Section 160. Adoption assistance

A. An adoption assistance agreement shall be executed by the child-placing agency for a child who has been determined eligible for adoption assistance. Local departments shall use the adoption assistance agreement form developed by the department.

B. For a child to be eligible for adoption assistance he must have been determined to be a child with special needs as defined in 22VAC40-201-10 and meet the following criteria:

1. Be under 18 years of age and meet the requirements set forth in § 473 of Title IV-E of the Social Security Act (42 USC § 673); or

2. Be under 18 years of age and in the placement and care of a child-placing agency at the time the petition for adoption is filed and be placed by the child-placing agency with the prospective adoptive parents for the purpose of adoption, except for those situations in which the child has resided for 18 months with the foster or resource parents who file a petition for adoption under § 63.2-1229 of the Code of Virginia.

C. The types of adoption assistance for which a child may be eligible are:

1. Title IV-E adoption assistance if the child meets federal eligibility requirements.

2. State adoption assistance when the child's foster care expenses were paid from state pool funds or when the child has a conditional agreement and payments are not needed at the time of placement into an adoptive home but may be needed later and the child's foster care expenses were paid from state pool funds. A conditional adoption assistance agreement allows the adoptive parents to apply for state adoption assistance after the final order of adoption. A conditional adoption assistance agreement shall not require annual certification.

D. Adoption assistance payments shall be negotiated with the adoptive parents taking into consideration the needs of the child and the circumstances of the family. In considering the family's circumstances, income shall not be the sole factor. Family and community resources shall be explored to help defray the costs of adoption assistance.

E. Three types of payments may be made on behalf of a child who is eligible for adoption assistance.

1. The adoptive parent shall be reimbursed, upon request, for the nonrecurring expenses of adopting a child with special needs.

a. The total amount of reimbursement is based on actual costs and shall not exceed $2,000 per child per placement.

b. Payment of nonrecurring expenses may begin as soon as the child is placed in the adoptive home and the adoption assistance agreement has been signed.

c. Nonrecurring expenses include:

(1) Attorney fees directly related to the finalization of the adoption;

(2) Transportation and other expenses incurred by adoptive parents related to the placement of the child. Expenses may be paid for more than one visit;

(3) Court costs related to filing an adoption petition;

(4) Reasonable and necessary fees related to adoption charged by licensed child-placing agencies; and

(5) Other expenses directly related to the finalization of the adoption.

2. A maintenance payment shall be approved for a child who is eligible for adoption assistance unless the adoptive parent indicates or it is determined through negotiation that the payment is not needed. In these cases a conditional adoption assistance agreement may be entered into. The amount of maintenance payments made shall not exceed the foster care maintenance payment that would have been paid during the period if the child had been in a foster family home.

a. The amount of the payment shall be negotiated with the adoptive parents taking into consideration the needs of the child and circumstances of the adoptive parents.

b. The maintenance payments shall not be reduced below the amount specified in the adoption assistance agreement without the concurrence of the adoptive parents or a reduction mandated by the appropriation act.

c. Increases in the amount of the maintenance payment shall be made when the child is receiving the maximum allowable foster care maintenance rate and:

(1) The child reaches a higher age grouping, as specified in guidance for foster care maintenance rates; or

(2) Statewide increases are approved for foster care maintenance rates.

3. A special service payment is used to help meet the child's physical, mental, emotional, or nonroutine dental needs. The special service payment shall be directly related to the child's special needs . Special service payments shall be time limited based on the needs of the child.

a. Types of expenses that are appropriate to be paid are included in the Adoption Manual .

b. A special service payment may be used for a child eligible for Medicaid to supplement expenses not covered by Medicaid.

c. Payments for special services are negotiated with the adoptive parents taking into consideration:

(1) The special needs of the child;

(2) Alternative resources available to fully or partially defray the cost of meeting the child's special needs; and

(3) The circumstances of the adoptive family. In considering the family's circumstances, income shall not be the sole factor.

d. The rate of payment shall not exceed the prevailing community rate.

e. The special services adoption assistance agreement shall be separate and distinct from the adoption assistance agreement for maintenance payments and nonrecurring expenses.

F. When a child is determined eligible for adoption assistance prior to the adoption being finalized, the adoption assistance agreement:

1. Shall be executed within 90 days of receipt of the application for adoption assistance;

2. Shall be signed before entry of the final order of adoption;

3. Shall specify the amount of payment and the services to be provided, including Medicaid; and

4. Shall remain in effect regardless of the state to which the adoptive parents may relocate.

G. Procedures for the child whose eligibility for adoption assistance is established after finalization shall be the same as for the child whose eligibility is established before finalization except the application shall be submitted within one year of diagnosis of the condition that establishes the child as a child with special needs and the child otherwise meets the eligibility requirements of subsection B of this section for adoption assistance payments. Application for adoption assistance after finalization shall be for state adoption assistance.

H. The adoptive parents shall annually submit an adoption assistance affidavit to the local department in accordance with guidance in the Adoption Manual.

I. The local department is responsible for:

1. Payments and services identified in the adoption assistance agreement, regardless of where the family resides; and

2. Notifying adoptive parents who are receiving adoption assistance that the annual affidavit is due.

J. Adoption assistance shall be terminated when the child reaches the age of 18 unless the child has a physical or mental disability or an educational delay resulting from the child's disability which warrants continuation of the adoption assistance. If a child has one of these conditions, the adoption assistance may continue until the child reaches the age of 21.

K. Adoption assistance shall not be terminated before the child's 18th birthday without the consent of the adoptive parents unless:

1. The child is no longer receiving financial support from the adoptive parents; or

2. The adoptive parents are no longer legally responsible for the child.

L. Child-placing agencies are responsible for informing adoptive parents in writing that they have the right to appeal decisions relating to the child's eligibility for adoption assistance and decisions relating to payments and services to be provided within 30 days of receiving written notice of such decisions. Applicants for adoption assistance shall have the right to appeal adoption assistance decisions related to:

1. Failure of the child-placing agency to provide full factual information known by the child-placing agency regarding the child prior to adoption finalization;

2. Failure of the child-placing agency to inform the adoptive parents of the child's eligibility for adoption assistance; and

3. Decisions made by the child-placing agency related to the child's eligibility for adoption assistance, adoption assistance payments, services, and changing or terminating adoption assistance.

Historical Notes

Derived from Volume 29, Issue 02, eff. November 1, 2012.

Statutory Authority

§§ 63.2-217 and 63.2-900 of the Code of Virginia.