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States will be reviewed against the requirements of title IV-E of the Act regarding the eligibility of the children on whose behalf the foster care maintenance payments are made, including their placement in a properly licensed or approved foster care facility.
The following documentation must be provided to verify the child's eligibility:
evidence of judicial removal as a result of judicial determinations of "contrary to the welfare" and "reasonable efforts" or via a voluntary placement agreement;
responsibility for placement and care vested with the State agency or another public agency with which the State agency has a title IV-E [§472(a)] agreement;
eligibility for AFDC under the State plan as it was in effect on July 16, 1996, or earlier, if the child was removed before this date;
placement in a licensed or approved foster family home or childcare institution; and
verification of safety requirements for children placed in foster care.
The child is not eligible for title IV-E funding until all eligibility criteria pertaining to the child's removal from home and placement in foster care are met. This means that if the judicial finding of "contrary to the welfare" is rendered in November 2004, and the finding of "reasonable efforts to prevent removal" is rendered in January 2005, title IV-E eligibility and Federal financial participation may not begin until January 2005, on the condition that State agency responsibility for placement and care, provider eligibility and AFDC eligibility are established in January 2005 or earlier for the most recent foster care episode. The child also is not eligible for title IV-E funding if the child is not removed pursuant to a judicial determination or a voluntary placement agreement.
Documentation for ongoing eligibility also includes evidence of: a judicial determination regarding reasonable efforts to finalize a permanency plan; a judicial determination within 180 days of placement through a voluntary placement agreement that the placement continues to be in the child's best interest; and continued eligibility for AFDC.
The eligibility requirements are summarized in the narrative that follows and the "Title IV-E Foster Care Eligibility Chart," Appendix XI.
Removals pursuant to a court order must be the result of judicial determinations of "contrary to the welfare" and "reasonable efforts." A removal is considered to not have occurred in situations in which the child is judicially removed from the parent or another specified relative and the child is permitted to remain in that same relative's home under the supervision of the State agency. The physical removal from the home must coincide with the judicial ruling that authorizes the child's removal from the home and placement in foster care under the responsibility of the State agency. In these situations, the child is not eligible for title IV-E funding for the duration of the foster care episode, in accordance with 45 CFR §1356.21(k)(2).
The judicial determinations of "contrary to the welfare" and "reasonable efforts" must be made in valid court orders, that is, court orders that the State's statute defines as legally enforceable within the State. For the eligibility review, a court order is considered valid if it conforms to the State's statutory definition of a legally enforceable vehicle that conveys a judicial ruling within the State about a particular course of action or behavior. A distinction is not made about the type of court order in which the "contrary to the welfare" or "reasonable efforts" determination is required. Nor is it necessary for the judicial determination to take place during a court hearing.
Judicial determinations must be made on a case-by-case basis; explicitly stated in the court order; and signed by a reviewing judge or other State designated court official, if a signature is required in State law; and in conformity with regulatory timeframes. The judicial determination that relies solely on references to State statutes in an attempt to substantiate the requisite judicial finding or implies a judicial finding is not explicit and is not sufficient for title IV-E eligibility. To be explicit, the court orders must definitively articulate the judge's child-specific ruling pertaining to the "contrary to the welfare" and "reasonable efforts" determinations. The judicial determinations do not need to include the exact term "reasonable efforts" or "contrary to the welfare," but the findings must specifically convey that the court determined that reasonable efforts were made or were not required to be made by the State agency, or that it was contrary to the welfare of the child to remain in the home. The eligibility reviewer may not infer a determination made by the court.
Courts may demonstrate that the judicial determination is child specific and has been made on a case-by-case basis in a number of different manners, including referencing in the court order "the facts of a court report, related psycho-social report, or sustained petition." [See Preamble to the Final Rule, 65 FR 4020, 4056 (January 25, 2000)]. Such documentation establishes that the judge reviewed the particular facts and circumstances of the specific child. Although not required, including in the court order the facts upon which the "contrary to the welfare" and "reasonable efforts" determinations are based significantly improve the quality of the court order. The date the court ruling is rendered, rather than the date the court order is signed, should be used to establish timeframes for judicial determinations related to a child's eligibility for title IV-E foster care.
The reviewer's analysis of the case record or State agency's report and recommendation cannot serve as a substitute for the appropriate judicial finding. The court's mere review and approval of the State agency's report and recommendation absent an expressed ruling concerning "contrary to the welfare" or "reasonable efforts" are not sufficient. The court must make a definitive finding. Affidavits attesting that the judicial determination occurred at a previous hearing and nunc pro tunc (""now for then") court orders that change the substance of a prior judicial determination or constitute a judicial determination not previously made are not acceptable documentation in support of a judicial determination. If an acceptable court order containing the requisite judicial determination is not furnished, a transcript of the court proceeding is the only alternative to a court order to substantiate that the judicial determination requirement is met satisfactorily. When an affidavit or nunc pro tunc order is presented to document a judicial determination the reviewer must examine the court transcript to verify that the judicial ruling is made at the time of the court proceeding in question and within the specified timeframe.
A child's removal from the home must be the result of a judicial determination to the effect that continuation in the home would be contrary to the child's welfare, or that placement in foster care would be in the best interest of the child.
For a child removed before March 27, 2000, the judicial determination regarding "contrary to the welfare" may be made in the removal order or in a subsequent order resulting from court proceedings that are initiated (the petition filed) no later than 6 months from the date the child is removed from home, consistent with Departmental Appeals Board Decision Number 1508 (DAB 1508). In that decision, the DAB ruled that a petition to the court stating the reason for the State agency's request for the child's removal from home, followed by a court order granting custody to the State agency, is sufficient to meet the contrary to the welfare requirement. The petition must be filed within 6 months of the child's physical removal from home; however, the resultant court finding may occur in a later court ruling and must sustain the removal petition. The removal petition alone will not satisfy the title IV-E eligibility requirement. There must be a judicial finding of "contrary to the welfare." However, if the petition contains the "contrary to the welfare" finding and the court sustains the petition, the eligibility requirement is met. Title IV-E eligibility may not begin before attaining the requisite judicial finding.
