CFS-07-16-00012-P Eligibility of Successor Guardians for Kinship Guardianship Assistance Payments

2/17/16 N.Y. St. Reg. CFS-07-16-00012-P

NEW YORK STATE REGISTER

VOLUME XXXVIII, ISSUE 7

February 17, 2016

RULE MAKING ACTIVITIES

OFFICE OF CHILDREN AND FAMILY SERVICES

PROPOSED RULE MAKING

NO HEARING(S) SCHEDULED

 

I.D No. CFS-07-16-00012-P

Eligibility of Successor Guardians for Kinship Guardianship Assistance Payments

PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following proposed rule:

Proposed Action:

Amendment of sections 436.1, 436.3, 436.4, 436.5, 436.6, 436.8 and 436.10 of Title 18 NYCRR.

Statutory authority:

Social Services Law, sections 20(3)(d), 34(3)(f), 458-a, 458-b, 458-d and 458-f

Subject:

Eligibility of successor guardians for kinship guardianship assistance payments.

Purpose:

To enact standards for the appointment and approval of a successor guardian upon the death or incapacity of a relative guardian.

Substance of proposed rule (Full text is posted at the following State website:ocfs.ny.gov):

The proposed amendment of 18 NYCRR 436.1 would add definitions of the terms “successor guardian”, “prospective successor guardian”, and “incapacity”.

The proposed addition of 18 NYCRR 436.3(b) would address the statutory requirement that the prospective successor guardian’s financial status cannot be considered when determining eligibility for kinship guardianship assistance payments.

The proposed addition to 18 NYCRR 436.3(c)(3) would address the clearance requirements that must be completed prior to approving a prospective successor guardian to receive kinship guardianship assistance payments.

The proposed amendment to 18 NYCRR 436.3(c)(4) would implement the requirement that the prospective successor guardian must inform in writing the social services official that has entered into an agreement with the relative guardian for kinship guardianship payments of the death or incapacity of the relative guardian and of the prospective successor guardian’s desire to enforce the provisions in the agreement that authorize kinship guardianship assistance payments to him or her in the event of the death or incapacity of the relative guardian.

The proposed amendment to 18 NYCRR 436.3(c)(5) would require that the clearances required by section 436.3(c)(3) on the successor guardian must be conducted by the social services official when the written communication regarding the relative guardian’s death or incapacity is received.

The proposed amendment to 18 NYCRR 436.3(f) would allow a child to remain eligible for kinship guardianship assistance payments when a successor guardian assumes care and guardianship of the child.

The proposed amendments to 18 NYCRR 436.4(f) would allow the original kinship guardianship assistance agreement and any amendments made to the agreement to name an appropriate person to act as a successor guardian for the purpose of providing care and guardianship for a child in the event of the death or incapacity of the relative guardian. It clarifies that relative guardians are not required to name a prospective successor guardian as a condition for the approval of a kinship guardianship assistance agreement.

The proposed amendment to 18 NYCRR 436.4(g) would allow the amendment of the kinship guardianship assistance agreement in order to add or modify terms and conditions mutually agreeable to the relative guardian and the social services official, including the naming of an appropriate person to provide care and guardianship for a child in the event of death or incapacity of the relative guardian.

The proposed amendment to 18 NYCRR 436.4(h) would require the social services official to inform the relative guardian of the right to name an appropriate person to act as a successor guardian in the original kinship guardianship assistance agreement or through an amendment to such agreement.

The proposed amendments to 18 NYCRR 436.4(i) would address the conditions for the termination of a kinship guardianship assistance agreement between a relative guardian or a successor guardian and a social services official.

The proposed addition of 18 NYCRR 436.5(a)(2) would require that in the event of the death or incapacity of a relative guardian, a social services official must make monthly kinship guardianship assistance payments for the care and maintenance of a child to a successor guardian that has been approved pursuant to Part 436.

The proposed addition of 18 NYCRR 436.5(a)(3) would address the criteria for the approval of a prospective successor guardian following the death or incapacity of the relative guardian. Such criteria include, but are not limited to, that no approval can be issued unless the prospective successor guardian has been awarded guardianship or permanent guardianship of the child by the court and the clearances required by section 436. 3 of this Part have been conducted.

The proposed addition of 18 NYCRR 436.5(a)(4) would address the standards for retroactive payments where a successor guardian assumes care of the child prior to being approved.

