care, kinship guardianship, or adoptive placement, unless the State documents that such a joint placement would be contrary to the safety or well-being of any of the siblings; and
(B) in the case of siblings removed from their home who are not so jointly placed, to provide for frequent visitation or other ongoing interaction between the siblings, unless that State documents that frequent visitation or other ongoing interaction would be contrary to the safety or well-being of any of the siblings;[204]
(32)[205] provides that the State will negotiate in good faith with any Indian tribe, tribal organization or tribal consortium in the State that requests to develop an agreement with the State to administer all or part of the program under this part on behalf of Indian children who are under the authority of the tribe, organization, or consortium, including foster care maintenance payments on behalf of children who are placed in State or tribally licensed foster family homes, adoption assistance payments, and, if the State has elected to provide such payments, kinship guardianship assistance payments under section 473(d), and tribal access to resources for administration, training, and data collection under this part; and[206]
(33)[207] provides that the State will inform any individual who is adopting, or whom the State is made aware is considering adopting, a child who is in foster care under the responsibility of the State of the potential eligibility of the individual for a Federal tax credit under section 23 of the Internal Revenue Code of 1986.
(b) The Secretary shall approve any plan which complies with the provisions of subsection (a) of this section.
(c) Use of Child Welfare Records in State Court Proceedings.—Subsection (a)(8) shall not be construed to limit the flexibility of a State in determining State policies relating to public access to court proceedings to determine child abuse and neglect or other court hearings held pursuant to part B of this part, except that such policies shall, at a minimum, ensure the safety and well-being of the child, parents, and family.
[182] See Vol. II, P.L. 110-351, §503, with respect to prohibition of Federal funding to unlawfully present individuals.
[183] See Vol. II, P.L. 110-351, §104(b), with respect to a report on licensing standards for relatives.
[184] P.L. 110-351, §104(a)(1), struck out “and provides” and substituted “provides”.
[185] P.L. 110-351, §104(a)(2), inserted “, and provides that a waiver of any such standard may be made only on a case-by-case basis for non-safety standards (as determined by the State) in relative foster family homes for specific children in care’’. For the effective date, see Vol. II, P.L. 110-351, §601.
[186] See Vol. II, 18 U.S.C. 1111(a).
[187] See Vol. II, 18 U.S.C. 1112(a).
[188] P.L. 109-248, §152(b)(1), strikes out “unless an election provided for in subparagraph (B) is made with respect to the State,”, effective October 1, 2008, as provided in §152(c)(2). See Vol. II, P.L. 109-248, §152(c)(3), which allows for a delay if state legislation is required.
[189] See Vol. II, 28 U.S.C. 534 (e)(3)(A).
[190] P.L. 109-248, §152(b)(2), struck out subparagraph (B) and provides for the redesignation of subparagraph (C), as added by P.L. 109-248, §152(a)(1)(B), as subparagraph (B), effective October 1, 2008, as provided in §152(c)(2). See Vol. II, P.L. 109-248, §152(c)(3), which allows for a delay if state legislation is required.
[191] P.L. 109-248, §152(a)(1)(B) , added this subparagraph (C) and P.L. 109-248, §152(b)(2), provides for the redesignation of this subparagraph (C) as subparagraph (B), effective October 1, 2008, as provided in §152(c)(2). See Vol. II, P.L. 109-248, §152(c)(3), which allows for a delay if state legislation is required. P.L. 110-351, §101(c)(2)(B)(i)(II), redesignates subparagraph (D), as added by P.L. 110-351, §101(c)(2)(A)(ii), as subparagraph (C); §101(c)(2)(B)(ii)), provides that the redesignation made by §101(c)(2)(B)(i)(II) shall take effect immediately after the amendments made by §152 of P.L. 109-248 take effect.
See Vol. II, P.L. 109-248, §152(c), with respect to the effective date, which allows for a delay if state legislation is required.
[192] P.L. 110-351, §101(c)(2)(A)(i), added “and”.
[193] P.L. 110-351, §101(c)(2)(A)(ii), added subparagraph (D). For the effective date, see Vol. II, P.L. 110-351, §601.
P.L. 110-351, §101(c)(2)(B)(i)(II), redesignates this subparagraph (D) as subparagraph (C); §101(c)(2)(B)(ii)), provides that the redesignation made by §101(c)(2)(B)(i)(II) shall take effect immediately after the amendments made by §152 of P.L. 109-248 take effect.
See Vol. II, P.L. 109-248, §152(c), with respect to the effective date, which allows for a delay if state legislation is required.
[194] P.L. 110-351, §101(c)(2)(B)(i)(I), strikes out “(C)” and substitutes “(B)”. P.L. 110-351, §101(c)(2)(B)(ii)), provides that this amendment made by §101(c)(2)(A)(i)(i) shall take effect immediately after the amendments made by §152 of P.L. 109-248 take effect.
See Vol. II, P.L. 109-248, §152(c), with respect to the effective date, which allows for a delay if state legislation is required.
[195] P.L. 110-351, §101(a)(1), struck out “and”.
[196] P.L. 110-351, §101(a)(2), struck out the period and substituted “; and*”.
*P.L. 110-351, §103(a)(1), struck out “and”.
[197] P.L. 110-351, §101(a)(3), added paragraph (28). For the effective date, see Vol. II, P.L. 110-351, §601.
[198] P.L. 110-351, §103(a)(2), struck out the period and substituted “; and*”.
*P.L. 110-351, §204(b)(1), struck out “and”.
[199] P.L. 110-351, §103(a)(3), added paragraph (29). For the effective date, see Vol. II, P.L. 110-351, §601.
[200] P.L. 110-351, §204(b)(2), struck out the period and substituted “; and*”.
P.L. 110-351, §206(1), struck out “and”.
[201] P.L. 110-351, §204(b)(3), added paragraph (30). For the effective date, see Vol. II, P.L. 110-351, §601.
[202] P.L. 110-351, §206(2), struck out the period and inserted “; and*”.
P.L. 110-351, §301(c)(1)(A)(i), struck out “and”.
[203] P.L. 110-351, §206(3), added paragraph (31). For the effective date, see Vol. II, P.L. 110-351, §601.
[204] P.L. 110-351, §301(c)(1)(A)(ii), struck out the period and inserted “;and*”.
*P.L. 110-351, §403(1), struck out “and”.
[205] P.L. 110-351, §301(c)(1)(A)(iii), adds paragraph (32). P.L. 110-351, §301(f), provides that this amendment shall take effect on October 1, 2009, without regard to whether the regulations required under subsecton (e)(1) have been promulgated by such date.
See Vol. II, P.L. 110-351, §301(d), with respect to rules of construction and §301(e), with respect to regulations.
[206] P.L. 110-351, §403(2), struck out the period and substituted “; and*”.
[207] P.L. 110-351, §403(3), added paragraph (33). For the effective date, see Vol. II, P.L. 110-351, §601.
FOSTER CARE MAINTENANCE PAYMENTS PROGRAM[208]
Sec. 472. [42 U.S.C. 672] (a) In General.—
(1) Eligibility.—Each State with a plan approved under this part shall make foster care maintenance payments on behalf of each child who has been removed from the home of a relative specified in section 406(a) (as in effect on July 16, 1996) into foster care if—
(A) the removal and foster care placement met, and the placement continues to meet, the requirements of paragraph (2); and
(B) the child, while in the home, would have met the AFDC eligibility requirement of paragraph (3).