For a child removed on or after March 27, 2000, the judicial determination regarding "contrary to the welfare" must be made in the first order that sanctions the State agency's action to remove the child from the home. This requirement is applicable even when the order is an emergency order or "pick-up" order. The child's physical removal from the home must coincide with the judicial ruling of "contrary to the welfare." A physical removal that does not coincide with the judicial determination requirement will not comply with 45 CFR §1356.21(c) and the child is not eligible for title IV-E funding for the duration of the foster care episode.
The State agency must obtain a judicial determination that it made reasonable efforts to (1) maintain the family unit and prevent the unnecessary removal of a child from the home, as long as the child's safety is ensured, and (2) make and finalize a permanency plan in a timely manner. The State agency's performance in obtaining the requisite judicial determination is assessed through the title IV-E foster care eligibility review. The judicial decision concerning whether or not the State agency has made necessary and reasonable efforts to prevent the child's removal from the home or made reasonable efforts to finalize a permanency plan is an eligibility criterion. However, the activity that the State agency undertakes to prevent the child's removal from the home or to make and finalize a permanency plan is a State plan requirement. Compliance with the title IV-E State plan is assessed during the course of the child and family services review (CFSR).
If the eligibility criterion of "reasonable efforts" is not satisfied, the child is not eligible for title IV-E funding. All judicial determinations with respect to "reasonable efforts," even determinations that such efforts are not required, must be clearly documented in the judge's ruling and must be obtained within the prescribed time frames. The reasonable efforts requirements do not apply to children who enter foster care as a result of a voluntary placement agreement.
Reasonable Efforts to Prevent Removal
For a child removed before March 27, 2000, the judicial determination that reasonable efforts were made to prevent removal or that reasonable efforts were made to reunify the child and family satisfies the reasonable efforts requirement. The judicial determination may be made at any point in the foster care episode. However, as stated previously, title IV-E foster care maintenance payments may not begin until the first month all eligibility requirements pertaining to the removal are satisfied. If the "reasonable efforts to prevent removal" criterion is not satisfied at any point in the episode, the child is not eligible for title IV-E funding on his behalf for the duration of the foster care episode.
For a child removed on or after March 27, 2000, the judicial determination that reasonable efforts were made, or were not required, to prevent removal must be made no later than 60 days from the date of the child's removal from the home [45 CFR §1356.21(b)(1)]. The State agency may obtain this judicial determination earlier than 60 days from the date of removal. If the eligibility criterion is not satisfied within the time frame prescribed in the Federal regulations, the child is not eligible under title IV-E for the duration of the foster care episode.
Reasonable Efforts to Finalize the Permanency Plan
Once title IV-E eligibility has been established initially, a judicial determination regarding the efforts the State agency made to finalize a permanency plan is required annually to maintain title IV-E eligibility.
A judicial determination regarding reasonable efforts to finalize the permanency plan [45 CFR §1356.21(b)(2)] must be made within 12 months of the date on which the child is considered to have entered foster care and at least once every 12 months thereafter while the child is in foster care. If a judicial determination regarding reasonable efforts to finalize a permanency plan is not made within this timeframe, the child is ineligible at the end of the 12th month from the date the child is considered to have entered foster care or at the end of the month in which the subsequent judicial determination of reasonable efforts is due, and remains ineligible until the beginning of the month in which such a judicial determination is made.
If the court finds that the agency has not made reasonable efforts to finalize the permanency plan, the case is ineligible until the court determines such efforts have been made. Although the permanency hearing may serve as the mechanism for obtaining the judicial determination of "reasonable efforts to finalize," there is no requirement that the judicial determination be made at the permanency hearing. (The requirement to hold a permanency hearing is a State plan requirement for title IV-E. It is not an eligibility criterion. If the State agency fails to hold timely permanency hearings, it is out of compliance with the title IV-E State plan requirements, and the child is not ineligible for title IV-E funding solely for this reason).
The court's ruling regarding "reasonable efforts to finalize" may be based on the State agency's efforts pertaining to the permanency plan that was in effect at the time that the State agency sought the judicial determination; a permanency plan that had been in effect for a brief period of time immediately preceding the judicial ruling; or the activities related to achieving permanency that took place over the 12 months immediately preceding the judicial ruling, even if the plan had been abandoned during that 12-month period. Generally, a finding that the agency is making reasonable efforts to reunify the family is not sufficient if the permanency plan is not or has not been reunification during the past 12 months. The judicial determination should reflect the court's judgment as to whether the agency activities that were performed during the previous 12 months were meaningful in bringing about permanency for the child.
The effective date of the "reasonable efforts to finalize" provision is March 27, 2001, in order to allow States a transition period to fulfill this requirement for children who were already in foster care for 12 months or longer at the time the final rule was published.
For a child removed before March 27, 2000, the judicial determination of "reasonable efforts to finalize" must have been made no later than March 27, 2001, because such a child would have been in care for 12 months or longer. If the judicial determination of "reasonable efforts to finalize" was not made by March 27, 2001, the child became ineligible for title IV-E foster care maintenance payments from April 1, 2001, until such time that a judicial determination of "reasonable efforts to finalize" was made. The title IV-E foster care eligibility review does not verify the State agency's compliance with the March 27, 2001, implementation date as a separate eligibility review issue. Rather, it examines whether or not the judicial determination requirement is satisfactorily met during the 12-month period that encompasses the PUR. If the judicial determination requirement is not met, the reviewer must go back to the date on which the requirement is met or March 27, 2001, whichever is later, to establish whether title IV-E payments are made for a period of ineligibility.
For a child removed on or after March 27, 2000, the judicial determination of "reasonable efforts to finalize" must be made no later than 12 months from the date the child is considered to have entered foster care. The date the child is considered to have entered foster care is defined as the earlier of the date of the first judicial finding of child abuse and/or neglect; or, the date that is 60 calendar days after the date on which the child is physically or constructively removed from the home. [See 45 CFR §1355.20(a).] A State may assign an earlier date, such as the date of the child's physical removal from the home. However, for the purposes of title IV-E eligibility, the date child entered foster care is the date as defined in the regulatory reference cited here. This regulatory definition applies irrespective of how the child enters foster care. The date child entered foster care should not be confused with the date the child is removed from the home, which is the date that the child is physically or constructively removed and placed in a foster care setting. The purpose of the "date child entered foster care" is to set the timing for certain case review system requirements, including the permanency hearing, and the judicial determination of reasonable efforts to finalize the permanency plan.