The proposed addition of 18 NYCRR 436.5(a)(5) would address the standards for the resumption of payments to the relative guardian following the end of the relative guardian’s incapacity.

The proposed amendment of 18 NYCRR 436.5(5)(e) would include successor guardian(s) to the individuals who may receive kinship guardianship assistance payments until the child’s 18th birthday or, up to the age of 21 if the child had attained 16 years of age before the kinship guardianship assistance agreement became effective and the successor guardian certifies and provides satisfactory documentation to the social services official that the child is: completing secondary education or a program leading to an equivalent credential; enrolled in an institution which provides post-secondary or vocational education; employed for at least 80 hours per month; participating in a program or activity designed to promote, or remove barriers to employment; or is incapable of any of such activities due to a medical condition, which incapacity is supported by regularly updated information in the child’s case record.

The proposed amendment of 18 NYCRR 436.5(5)(f)(1) would address the circumstances in which no kinship guardianship assistance payments may be made by a social services official to a successor guardian to include when the child is removed from the home of the successor guardian, placed into foster care and the Family Court has approved a permanency planning goal for the child other than return to the home of the successor guardian or when the status of legal guardian is revoked, terminated, suspended or surrendered.

The proposed amendment of 18 NYCRR 436.5(5)(f)(2) would address the requirement that no kinship guardianship assistance payments may be made to a successor guardian if the social services official determines that the successor guardian is no longer legally responsible for the support of the child, including if the status of the successor guardian is terminated or the child is no longer receiving any support from such guardian. A successor guardian who has been receiving kinship guardianship assistance payments on behalf of a child under this Part must keep the social services official informed, on an annual basis, of any circumstances that would make the successor guardian ineligible for such payments or eligible for payments in a different amount.

The proposed amendment of 18 NYCRR 436.5(5)(f)(3)(i) would address the actions a social services district may take when it has reasonable cause to suspect that the successor guardian is either no longer legally responsible for the support of the child or is no longer providing any support for the child. The proposed regulation would also address the obligations of the successor guardian to cooperate and to reply to requests for documentation.

The proposed amendment of 18 NYCRR 436.5(5)(g) would require the successor guardian who has been receiving kinship guardianship assistance payments on behalf of a child to keep the social services official informed of any circumstances that would make the successor guardian ineligible for such payments or eligible for payments in a different amount, with written notification within 30 days of any such circumstance or event.

The proposed amendment of 18 NYCRR 436.5(5)(h) would address the requirement that the placement of the child with the successor guardian and any kinship guardianship assistance payments made on behalf of the child must be considered never to have been made when determining eligibility for adoption subsidy payments.

The proposed amendment of 18 NYCRR 436.6(a) would require the social services official to remind the successor guardian on an annual basis of their obligation to support the child and to notify the social services official if they are longer providing any support or are no longer legally responsible for the support of the child. Where the child is school age under the laws of the state in which the child resides, such notification must include a requirement that the successor guardian must certify and provide satisfactory documentation to the district that the child is a full-time elementary or secondary student or has completed secondary education.

The proposed amendment of 18 NYCRR 436.6(b)would require that where the child had attained the age of 16 years before the kinship guardianship assistance agreement became effective and is over the age or 18 but under 21 years of age, the successor guardian must certify and provide satisfactory documentation to the district that the child is: completing secondary education or a program leading to an equivalent credential; enrolled in an institution which provides post-secondary or vocational education; employed for at least 80 hours per month; participating in a program or activity designed to promote, or remove barriers to employment; or is incapable of any of such activities due to a medical condition, which incapacity is supported by regularly updated information in the child’s case record.

The proposed amendment of 18 NYCRR 436.6(d) would require the successor guardian to certify to the district whether the child continues to reside in his or her home or, if not, the successor guardian must inform the district where the child currently resides.

The proposed amendment of 18 NYCRR 436.6(e) would require the successor guardian to return the certification referenced in this section along with required documentation to the social services official within 30 days of the receipt by the successor guardian.

The proposed amendment of 18 NYCRR 436.8(b) would address the requirement and standards when a social services official must make payments for the cost of care, services and supplies payable under the State's program of medical assistance for needy persons provided to any child for whom kinship guardianship assistance payments are being made who is not eligible for medical assistance and for whom the or successor guardian is unable to obtain medical coverage through any other available means, regardless of whether the child otherwise qualifies for medical assistance for needy persons.