(2) Removal and foster care placement requirements.—The removal and foster care placement of a child meet the requirements of this paragraph if—
(A) the removal and foster care placement are in accordance with—
(i) a voluntary placement agreement entered into by a parent or legal guardian of the child who is the relative referred to in paragraph (1); or
(ii) a judicial determination to the effect that continuation in the home from which removed would be contrary to the welfare of the child and that reasonable efforts of the type described in section 471(a)(15) for a child have been made;
(B) the child’s placement and care are the responsibility of—
(i) the State agency administering the State plan approved under section 471; or[209]
(ii) any other public agency with which the State agency administering or supervising the administration of the State plan has made an agreement which is in effect; and[210]
(iii)[211] an Indian tribe or a tribal organization (as defined in section 479B(a)) or a tribal consortium that has a plan approved under section 471 in accordance with section 479B; and
(C) the child has been placed in a foster family home or child-care institution.
(3) AFDC eligibility requirement.—
(A) In general.—A child in the home referred to in paragraph (1) would have met the AFDC eligibility requirement of this paragraph if the child—
(i) would have received aid under the State plan approved under section 402 (as in effect on July 16, 1996) in the home, in or for the month in which the agreement was entered into or court proceedings leading to the determination referred to in paragraph (2)(A)(ii) of this subsection were initiated; or
(ii)(I) would have received the aid in the home, in or for the month referred to in clause (i), if application had been made therefor; or
(II) had been living in the home within 6 months before the month in which the agreement was entered into or the proceedings were initiated, and would have received the aid in or for such month, if, in such month, the child had been living in the home with the relative referred to in paragraph (1) and application for the aid had been made.
(B) Resources determination.—For purposes of subparagraph (A), in determining whether a child would have received aid under a State plan approved under section 402 (as in effect on July 16, 1996), a child whose resources (determined pursuant to section 402(a)(7)(B), as so in effect) have a combined value of not more than $10,000 shall be considered a child whose resources have a combined value of not more than $1,000 (or such lower amount as the State may determine for purposes of section 402(a)(7)(B)).
(4) Eligibility of certain alien children.—Subject to title IV of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996[212], if the child is an alien disqualified under section 245A(h) or 210(f) of the Immigration and Nationality Act[213] from receiving aid under the State plan approved under section 402 in or for the month in which the agreement described in paragraph (2)(A)(i) was entered into or court proceedings leading to the determination described in paragraph (2)(A)(ii) were initiated, the child shall be considered to satisfy the requirements of paragraph (3), with respect to the month, if the child would have satisfied the requirements but for the disqualification.
(b) Foster care maintenance payments may be made under this part only on behalf of a child described in subsection (a) of this section who is—
(1) in the foster family home of an individual, whether the payments therefor are made to such individual or to a public or private child-placement or child-care agency, or
(2) in a child-care institution, whether the payments therefor are made to such institution or to a public or private child-placement or child-care agency, which payments shall be limited so as to include in such payments only those items which are included in the term “foster care maintenance payments” (as defined in section 475(4)).
(c) For the purposes of this part, (1) the term “foster family home” means a foster family home for children which is licensed by the State in which it is situated or has been approved, by the agency of such State having responsibility for licensing homes of this type, as meeting the standards established for such licensing; and (2) the term “child-care institution” means a private child-care institution, or a public child-care institution which accommodates no more than twenty-five children, which is licensed by the State in which it is situated or has been approved, by the agency of such State responsible for licensing or approval of institutions of this type, as meeting the standards established for such licensing,[214] but the term shall not include detention facilities, forestry camps, training schools, or any other facility operated primarily for the detention of children who are determined to be delinquent.
(d) Notwithstanding any other provision of this title, Federal payments may be made under this part with respect to amounts expended by any State as foster care maintenance payments under this section, in the case of children removed from their homes pursuant to voluntary placement agreements as described in subsection (a), only if (at the time such amounts were expended) the State has fulfilled all of the requirements of section 422(b)(8).
(e) No Federal payment may be made under this part with respect to amounts expended by any State as foster care maintenance payments under this section, in the case of any child who was removed from his or her home pursuant to a voluntary placement agreement as described in subsection (a) and has remained in voluntary placement for a period in excess of 180 days, unless there has been a judicial determination by a court of competent jurisdiction (within the first 180 days of such placement) to the effect that such placement is in the best interests of the child.
(f) For the purposes of this part and part B of this title, (1) the term “voluntary placement” means an out-of-home placement of a minor, by or with participation of a State agency, after the parents or guardians of the minor have requested the assistance of the agency and signed a voluntary placement agreement; and (2) the term “voluntary placement agreement” means a written agreement, binding on the parties to the agreement, between the State agency, any other agency acting on its behalf, and the parents or guardians of a minor child which specifies, at a minimum, the legal status of the child and the rights and obligations of the parents or guardians, the child, and the agency while the child is in placement.
(g) In any case where—
(1) the placement of a minor child in foster care occurred pursuant to a voluntary placement agreement entered into by the parents or guardians of such child as provided in subsection (a), and
(2) such parents or guardians request (in such manner and form as the Secretary may prescribe) that the child be returned to their home or to the home of a relative,
the voluntary placement agreement shall be deemed to be revoked unless the State agency opposes such request and obtains a judicial determination, by a court of competent jurisdiction, that the return of the child to such home would be contrary to the child’s best interests.
(h)(1) For purposes of titles XIX, any child with respect to whom foster care maintenance payments are made under this section is deemed to be a dependent child as defined in section 406 (as in effect as of July 16, 1996) and deemed to be a recipient of aid to families with dependent children under part A of this title (as so in effect). For purposes of title XX, any child with respect to whom foster care maintenance payments are made under this section is deemed to be a minor child in a needy family under a State program funded under part A of this title and is deemed to be a recipient of assistance under such part.
(2) For purposes of paragraph (1), a child whose costs in a foster family home or child care institution are covered by the foster care maintenance payments being made with respect to the child’s minor parent, as provided in section 475(4)(B), shall be considered a child with respect to whom foster care maintenance payments are made under this section.
(i) Administrative Costs Associated With Otherwise Eligible Children Not In Licensed Foster Care Settings.—Expenditures by a State that would be considered administrative expenditures for purposes of section 474(a)(3) if made with respect to a child who was residing in a foster family home or childcare institution shall be so considered with respect to a child not residing in such a home or institution—
(1) in the case of a child who has been removed in accordance with subsection (a) of this section from the home of a relative specified in section 406(a) (as in effect on July 16, 1996), only for expenditures—
(A) with respect to a period of not more than the lesser of 12 months or the average length of time it takes for the State to license or approve a home as a foster home, in which the child is in the home of a relative and an application is pending for licensing or approval of the home as a foster family home; or
(B) with respect to a period of not more than 1 calendar month when a child moves from a facility not eligible for payments under this part into a foster family home or child care institution licensed or approved by the State; and
(2) in the case of any other child who is potentially eligible for benefits under a State plan approved under this part and at imminent risk of removal from the home, only if—
(A) reasonable efforts are being made in accordance with section 471(a)(15) to prevent the need for, or if necessary to pursue, removal of the child from the home; and
(B) the State agency has made, not less often than every 6 months, a determination (or redetermination) as to whether the child remains at imminent risk of removal from the home.