The judicial finding of child abuse or neglect refers to the definitive ruling by the court that a child was subjected to abuse or neglect. Typically, this definitive finding does not take place at a shelter or emergency placement hearing where the State agency is given temporary custody of the child due to an allegation of child abuse or neglect. The judicial finding of child abuse or neglect typically is the result of the court's adjudication or settlement of a formal allegation of child maltreatment.
The On-Site Review Instrument requires the State agency to document the date child entered foster care for each sample case under review with a removal date of March 27, 2000, or after, for the most recent foster care episode. The timing for securing the initial judicial determination of "reasonable efforts to finalize" is no later than 12 months from the date the child is considered to have entered foster care. Subsequent judicial determinations of "reasonable efforts to finalize" must occur at regular 12-month intervals and no later than 12 months from the month in which the prior determination actually is obtained. If the judicial determination of "reasonable efforts to finalize" is not made or is not timely, the child becomes ineligible from the time the finding is due and remains ineligible until such a judicial determination is made.
The members of the review team examine a case record to discern whether the "reasonable efforts to finalize" judicial determination requirement is satisfied during the 12-month period encompassing the PUR. However, if through the conduct of the case record examination the reviewer determines that a judicial determination of "reasonable efforts to finalize" is not made timely, the related ineligible payments will be disallowed. The untimely judicial determination of "reasonable efforts to finalize" for which ineligible payments are made, will render the case in error if the judicial determination is: due before or during the PUR, but is not made during the PUR; or due before or during the PUR and is made during the PUR, but is not made timely during the PUR. The exception to this Federal policy occurs when a judicial determination of "reasonable efforts to finalize" is not made until some time during the month following the month such determination is due.
The untimely judicial finding will not render the case ineligible because of the end of the month-beginning of the month eligibility principle. Under this principle, when a judicial determination regarding reasonable efforts to finalize a permanency plan is not made, title IV-E eligibility exists until the end of the month in which the judicial determination is required to be made [45 CFR �1356.21(b)(2)ii)]. Title IV-E eligibility may begin again on the first day of the month in which the judicial determination regarding reasonable efforts to finalize a permanency plan is satisfied, irrespective of the date during the month the judicial determination is satisfied. Thus, in the case when the "reasonable efforts to finalize" judicial determination is obtained during the month following the month that it should be obtained, there is no period of ineligibility regarding this judicial requirement.
A voluntary placement is an out-of-home placement of a minor child by or with the participation of the State agency, after the child's parents or legal guardians request the assistance of the agency and sign a voluntary placement agreement. A representative of the State agency must sign the voluntary placement agreement as well.
A removal pursuant to a voluntary placement agreement is considered to not have occurred in situations where the parent or another specified relative has signed the voluntary placement agreement and the child is permitted to remain in that same relative's home under the supervision of the State agency. In these situations, the child is not eligible for title IV-E funding for the duration of the foster care episode, in accordance with 45 CFR §1356.21(k)(2).
An otherwise eligible child is eligible for title IV-E foster care maintenance payments for a period of 180 days, pursuant to a voluntary placement agreement. The 180 days begin on the date the child is placed in foster care. However, if the child is constructively removed, the 180 days begin on the date that the voluntary placement agreement is signed by all parties. Title IV-E eligibility ceases on the 181st day unless, within the first 180 days, there is a judicial determination that indicates continued voluntary placement is in the best interest of the child. Title IV-E eligibility also ceases when a State agency fails to obtain the requisite judicial determination within the first 180 days, but petitions the court on the 181st day and is granted a judicial removal with determinations of "contrary to the welfare" and "reasonable efforts." Under these conditions, the State agency fails to meet the timeliness requirement for the voluntary placement program and is ineligible for continued Federal reimbursement for that foster care episode. The fact that a removal petition is filed within 6 months of the signed voluntary placement agreement will not change the nature of the child's removal from voluntary to court-ordered in that foster care episode and permit the State agency to claim Federal reimbursement for a judicial removal during that foster care episode.
If it is determined that a valid voluntary agreement does not exist between the child's parents or legal guardians and State agency, the sample case will be cited as an error case and included in the determination of substantial compliance. The associated foster care maintenance payments and administrative costs claimed will be disallowed. For purposes of the eligibility review, a voluntary placement agreement will be considered valid if it is signed by the parent or legal guardian and the State agency.
Responsibility for Placement and Care Vested With the State Agency
Section 472(a)(2) of the Act requires that the responsibility for placement and care of a child be with the State agency administering the title IV-E plan approved under §471 of the Act, or any other public agency with whom the State agency has a written agreement in effect. The agreement under §472(a)(2) of the Act permits another public agency to operate as a title IV-E agency for a specified population of children in foster care. This agreement is not merely an interagency agreement that addresses activities to be carried out by the State agency and other public agency (herein referred to as "public agency"), but it is one that gives the public agency responsibility to administer the title IV-E foster care program on the State agency's behalf for children under the placement and care of the public agency.
The public agency that enters into a §472(a)(2) agreement with the State agency must be authorized under State law to operate as a child-placing agency and must be operating as such during the period that the agreement is in effect. To receive Federal financial participation for the placement and care of children, both the State agency and public agency with which the State agency entered into a §472(a)(2) agreement must ensure that all the title IV-E statutory and regulatory requirements are met for the children covered by the agreement. The State title IV-E agency must have access to the public agency's case records, reports, or other materials in order to fulfill its responsibility to monitor title IV-E compliance.
A copy of all existing §472(a)(2) agreements should be made available to the Federal team leader before the on-site review to determine that the public agency has a bona fide agreement in effect with the State agency to operate a title IV-E program. If it is determined that a proper §472(a)(2) agreement does not exist for a child during the PUR, the sample case will be cited as an error case and included in the determination of substantial compliance. The associated foster care maintenance payments and administrative costs claimed will be disallowed.