The proposed amendments to 18 NYCRR 436.10(a) would add to the person entitled to fair hearings in regard to the kinship guardianship assistance program any person aggrieved by the failure of a social services district to agree to a prospective successor guardian being named in an agreement or to approve a prospective successor guardian pursuant to 18 NYCRR 436.5(a)(1), or the decision of a social services district to terminate an agreement pursuant to 18 NYCRR 436.4(i), to appeal to the office.

The proposed amendments to 18 NYCRR 436.10(b) would add to the issues that may be raised in a fair hearing to include whether the social services official has improperly denied an application to name a prospective successor guardian in the original kinship guardianship assistance agreement for payments pursuant to 18 NYCRR Part 436.

Text of proposed rule and any required statements and analyses may be obtained from:

Public Information Office, New York State Office of Children and Family Services, 52 Washington Street, Rensselaer, New York 12144, [phone], email: [e-mail]

Data, views or arguments may be submitted to:

Same as above.

Public comment will be received until:

45 days after publication of this notice.

This rule was not under consideration at the time this agency submitted its Regulatory Agenda for publication in the Register.

Regulatory Impact Statement

1. Statutory authority:

Section 20(3)(d) of the Social Services Law (SSL) authorizes the Office of Children and Family Services (OCFS) to establish rules and regulations to carry out its powers and duties pursuant to the provisions of the SSL.

Section 34(3)(f) of the SSL requires the Commissioner of OCFS to establish regulations for the administration of public assistance and care within the State.

Part L of Chapter 56 of the Laws of 205 amended various provisions of the Social Services Law to authorize kinship guardianship assistance program (KinGap) payments for a former foster child to be made to a successor guardian upon the death or incapacity of the child’s relative guardian, as required by the federal Preventing Sex Trafficking and Strengthening Families Act (P. L. 113-183).

2. Legislative objectives:

The proposed regulations would implement the provisions of Part L of Chapter 56 of the Laws of 2015 enacted on April 13, 2015.

3. Needs and benefits:

The proposed regulations would implement Part L of Chapter 56 of the Laws of 2015 by making conforming changes to New York State regulations. The amendments are necessary for New York to satisfy the requirements of the federal Preventing Sex Trafficking and Strengthening Families Act (P. L. 113-183) and for New York to continue to have a compliant Title IV-E State Plan, which is a condition for New York to receive federal funding for foster care, adoption assistance, KinGap and the administration of those programs.

The proposed regulations will enhance permanency of children in KinGap arrangements by allowing relative guardians to name a successor guardian who will continue to receive KinGap payments in the event of the relative guardian’s death or incapacity.

4. Costs:

The proposed regulations would have no or minimal fiscal impact. This is based on the assumption that once a KinGap agreement becomes effective, it will continue until the child ages out. Since the proposed regulations allow for another person to be named at the discretion of the relative guardian as a successor guardian in the event of the death or incapacity of the relative guardian, the assumed number of payments would remain the same. The continuation of KinGap payments would be an incentive to persons assuming guardianship of the child upon the death or incapacity of the relative guardian reducing the potential of the child re-entering foster care with the corresponding maintenance and administrative costs of that program.

Costs incurred by social services districts in regard to successor guardianship KinGap cases that are Title IV-E eligible would receive 50% federal reimbursement. In addition, State reimbursement would be available under the foster care block grant in accordance with section 153-k of the SSL.

5. Local government mandates:

The proposed regulations would impose additional mandates on social services districts and social services officials. The social services official would be required to inform the prospective relative guardian or the relative guardian of the right to name an appropriate person to act as a successor guardian in the original kinship guardianship assistance agreement or through an amendment to such agreement.

After receiving written communication regarding the relative guardian’s death or incapacity from the prospective successor guardian, the social services official must complete a national and state criminal history record check of the prospective successor guardian and any person over the age of 18 living in his or her home. The social services official must also inquire whether the prospective successor guardian and each person over the age of 18 living in his or her home has been, or is currently, the subject of an indicated report of child abuse or maltreatment on file with the Statewide Central Register of Child Abuse and Maltreatment. If the prospective successor guardian, or any person over the age of 18 residing in his or her home, resided in another state in the five years preceding the inquiry, the social services official must request child abuse and maltreatment information maintained by the child abuse and maltreatment registry from the child welfare agency in each state of previous residence.