[208] See Vol. II, P.L. 96-272, §102(e), with respect to the Secretary’s report to Congress on the placement of children in foster care pursuant to certain voluntary agreements.
[209] P.L. 110-351, §301(a)(2)(A), strikes out “or”, to be effective October 1, 2009.
[210] P.L. 110-351, §301(a)(2)(B), strikes out “and”, and substitutes “or”, to be effective October 1, 2009.
[211] P.L. 110-351, §301(a)(2)(C), adds clause (iii), to be effective October 1, 2009.
[212] See Vol. II, P.L. 104-193, §§400-435.
[213] See Vol. II, P.L. 82-414, §§210(f) and 245A(h).
[214] P.L. 110-351, §201(b), inserts “except, in the case of a child who has attained 18 years of age, the term shall include a supervised setting in which the individual is living independently, in accordance with such conditions as the Secretary shall establish in regulations,” to be effective October 1, 2010.
ADOPTION AND GUARDIANSHIP[215] ASSISTANCE PROGRAM
Sec. 473. [42 U.S.C. 673] (a)(1)(A) Each State having a plan approved under this part shall enter into adoption assistance agreements (as defined in section 475(3)) with the adoptive parents of children with special needs.
(B) Under any adoption assistance agreement entered into by a State with parents who adopt a child with special needs, the State—
(i) shall make payments of nonrecurring adoption expenses incurred by or on behalf of such parents in connection with the adoption of such child, directly through the State agency or through another public or nonprofit private agency, in amounts determined under paragraph (3), and
(ii) in any case where the child meets the requirements of paragraph (2), may make adoption assistance payments to such parents, directly through the State agency or through another public or nonprofit private agency, in amounts so determined.
(2)(A) For purposes of paragraph (1)(B)(ii), a child meets the requirements of this paragraph if—
(i)[216] in the case of a child who is not an applicable child for the fiscal year (as defined in subsection (e)), the child—
(I)[217](aa[218])(AA[219]) was removed from the home of a relative specified in section 406(a) (as in effect on July 16, 1996) and placed in foster care in accordance with a voluntary placement agreement with respect to which Federal payments are provided under section 474 (or section 403, as such section was in effect on July 16, 1996), or in accordance with a judicial determination to the effect that continuation in the home would be contrary to the welfare of the child; and
(BB)[220] met the requirements of section 472(a)(3) with respect to the home referred to in subitem (AA) of this item[221].
(bb)[222] meets all of the requirements of title XVI with respect to eligibility for supplemental security income benefits; or
(cc)[223] is a child whose costs in a foster family home or child-care institution are covered by the foster care maintenance payments being made with respect to the minor parent of the child as provided in section 475(4)(B); and
(II)[224] has been determined by the State, pursuant to subsection (c)(1)[225] of this section, to be a child with special needs; or[226]
(ii)[227] in the case of a child who is an applicable child for the fiscal year (as so defined), the child—
(I)(aa) at the time of initiation of adoption proceedings was in the care of a public or licensed private child placement agency or Indian tribal organization pursuant to—
(AA) an involuntary removal of the child from the home in accordance with a judicial determination to the effect that continuation in the home would be contrary to the welfare of the child; or
(BB) a voluntary placement agreement or voluntary relinquishment;
(bb) meets all medical or disability requirements of title XVI with respect to eligibility for supplemental security income benefits; or
(cc) was residing in a foster family home or child care institution with the child’s minor parent, and the child’s minor parent was in such foster family home or child care institution pursuant to—
(AA) an involuntary removal of the child from the home in accordance with a judicial determination to the effect that continuation in the home would be contrary to the welfare of the child; or
(BB) a voluntary placement agreement or voluntary relinquishment; and
(II) has been determined by the State, pursuant to subsection (c)(2), to be a child with special needs.
(B) Section 472(a)(4) shall apply for purposes of subparagraph (A) of this paragraph, in any case in which the child is an alien described in such section.
(C) A child shall be treated as meeting the requirements of this paragraph for the purpose of paragraph (1)(B)(ii) if—
(i)[228] in the case of a child who is not an applicable child for the fiscal year (as defined in subsection (e)), the child—
(I)[229] meets the requirements of subparagraph (A)(i)(II)[230];
(II)[231] was determined eligible for adoption assistance payments under this part with respect to a prior adoption;
(III)[232] is available for adoption because—
(aa)[233] the prior adoption has been dissolved, and the parental rights of the adoptive parents have been terminated; or
(bb)[234] the child’s adoptive parents have died; and
(IV)[235] fails to meet the requirements of subparagraph (A)(i)[236] but would meet such requirements if—
(aa)[237] the child were treated as if the child were in the same financial and other circumstances the child was in the last time the child was determined eligible for adoption assistance payments under this part; and
(bb)[238] the prior adoption were treated as never having occurred; or[239]
(ii)[240] in the case of a child who is an applicable child for the fiscal year (as so defined), the child meets the requirements of subparagraph (A)(ii)(II), is determined eligible for adoption assistance payments under this part with respect to a prior adoption (or who would have been determined eligible for such payments had the Adoption and Safe Families Act of 1997[241] been in effect at the time that such determination would have been made), and is available for adoption because the prior adoption has been dissolved and the parental rights of the adoptive parents have been terminated or because the child’s adoptive parents have died.
(D)[242] In determining the eligibility for adoption assistance payments of a child in a legal guardianship arrangement described in section 471(a)(28), the placement of the child with the relative guardian involved and any kinship guardianship assistance payments made on behalf of the child shall be considered never to have been made.
(3) The amount of the payments to be made in any case under clauses (i) and (ii) of paragraph (1)(B) shall be determined through agreement between the adoptive parents and the State or local agency administering the program under this section, which shall take into consideration the circumstances of the adopting parents and the needs of the child being adopted, and may be readjusted periodically, with the concurrence of the adopting parents (which may be specified in the adoption assistance agreement), depending upon changes in such circumstances. However, in no case may the amount of the adoption assistance payment made under clause (ii) of paragraph (1)(B) exceed the foster care maintenance payment which would have been paid during the period if the child with respect to whom the adoption assistance payment is made had been in a foster family home.
(4)[243] Notwithstanding the preceding paragraph, (A) no payment may be made to parents with respect to any child who has attained the age of eighteen (or, where the State determines that the child has a mental or physical handicap which warrants the continuation of assistance, the age of twenty-one), and (B) no payment may be made to parents with respect to any child if the State determines that the parents are no longer legally responsible for the support of the child or if the State determines that the child is no longer receiving any support from such parents. Parents who have been receiving adoption assistance payments under this section shall keep the State or local agency administering the program under this section informed of circumstances which would, pursuant to this subsection, make them ineligible for such assistance payments, or eligible for assistance payments in a different amount.
(5) For purposes of this part, individuals with whom a child (who has been determined by the State, pursuant to subsection (c), to be a child with special needs) is placed for adoption in accordance with applicable State and local law shall be eligible for such payments, during the period of the placement, on the same terms and subject to the same conditions as if such individuals had adopted such child.