During the on-site review, the State agency must present documentation that it, or another public agency under a �472(a)(2) agreement, has responsibility for placement and care of the child for the entire PUR. The court order or voluntary placement agreement must indicate that the agency has this responsibility. Placement and care responsibility may be granted in the removal court order or in a subsequent court ruling for a judicial removal. However, Federal financial participation may not be claimed before the eligibility requirement of placement and care is met.
If the State agency does not present documentation that verifies the State agency or another public agency has placement and care responsibility of the child for the PUR, the sample case will be cited as an error case and included in the determination of substantial compliance. The associated foster care maintenance payments and administrative costs claimed will be disallowed. The sample case remains in error for the foster care episode until the State agency, or another public agency, is granted (or verifies it has) placement and care responsibility for the child. It should be noted that although responsibility for placement and care generally is associated with child custody, the agency need not be given legal custody of the child as legal custody is not a requirement under title IV-E.
When the title IV-E State plan authorizes Federal financial participation for an 18-year-old youth, the State agency must provide verification through the PUR to substantiate that placement and care responsibility for the youth is retained beyond the age of 18. (See "Age and School Attendance" in the following section for further discussion on this subject). If the State agency does not present documentation that verifies the State agency or another public agency has placement and care responsibility of the youth during the PUR, the sample case will be cited as an error case and included in the determination of substantial compliance. The associated foster care maintenance payments and administrative costs claimed will be disallowed. The youth remains ineligible for title IV-E funding in the foster care episode until the State agency, or another public agency, is granted (or verifies it has) placement and care responsibility for the youth.
The purpose of the title IV-E foster care program is to provide financial assistance to States for maintaining children who meet the eligibility requirements for the Aid to Families with Dependent Children (AFDC) program and cannot remain safely in their homes of origin. Thus, a child's eligibility for title IV-E maintenance, in part, is predicated on the child's eligibility for AFDC. The Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA), which repealed the AFDC program, requires States to apply the AFDC eligibility requirements that were in place in the State's title IV-A plan on July 16, 1996 (disregarding any Section 1115(a) waivers that may have been in effect on that date), when determining whether children are eligible for Federal foster care assistance. If the child was removed from the home before July 16, 1996, States are to apply the AFDC eligibility requirements that were in place in the State at the time of the child's removal.
In general, to meet the AFDC requirements the child must be determined to be a "dependent child." The term "dependent child" means a child in need who has been deprived of parental support or care, has been living with a parent or other specified relative in a place maintained as the home of the relative, and has not reached the maximum age designated for program eligibility. The major provisions are summarized in the narrative that follows and the "Matrix of AFDC Factors Related to Title IV-E Foster Care Eligibility," Appendix XII.
There is no eligibility linkage between the AFDC program and the Temporary Assistance to Needy Families (TANF) program. A child's eligibility for AFDC is not based on a child's eligibility for TANF. TANF income should be excluded from the AFDC budget computations because, in accordance with Federal policy, TANF is a needs-based program that also considers the individual's needs, income and resources in determining recipient eligibility for the program.
Financial Need
The State agency must establish that the child is financially needy using criteria in effect as of July 16, 1996, in the State's title IV-A plan. Typically, the initial determination of need is based on the home from which the child is removed pursuant to a judicial order or a voluntary placement agreement. (See "Removal from a Specified Relative" in this section of the review guide for further discussion on this subject). The composition of the AFDC family unit must be determined first in establishing whether the child is financially needy. The family unit is defined as a group of individuals whose income, resources, and needs are considered as a unit for purposes of determining AFDC eligibility.
Financial need must be established based on the circumstances that existed in the home of the family unit during the month the court proceedings leading to the child's removal were initiated or the voluntary placement agreement was signed. In accordance with 45 CFR §206.10(a)(1)(vii), the State agency must include in the family unit: the child, the natural or adoptive parents, and the blood-related or adoptive siblings who are otherwise eligible and who live in the same household as the child. In States with support laws of general applicability that require a step-parent to support his step-children to the same extent as a natural or adoptive parent, step-parents married under State law to the natural or adoptive parent and in the same household as the child also must be included in the family income unit.
Certain individuals who live in the same household as the child must be excluded from the family unit because they are not eligible for the AFDC program due to other provisions of the Act. Examples of exceptions to the requirement regarding composition of the family unit include: individuals eligible to receive Supplemental Security Income (SSI), certain aliens, and individuals who are ineligible for the AFDC program due to receipt of a lump sum payment from any source.
After establishing the family unit, the determination of need is made by considering all available income and resources of the individuals who are included in the family unit. Income and resources are considered available when the money or asset is accessible for use by an individual in the family unit. The income and resources of individuals who are statutorily excluded from the family unit are not considered for purposes of determining the AFDC eligibility component of need for the family unit. The financial need of a family is measured against the State's need standard which is defined by the State, expressed in money amounts, and is in effect in the State plan as of July 16, 1996. In considering income to determine whether need exists for the family unit in establishing initial eligibility, the State must use the AFDC program's two step process:
After applicable disregards, the family's total available income is measured against 185% of the State's AFDC standard of need for a family of the same size. If the family's total income before application of certain earned income disregards exceeds 185% of the AFDC need standard, the child does not meet the eligibility requirements for the AFDC program [45 CFR § 233.20 and § 233.20(a)(3)].
If the family's total available income does not exceed 185% of the AFDC need standard, additional specified income disregards are applied and the family's countable income is measured against 100% of the need standard to determine AFDC eligibility. Federal law requires that certain earned income disregards be applied after eligibility otherwise is established. If the family's total available income exceeds 100% of the AFDC need standard, the child does not meet the eligibility requirements for the AFDC program [45 CFR § 233.20(a)(3)].
In considering the real and personal property to determine whether financial need exists for the family unit, the combined value of available, non-excludable resources for the family unit must not exceed $10,000. (The Foster Care Independence Act of 1999 amended §472(a) of the Act to increase the resource limit to $10,000.)