If a successor guardian has been awarded guardianship or permanent guardianship of the child by the court and has been approved as successor guardian, the social services official must make monthly kinship guardianship assistance payments for the care and maintenance of the child. If the original relative guardian is subsequently awarded or resumes guardianship or permanent guardianship of such child or assumes care of such child after the incapacity ends, the social services official must resume monthly kinship guardianship assistance payments for the care and maintenance of the child to the relative guardian. Also, the social services official must make payments for the cost of care, services and supplies payable under the State's program of medical assistance for needy persons provided to any child for whom kinship guardianship assistance payments are being made who is not eligible for medical assistance and for whom the relative or successor guardian is unable to obtain medical coverage through any other available means, regardless of whether the child otherwise qualifies for medical assistance for needy persons.

Annually, the social services official must remind the successor guardian of his or her obligation to support the child and to notify the social services official if he or she is longer providing any support or is no longer legally responsible for the support of the child.

The proposed regulations also address fair hearings rights afforded to a prospective successor guardian and to a successor guardian.

6. Paperwork:

The requirements imposed by the proposed regulations will be recorded in the original kinship guardianship assistance agreement and any amendments made thereto.

7. Duplication:

The proposed regulations do not duplicate other state or federal requirements.

8. Alternatives:

No alternative approaches to implementing the changes to regulation were considered. These amendments are necessary to implement Part L of Chapter 56 of the Laws of 2015 and to conform to current federal law.

9. Federal standards:

The proposed regulations comply with applicable state and federal standards.

10. Compliance schedule:

Compliance with the proposed regulations would begin immediately upon final adoption.

Regulatory Flexibility Analysis

1. Effect on Small Businesses and Local Governments:

These proposed regulations will have an impact upon social service districts and authorized voluntary agencies. In New York State there are approximately 58 social service districts and 83 authorized voluntary agencies.

2. Compliance Requirements:

The proposed regulations would implement provisions set forth in Part L of Chapter 56 of the Laws of 2015 enacted on April 13, 2015. Part L amended various provisions of the Social Services Law to authorize kinship guardianship assistance program (KinGap) payments for a former foster child to be made to a successor guardian upon the death or incapacity of the child’s relative guardian, as required by the federal Preventing Sex Trafficking and Strengthening Families Act (P. L. 113-183).

The proposed regulations would enact the standards for the appointment and approval of a successor guardian upon the death or incapacity of the relative guardian. Such standards would include the completion of criminal history record check, clearances through the Statewide Central Register of Child Abuse and Maltreatment and checks with certain out of state child abuse and maltreatment registers.

The proposed regulations would require a social services official to notify prospective relative guardians of their right, but not obligation, to name a prospective successor guardian in either the original kinship guardianship assistance agreement or any amendment thereto.

The proposed regulation would address when a social services official must make KinGap payments to a successor guardian, including when such payment must commence. The proposed regulations would address when the kinship guardianship assistance agreement will terminate and when KinGap payments to a successor guardian must end.

The proposed regulations would impose certain obligations on the prospective successor guardian and successor guardian in regard to notification to the social services official concerning changes in circumstances, and to cooperate with the social services official in regard to the production of required certifications and requested information involving the child.

The proposed regulations would address when a social services official must resume KinGap payments to the relative guardian if he or she resumes guardianship and care due to the end of the relative guardian’s incapacity.

The proposed regulations would address when a social services official must make payments for the cost of care, services and supplies payable under the State's program of medical assistance for needy persons provided to any child for whom kinship guardianship assistance payments are being made who is not eligible for medical assistance and for whom the relative or successor guardian is unable to obtain medical coverage through any other available means, regardless of whether the child otherwise qualifies for medical assistance for needy persons.

The proposed regulations would address the fair hearing rights afforded to a prospective successor guardian and to a successor guardian.

3. Professional Services:

These proposed regulations do not create the need for additional professional services.

4. Compliance Costs:

The proposed regulations will have no or minimal fiscal impact. This is based on the assumption that once a KinGap agreement becomes effective, it will continue until the child ages out. Since the proposed regulations allow for another person to be named at the discretion of the relative guardian as a successor guardian in the event of the death or incapacity of the relative guardian, the assumed number of payments would remain the same. The continuation of KinGap payments would be an incentive to persons assuming guardianship of a child upon the death of incapacity of the relative guardian reducing the potential of the child re-entering foster care with the corresponding maintenance and administrative costs of that program.

Costs incurred by social services districts in regard to successor guardianship KinGap cases that are Title IV-E eligible would receive 50% federal reimbursement. In addition, State reimbursement would be available under the foster care block grant in accordance with section 153-k of the SSL.