(6)(A) For purposes of paragraph (1)(B)(i), the term “nonrecurring adoption expenses” means reasonable and necessary adoption fees, court costs, attorney fees, and other expenses which are directly related to the legal adoption of a child with special needs and which are not incurred in violation of State or Federal law.
(B) A State’s payment of nonrecurring adoption expenses under an adoption assistance agreement shall be treated as an expenditure made for the proper and efficient administration of the State plan for purposes of section 474(a)(3)(E).
(7)[244](A) Notwithstanding any other provision of this subsection, no payment may be made to parents with respect to any applicable child for a fiscal year that—
(i) would be considered a child with special needs under subsection (c)(2);
(ii) is not a citizen or resident of the United States; and
(iii) was adopted outside of the United States or was brought into the United States for the purpose of being adopted.
(B) Subparagraph (A) shall not be construed as prohibiting payments under this part for an applicable child described in subparagraph (A) that is placed in foster care subsequent to the failure, as determined by the State, of the initial adoption of the child by the parents described in subparagraph (A).
(8)[245] A State shall spend an amount equal to the amount of savings (if any) in State expenditures under this part resulting from the application of paragraph (2)(A)(ii) to all applicable children for a fiscal year to provide to children or families any service (including post-adoption services) that may be provided under this part or part B.
(b)(1) For purposes of title XIX, any child who is described in paragraph (3) is deemed to be a dependent child as defined in section 406 (as in effect as of July 16, 1996) and deemed to be a recipient of aid to families with dependent children under part A of this title (as so in effect) in the State where such child resides.
(2) For purposes of title XX, any child who is described in paragraph (3) is deemed to be a minor child in a needy family under a State program funded under part A of this title and deemed to be a recipient of assistance under such part.
(3) A child described in this paragraph is any child—
(A)(i) who is a child described in subsection (a)(2), and
(ii) with respect to whom an adoption assistance agreement is in effect under this section (whether or not adoption assistance payments are provided under the agreement or are being made under this section), including any such child who has been placed for adoption in accordance with applicable State and local law (whether or not an interlocutory or other judicial decree of adoption has been issued),[246]
(B) with respect to whom foster care maintenance payments are being made under section 472, or[247]
(C)[248] with respect to whom kinship guardianship assistance payments are being made pursuant to subsection (d).
(4) For purposes of paragraphs (1) and (2), a child whose costs in a foster family home or child-care institution are covered by the foster care maintenance payments being made with respect to the child’s minor parent, as provided in section 475(4)(B), shall be considered a child with respect to whom foster care maintenance payments are being made under section 472.
(c) For purposes of this section—
(1) in the case of a child who is not an applicable child for a fiscal year, the child shall not be considered a child with special needs unless[249]—
(A)[250] the State has determined that the child cannot or should not be returned to the home of his parents; and
(B)[251] the State had first determined (A) that there exists with respect to the child a specific factor or condition (such as his ethnic background, age, or membership in a minority or sibling group, or the presence of factors such as medical conditions or physical, mental, or emotional handicaps) because of which it is reasonable to conclude that such child cannot be placed with adoptive parents without providing adoption assistance under this section or medical assistance under title XIX, and (B) that, except where it would be against the best interests of the child because of such factors as the existence of significant emotional ties with prospective adoptive parents while in the care of such parents as a foster child, a reasonable, but unsuccessful, effort has been made to place the child with appropriate adoptive parents without providing adoption assistance under this section or medical assistance under title XIX; or[252]
(2)[253] in the case of a child who is an applicable child for a fiscal year, the child shall not be considered a child with special needs unless—
(A) the State has determined, pursuant to a criterion or criteria established by the State, that the child cannot or should not be returned to the home of his parents;
(B)(i) the State has determined that there exists with respect to the child a specific factor or condition (such as ethnic background, age, or membership in a minority or sibling group, or the presence of factors such as medical conditions or physical, mental, or emotional handicaps) because of which it is reasonable to conclude that the child cannot be placed with adoptive parents without providing adoption assistance under this section and medical assistance under title XIX; or
(ii) the child meets all medical or disability requirements of title XVI with respect to eligibility for supplemental security income benefits; and
(C) the State has determined that, except where it would be against the best interests of the child because of such factors as the existence of significant emotional ties with prospective adoptive parents while in the care of the parents as a foster child, a reasonable, but unsuccessful, effort has been made to place the child with appropriate adoptive parents without providing adoption assistance under this section or medical assistance under title XIX.
(d) [254]Kinship Guardianship Assistance Payments for Children.—
(1)Kinship guardianship assistance agreement.—
(A) In general.—In order to receive payments under section 474(a)(5), a State shall.—
(i) negotiate and enter into a written, binding kinship guardianship assistance agreement with the prospective relative guardian of a child who meets the requirements of this paragraph; and
(ii) provide the prospective relative guardian with a copy of the agreement.
(B) Minimum requirements.—The agreement shall specify, at a minimum.—
(i) the amount of, and manner in which, each kinship guardianship assistance payment will be provided under the agreement, and the manner in which the payment may be adjusted periodically, in consultation with the relative guardian, based on the circumstances of the relative guardian and the needs of the child;
(ii) the additional services and assistance that the child and relative guardian will be eligible for under the agreement;
(iii) the procedure by which the relative guardian may apply for additional services as needed; and
(iv) subject to subparagraph (D), that the State will pay the total cost of nonrecurring expenses associated with obtaining legal guardianship of the child, to the extent the total cost does not exceed $2,000.
(C) Interstate applicability.—The agreement shall provide that the agreement shall remain in effect without regard to the State residency of the relative guardian.
(D) No effect on federal reimbursement.—Nothing in subparagraph (B)(iv) shall be construed as affecting the ability of the State to obtain reimbursement from the Federal Government for costs described in that subparagraph.
(2) Limitations on amount of kinship guardianship assistance payment.—A kinship guardianship assistance payment on behalf of a child shall not exceed the foster care maintenance payment which would have been paid on behalf of the child if the child had remained in a foster family home.
(3)Child’s eligibility for a kinship guardianship assistance payment.—
(A) In general.—A child is eligible for a kinship guardianship assistance payment under this subsection if the State agency determines the following:
(i) The child has been—
(I) removed from his or her home pursuant to a voluntary placement agreement or as a result of a judicial determination to the effect that continuation in the home would be contrary to the welfare of the child; and
(II) eligible for foster care maintenance payments under section 472 while residing for at least 6 consecutive months in the home of the prospective relative guardian.
(ii) Being returned home or adopted are not appropriate permanency options for the child.
(iii) The child demonstrates a strong attachment to the prospective relative guardian and the relative guardian has a strong commitment to caring permanently for the child.
(iv) With respect to a child who has attained 14 years of age, the child has been consulted regarding the kinship guardianship arrangement.
(B) Treatment of siblings.—With respect to a child described in subparagraph (A) whose sibling or siblings are not so described—
(i) the child and any sibling of the child may be placed in the same kinship guardianship arrangement, in accordance with section 471(a)(31), if the State agency and the relative agree on the appropriateness of the arrangement for the siblings; and
(ii) kinship guardianship assistance payments may be paid on behalf of each sibling so placed.
