§ 453 — Maintenance subsidy; handicapped or hard to place child

New York § 453

• Jurisdiction: New York
• Law SOS: Social Services
• Title 9: Subsidies For the Adoption of Children
• Art. 6: Children

Text

§ 453. Maintenance subsidy; handicapped or hard to place child. 1. (a)\nA social services official shall make monthly payments for the care and\nmaintenance of a handicapped or hard to place child whom a social\nservices official has placed for adoption or who has been adopted and\nfor the care and maintenance of a handicapped or hard to place child\nplaced for adoption by a voluntary authorized agency who is residing in\nsuch social services district. Where a handicapped or hard to place\nchild is placed in an adoptive placement outside the state, monthly\npayments for the care and maintenance of the child shall be made by the\nsocial services official placing the child or in whose district the\nvoluntary authorized agency maintains its principal office. Such\npayments shall be made until the child's twenty-first birthday to\npersons with whom the child has been placed, or to persons who have\nadopted the child and who applied for such payments prior to the\nadoption, pursuant to a written agreement therefor between such official\nor agency and such persons; provided, however, that an application may\nbe made subsequent to the adoption if the adoptive parents first become\naware of the child's physical or emotional condition or disability\nsubsequent to the adoption and a physician certifies that the condition\nor disability existed prior to the child's adoption. The social services\nofficial shall consider the financial status of such persons only for\nthe purpose of determining the amount of the payments to be made,\npursuant to subdivision three of this section. Upon the death of persons\nwho have adopted the child prior to the twenty-first birthday of the\nchild, such payments shall continue to the legal guardian or custodian\nof the child under the age of eighteen upon issuance of letters of\nguardianship or order of custody and shall continue until the child\nshall attain the age of twenty-one. If the guardian or custodian was the\ncaretaker of the child under the age of eighteen prior to the issuance\nof letters of guardianship or order of custody, such payments shall be\nmade retroactively from the death of the adoptive parent or parents.\n (a-1) Payments pursuant to this section may be made by direct deposit\nor debit card, as elected by the recipient, and administered\nelectronically, and in accordance with such guidelines as may be set\nforth by regulation of the office of children and family services. The\noffice of children and family services may enter into contracts on\nbehalf of local social services districts for such direct deposit or\ndebit card services in accordance with section twenty-one-a of this\nchapter.\n (b) Any child with respect to whom federally reimbursable maintenance\nsubsidy payments are made under this subdivision shall be deemed to be a\nrecipient of aid to families with dependent children for purposes of\ndetermining eligibility for medical assistance.\n (c) No payments may be made pursuant to this subdivision if the social\nservices official determines that the adoptive parents are no longer\nlegally responsible for the support of the child or the child is no\nlonger receiving any support from such parents. For purposes of this\nsection:\n (i) "any support" shall be limited to support that is directly for the\nbenefit of the adopted child that meets the food, clothing, education,\nmedical and shelter needs of the adopted child and that has an\nidentifiable value;\n (ii) "no longer legally responsible for the support of the child"\nmeans (A) the child has become legally emancipated, married or joined\nthe military; (B) a court has ruled that the adoptive parent is no\nlonger legally responsible for the support of the child; or (C) the\nadoption is no longer legally valid by operation of law.\n (c-1) The social services official on an annual basis shall:\n (i) require adoptive parents to certify that they are fulfilling their\nobligations pursuant to any adoption subsidy agreement entered into in\naccordance with this section, including their obligation to provide\nsupport for the child;\n (ii) remind the adoptive parents of the following obligations, which\nshall also be included in any agreement entered into with an adoptive\nparent concerning payments made for the care and maintenance of the\nchild pursuant to this section:\n (A) to support the child;\n (B) to notify the social services official if the adoptive parents are\nno longer providing any support of the child or are no longer legally\nresponsible for the support of the child; and\n (C) to notify the social services official if: (I) another person has\nbeen granted physical custody of the child; (II) another person has been\nappointed guardian for the child; or (III) the child no longer resides\nwith the adoptive parents.