Items that have been deleted can be seen by clicking the Deleted link. 8.4A TITLE IV-E, General Title IV-E Requirements, AFDC Eligibility 15. How is the $10,000 resource limit to be applied in determining eligibility for title IV-E? 16. May States adjust the 1996 standard of need to reflect cost of living adjustments? 1. Question: Section 108 (d) of the Personal Responsibility Work Opportunity Reconciliation Act (PRWORA) (as amended by the Balanced Budget Act of 1997, P.L. 105-33) links eligibility for Federal foster care and adoption assistance to the Aid to Families with Dependent Children (AFDC) program as it was in effect on July 16, 1996. Section 401(a) of PRWORA limits Federal public benefits to "qualified aliens." The term "qualified alien" was not defined or in use on July 16, 1996. How are States to apply these two provisions? Show History Answer: Alien children must be eligible for AFDC under a State's July 16, 1996 plan and must also meet the PRWORA definition of "qualified alien" to be eligible for Federal foster care maintenance or adoption assistance (except that children receiving adoption assistance pursuant to agreements signed before August 22, 1996 may continue to receive such assistance).
Answer: The child is not eligible for title IV-E foster care unless the AFDC deprivation requirement is met. Incapacity of a parent is one of the reasons a child may be determined to be deprived of parental support or care under AFDC (reference section 406 (a) and 407 of the Act (as such sections were in effect on July 16, 1996) and 45 CFR 233.90 (c)(1)(i)). Eligibility ends when the parent is no longer incapacitated, unless a different reason for deprivation has emerged, such as death or absence from the home.
Answer: The inability to determine the whereabouts of the parent from whose home the child was removed does not preclude continuing eligibility for title IV-E foster care maintenance payments.
At the time of the twelve month redetermination of eligibility, both need and deprivation must be documented. Deprivation of parental support or care may be based on the death, continued absence from the home, physical or mental incapacity of a parent, or at State option, unemployment of the principal wage earner. If the whereabouts of the parent from whose home the child was removed cannot be determined by the State agency at the time of redetermination and documentation in the case record verifies the efforts made to locate the parent(s), then deprivation may be established based on continued absence from the home.
However, the continued absence of the parents from the home must be accompanied by factors such as set forth in 45 CFR 233.90 (c)(1)(iii): "...When the nature of the absence is such as either to interrupt or to terminate the parent's functioning as provider of maintenance, physical care, or guidance for the child, and the known or indefinite duration of the absence precludes counting on the parent's performance of the function of planning for the present support or care of the child."
While the specific circumstances of either of the parents may not be known to the agency, documentation of their continued absence is required in order to redetermine the child's eligibility for title IV-E foster care. The method for substantiation of the parents' absence is left to State policy and procedure.
If the child had been removed from the home of a relative rather than from the parent(s)' home, the relative's home is reviewed at the time of redetermination to establish continuing deprivation of parental support and care. If either or both parents are not in that household at redetermination, then the child is so deprived, based on continued absence of the parent(s) from that home.
On the other hand, the continued absence of parents from the home cannot be used as basis for determining that a child is initially deprived of parental support or care, in cases where there is an inability to document that the child had been living in the home of any parent or relative, e.g., in the case of an abandoned child.
Answer: If the child has not returned to his own home and has been continuously in a foster care status since removal from the home (whether or not the facility is eligible to receive payments under title IV-E), a redetermination of eligibility would be appropriate at the time he returned to a facility eligible for Federal financial participation (FFP).
A redetermination of the deprivation factor at that time would consist of a confirmation that the conditions at the time of removal from the home continued to exist or that termination of parental rights (TPR) had occurred. In the latter case, the TPR would, from that point and throughout this course of foster care, become the reason for continuing eligibility in terms of the deprivation factor.
If, however, the child is not continuously in foster care status and returns to the home of a relative that is considered to be his own home, then a subsequent re-entry into the foster care system requires a new (initial) determination of all eligibility factors.
In such a situation, where the child was living in the home of another relative after termination of parental rights and was later removed from the home of that relative, deprivation would then be based upon the absence of the parent(s) from the home of the relative, rather than TPR. (See section 406(a) (as in effect on July 16, 1996)).
Answer: If the State deems step-parent income available to the child pursuant to its July 16, 1996 AFDC State plan, step-parent income must be counted in determining title IV-E eligibility (45 CFR 233.30 (a)(3)(xiv)).