(e)[255]Applicable Child Defined.—
(1)On the basis of age.—
(A) In general.—Subject to paragraphs (2) and (3), in this section, the term “applicable child” means a child for whom an adoption assistance agreement is entered into under this section during any fiscal year described in subparagraph (B) if the child attained the applicable age for that fiscal year before the end of that fiscal year.
(B) Applicable age.—For purposes of subparagraph (A), the applicable age for a fiscal year is as follows:
| In the case of fiscal year:
|
The applicable age is:
|
| 2010
|
16
|
| 2011
|
14
|
| 2012
|
12
|
| 2013
|
10
|
| 2014
|
8
|
| 2015
|
6
|
| 2016
|
4
|
| 2017
|
2
|
| 2018 or thereafter
|
any age.
|
(2) Exception for duration in care.—Notwithstanding paragraph (1) of this subsection, beginning with fiscal year 2010, such term shall include a child of any age on the date on which an adoption assistance agreement is entered into on behalf of the child under this section if the child—
(A) has been in foster care under the responsibility of the State for at least 60 consecutive months; and
(B) (B) meets the requirements of subsection (a)(2)(A)(ii).
(3) Exception for member of a sibling group.—Notwithstanding paragraphs (1) and (2) of this subsection, beginning with fiscal year 2010, such term shall include a child of any age on the date on which an adoption assistance agreement is entered into on behalf of the child under this section without regard to whether the child is described in paragraph (2)(A) of this subsection if the child—
(A) is a sibling of a child who is an applicable child for the fiscal year under paragraph (1) or (2) of this subsection;
(B) is to be placed in the same adoption placement as an applicable child for the fiscal year who is their sibling; and
(C) meets the requirements of subsection (a)(2)(A)(ii).
[215] P.L. 110-351, §101(c)(5), inserted “AND GUARDIANSHIP”. For the effective date, see Vol. II, P.L. 110-351, §601.
[216] P.L. 110-351, §402(1)(A)(i)(VI) , struck out “if the child)—” and substituted “if —” and this new clause (i). For the effective date, see Vol. II, P.L. 110-351, §601.
[217] P.L. 110-351, §402(1)(A)(i)(IV), redesignated the former clause (i) as subclause (I) and §402(1)(A)(i)(V) realigned the margin.
[218] P.L. 110-351, §402(1)(A)(i)(III), redesignated the former subclause (I) as item (aa) and §402(1)(A)(i)(V) realigned the margin.
[219] P.L. 110-351, §402(1)(A)(i)(I), redesignated the former item (aa) as subitem (AA) and §402(1)(A)(i)(V) realigned the margin.
[220] P.L. 110-351, §402(1)(A)(i)(I), redesignated the former item (bb) as subitem (BB) and §402(1)(A)(i)(V) realigned the margin.
[221] P.L. 110-351, §402(1)(A)(i)(II), struck out “item (aa) of this subclause” and substituted “subitem (AA) of this item”.
[222] P.L. 110-351, §402(1)(A)(i)(III), redesignated the former subclause (II) as item (bb) and §402(1)(A)(i)(V) realigned the margin.
[223] P.L. 110-351, §402(1)(A)(i)(III), redesignated the former subclause (III) as item (cc).
[224] P.L. 110-351, §402(1)(A)(i)(IV), redesignated the former clause (i) as subclause (I) and §402(1)(A)(i)(V) realigned the margin.
[225] P.L. 110-351, §402(1)(A)(i)(VII)(aa), struck out “(c)” and substituted “(c)(i)”.
[226] P.L. 110-351, §402(1)(A)(i)(VII)(bb), struck out the period and substituted “; or”.
[227] P.L. 110-351, §402(1)(A)(i)(VIII), added this new clause (ii). For the effective date, see Vol. II, P.L. 110-351, §601.
[228] P.L. 110-351, §402(1)(A)(ii)(V), struck out “if the child—” and substituted “if—” and this new clause (i). For the effective date, see Vol. II, P.L. 110-351, §601.
[229] P.L. 110-351, §402(1)(A)(ii)(III), redesignated the former clause (i) as subclause (I) and §402(1)(A)(ii)(IV) realigned the margin.
[230] P.L. 110-351, §402(1)(A)(ii)(VI), struck out “(A)(ii)” and inserted “(A)(i)(II)”.
[231] P.L. 110-351, §402(1)(A)(ii)(III), redesignated the former clause (ii) as subclause (II) and §402(1)(A)(ii)(IV) realigned the margin.
[232] P.L. 110-351, §402(1)(A)(ii)(III), redesignated the former clause (iii) as subclause (III) and §402(1)(A)(ii)(IV) realigned the margin.
[233] P.L. 110-351, §402(1)(A)(ii)(I), redesignated the former subclause (I) as item (aa) and §402(1)(A)(ii)(IV) realigned the margin.
[234] P.L. 110-351, §402(1)(A)(ii)(I), redesignated the former subclause (II) as item (bb) and §402(1)(A)(ii)(IV) realigned the margin.
[235] P.L. 110-351, §402(1)(A)(ii)(III), redesignated the former clause (iv) as subclause (IV) and §402(1)(A)(ii)(IV) realigned the margin.
[236] P.L. 110-351, §402(1)(A)(ii)(VII)(aa), struck out “(A)” and inserted “(A)(i)”.
[237] P.L. 110-351, §402(1)(A)(ii)(II), redesignated the former subclause (I) as item (aa) and §402(1)(A)(ii)(IV) realigned the margin.
[238] P.L. 110-351, §402(1)(A)(ii)(II), redesignated the former subclause (II) as item (bb) and §402(1)(A)(ii)(IV) realigned the margin.
[239] P.L. 110-351, §402(1)(A)(ii)(VII)(bb), struck out the period and inserted a “; or”.
[240] P.L. 110-351, §402(1)(A)(ii)(VIII), added clause (ii). For the effective date, see Vol. II, P.L. 110-351, §601.
[241] P.L. 105-89; 111 Stat. 2115.
[242] P.L. 110-351, §101(c)(1)(B), added subparagraph (D). For the effective date, see Vol. II, P.L. 110-351, §601.
[243] P.L. 110-351, §201(c), amends paragraph (4), in its entirety, to be effective October 1, 2010.
[244] P.L. 110-351, §402(1)(B), added paragraph (7). For the effective date, see Vol. II, P.L. 110-351, §601.
[245] P.L. 110-351, §402(1)(B), added paragraph (8). For the effective date, see Vol. II, P.L. 110-351, §601.
[246] P.L. 110-351, §101(f)(1), struck out “or”.
[247] P.L. 110-351, §101(f)(2), struck out the period and inserted “, or”.
[248] P.L. 110-351, §101(f)(3), added subparagraph (C). For the effective date, see Vol. II, P.L. 110-351, §601.
[249] P.L. 110-351, §402(2)(B), struck out “this section, a child shall not be considered a child with special needs unless” and substituted “this section—” and a new paragraph (1). For the effective date, see Vol. II, P.L. 110-351, §601.
[250] P.L. 110-351, §402(2)(A), redesignated the former paragraph (1) as subparagraph (A) and realigned the margin.
[251] P.L. 110-351, §402(2)(A) , redesignated the former paragraph (2) as subparagraph (B) and realigned the margin.
