CFS-39-10-00003-P Amendment of the Definition of a Child for the Purpose of Adoption Subsidy and the Criteria for the Continuation of Subsidies

9/29/10 N.Y. St. Reg. CFS-39-10-00003-P

NEW YORK STATE REGISTER

VOLUME XXXII, ISSUE 39

September 29, 2010

RULE MAKING ACTIVITIES

OFFICE OF CHILDREN AND FAMILY SERVICES

PROPOSED RULE MAKING

NO HEARING(S) SCHEDULED

 

I.D No. CFS-39-10-00003-P

Amendment of the Definition of a Child for the Purpose of Adoption Subsidy and the Criteria for the Continuation of Subsidies

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

Proposed Action:

This is a consensus rule making to amend section 421.24 of Title 18 NYCRR.

Statutory authority:

Social Services Law, sections 20(3)(d), 34(f), 450-458; L. 1997, ch. 436

Subject:

Amendment of the definition of a child for the purpose of adoption subsidy and the criteria for the continuation of subsidies.

Purpose:

To implement amendments required by Chapter 518 of the Laws of 2006.

Text of proposed rule:

Paragraph (1) of subdivision (a) of section 421.24 is amended to read as follows:

(a) Definitions. (1) Child means a person under the age of 21 years whose guardianship and custody have been committed to a social services official or a voluntary authorized agency, or whose guardianship and custody have been committed to a certified or approved foster parent pursuant to a court order prior to such person's 18th birthday, except as provided in section 384-b(3)(g) of the Social Services Law and section 631 of the Family Court Act, or a person under the age of 21 whose care and custody have been transferred prior to such person's 18th birthday to a social services official or a voluntary authorized agency pursuant to section 1055 of the Family Court Act or section 384-a of the Social Services Law, whose parents are deceased or where one parent is deceased and the other parent is not a person entitled to notice of an adoption pursuant to sections 111 and 111-a of the Domestic Relations Law, and where such official or agency consents to the adoption of such person in accordance with section 113 of Domestic Relations Law.

Paragraph (18) of subdivision (c) of section 421.24 is amended to read as follows:

(18) (i) Upon the death of the person(s) who adopted the child prior to the 21st birthday of the child, payments made pursuant to this subdivision must continue and must be made to the legal guardian or custodian of the child under the age of 18 upon the issuance of letters of guardianship or order of custody until the child has attained the age of 21. If the guardian or custodian was the caretaker of the child under the age of 18 prior to the issuance of letters of guardianship or order of custody, such payments must be made retroactively from the death of the adoptive parent or parents. All provisions of this section applicable to maintenance payments made to the person(s) who adopted the child will be applicable to maintenance payments made to the legal guardian or custodian of the child.

(ii)(a) Upon the death of the sole or surviving adoptive parent or both adoptive parents after the 18th birthday and before the 21st birthday of the adopted child, where such adoptive parent or parents were receiving adoption subsidy payments at the time of death, such subsidy payments must continue, but must be made to the guardian of the child on behalf of such child, where the child consents to the appointment of a guardian. Such subsidy payments must be made retroactively from the death of the adoptive parent or parents to the appointment of a guardian, and must continue until the 21st birthday of the child. If, however, there is no willing or suitable person to be appointed as guardian, or the child does not consent to the appointment of a guardian, such subsidy payments must be made retroactively from the death of the adoptive parent or parents and must continue to be made until the 21st birthday of the child: (1) through direct payments to the child, if the social services official determines that the child demonstrates the ability to manage such direct payments; or (2) to a representative payee certified by the social services official.

(b) Upon receipt of notification of the death of the sole or surviving adoptive parent or both adoptive parents after the 18th birthday and before the 21st birthday of the adopted child, where such adoptive parent or parents were receiving adoption subsidy payments at the time of death, the social services official must notify the child of (1) the processes available to continue subsidy payments until the 21st birthday of the child including appointment of a guardian under the Surrogate's Court Procedure Act, application to be approved for direct subsidy payments, or the appointment of a representative payee; and (2) the right of the child to be involved in all such processes.