After a child enters foster care, the child becomes his or her own financial unit and continuing financial need is determined by looking at the income and resources available to the child. To re-determine a child's AFDC eligibility, the State may apply a slightly different process from the one used to determine initial eligibility. The child's countable income may be measured against 185% of the AFDC need standard or the child's foster care payment rate (i.e., foster care payment standard) to determine continuing AFDC eligibility. The State does not have to measure the child's income against 100% of the need standard. As long as the child's countable income does not exceed 185% of the foster care payment standard and the child meets the $10,000 resource limit, the child is considered to meet the financial need test under AFDC.
Deprivation
The State agency must establish that the child was deprived of parental support or care at the time of the child's removal from his home. The initial determination of deprivation must be established based on the circumstances that existed in the child's home during the month the court proceedings leading to the child's removal were initiated or the voluntary placement agreement was signed. In addition, the initial determination of need is based on the home from which the child was removed pursuant to a judicial order or a voluntary placement agreement.
Deprivation of parental support or care of the child is defined as a child who is in need, and whose parent, either father or mother:
has died;
has a medically documented physical or mental incapacity; or
is continually absent from the home in a manner such that the absence interrupts or terminates the parent's functioning as a provider of maintenance, physical care, or guidance for the child.
Deprivation also may be based, at the State's option, on the unemployment of the child's parent who is the principal wage earner in the family assistance unit. Deprivation may not be based on the fact that the child is placed in foster care and absent from the home or that the child is incapacitated. The determination of deprivation is made in relation to the child's natural or adoptive parent or (in States with a support law of general applicability) in relation to a step-parent who is married to the child's natural or adoptive parent.
To determine continuing deprivation after a child enters foster care, the State agency must refer to the home of the child's removal to confirm that deprivation still exists in that home.
Living With a Specified Relative
Sections 472(a)(1) and (4) of the Act and 45 CFR §1356.21(l) require a child to have lived in the home of a parent or other relative specified at 45 CFR §233.90(c)(1)(v) and to have been eligible for AFDC in that relative's home in the month of legal removal, that is, the month the court proceedings leading to the removal are initiated or the voluntary placement agreement is signed. If the child was not living with that specified relative in the month of legal removal, the child: (1) must have been living with the specified relative from whom legally removed at some time within the previous 6 months of removal; and (2) must have been AFDC eligible in that specified relative's home in the month of legal removal as if the child still had been living with that relative in the month of the petition or voluntary placement agreement. (See below discussion for the exception to this Federal provision that pertains to States under the jurisdiction of the Ninth Circuit Court.)
A child is considered to meet the requirement of living with one of the relatives specified in the regulations at 45 CFR §233.90(c)(1)(v) if the child lived with a parent or person in one of the following groups:
any blood relative, including those of half-blood, and including first cousins, nephews, or nieces; persons of preceding generations as denoted by prefixes of grand, great, or great-great;
stepfather, stepmother, stepbrother, and stepsister;
persons who legally adopt a child or the child's parent as well as the biological and other legally adopted children of such persons, and other relatives of the adoptive parents in accordance with State law; and
spouses of any persons named in the above groups, even after the marriage is terminated by death or divorce.
Removal From a Specified Relative
In addition to "living in the home of a specified relative," §472(a)(1) and (4) of the Act and 45 CFR §1356.21(k) require the child to have been removed from the home of a parent or other relative specified at 45 CFR §233.90(c)(1)(v) and to have been eligible for AFDC in the month of legal removal, that is, the month the court proceeding leading to the removal is initiated or the voluntary placement agreement is signed. The removal must occur as a result of a voluntary placement agreement which leads to a physical or constructive removal (i.e., non-physical, paper removal) of the child from the home, or a judicial order for a physical or constructive removal of the child from the home. In accordance with 45 CFR §1356.21(k)(2), a removal has not occurred when a judicial ruling or voluntary placement agreement sanctions the removal of the child from the parent or another specified relative and the child is allowed to remain in the home of the same specified relative under the supervision of the State agency.
For a child removed before March 27, 2000, there must be a "physical removal" of the child from the specified relative's home in which the child resided during the month the child was legally removed from that specified relative and placed into foster care. If the child is not living with the specified relative (from whom removed) during the month of the voluntary placement agreement or initiation of court proceedings, a physical removal from an interim caretaker may satisfy the removal requirement provided that at some point during the 6 months before the voluntary placement agreement or initiation of court proceedings the child has lived with that specified relative. Under these circumstances, the child is considered to have been living with and removed from the home of the specified relative who is the basis of the judicial removal or who enters into the voluntary placement agreement with the State agency. AFDC eligibility must be determined for that specified relative as if the child had been living in that home in the month of the initiation of court proceedings or the voluntary placement agreement. A constructive removal is not allowable for title IV-E funding.
For a child removed on or after March 27, 2000, the child may be "physically" or "constructively" removed. A child is considered to be constructively removed when a judicial ruling or voluntary placement agreement sanctions the child's removal from the parent or another individual, but the child is permitted to remain in the home of an interim caretaker. The child is considered constructively removed on the date of the first judicial order removing the child from the home or the date the voluntary placement agreement is signed by all relevant parties.
As stated earlier, the child must have been living with the specified relative (from whom legally removed) within six months of physical removal from the specified relative. If the child is not living with that specified relative during the month of the voluntary placement agreement or initiation of court proceedings, a physical removal from an interim caretaker may satisfy the removal requirement provided that at some point during the 6 months before the voluntary placement agreement or initiation of court proceedings the child has lived with the specified relative (from whom constructively removed). Under these circumstances, the child is considered to have been living with and removed from the home of the specified relative who is the basis of the judicial removal or who enters into the voluntary placement agreement with the State agency. AFDC eligibility must be determined for that specified relative as if the child had been living in that home in the month of the initiation of court proceedings or the voluntary placement agreement.
The "living with" and "removal from" requirements must be satisfied by the same specified relative's home and AFDC eligibility must be based on that home. The statute did not contemplate the "living with" and "removal from" requirement to be satisfied by two discrete individuals. When the home from which the child is removed is not specifically identified in the judicial order or petition for removal, the foster care eligibility review examines whether AFDC eligibility is based on the home of the individual that the State's law prescribes as the party from whom the child must be legally removed in order for the child to be under the placement and care of the State agency. Typically, this is the home of the individual who is the subject of the "contrary to welfare" judicial determination or voluntary placement agreement.