[252] P.L. 110-351, §402(2)(C), struck out the period and inserted “, or”.
[253] P.L. 110-351, §402(2)(D), added this paragraph (2). For the effective date, see Vol. II, P.L. 110-351, §601.
[254] P.L. 110-351, §101(b), added subsection (d). For the effective date, see Vol. II, P.L. 110-351, §601.
[255] P.L. 110-351, §402(3), added subsection (e). For the effective date, see Vol. II, P.L. 110-351, §601.
ADOPTION INCENTIVE PAYMENTS
Sec. 473A. [42 U.S.C. 673b] (a) Grant Authority.—Subject to the availability of such amounts as may be provided in advance in appropriations Acts for this purpose, the Secretary shall make a grant to each State that is an incentive-eligible State for a fiscal year in an amount equal to the adoption incentive payment payable to the State under this section for the fiscal year, which shall be payable in the immediately succeeding fiscal year.
(b) Incentive–Eligible State.—A State is an incentive-eligible State for a fiscal year if—
(1) the State has a plan approved under this part for the fiscal year;
(2)(A) the number of foster child adoptions in the State during the fiscal year exceeds the base number of foster child adoptions for the State for the fiscal year;[256]
(B) the number of older child adoptions in the State during the fiscal year exceeds the base number of older child adoptions for the State for the fiscal year; or[257]
(C)[258] the State’s foster child adoption rate for the fiscal year exceeds the highest ever foster child adoption rate determined for the State;
(3) the State is in compliance with subsection (c) for the fiscal year;
(4) [259]the State provides health insurance coverage to any child with special needs (as determined under section 473(c)) for whom there is in effect an adoption assistance agreement between a State and an adoptive parent or parents; and
(5) the fiscal year is any of fiscal years 2008 through 2012[260].
(c) Data Requirements.—
(1) In general.—A State is in compliance with this subsection for a fiscal year if the State has provided to the Secretary the data described in paragraph (2)—
(A) for fiscal years 1995 through 1997 (or, if the first fiscal year for which the State seeks a grant under this section is after fiscal year 1998, the fiscal year that precedes such first fiscal year); and
(B) for each succeeding fiscal year that precedes the fiscal year.
(2) Determination of numbers of adoptions based on afcars data.—The Secretary shall determine the numbers of foster child adoptions, of special needs adoptions that are not older child adoptions, and of older child adoptions in a State during a fiscal year[261], and the foster child adoption rate for the state for the fiscal year[262] for purposes of this section, on the basis of data meeting the requirements of the system established pursuant to section 479, as reported by the State and approved by the Secretary by August 1 of the succeeding fiscal year.
(3) No waiver of afcars requirements.—This section shall not be construed to alter or affect any requirement of section 479 or of any regulation prescribed under such section with respect to reporting of data by States, or to waive any penalty for failure to comply with such a requirement.
(d) Adoption Incentive Payment.—
(1) In general.—Except as provided in paragraph (2), the adoption incentive payment payable to a State for a fiscal year under this section shall be equal to the sum of—
(A) $4,000, multiplied by the amount (if any) by which the number of foster child adoptions in the State during the fiscal year exceeds the base number of foster child adoptions for the State for the fiscal year;
(B) $4,000[263], multiplied by the amount (if any) by which the number of special needs adoptions that are not older child adoptions in the State during the fiscal year exceeds the base number of special needs adoptions that are not older child adoptions for the State for the fiscal year; and
(C) $8,000[264], multiplied by the amount (if any) by which the number of older child adoptions in the State during the fiscal year exceeds the base number of older child adoptions for the State for the fiscal year.
(2) Pro rata adjustment if insufficient funds available.—For any fiscal year, if the total amount of adoption incentive payments otherwise payable under this section for a fiscal year exceeds the amount appropriated pursuant to subsection (h) for the fiscal year, the amount of the adoption incentive payment payable to each State under this section for the fiscal year shall be—
(A) the amount of the adoption incentive payment that would otherwise be payable to the State under this section for the fiscal year; multiplied by
(B) the percentage represented by the amount so appropriated for the fiscal year, divided by the total amount of adoption incentive payments otherwise payable under this section for the fiscal year.
(3)[265]Increased incentive payment for exceeding the highest ever foster child adoption rate.—
(A) In General.—If—
(i) for fiscal year 2009 or any fiscal year thereafter the total amount of adoption incentive payments payable under paragraph (1) of this subsection are less than the amount appropriated under subsection (h) for the fiscal year; and
(ii) a State’s foster child adoption rate for that fiscal year exceeds the highest ever foster child adoption rate determined for the State, then the adoption incentive payment otherwise determined under paragraph (1) of this subsection for the State shall be increased, subject to subparagraph (C) of this paragraph, by the amount determined for the State under subparagraph (B) of this paragraph.
(B) Amount of increase.—For purposes of subparagraph (A), the amount determined under this subparagraph with respect to a State and a fiscal year is the amount equal to the product of—
(i) $1,000; and
(ii) the excess of—
(I) the number of foster child adoptions in the State in the fiscal year; over
(II) the product (rounded to the nearest whole number) of—
(aa) the highest ever foster child adoption rate determined for the State; and
(bb) the number of children in foster care under the supervision of the State on the last day of the preceding fiscal year.
(C) Pro rata adjustment if insufficient funds available.—For any fiscal year, if the total amount of increases in adoption incentive payments otherwise payable under this paragraph for a fiscal year exceeds the amount available for such increases for the fiscal year, the amount of the increase payable to each State under this paragraph for the fiscal year shall be—
(i) the amount of the increase that would otherwise be payable to the State under this paragraph for the fiscal year; multiplied by
(ii) the percentage represented by the amount so available for the fiscal year, divided by the total amount of increases otherwise payable under this paragraph for the fiscal year.
(e) 24-Month[266] Availability of Incentive Payments.—Payments to a State under this section in a fiscal year shall remain available for use by the State for the 24-month period beginning with the month in which the payments are made[267].
(f) Limitations on Use of Incentive Payments.—A State shall not expend an amount paid to the State under this section except to provide to children or families any service (including post-adoption services) that may be provided under part B or E. Amounts expended by a State in accordance with the preceding sentence shall be disregarded in determining State expenditures for purposes of Federal matching payments under sections 424, 434, and 474.
(g) Definitions.—As used in this section:
(1) Foster child adoption.—The term “foster child adoption” means the final adoption of a child who, at the time of adoptive placement, was in foster care under the supervision of the State.
(2) Special needs adoption.—The term “special needs adoption” means the final adoption of a child for whom an adoption assistance agreement is in effect under section 473.
(3) Base number of foster child adoptions.—The term “base number of foster child adoptions for a State” means, with respect to any fiscal year, the number of foster child adoptions in the State in fiscal year 2007.[268]
(4) Base number of special needs adoptions that are not older child adoptions.—The term “base number of special needs adoptions that are not older child adoptions[269] for a State” means, with respect to any fiscal year, the number of special needs adoptions that are not older child adoptions in the State in fiscal year 2007.[270]
(5) Base number of older child adoptions.—The term “base number of older child adoptions for a State” means, with respect to any fiscal year, the number of older child adoptions in the State in fiscal year 2007.[271]
(6) Older child adoptions.—The term “older child adoptions” means the final adoption of a child who has attained 9 years of age if—
(A) at the time of the adoptive placement, the child was in foster care under the supervision of the State; or (B) an adoption assistance agreement was in effect under section 473 with respect to the child.
