CFS-01-11-00010-A Kinship Guardianship Assistance and Non-Recurrng Guardianship Expense Program

3/30/11 N.Y. St. Reg. CFS-01-11-00010-A

NEW YORK STATE REGISTER

VOLUME XXXIII, ISSUE 13

March 30, 2011

RULE MAKING ACTIVITIES

OFFICE OF CHILDREN AND FAMILY SERVICES

NOTICE OF ADOPTION

 

I.D No. CFS-01-11-00010-A

Filing No. 245

Filing Date. Mar. 14, 2011

Effective Date. Apr. 01, 2011

Kinship Guardianship Assistance and Non-Recurrng Guardianship Expense Program

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

Action taken:

Amendment of Parts 426, 428, 430 and 443; and addition of Part 436 to Title 18 NYCRR.

Statutory authority:

Social Services Law, sections 20(3)(d) and 34(3)(f); and L. 2010, ch. 58, part F

Subject:

Kinship guardianship assistance and non-recurrng guardianship expense program.

Purpose:

Implement the kinship guardianship assistance and non-recurrng guardianship expense programs.

Substance of final rule:

The regulations amend the title of 18 NYCRR Part 426 and section 426.1 to add references to kinship guardianship assistance and section 101 of the federal Fostering Connections to Success and Increasing Adoptions Act of 2008 for federal eligibility purposes.

The regulations amend 18 NYCRR 428.5 to require social services districts and voluntary authorized agencies caring for children in foster care who have the permanency goal of placement with a relative and receipt of kinship guardianship assistance payments to record agency activities in regard to the examination and implementation of that goal.

The regulations amend 18 NYCRR 430.11(c)(4) to require that the notice provided to relatives when a child is removed from his or her home refer to the option of guardianship with kinship guardianship assistance.

The regulations add a new Part 436 to 18 NYCRR (kinship guardianship assistance program) which establishes the standards for the kinship guardianship assistance and non-recurring guardianship expense programs.

The new section 436.1 sets forth the definitions used in the new Part 436.

The new section 436.2 establishes the process and conditions to apply for kinship guardianship assistance. The regulation establishes that the decision whether to approve or deny an application is made by the social services district with care and custody or custody and guardianship of the foster child in question.

The new section 436.3 sets forth the eligibility standards for kinship guardianship assistance payments. Such eligibility standards include: care of a foster child by a fully certified or approved relative foster parent for six consecutive months, criminal and child abuse/maltreatment background checks of the applicant and other adult household members, required foster care court activity, a best interests determination by the social services district in regard to the kinship guardianship arrangement, consultation with the foster child who is 14 years of age or older and such child's consent if the child is 18 years of age or older, the child having a permanency goal other than return to parent or adoption, and a strong attachment of the child to the relative and a strong commitment of the relative to the child.

The new section 436.4 sets forth the requirement that the prospective relative guardian and the applicable social services district must enter into a written agreement before the issuance of letters of guardianship. The regulation specifies the terms and conditions of the kinship guardianship assistance agreement and that such agreement must be fully executed before the issuance of letters of guardianship.

The new section 436.5 sets forth the standards for when a kinship guardianship assistance payment must be made, the amount of such payment, who makes the payment, to whom the payment is made and when kinship guardianship assistance payment must end. The regulations also set forth the requirement that the relative guardian must cooperate with the social services district when questions arise regarding continuation of kinship guardianship payments and the authority of the social services district to terminate kinship guardianship payments if the relative guardian fails to cooperate.

The new section 436.6 sets forth the requirement that the social services district must annually remind the relative guardian of the obligation to notify the social services district of any changes in circumstances that would impact ongoing eligibility for kinship guardianship assistance and the relative guardian's obligation to provide the social services district with education, employment or disability information necessary to justify ongoing kinship guardianship assistance payments for a child who is over the age of 18. In addition, if the child is school age, the relative guardian will be required to certify and provide necessary information that the child has completed secondary education or is a full time elementary or secondary student.

The new section 436.7 sets forth the standards for a non-recurring guardianship expense payment to the relative guardian in regard to the expenses incurred by the relative guardian in being appointed guardian of the child. The regulation establishes a maximum onetime payment of $2,000 per child and specifies those expenses that are considered allowable under this program.

The new section 436.8 addresses how the medical needs of the child will be met after the establishment of the kinship guardianship arrangement under the kinship guardianship assistance program. The regulation sets forth when such needs will be met either by medical assistance, private insurance or medical subsidy.