Answer: The AFDC regulations and procedures (45 CFR 233.20) are applicable in the title IV-E foster care maintenance payments program. In determining the eligibility of a child who is receiving foster care benefits under title IV-E, the amount of the child's gross income should be applied to 185% of the need standard, and eligibility would continue in terms of need as long as his gross income did not exceed that point. However, in applying the 185% test when determining initial eligibility, the State has the option to disregard the earned income of a dependent child who is a full time student. Once the child is receiving payments under the title IV-E program, the earned income of the child who is a full time student is disregarded indefinitely (402 (a)(8)(A)(i) and 402 (a)(8)(A)(vii)).
If a portion of the child's income is applied to the foster care maintenance cost, the State's claim for Federal financial participation should include only its share of the amount paid for foster care that has not been offset by the child's countable income.
Answer: The AFDC need standard should be used for determining eligibility for the title IV-E program. Section 472 (a) of the Social Security Act defines as eligible "a child who would meet the requirements of section 406 (a)... ;" as in effect on July 16, 1996 section 406 (a), in turn, refers to a "needy child," without reference to a payment standard. Reference to the need standard thus flows directly from the words of the statute. The IV-E program has never interpreted the reference to receipt of aid, in section 472 (a)(4), as excluding from foster care eligibility a needy child who did not or might not have actually received AFDC because of the payment standard.
Section 472 of the Social Security Act refers to the need standard at the outset, and does not subsequently distinguish between the need and payment standards; moreover, there is no such distinction recognized in the IV-E regulations. Consistent with that framework, the reference to receipt of aid in section 472 (a)(4) has been consistently understood to mean eligibility in accordance with the need standard.
Furthermore, when section 472 (a)(4) states: "received aid...in or for the month in which court proceedings leading to the removal...from the home were initiated," it is not using those words as an eligibility requirement but rather, referring to the point in time when the child meets the appropriate eligibility standards. Thus, sections 472 (a)(4)(A) and (B) are understood to refer to the times when the child met the 406 (a) standards.
Answer: Each child in foster care, whether placed alone or in the same foster care facility as his or her siblings, is considered a separate unit for purposes of determing eligibility for title IV-E foster care. Only income that is actually received by a child in foster care is counted as available to meet the child's needs and the income and resources of the foster child would not be considered as available to siblings placed or living in the same foster home.
Answer: No. A State's 1115 (a) waiver of AFDC requirements does not affect eligibility for title IV-E foster care maintenance or adoption assistance payments. Regardless of whether the rules and provisions of a State's section 1115 (a) waiver broaden or restrict AFDC eligibility, those waiver rules shall not be applied in making title IV-E eligibility determinations.
Answer: A specified relative is defined as any relation by blood, marriage or adoption who is within the fifth degree of kinship to the dependent child. This includes great-great-great grandparents and first cousins once removed (children of first cousins). Accordingly, for the purpose of determining title IV-E eligibility, any otherwise eligible child who is removed from the home of a relative who is within the fifth degree of kinship to the child will be eligible for assistance under title IV-E.
Answer: If a child's eligibility for title IV-E adoption assistance is based upon his or her eligibility for Aid to Families with Dependent Children (AFDC) as a dependent child, the State must determine that the child would have been AFDC-eligible in the home from which s/he was removed. To meet the AFDC criteria, the child must be both a needy child and a child who is deprived of parental support or whose principal wage earner parent is unemployed. Need exists in the child's home if the resources available to the family are below $10,000 and meets the income test (see section 8.4B Q/A #18 of the Child Welfare Policy Manual). Deprivation exists in the home in situations where there is death of a parent, an absent parent, or a parent with a mental or physical incapacity to the extent that the parent cannot support or care for the child. At the point of the removal of a child from his or her home, a termination of parental rights (TPR) alone is not proof that deprivation exists. The factors noted here must be established based on the circumstances in that home. If the child meets these AFDC criteria at removal, no further AFDC eligibility determination is needed for adoption assistance.
Answer: The effective date of the amendment to section 472(a) of the Social Security Act (the Act) made by the Foster Care Independence Act of 1999 is December 14, 1999. (Note: The Deficit Reduction Act of 2005 located the resource value provision for the foster care program at section 472(a)(3)(B) and for the adoption assistance program at section 473(a)(2)(A)(i)(I)(bb) of the Act).
Answer: No. As the title IV-A program, TANF should not be counted as income in determining title IV-E eligibility.