\n (c-2) (i) If the adoptive parents fail to respond to an annual\ncertification notice within thirty days of the receipt of the\ncertification notice from the social services official or the social\nservices official receives from any person information that provides\nreasonable cause to suspect that the adoptive parents are no longer\nproviding any support to the child, the social services official shall\nreview whether the adoptive parents are legally responsible for the\nsupport of the child and whether the child is receiving any support from\nthe adoptive parents. Circumstances in which the social services\nofficial shall conduct this review include the following:\n (A) the child has been placed in foster care;\n (B) a person alleges to the social services official that:\n (I) a person other than the adoptive parent has been granted legal\ncustody of the child;\n (II) another person has been appointed guardian for the child; or\n (III) the child is reported to no longer reside with the adoptive\nparent.\n (ii) The adoptive parents shall be given an opportunity to respond to\nthe notice. Upon receiving confirmation that the parents continue to\nmeet their legal obligations to provide support to the child, the\ndepartment will take no further action to terminate the subsidy. If the\nparents fail to confirm that they continue to meet their legal\nobligations to provide support to the child, the social services\nofficial shall review all available information in order to confirm the\nparents' continued eligibility to receive the subsidy.\n (iii) If the child is not in foster care and, based on a review of the\navailable information, the social services official determines that the\nadoptive parents are no longer legally responsible for the support of\nthe child or that the child is no longer receiving any support from the\nadoptive parents, the social services official shall terminate the\nsubsidy provided to the adoptive parents pursuant to this section. The\nadoptive parents may appeal the termination of subsidy to the department\nin accordance with section twenty-two of this chapter.\n (iv) If the child is in foster care and the social services official\ndetermines that the child is no longer receiving any support from the\nadoptive parents, the social services official shall terminate the\nsubsidy provided to the adoptive parents pursuant to this section. The\nadoptive parents may appeal the termination of subsidy to the department\nin accordance with section twenty-two of this chapter.\n ** (v) If a subsidy is terminated pursuant to this paragraph and the\nchild is returned from foster care to the care of the adoptive parents,\nthe social services official shall resume such subsidy effective from\nthe date when the child was returned to the adoptive parent's care.\n ** NB Effective 90 days following the date that USDHHS approves a\ntitle IV-E state plan followed by OCFS notification\n * (c-3) If the social services official terminates the adoption\nsubsidy provided to adoptive parents pursuant to paragraph (c-2) of this\nsubdivision and the child resides with another person who has been\ngranted physical custody or appointed as guardian of the child, the\nsocial services official shall, pursuant to a written agreement, make\nadoption subsidy payments to the custodian or guardian; provided,\nhowever, that no person shall receive an adoption subsidy payment for\nany child for whom they previously had parental rights which were\nterminated pursuant to a proceeding under section three hundred\neighty-four-b of this article or for whom they previously had parental\nrights which were surrendered pursuant to a written instrument executed\nin accordance with sections three hundred eighty-three-c of or three\nhundred eighty-four this article. Such payments shall be made\nretroactive from the termination of subsidy to the adoptive parents\npursuant to paragraph (c-2) of this subdivision and shall be made until\nthe child's twenty-first birthday. A custodian or guardian who receives\nadoption subsidy payments pursuant to this paragraph shall be subject to\nthe same requirements that apply to adoptive parents under this section.\n * NB Effective 90 days following the date that USDHHS approves a title\nIV-E state plan followed by OCFS notification\n * (c-4) If the social services official terminates the adoption\nsubsidy provided to adoptive parents pursuant to paragraph (c-2) of this\nsubdivision after the eighteenth birthday and before the twenty-first\nbirthday of the adopted child, and no person other than the adoptive\nparents has legal custody or guardianship of the child, the social\nservices official shall make payments to the child:\n (i) through direct payments to the child, if the social services\nofficial determines the child demonstrates the ability to manage such\ndirect payments; or\n (ii) to a representative payee certified by the social services\nofficial in accordance with paragraph (g) of this subdivision.