The only exception to the requirement that the child be "living with" and "removed from" the same home is when a child, at the time of removal, resides in a State that is under the jurisdiction of the United States Court of Appeals for the Ninth Circuit (hereafter Ninth Circuit). As a result of the decision of the Ninth Circuit in the case of Rosales v. Thompson (hereafter Rosales), the child's "home of removal" need not be the home upon which the child's AFDC eligibility is based. Therefore, States within the Ninth Circuit must consider whether a child would have been eligible for AFDC, at the time the child legally was removed from the home, in either: the home from which the child legally was removed or the home of any specified relative with whom the child lived in the 6 months before removal, provided that the relative upon whom the AFDC eligibility is based had established a home for the child that is consistent with 45 CFR §233.90(c)(1)(v)(B). Under this definition, the child's home is the family setting maintained or in the process of being established as evidenced by assumption and continuation of responsibility for the day-to-day care and control of the child by a relative with whom the child is living, if the relative is one of specified degree.
The Rosales decision applies only to States within the Ninth Circuit, specifically, Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington. These States must amend their State title IV-E plans so that they are consistent with the Rosales decision and the title IV-E plan amendments must be approved by ACF. States that are outside of the Ninth Circuit must continue to base AFDC eligibility on the home of the specified relative from whom the child is legally removed (i.e., removal resulting from a voluntary placement agreement or judicial ruling of contrary to the welfare).
Age and School Attendance
As stated previously in this section, to meet the AFDC requirements the child must be determined to be a dependent child, that is, a needy child who has been deprived of parental support or care, living with a parent or other specified relative in a place maintained as the home of the relative, and who has not reached the maximum age designated for program eligibility. AFDC eligibility may be granted to an otherwise eligible child who is under 18 years of age. When a child reaches his or her 18th birthday, generally eligibility for AFDC ceases beginning on the first day of the month following attainment of age 18.
However, a State agency may have elected to include in its AFDC State plan eligibility coverage for youth age 18 who are full-time students in a secondary school, or in the equivalent level of vocational training or technical training, and who may reasonably be expected to complete the program before reaching age 19. If the State agency does not exercise this State plan option, eligibility for title IV-E foster care ceases at the end of the month the child turns 18. If the State agency exercises this State plan option, eligibility for title IV-E foster care ceases at the end of the month in which the child leaves school or when the child turns 19, whichever occurs earlier. To meet the eligibility requirement under this State plan option when the State agency's jurisdiction over a child automatically ceases at age 18, the State agency must provide verification that the child signed an authorization that explicitly gave the State agency placement and care of the child. A court order extending the State agency's custody of the youth beyond age 18 also satisfies the placement and care requirement. School records, independent living plans, or other documentation similar in purpose are examples of evidence that may be used to satisfy the eligibility requirement.
Documentation for Initial Eligibility Determination
During the title IV-E foster care eligibility review, the State agency must document that the child is financially needy and deprived of parental support during the month of the child's legal removal from home. For the initial determination of the child's financial need and deprivation, the child's case file should contain documentation verifying that financial need is evaluated, indicating the reason that the child is deprived of parental support or care. The manner used to substantiate that the school attendance criterion is satisfied for the 18-year-old youth must be included as well.
Unless otherwise specified, the method for substantiating financial need and deprivation is derived from the State agency's policy and procedures. The documentation, at a minimum, should include an eligibility worksheet that contains the name of the household on which the child's AFDC eligibility is based, period of eligibility, eligibility decision, basis of eligibility decision, and an indication of the State agency's sanction of the decision, such as a supervisory signature on the worksheet. There must be a specification of how the child was determined to be in need and deprived of parental support or care. The eligibility worksheet or summary should provide a clear, evidence-based path to the eligibility decision.
The documentation should verify whether the child is AFDC eligible during the month the voluntary placement agreement is signed or the month that the removal petition is filed, or removal court order is granted, if a removal petition is not filed. The child must be eligible at the time of entry into foster care as well as continue to be eligible throughout the foster care episode. Failure to conduct a determination of the child's initial eligibility for AFDC will render the child ineligible for title IV-E foster care maintenance payments and administrative costs paid on behalf of the child during the entire foster care episode. The child's case will be an error case and the ineligible payments that were claimed will be disallowed.
Documentation for Ongoing AFDC Eligibility (Re-determination)
For a child in foster care longer than 1 year, the State agency must document periodically, but not less than annually, that the child continues to be financially needy and deprived of parental support or care. All factors of AFDC eligibility must be reconsidered. At re-determination, a child in foster care is considered his/her own assistance unit and financial need is determined based on income and resources available to the child. The income test against the State need standard is applicable to the child's available income at all times throughout the foster care episode.
Deprivation is re-determined by looking at the home from which the child was legally removed for evidence that the child continues to be deprived of parental support or care. Although the child's placement in foster care does not constitute deprivation, once deprivation is established at the time of the child's removal from the home, a termination of parental rights can serve as documentation of continued deprivation.
The documentation, at a minimum, should include an eligibility worksheet that contains the eligibility decision, period of eligibility, basis of decision, and an indication of the State agency sanction of the eligibility decision, such as a supervisory signature on the worksheet. There must be a specification of how the child was determined to continue to be financially needy and deprived of parental support or care. The eligibility worksheet or summary should provide a clear, evidence-based path to the eligibility decision. For the foster care eligibility review, the documentation should verify whether the child was AFDC eligible during the entire PUR.
Re-determination of eligibility is a State plan requirement. It is not an eligibility requirement for the individual child in care. Failure to conduct timely periodic reviews of the status of each child receiving assistance may result in the State being out of compliance with its State plan in accordance with §472(a) of the Act. While the timeliness of the re-determination is not an eligibility issue, the State agency must be able to show that the child continues to meet the mandatory eligibility requirements.