5. Economic and Technological Feasibility:

These proposed regulations would not have an adverse economic impact on social service districts, and would not require the hiring of additional staff.

6. Minimizing Adverse Impact:

It is not anticipated that the proposed regulations will result in an adverse impact on local government agencies or small businesses.

7. Small Business and Local Government Participation:

The proposed regulations are a result of amendment to the Social Services Law enacted in Part F of Chapter 56 of the Laws of 2015. Local departments of social services have been briefed about the changes to the KinGap program by OCFS at public forums and in releases issued by OCFS. OCFS has received and responded to questions submitted by local departments of social services on the substance of the proposed regulations.

8. For Rules that Either Establish or Modify a Violation or Penalties:

These proposed regulations do not establish or modify a violation or penalty.

Rural Area Flexibility Analysis

1. Types and estimated number of rural areas:

The proposed regulations will affect the 44 social services districts and approximately 35 authorized voluntary agencies that are in rural areas.

2. Reporting, recordkeeping and other compliance requirements:

The proposed regulations would implement Part L of Chapter 56 of the Laws of 2015 enacted on April 13, 2015. Part L amended various provisions of the Social Services Law to authorize kinship guardianship assistance program (KinGap) payments for a former foster child to be made to a successor guardian upon the death or incapacity of the child’s relative guardian as required by the federal Preventing Sex Trafficking and Strengthening Families Act (P. L. 113-183).

The proposed regulations would enact the standards for the appointment and approval of the successor guardian upon the death or incapacitation of the relative guardian. Such standards would include the completion of criminal history checks, clearances through the Statewide Central Register of Child Abuse and Maltreatment and checks with certain out of state child abuse and maltreatment registers.

The proposed regulations would require the social services official to notify relative guardians of their right, but not obligation, to name a prospective successor guardian in either the original kinship guardianship assistance agreement or any amendment thereto.

The proposed regulations would address when a social services official must make KinGap payments to a successor guardian, including such payment must commence. The proposed regulations also address when a kinship guardianship agreement with the successor guardian must terminate and when KinGap payments to a successor guardian must end.

The proposed regulations would impose certain obligations on the prospective successor guardian and successor guardian in regard to notifications to the social services official about changes of circumstances, and cooperation with the social services official on the production of required certifications and requested information regarding the child.

The proposed regulations would address when a social services official must resume KinGap payment to the original relative guardian if the relative guardian resumes guardianship and care of the child due to his or her incapacitation ending.

The proposed regulations would address when a social services official must make payments for the cost of care, services and supplies payable under the State's program of medical assistance for needy persons provided to any child for whom kinship guardianship assistance payments are being made who is not eligible for medical assistance and for whom the relative or successor guardian is unable to obtain medical coverage through any other available means, regardless of whether the child otherwise qualifies for medical assistance for needy persons.

The proposed regulations address fair hearings rights afforded to a prospective successor guardian and to a successor guardian.

3. Costs:

The proposed regulations will have no or minimal fiscal impact. This is based on the assumption that once a KinGap agreement becomes effective, it will continue until the child ages out of the program. Since the proposed regulations allow for another person to be named at the discretion of the relative guardian as a successor guardian in the event of the death or incapacity of the relative guardian, the assumed number of payments would remain the same. The continuation of KinGap payments would be an incentive to persons assuming guardianship of the child upon the death or incapacity of the relative guardians reducing the potential of the child re-entering foster care.

Costs incurred by social services districts in regard to successor guardianship KinGap cases that are Title IV-E eligible would receive 50% federal reimbursement. In addition, State reimbursement would be available under the foster care block grant in accordance with section 153-k of the SSL.

4. Minimizing adverse impact:

It is not anticipated that the proposed regulations will result in an adverse impact on social service districts or small businesses that are in rural areas.

5. Rural area participation:

The proposed regulations are a result of amendments to the Social Services Law enacted in Part L of Chapter 56 of the Laws of 2015. Local departments of social services have been briefed about the changes to the KinGap program by OCFS at public forums and in releases issued by OCFS. OCFS received and responded to questions raised by local departments of social services on the substance of the proposed regulations.

Job Impact Statement

The proposed amendments to regulation will not have a negative impact on jobs or employment opportunities in either public or private child welfare agencies. A full job impact statement has not been prepared for the proposed regulations as it is assumed that the proposed regulations will not result in the loss of any jobs.