\n * NB Effective 90 days following the date that USDHHS approves a title\nIV-E state plan followed by OCFS notification\n (d) Applications for such subsidies shall be accepted prior to the\ncommitment of the guardianship and custody of the child to an authorized\nagency pursuant to the provisions of this chapter, and approval thereof\nmay be granted contingent upon such commitment.\n (e) Upon the death of the sole or surviving adoptive parent or both\nadoptive parents after the eighteenth birthday and before the\ntwenty-first birthday of the adopted child, where such adoptive parent\nor parents were receiving adoption subsidy payments at the time of\ndeath, such subsidy payments shall continue but shall be made to the\nguardian of the child on behalf of such child, where the child consents\nto the appointment of a guardian. Such subsidy payments shall be made\nretroactively from the death of the adoptive parent or parents to the\nappointment of a guardian, and shall continue until the twenty-first\nbirthday of the child. If, however, there is no willing or suitable\nperson to be appointed as guardian, or the child does not consent to the\nappointment of a guardian, such subsidy payments shall be made\nretroactively from the death of the adoptive parent or parents and shall\ncontinue to be made until the twenty-first birthday of the child: (i)\nthrough direct payments to the child, if the social services official\ndetermines that the child demonstrates the ability to manage such direct\npayments; or (ii) to a representative payee certified by the social\nservices official.\n (f) Upon receipt of notification of the death of the sole or surviving\nadoptive parent or both adoptive parents after the eighteenth birthday\nand before the twenty-first birthday of the adopted child, where such\nadoptive parent or parents were receiving adoption subsidy payments at\nthe time of death, the social services official shall notify the child\nof: (i) the processes available to continue subsidy payments until the\ntwenty-first birthday of the child including appointment of a guardian\nunder the surrogate's court procedure act, application to be approved\nfor direct subsidy payments, or the appointment of a representative\npayee; and (ii) the right of the child to be involved in all such\nprocesses.\n (g) Where the social services official has determined that the child\ndoes not demonstrate the ability to manage direct subsidy payments, the\nsocial services official shall certify payment to a representative payee\non behalf of the child. Subsidy payments received by the representative\npayee shall be held and used strictly for the use and benefit of the\nchild. Designation of the appropriate entity or individual and\ninvestigation of an individual for certification as a representative\npayee shall be conducted by the social services official responsible for\npayment of the adoption subsidy pursuant to this section.\n (i) The social services official may designate an employee of the\nsocial services district to be the representative payee responsible for\nreceipt of the adoption subsidy on behalf of the child only where the\nofficial determines that such employee has no conflict of interest in\nperforming the duties and obligations as representative payee. If the\nchild resides in a social services district other than the district\nresponsible for payment of the adoption subsidy, the social services\ndistrict in which the child resides may be designated the representative\npayee and a social services official of such district shall select an\nemployee of such social services district to be responsible for receipt\nof the adoption subsidy as the representative payee, only where the\nofficial determines that such employee has no conflict of interest in\nperforming the duties and obligations as a payee. Where a voluntary\nauthorized agency has a prior relationship with a child, or where the\nsocial services district does not have sufficient or appropriate staff\navailable to perform the functions of the representative payee, the\nsocial services district may contract with a voluntary authorized agency\nas the representative payee on behalf of the child where the social\nservices district determines it would be in the best interests of the\nchild to do so.\n (ii) The social services official may designate an individual for\ncertification as a representative payee who shall perform the functions\nand duties of a representative payee in accordance with the best\ninterests of the child. In determining whether an individual is\nappropriate to be certified as the representative payee, the social\nservices official shall first consult with the child and shall give the\nchild's preferences significant weight. The child's preference shall be\ndeterminative of the representative payee only where such preference\ndoes not conflict with the best interests of the child. Prior to\ndesignation of an individual by the social services official for\ncertification as a representative payee, the social services official\nshall:\n (A) collect proof of identity and a verifiable social security number\nof the nominated representative payee;\n (B) conduct an in-person interview of the individual;\n (C) investigate any potential conflicts of interest that may ensue if\nsuch individual is certified; and\n (D) determine the capabilities and qualifications of the individual to\nmanage the subsidy payment for the child.