Reconstruction of AFDC Elgibility
During the foster care eligibility review, if there is not a determination of initial or continuing eligibility to cover the entire PUR, the State agency will be allowed to reconstruct the AFDC factors to verify the child's eligibility. If the State agency is unable to determine the AFDC eligibility of a child for a period during the foster care episode, any title IV-E payments claimed for the period of ineligibility will be disallowed and any ineligible periods that occur during the PUR will render the case in error. If the State agency is able to determine the AFDC eligibility of a child, but the eligibility requirements are not met for any month during the PUR, the case will be in error and title IV-E payments claimed for the months in which AFDC eligibility is not met during the PUR will be disallowed. Any ineligible payments claimed outside the PUR will be disallowed as well.
To reconstruct AFDC eligibility, the State agency must retrospectively establish the case facts that existed at removal or re-determination using State AFDC eligibility criteria in effect as of July 16, 1996, or such in effect for the period in question if the child is removed before July 16, 1996. Perfunctory check-off of an AFDC worksheet without fully exploring and documenting the pertinent case facts will not suffice for Federal financial participation. As stated previously, there must be a specification of how the child is determined to be financially needy and deprived of parental support or care. The eligibility worksheet or summary should provide a clear, evidence-based path to the eligibility decision.
It should be noted that a determination of AFDC eligibility may be completed at any point in the foster care episode; however, a claim for title IV-E funds may not be made for a period later than 2 years after the calendar quarter in which the State agency made the expenditure (45 CFR §95.7). If the foster care eligibility determined that claims are made beyond this timeframe, the ineligible payments will be disallowed for the entire period of ineligibility, but the ineligible payments will not deem the case in error solely for this reason.
Placement in a Licensed Foster Family Home or Childcare Institution
The child must be placed in a title IV-E eligible foster care facility and that facility must meet the standards for full licensure or approval established by the State. Under title IV-E, an eligible foster care facility may be a family foster home, group home, private childcare institution, or public childcare institution which accommodates 25 or fewer children. Children who are placed in detention facilities, forestry camps, training schools, or other facilities that operate primarily for detaining children adjudged delinquent are not eligible for title IV-E foster care maintenance payments. Licenses or approvals, such as probationary or provisional, that are issued to a foster care facility because the facility fails to satisfy all of the State's standards for full licensure or approval render the children who are placed in the foster care facility ineligible for title IV-E funding. In addition, the State agency may not claim title IV-E funds for a foster care facility for which the State issues an interim license pending satisfaction of a licensing standard (for example, waiting on the results of a criminal records check or the completion of training).
The Federal statute requires licensed or approved foster care facilities to conform fully to the same standards within the State that the State establishes for similarly situated foster family homes and childcare institutions operating to provide foster care. Past confusion in the field about the Federal statutory terminology of "licensed" and "approved" led States to interpret incorrectly that the statutes allowed a two-tiered system for certifying foster family homes. Consequently, the final rule that was published on January 25, 2000, amended the Federal statutory definition of foster family homes to clarify that the statutes do not make a distinction between a licensed foster family home and an approved foster family home. The definition also reiterates the prohibition on provisional licenses for foster family homes.
The term "licensed" will be used in this review guide to denote foster care facilities that meet all of the State's standards for full licensure, approval, certification, or other synonymous term.
For a foster family home licensed before March 27, 2000, Federal reimbursement will be allowed for the period of March 27, 2000, through September 27, 2000, if the home did not meet full licensure status for that period. These foster family homes, including those licensed by a child-placing agency, must meet full licensure beginning October 1, 2000.
For a foster family home licensed on or after March 27, 2000, there is no grace period to allow the foster care provider to come into compliance with the requirement for full licensure. These foster family homes, including those licensed by a child-placing agency, must meet full licensure beginning April 1, 2000.
For a childcare institution, there is no grace period to allow the foster care provider to come into compliance with the requirement for full licensure regardless of when licensed because it was not necessary to clarify within the final rule the statutory definition of a childcare institution.
The title IV-E foster care eligibility review does not evaluate the adequacy of a State agency's licensing standards or the State agency's compliance with the standards it established for full licensure, unless the licensing standards pertain to the safety of the foster care facility. This is because §471(a)(10) of the Act grants to States the responsibility for setting uniform standards of licensure. A State's failure to adhere to its licensure protocol is treated as an issue of compliance with §471(a)(10) of the Act and the State plan under title IV-E. If it is determined during the course of the eligibility review that a State agency gave full licensure status to a foster care facility that may not have complied with the State's standards, it should be reported as an observation in the final findings of the eligibility review. The lapsed license of a child-placing agency that has State authority to license foster family homes that it administers also should be reported as an observation in the final findings rather than as an eligibility issue. Following the eligibility review, 45 CFR §1355.32(d) authorizes the ACF Regional Office to explore whether the issue of concern constituted a violation of the State plan requirements and whether corrective measures are necessary.
Through the provisions at 45 CFR §1356.71, the title IV-E foster care eligibility review substantiates that the child's foster care placement was fully licensed for the entire time the child resided in the placement during the PUR, and that the placement type complied with the Federal definition of an eligible foster care facility. Federal regulations at 45 CFR §1355.20(a) define an eligible foster care facility as a foster family home, group home, public institution of 25 or fewer children, private non-profit childcare institution, or for-profit childcare institution. A facility that does not fall into one of these categories is not eligible for Federal matching funds. The certificate of licensure, a letter of approval, or other documentation similar in purpose may satisfy the documentation of full licensure. All documentation of licensure as a foster care facility must show that the home or childcare institution is fully licensed for the duration of the child's placement for the PUR, even when the foster care provider is an out-of-State facility.
Title IV-E foster care maintenance payments may not be made on behalf of a child placed in a foster family home or childcare facility that is not fully licensed. Nor may title IV-E foster care maintenance payments be made on behalf of a child before the month the foster family home or childcare institution attained full licensure. When title IV-E foster care maintenance payments and administrative costs are claimed during the PUR in either situation, the case will be in error and the ineligible title IV-E foster care maintenance payments and administrative costs will be disallowed for the entire time the ineligible payments are claimed. In addition, when title IV-E foster care maintenance payments and administrative costs are claimed solely outside the PUR in respect to either situation described here, the case will not be in error for this reason, but the improper title IV-E foster care maintenance payments and administrative costs will be disallowed for the entire time the ineligible payments are claimed.