(7)[272] Highest ever foster child adoption rate.—The term “highest ever foster child adoption rate” means, with respect to any fiscal year, the highest foster child adoption rate determined for any fiscal year in the period that begins with fiscal year 2002 and ends with the preceding fiscal year.
(8)[273] Foster child adoption rate.—The term “foster child adoption rate” means, with respect to a State and a fiscal year, the percentage determined by dividing—
(A) the number of foster child adoptions finalized in the State during the fiscal year; by
(B) the number of children in foster care under the supervision of the State on the last day of the preceding fiscal year.
(h) Limitations on Authorization of Appropriations.—
(1) In general.—For grants under subsection (a), there are authorized to be appropriated to the Secretary—
(A) $20,000,000 for fiscal year 1999;
(B) $43,000,000 for fiscal year 2000;
(C) $20,000,000 for each of fiscal years 2001 through 2003, and
(D) $43,000,000 for each of fiscal years 2004 through 2013[274].
(2) Availability.—Amounts appropriated under paragraph (1), or under any other law for grants under subsection (a), are authorized to remain available until expended, but not after fiscal year 2013[275].
(i) Technical Assistance.—
(1) In general.—The Secretary may, directly or through grants or contracts, provide technical assistance to assist States and local communities to reach their targets for increased numbers of adoptions and, to the extent that adoption is not possible, alternative permanent placements, for children in foster care.
(2) Description of the character of the technical assistance.—The technical assistance provided under paragraph (1) may support the goal of encouraging more adoptions out of the foster care system, when adoptions promote the best interests of children, and may include the following:
(A) The development of best practice guidelines for expediting termination of parental rights.
(B) Models to encourage the use of concurrent planning.
(C) The development of specialized units and expertise in moving children toward adoption as a permanency goal.
(D) The development of risk assessment tools to facilitate early identification of the children who will be at risk of harm if returned home.
(E) Models to encourage the fast tracking of children who have not attained 1 year of age into pre–adoptive placements.
(F) Development of programs that place children into pre-adoptive families without waiting for termination of parental rights.
(3) Targeting of technical assistance to the courts.—Not less than 50 percent of any amount appropriated pursuant to paragraph (4) shall be used to provide technical assistance to the courts.
(4) Limitations on authorization of appropriations.—To carry out this subsection, there are authorized to be appropriated to the Secretary of Health and Human Services not to exceed $10,000,000 for each of fiscal years 2004 through 2006.
[256] P.L. 110-351, §401(e)(3)(A)(i), struck out “or”.
[257] P.L. 110-351, §401(e)(3)(A)(ii), inserted “or”.
[258] P.L. 110-351, §401(e)(3)(A)(iii), added subparagraph (C). For the effective date, see Vol. II, P.L. 110-351, §601.
[259] P.L. 110-351, §401(a)(1), struck out “in the case of fiscal years 2001 through 2007,” . For the effective date, see Vol. II, P.L. 110-351, §601.
[260] P..L. 110-351, §401(a)(2), struck out “1998 through 2007” and substituted “2008 through 2012”. For the effective date, see Vol. II, P.L. 110-351, §601.
[261] P.L. 110-351, §401(a)(3), struck out “each of fiscal years 2002 through 2007” and substituted “a fiscal year”. For the effective date, see Vol. II, P.L. 110-351, §601.
[262] P.L. 110-351, §401(e)(3)(B), inserted “and the foster child adoption rate for the State for the fiscal year ”. For the effective date, see Vol. II, P.L. 110-351, §601.
[263] P.L. 110-351, §401(c)(1), struck out “$2,000” and substituted “$4,000”. For the effective date, see Vol. II, P.L. 110-351, §601.
[264] P.L. 110-351, §401(c)(2), struck out “$4,000” and substituted “$8,000”. For the effective date, see Vol. II, P.L. 110-351, §601.
[265] P.L. 110-351, §401(e)(1)(C), added paragraph (3). For the effective date, see Vol. II, P.L. 110-351, §601.
[266] P.L. 110-351, §401(d)(1), struck out “2-year” and substituted “24-Month”. For the effective date, see Vol. II, P.L. 110-351, §601.
[267] P.L. 110-351, §401(d)(2), struck out “through the end of the succeeding fiscal year” and substituted “for the 24-month period beginning with the month in which the payments are made”. For the effective date, see Vol. II, P.L. 110-351, §601.
[268] P.L. 110-351, §401(b)(1), struck out “means—” and subparagraphs (A) and (B) and substituted “means, with respect to any fiscal year, the number of foster child adoptions in the State in fiscal year 2007.”. For the effective date, see Vol. II, P.L. 110-351, §601. For subparagraphs (A) and (B) as they formerly read, see Vol. II, Appendix J, Superseded Provisions, P.L. 110-351.
[269] P.L. 110-351, §401(b)(2(A), inserted “that are not older child adoptions”. For the effective date, see Vol. II, P.L. 110-351, §601.
[270] P.L. 110-351, §401(b)(2)(B), struck out “means—” and subparagraphs (A) and (B) and substituted “means, with respect to any fiscal year, the number of special needs adoptions that are not older child adoptions in the State in fiscal year 2007.”. For the effective date, see Vol. II, P.L. 110-351, §601. For subparagraphs (A) and (B) as they formerly read, see Vol. II, Appendix J, Superseded Provisions, P.L. 110-351.
[271] P.L. 110-351, §401(b)(3), struck out “means—” and subparagraphs (A) and (B) and substituted “means, with respect to any fiscal year, the number of older child adoptions in the State in fiscal year 2007.”. For the effective date, see Vol. II, P.L. 110-351, §601. For subparagraphs (A) and (B) as they formerly read, see Vol. II, Appendix J, Superseded Provisions, P.L. 110-351.
[272] P.L. 110-351, §401(e)(2), added paragraph (7). For the effective date, see Vol. II, P.L. 110-351, §601.
[273] P.L. 110-351, §401(e)(2), added paragraph (8). For the effective date, see Vol. II, P.L. 110-351, §601.
[274] P..L. 110-351, §401(a)(4), struck out “2008” and substituted “2013”. For the effective date, see Vol. II, P.L. 110-351, §601.
[275] P.L. 108-145, §3(a)(5)(B)(ii), struck out “2003” and substituted “2008*”, effective October 1, 2003.
*P..L. 110-351, §401(a)(4), struck out “2008″ and substituted “2013”. For the effective date, see Vol. II, P.L. 110-351, §601.
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TIMELY INTERSTATE HOME STUDY INCENTIVE PAYMENTS
Sec. 473B.[276]. [42 U.S.C. 673c note] (a) Grant Authority.—The Secretary shall make a grant to each State that is a home study incentive-eligible State for a fiscal year in an amount equal to the timely interstate home study incentive payment payable to the State under this section for the fiscal year, which shall be payable in the immediately succeeding fiscal year.
(b) Home Study Incentive–Eligible State.—A State is a home study incentive-eligible State for a fiscal year if—
(1) the State has a plan approved under this part for the fiscal year;
(2) the State is in compliance with subsection (c) for the fiscal year; and
(3) based on data submitted and verified pursuant to subsection (c), the State has completed a timely interstate home study during the fiscal year.