(c) Where the social services official has determined that the child does not demonstrate the ability to manage direct subsidy payments, the social services official must certify payment to a representative payee on behalf of the child. Subsidy payments received by the representative payee must be held and used strictly for the use and benefit of the child. Designation of the appropriate entity or individual and investigation of an individual for certification as a representative payee must be conducted by the social services official responsible for payment of the adoption subsidy pursuant to this section.

(1) The social services official may designate an employee of the social services district to be the representative payee responsible for receipt of the adoption subsidy on behalf of the child only where the official determines that such employee has no conflict of interest in performing the duties and obligations as representative payee. If the child resides in a social services district other than the district responsible for payment of the adoption subsidy, the social services district in which the child resides may be designated the representative payee and a social services official of such district must select an employee of such social services district to be responsible for receipt of the adoption subsidy as the representative payee, only where the official determines that such employee has no conflict of interest in performing the duties and obligations as a payee. Where a voluntary authorized agency has a prior relationship with a child, or where the social services district does not have sufficient or appropriate staff available to perform the functions of the representative payee, the social services district may contract with a voluntary authorized agency as the representative payee on behalf of the child where the social services district determines it would be in the best interests of the child to do so.

(2) The social services official may designate an individual for certification as a representative payee who must perform the functions and duties of a representative payee in accordance with the best interests of the child. In determining whether an individual is appropriate to be certified as the representative payee, the social services official must first consult with the child and must give the child's preferences significant weight. The child's preference must be determinative of the representative payee only where such preference does not conflict with the best interests of the child. Prior to designation of an individual by the social services official for certification as a representative payee, the social services official must:

(i) collect proof of identity and a verifiable social security number of the nominated representative payee;

(ii) conduct an in-person interview of the individual; investigate any potential conflicts of interest that may ensue if such individual is certified and;

(iii) determine the capabilities and qualifications of the individual to manage the subsidy payment for the child.

(3) (i) If, after completion of the investigation, the social services official is satisfied that the individual is qualified, appropriate and will serve the best interests of the child, the social services official must certify the selected individual as the representative payee for the child.

(ii) If the 21st birthday of the child occurs while awaiting the certification of a representative payee, the child is entitled to retroactive direct payment of subsidy payments since the death of the adoptive parent or parents after the 18th birthday of the child.

(4) The representative payee must submit reports to the social services official no less than once a year describing the use of the payments in the preceding year. Such reports must be submitted by December 31st of each year. The social services official may also request reports from time to time from the representative payee. If a representative payee fails to submit a report, the social services official may require that the representative payee appear in person to collect payments. The social services official must keep a centralized file and update it periodically with information including the addresses and social security or tax-payer identification numbers of the representative payee and the child.

(5) The social services official must revoke the certification of a representative payee upon:

(i) determining that the representative payee has misused the payments intended for the benefit of the child;

(ii) the failure of the representative payee to submit timely reports or appear in person as required by the social services official after such failure; or

(iii) the request of the child upon good cause shown.

(6) The social services official must notify the child of the contact information of the representative payee within 5 days of making a decision.

(7) A child may appeal the refusal of the social services official to certify the individual preferred by the child for certification as the representative payee or revoke the certification of a representative payee upon request of the child pursuant to section 455 of the Social Service Law.

Text of proposed 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]

Data, views or arguments may be submitted to:

Same as above.

Public comment will be received until:

45 days after publication of this notice.

Consensus Rule Making Determination

The proposed regulations are intended for the sole purpose of implementing statutory changes enacted by Chapter 518 of the Laws of 2006 and Chapter 469 of the Laws of 2007. The content for the proposed regulations is taken from those statutory changes. The proposed regulations do not reflect any other changes. It is not anticipated that there will be any objection to the proposed regulations.

Job Impact Statement

A full job statement has not been prepared for the proposed regulations dealing with the definition of a child for adoption subsidy purposes and when adoption subsidy payments may continue after the death of the adoptive parent(s). The proposed regulations would not result in the loss of any jobs.