The new section 436.9 provides that a child who leaves foster care for a relative guardianship arrangement in which kinship guardianship assistance payments are made is eligible for independent living services and/or education and training vouchers under the Tile IV-E of the Social Security Act.

The new section 436.10 sets forth the fair hearing rights to which applicants and recipients of kinship guardianship assistance and/or non-recurring guardianship expense payments are entitled.

The new section 436.12 sets forth the standards for claiming by social services districts for costs associated with the kinship guardianship assistance and non-recurring guardianship expense programs.

The regulations amend 18 NYCRR 443.2(e) to provide that training of foster parents must include information on the kinship guardianship assistance and non-recurring guardianship expense programs.

Final rule as compared with last published rule:

Nonsubstantive changes were made in sections 428.5(c); the index of Part 436; 436.1(g) and (h); 436.2(a), (b), (d) and (e); the title of 436.3; 436.3(c) and (d); 436.4(b), (d) and (e); 436.5(c), (d), (f), (g) and (h); 436.6(a)-(e); 436.7(a) and (b); the title of 436.8; 436.9 and 443.2(e).

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

Public Information Office, NYS Office of Children and Family Services, 52 Washington Street, Rensselaer, NY 12144, [phone]

Revised Regulatory Impact Statement, Regulatory Flexibility Analysis, Rural Area Flexibility Analysis and Job Impact Statement

The nonsubstantive changes made to the regulatory text did not result in any changes to the above listed and previously published impact statements. As such, the previously published impact statements remain adequate.

Assessment of Public Comment

The Office of Children and Family Services (OCFS) received six comments, two from social services districts, and one each from an advisory committee of the Office of Court Administration, the Legal Aid Society, Lawyers for Children, Inc, and the New York Public Welfare Association.

Three commenters supported the creation of the kinship guardianship assistance program.

One commenter recommended that the regulations clarify the distinction between the process for granting an application for kinship guardianship assistance payments and the awarding of letters of guardianship by the court. The commenter recommended that further guidance be provided on the requirements for prospective relative guardians to apply to the court for letters of guardianship. The commenter requested clarification regarding the scope of fair hearings in relation to the court process. The regulations were revised to clarify the distinction between the process for granting an application for kinship guardianship assistance and the granting of letters of guardianship by the court. The issues noted in these comments will be further addressed in an administrative directive to be released by OCFS. The commenter requested an amendment to the case recording standards on the subject of best interests. The regulations were not revised in response to this comment as the regulations reflect federal case planning standards.

Two commenters raised the issue of state funding of the kinship guardianship assistance program. The regulations were not revised as that subject is pending further action by the Legislature.

One commenter requested that 18 NYCRR 436.4(b)(4) be revised to insert language set forth in statute regarding the content of the kinship guardianship assistance agreement. The commenter requested clarification relating to the consequence of entering into the kinship guardianship assistance agreement in relation to when guardianship becomes effective. The commenter also identified two typographical errors. The regulations were revised to reflect the language in current statute regarding the content of the kinship guardianship agreement. The regulations were also revised to include the requested clarification and to correct the typographical errors. The commenter requested that the regulations be amended to provide further clarification on the issue of age appropriate consultation. The regulations were not revised to address this comment as the regulations are consistent with state statute. Further guidance on the issue of consultation with the child will be provided by OCFS through the issuance of an administrative directive and other releases.

One commenter objected to what was perceived as a six-month minimum period of the child residing with the relative before a relative may apply for kinship guardianship assistance payments. The commenter requested that the regulations be amended to reflect that the child must be in the home of the relative for a 12-month period. The regulations were not revised in response to this comment. The standard set forth in the regulations reflects the state statutory standards.

One commenter requested clarification of the section of the regulations that address federally funded independent living services. The regulations were not revised in response to these comments. OCFS will clarify this subject matter in an administrative directive it plans to release.

One commenter requested that the regulations be amended to provide further guidance to social services districts on when the discharge to a relative guardian in receipt of kinship guardianship assistance payments would be an appropriate permanency goal. The commenter requested that the regulations be amended to create a new permanency goal of placement with a fit and willing relative as a guardian and the receipt of kinship guardianship assistance payments by such relative and the factors agencies must consider before this new permanency planning goal may be selected. The regulations were not revised to address this comment. The statute does not establish the proposed permanency goal. The administrative directive OCFS will release on the kinship guardianship assistance program will discuss some of the factors social services districts should consider when determining whether to enter into a kinship guardianship arrangement.

Two commenters requested that the regulations be amended to provide that fair hearings held in relation to the kinship guardianship assistance program be limited in scope. The regulations were not revised as the regulations reflect the standards set forth in state statute.