(c) Data Requirements.—
(1) In general.—A State is in compliance with this subsection for a fiscal year if the State has provided to the Secretary a written report, covering the preceding fiscal year, that specifies—
(A) the total number of interstate home studies requested by the State with respect to children in foster care under the responsibility of the State, and with respect to each such study, the identity of the other State involved;
(B) the total number of timely interstate home studies completed by the State with respect to children in foster care under the responsibility of other States, and with respect to each such study, the identity of the other State involved; and
(C) such other information as the Secretary may require in order to determine whether the State is a home study incentive-eligible State.
(2) Verification of data.—In determining the number of timely interstate home studies to be attributed to a State under this section, the Secretary shall check the data provided by the State under paragraph (1) against complementary data so provided by other States.
(d) Timely Interstate Home Study Incentive Payments.—
(1) In general.—The timely interstate home study incentive payment payable to a State for a fiscal year shall be $1,500, multiplied by the number of timely interstate home studies attributed to the State under this section during the fiscal year, subject to paragraph (2).
(2) Pro rata adjustment if insufficient funds available.—If the total amount of timely interstate home study incentive payments otherwise payable under this section for a fiscal year exceeds the total of the amounts made available pursuant to subsection (h) for the fiscal year (reduced (but not below zero) by the total of the amounts (if any) payable under paragraph (3) of this subsection with respect to the preceding fiscal year), the amount of each such otherwise payable incentive payment shall be reduced by a percentage equal to—
(A) the total of the amounts so made available (as so reduced); divided by
(B) the total of such otherwise payable incentive payments.
(3) Appropriations available for unpaid incentive payments for prior fiscal years.—
(A) In general.—If payments under this section are reduced under paragraph (2) or subparagraph (B) of this paragraph for a fiscal year, then, before making any other payment under this section for the next fiscal year, the Secretary shall pay each State whose payment was so reduced an amount equal to the total amount of the reductions which applied to the State, subject to subparagraph (B) of this paragraph.
(B) Pro rata adjustment if insufficient funds available.—If the total amount of payments otherwise payable under subparagraph (A) of this paragraph for a fiscal year exceeds the total of the amounts made available pursuant to subsection (h) for the fiscal year, the amount of each such payment shall be reduced by a percentage equal to—
(i) the total of the amounts so made available; divided by
(ii) the total of such otherwise payable payments.
(e) Two-Year Availability of Incentive Payments.—Payments to a State under this section in a fiscal year shall remain available for use by the State through the end of the next fiscal year.
(f) Limitations on Use of Incentive Payments.—A State shall not expend an amount paid to the State under this section except to provide to children or families any service (including post-adoption services) that may be provided under part B or E. Amounts expended by a State in accordance with the preceding sentence shall be disregarded in determining State expenditures for purposes of Federal matching payments under sections 423, 434, and 474.
(g) Definitions.—In this section:
(1) Home study.—The term “home study” means an evaluation of a home environment conducted in accordance with applicable requirements of the State in which the home is located, to determine whether a proposed placement of a child would meet the individual needs of the child, including the child’s safety, permanency, health, well-being, and mental, emotional, and physical development.
(2) Interstate home study.—The term “interstate home study” means a home study conducted by a State at the request of another State, to facilitate an adoptive or foster placement in the State of a child in foster care under the responsibility of the State.
(3) Timely interstate home study.—The term “timely interstate home study” means an interstate home study completed by a State if the State provides to the State that requested the study, within 30 days after receipt of the request, a report on the results of the study. The preceding sentence shall not be construed to require the State to have completed, within the 30-day period, the parts of the home study involving the education and training of the prospective foster or adoptive parents.
(h) Limitations on Authorization of Appropriations.—
(1) In general.—For payments under this section, there are authorized to be appropriated to the Secretary—
(A) $10,000,000 for fiscal year 2007;
(B) $10,000,000 for fiscal year 2008;
(C) $10,000,000 for fiscal year 2009; and
(D) $10,000,000 for fiscal year 2010.
(2) Availability.—Amounts appropriated under paragraph (1) are authorized to remain available until expended.
[276] P.L. 109-239, §4(b), added this section, effective October 1, 2006. P.L. 109-239, §4(c) provides that “Effective October 1, 2010, section 473B of the Social Security Act is repealed.”
Reasons Bill Initiated
- Many children in foster care were waiting several years for permanent placement.
- The focus on “reasonable efforts” to reunify children with their families had led to some placement decisions that were not in the best interests of the child and not adequately focused on child safety.
- In order to move children into permanent homes in a more timely manner, States needed stricter guidelines for placement and reunification of children within their families.
Objectives/Goals
- To promote permanency for children in foster care.
- To ensure safety for abused and neglected children.
- To accelerate permanent placements of children.
- To increase accountability of the child welfare system.
Services Provided/Measures Taken
- Reauthorized the Family Preservation and Support Services Program
- Renamed it the Safe and Stable Families Program.
- Extended categories of services to include time-limited reunification services and adoption promotion and support services.
- Ensured safety for abused and neglected children:
- Ensured health and safety concerns are addressed when a State determines placement for abused and neglected children.
- Required HHS to report on the scope of substance abuse in the child welfare population, and the outcomes of services provided to that population.
- Added “safety of the child” to every step of the case plan and review process.
- Required criminal record checks for foster/adoptive parents who receive Federal funds on behalf of a child, unless a State opted out.
- Accelerated permanent placement:
- Required States to initiate court proceedings to free a child for adoption once that child had been waiting in foster care for at least 15 of the most recent 22 months, unless there is an exception.
- Allowed children to be freed for adoption more quickly in extreme cases.
- Promoted adoptions:
- Rewarded States that increased adoptions with incentive funds.
- Required States to use “reasonable efforts” to move eligible foster care children towards permanent placements.
- Promoted adoptions of all special needs children and ensured health coverage for adopted special needs children.
- Prohibited States from delaying/denying placements of children based on the geographic location of the prospective adoptive families.
- Required States to document and report child-specific adoption efforts.
- Increased accountability:
- Required HHS to establish new outcome measures to monitor and improve State performance.
- Required States to document child-specific efforts to move children into adoptive homes.
- Clarified “Reasonable Efforts:”
- Emphasized children’s health and safety.
- Required States to specify situations when services to prevent foster placement and reunification of families are not required.
- Implemented shorter time limits for making decisions about permanent placements:
- Permanency hearings to be held no later than 12 months after entering foster care.
- States must initiate termination of parental rights proceedings after the child has been in foster care 15 of the previous 22 months, except if not in the best interest of the child, or if the child is in the care of a relative.
Jim Black
savethechild2013
Yvonne Mason Sewell
How Child Protection Services Buys and Sells Our Children 
Where to turn? I believe my sister is being treated unfairly by CPS on a large scale. They visited her house today to investigate that her daughter was in the front yard playing barefoot. Are you kidding? She’s ten. I spent most of my childhood barefoot. How is that possible they would waste their time on that? I really think they have it out for her. She made them leave her house because sehe was mad and they saod they would file to take her kids away. Of course it goes deeper than that, but what can she do? Can’t afford a lawyer.
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