\n (iii) (A) If, after completion of the investigation, the social\nservices official is satisfied that the individual is qualified,\nappropriate and will serve the best interests of the child, the social\nservices official shall certify the selected individual as the\nrepresentative payee for the child.\n * (B) If the twenty-first birthday of the child occurs while awaiting\nthe certification of a representative payee, the child shall be entitled\nto retroactive direct payment of subsidy payments since the death of the\nadoptive parent or parents after the eighteenth birthday of the child.\n * NB Effective until 90 days following the date that USDHHS approves a\ntitle IV-E state plan followed by OCFS notification\n * (B) If the twenty-first birthday of the child occurs while awaiting\nthe certification of a representative payee, the child shall be entitled\nto retroactive direct payment of subsidy payments since the death of the\nadoptive parent or parents or the termination of the subsidy to the\nadoptive parent or parents pursuant to paragraph (c-2) of this\nsubdivision after the eighteenth birthday of the child.\n * NB Effective 90 days following the date that USDHHS approves a title\nIV-E state plan followed by OCFS notification\n (iv) The representative payee shall submit reports to the social\nservices official no less than once a year describing the use of the\npayments in the preceding year. Such reports shall be submitted by\nDecember thirty-first of each year. The social services official may\nalso request reports from time to time from the representative payee. If\na representative payee fails to submit a report, the social services\nofficial may require that the representative payee appear in person to\ncollect payments. The social services official shall keep a centralized\nfile and update it periodically with information including the addresses\nand social security or tax-payer identification numbers of the\nrepresentative payee and the child.\n (v) The social services official shall revoke the certification of a\nrepresentative payee upon:\n (A) determining that the representative payee has misused the payments\nintended for the benefit of the child;\n (B) the failure of the representative payee to submit timely reports\nor appear in person as required by the social services official after\nsuch failure; or\n (C) the request of the child upon good cause shown.\n (vi) The social services official shall notify the child of the\ncontact information of the representative payee within five days of\nmaking a designation.\n (vii) A child may appeal the refusal of the social services official\nto certify the individual preferred by the child for certification as\nthe representative payee or revoke the certification of a representative\npayee upon request of the child pursuant to section four hundred\nfifty-five of this title.\n 2. Any agreement provided for in subdivision one of this section shall\nbe subject to the approval of the department upon the application of the\nsocial services official; provided, however, that in accordance with the\nregulations of the department, the department may authorize the social\nservices official to approve or disapprove the agreement on behalf of\nthe department. In either situation, if the agreement is not approved or\ndisapproved by the social services official within thirty days of\nsubmission, the voluntary authorized agency may submit the agreement\ndirectly to the department for approval or disapproval. If the agreement\nis not disapproved in writing by the department within thirty days after\nits submission to the department, it shall be deemed approved. Any such\ndisapproval shall be accompanied by a written statement of the reasons\ntherefor.\n 3. The amount of the monthly payment made pursuant to this section\nshall be determined pursuant to regulations of the department and based\nupon the financial need of such persons. The department shall review\nsuch regulations annually. The amount of the monthly payment shall not\nbe less than seventy-five per centum of the board rate nor more than one\nhundred per centum of such rate.\n 4. Except as may be required by federal law as a condition for federal\nreimbursement of public assistance expenditures, payments under this\nsection shall not be considered for the purpose of determining\neligibility for public assistance or medical assistance for needy\npersons.\n