State agencies may claim title IV-E reimbursement during the period between the date a foster care facility satisfied all of the State's requirements for licensure and the date the actual licensing document was issued, not to exceed 60 days. The 60-day period begins when the State agency obtains all of the necessary documentation to substantiate the facility's full compliance with the State's licensure standards. In determining the period of eligibility, any foster family home or childcare institution that is licensed for a portion of a month is considered licensed the entire month. However, Federal maintenance payments may be claimed only for the portion of the month the otherwise eligible child resided in the licensed foster family home or childcare institution. The State's policy regarding when and how licenses lapse is given preference when considering whether a foster care facility was fully licensed during the period that intervenes the license lapse and license renewal. Although maintenance payments may not be claimed for an unlicensed foster family home, Federal financial participation (FFP) may be claimed for the administrative costs associated with an otherwise title IV-E eligible child placed in an unlicensed foster family home, in accordance with Program Instruction ACYF-CB-PI-02-08. In addition, FFP may not be claimed for the maintenance costs associated with an otherwise title IV-E eligible child placed in an unlicensed foster family home if that home is licensed or approved as a facility other than a foster care facility, such as a pre-adoptive family home.
Safety Requirements for Children Placed in Foster Care
To ensure that a child is not placed in a foster care setting where the potential caregiver has caused or is likely to cause harm to a child, §471(a)(20) of the Act and 45 CFR �1356.30 require States to examine the potential safety risks posed to the child by a foster care provider. The State agency must document that the foster care provider meets the established safety standards before a child is placed with the foster care provider and before title IV-E foster care maintenance payments are claimed for the foster care provider. Although the statutes specify compliance with the safety requirements as a condition of full licensure, compliance with the safety provision is assessed as a separate requirement for purposes of the eligibility review.
For a State that has not opted out of the criminal records check provision, the State agency must conduct or require the conduct of criminal record checks for prospective foster parents. A prospective foster parent is considered to be any foster parent who is licensed on or after November 19, 1997, or the date approved by ACF that permits the State agency to delay implementation of the criminal records mandate. To ensure that a foster parent is in compliance with the respective timeframe, during the eligibility review the State agency must provide documentation of the approval by ACF of the State agency's delayed implementation date. The Federal provisions pertaining to the criminal records check include those prospective foster parents operating under the auspices of a child-placing agency. The safety requirement does not extend to foster family homes licensed or approved before November 19, 1997.
For applicable States, the State agency must provide documentation that criminal records checks are conducted with respect to each prospective foster parent in a foster family home and that a prospective foster parent is not convicted of any of the felonies enumerated in §471(a)(20) of the Act. It is not sufficient to document that a request was made for a criminal records check. The State agency must provide evidence of the determination that the prospective foster parent's background check complies with Federal and State law and regulations (where applicable). Documentation must be provided even when the child is placed with a prospective foster parent who lives out-of-State. Acceptable documentation to satisfy the criminal record check requirement is evidence that contains the results of the criminal records check and that substantiates that the requirement is met for the duration of the child's placement for the PUR.
For a State that has opted out of the criminal records check provision, a State agency in accordance with 45 CFR §1356.30(e) must establish procedures to determine whether a prospective foster family home presents a potential safety risk for a child placed in its care. The mechanism used to satisfy the safety requirement should be written into State policy, procedures, or statutes, and reflected in the licensing documentation. The Federal provisions include those prospective foster parents operating under the auspices of a child-placing agency and those residing out-of-state. The safety requirement does not extend to foster family homes licensed or approved before March 27, 2000. For applicable States, the State agency must provide documentation that verifies that for the duration of the child's placement during the PUR the prospective foster parent has met the safety criteria. Documentation must be provided even when the child is placed in an out-of-state foster family home. If the foster parent did not meet the safety requirements, title IV-E foster care payments cannot be made on behalf of a child placed in the foster family home. The State agency will be expected to adhere to the safety standards established within the State's law and the State agency will be scrutinized, accordingly.
For childcare institutions, 45 CFR §1356.30(f) requires States to set procedures that address safety considerations with respect to the staff of the institution. The mechanism used to satisfy the safety requirement should be written into State policy, procedures or statutes, and incorporated into the licensing documentation. The safety requirement is applicable to all childcare institutions operating as foster care facilities licensed on or after March 27, 2000.
The State agency must provide documentation verifying that safety considerations with respect to the staff of the institution are satisfied for the duration of the child's placement for the PUR. The State agency documentation must demonstrate that the staff of the childcare institution meets the safety criteria that the State establishes, even when the child is placed in an out-of-State institution. If the childcare institution does not meet the safety requirements of the State, title IV-E foster care payments cannot be made on behalf of a child who is placed in the foster care facility. The State agency will be expected to adhere to the safety standards the State established for childcare institutions and the State agency will be scrutinized, accordingly.
In general, if it is determined that a foster care provider does not meet the safety requirement, title IV-E foster care payments cannot be made for a child who is placed in the foster family home or childcare institution. Nor may title IV-E foster care maintenance payments be made on behalf of a child before the month the foster family home or childcare institution complies with the safety requirement. When title IV-E foster care maintenance payments and administrative costs are claimed during the PUR in either situation, the case will be in error and the title IV-E foster care maintenance payments and administrative costs will be disallowed for the entire time the ineligible payments are claimed. In addition, when title IV-E foster care maintenance payments and administrative costs are claimed solely outside the PUR in respect to either situation described here, the case will not be in error for this reason, but the title IV-E foster care maintenance payments and administrative costs will be disallowed for the entire time the ineligible payments are claimed.
For further information on the title IV-E foster care eligibility requirements, refer to 45 CFR §1356.21 and 45 CFR §1356.71. Also refer to the Child Welfare Policy Manual that is posted on the Children's Bureau Web site at http://www.acf.hhs.gov/programs/cb/laws_policies/laws/cwpm/index.jsp.