Answer: The Administration for Children and Families (ACF) and the Centers for Medicaid and Medicare Services (CMS) amended the definition of unemployed parent at 45 CFR 233.101(a)(1) in 1998 in response to the replacement of the former AFDC program with the Temporary Assistance for Needy Families (TANF) program. Each State was required to establish a reasonable standard for measuring unemployment in order to determine whether an individual qualified for benefits under TANF or Medicaid and whether a child met the AFDC portion of title IV-E eligibility. The amended regulation specifically permits States to consider hours of work, dollar amounts earned, and family size in establishing the reasonable standard of unemployment.
Answer: The Foster Care Independence Act of 1999 amended section 472(a) of the Social Security Act to authorize an increase in the value of resources allowable for title IV-E eligibility to $10,000. The $10,000 resource limit applies to the resources of the child and family for the purposes of determining initial AFDC/title IV-E eligibility and to the child only for ongoing title IV-E foster care eligibility. A State may not opt to set the combined value of resources at less than $10,000. (Note: The Deficit Reduction Act of 2005 located the resource value provision for the foster care program at section 472(a)(3)(B) and for the adoption assistance program at section 473(a)(2)(A)(i)(I)(bb) of the Social Security Act).
Answer: No. The Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA) did not include any allowance for cost of living or adjustments for inflation in setting the July 16, 1996 look-back date. States may not adjust the 1996 standard of need to reflect cost of living adjustments, since the statutory look-back date is set at a specific point in time.
Answer: No. The Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA) retained the connection between the title IV-E program and the AFDC program and established an AFDC "look-back date" of July 16, 1996. As such, TANF eligibility may not be substituted for an AFDC eligibility determination. States must use the title IV-A State plan that was in effect on July 16, 1996, to determine a child?s AFDC eligibility.
Answer: The AFDC program required that a child meet eligibility requirements related to both financial need (i.e., a "needy child") and deprivation of parental support. In response to the specific question, this answer addresses only the requirements for establishing that a child meets the requirements related to financial need under AFDC.
For initial eligibility determinations, the State must apply the former AFDC program's two-step income test to establish whether a child would have been considered a "needy child" under the State's title IV-A plan in effect on July 16, 1996. In addition to the income test, the State must apply a test of resources. Both the two-step income and resources tests must be applied, in accordance with 45 CFR 233.20. 1
Prior to the passage of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, each State set its own AFDC need standard to use in determining eligibility for the program. The term "AFDC need standard" refers to the amount of money a State determined that a particular size family needed to subsist. For title IV-E purposes, the State's need standard as of July 16, 1996, (disregarding any Section 1115(a) waivers that may have been in effect on that date) is the amount that provides the basis for both steps in the initial income test portion of the AFDC eligibility determination process.
The two-step income test to determine financial need under AFDC to be conducted in accord with Federal requirements and the State plan as in effect on July 16, 1996, is as follows (see 45 CFR 233.20(a)(3)(xiii) and 45 CFR 233.20(a)(3)(ii)(F)):
Step One of the Income Test-Gross Income Limitation: The State determines if the family's gross income is less than 185 percent of the State's AFDC need standard, after applying appropriate disregards. 2 If the family's gross income is more than 185 percent of the State's AFDC need standard, the child would have been ineligible for the program and, thus, is not eligible for title IV-E. If the family's gross income does not exceed 185 percent of the State's AFDC need standard, the State proceeds to the second step to continue the process of determining if a child is a needy child and would have been eligible for AFDC.
Step Two of the Income Test-Determination of Need: For this second step, the State compares the family's income, after applying further appropriate disregards, to 100 percent of the State's AFDC need standard, the same need standard used in step one. If the family's income is in excess of 100 percent of the State's need standard, the child would not have been eligible for AFDC and, thus, is not eligible for title IV-E. If the family's income does not exceed 100 percent of the need standard, the child would have met the AFDC income test for eligibility.
In addition to applying the two-step income test to determine if a child would have been considered a "needy child" under AFDC, the State must determine whether the child's family has resources under $10,000 in value, after appropriate disregards.3 Both the income and resources tests must be applied to the child and family in the removal home to determine initial eligibility for AFDC.
Redeterminations of title IV-E eligibility: Under AFDC, the two-step income test also applied to eligibility redeterminations. Since the 1980s, however, ACF has had policies in place that allow a State to use a slightly different process to redetermine a child's AFDC eligibility for the purpose of title IV-E. As stated in the Child Welfare Policy Manual at 8.4A #6, a State may choose to apply only the gross income limitation, which compares the child's income against 185 percent of the need standard. A State also may substitute a child's foster care need standard (formerly known as the "foster care payment rate") for the AFDC need standard when redetermining a child's eligibility. This policy remains in effect. Regardless of the income test the State applies, the $10,000 resources test also must be applied to redetermine a child's eligibility.
Under the AFDC foster care program, before the creation of title IV-E, a State used a child's foster care rate (referred to as the foster care need standard) as the need standard for redetermining the child's eligibility, rather than using the AFDC need standard. When AFDC was replaced by the Temporary Assistance for Needy Families (TANF) program in 1996, ACF issued policy (PIQ 96-01, Question #2) directing States to use the AFDC need standard for eligibility determinations, but did not explicitly prohibit the use of a child's foster care need standard for making redeterminations. Accordingly, States may use either the child's foster care need standard or the AFDC need standard for making redeterminations unless the Department issues a regulation that directs them otherwise.
1 The two-step process has been in place since 1981. See the 1994 Green Book, 14th Edition, July 15, 1994, Section 10 for more details on the two-step process.
2 The gross income limitation -the first step of the process- was increased from 150 percent to 185 percent of the need standard by the Deficit Reduction Act of 1984 (Public Law 98-369) and implemented through regulation at 45 CFR 233.20(a)(3)(xiii).
3 Public Law 106-169 increased the resource limit to $10,000. See the Child Welfare Policy Manual at 8.4A #15 for more information.
Answer: It is unlikely that a State would be able to determine title IV-E eligibility for an abandoned child whose parents are unknown. This situation differs from one in which a parent leaves a child with a friend or relative and is unreachable, but the identity of the parent is known. In either scenario, all of the title IV-E eligibility requirements must be met for a child on whose behalf title IV-E foster care or adoption assistance is claimed. This includes the requirement that the child meet the Aid to Families with Dependent Children (AFDC) eligibility requirements as outlined at section 472(a)(3) and 473(a)(2) of the Social Security Act. As such, the State must be able to establish and verify financial need and deprivation of parental support based on the home from which the child was removed. Determining a child's financial need requires a State to examine the parents' income and resources. In the case in which the identity of the parents is unknown, including when a child has been abandoned, the State will not have any financial information on which to make an AFDC eligibility determination. A State must document that a child meets all AFDC eligibility requirements; a State cannot presume that a child would meet the eligibility requirements simply because the child has been abandoned.
Answer: A determination of deprivation is always made in relation to the child's parent for AFDC eligibility purposes. Under no circumstances does the State look to the legal guardian to determine deprivation. Consistent with the provision in 45 CFR 233.90(c)(1)(i), "[t]he determination whether a child has been deprived of parental support or care is made in relation to the child's natural parent or, as appropriate, the adoptive parent or stepparent described in paragraph (a) of this section." Even when parental rights have been terminated and the child is removed from a relative legal guardian, the State must look to the situation of the parents to determine deprivation. When determining deprivation with respect to a child who is living with a relative legal guardian, a positive determination regarding deprivation can be made based upon the fact that the child is deprived of parental support due to continued absence. Although deprivation must be based on the child?s parent, this does not alter the requirement to determine whether the child would have met the AFDC criteria of financial need while living in the home of the specified relative from whom the child was removed (section 472(a)(3) of the Social Security Act and 45 CFR 1356.21(l)).
Answer: AFDC eligibility criteria, including deprivation, must be met in the month of, but prior to, the child's removal from the home. The State may not establish the child's deprivation based on household circumstances that occur after a child's removal. This is based on section 472(a)(1)(B) of the Social Security Act (the Act) which specifies that "the child, while in the home [emphasis added], would have met the AFDC eligibility requirement of [section 472(a)(3) of the Act]."
Answer: No. For title IV-E eligibility purposes, there is no requirement that the State use the same definition of "unemployed parent"as Medicaid and TANF. The State must use the definition that was in its Aid to Families with Dependent Children (AFDC) State plan on July 16, 1996, unless the State has used the authority under 45 CFR 233.101(a)(1) to apply a less restrictive definition to the title IV-E program.
Answer: If a child is removed from the non-parental specified relative through a contrary to the welfare judicial determination, or a valid voluntary placement agreement, the State determines financial need based on the financial situation of the child only. However, if the State's July 16, 1996 AFDC State plan required the State to consider non-parental relative income or resources, then the State must consider the relative's income and resources.
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