Opinion: Subsidy & Referral to Support Collection

Prior to 1995, 18 NYCRR §422.3 stated explicitly that “the amount of support sought …shall not exceed the amount of the subsidy payment which the parent receives.” In 1995, this language was removed from the regulations. In the revised regulations, the key to the amount of support adoptive parents who receive a subsidy can be required to pay if their child returns to foster care, however, lies not just with 18 NYCRR §422.3, but with the entire overhaul of the rule. An analysis of the Final Rule and Comments/Response to Comments for the Child Support Regulations identified as number SCS-42-94-00005-A dated August 16, 1995 in the New York State Register proves helpful in making the case that adoptive parents whose children must return to foster care should only be responsible for support in the amount of their adoption subsidy payments.

First, the text of the new rule, 18 NYCRR §347.2 does make clear that the definition of an “absent parent” includes an “adoptive parent … where such parent was present in the household when the child entered foster care.” Also, a “former custodial parent,” as referenced in 18 NYCRR §422.1″ means the parent to whom a court order granted legal custody…if such order was in effect when the child entered foster care.” From these definitions, an adoptive parent clearly falls under the purview of parents who may be referred to the Child Support Enforcement Unit.

The rule protects the integrity of families even as it requires support of children in foster care. The new text of 18 NYCRR §422.4(a)(l) includes a prohibition that “Social services districts are prohibited from making referrals of approved applications for foster care maintenance payments to the child support enforcement unit … if the appropriate social services official determines that such referral will adversely affect the health, safety or welfare of the child on whose behalf such payments are to be made or other persons in the child’s household or will adversely affect the length of the child’s placement or impair the ability of the child to return home when discharged from foster care ….” (emphasis added). This section clearly considers the fact that requiring a family to pay the costs of foster care may be financially devastating to them.

Although this provision is not limited to adoptive families, it is still applicable to them.  When we hear of situations where the cost of foster care would exceed the cost of a family’s mortgage and could cause them to “lose their home,” this provision – coupled with significant documentation — could be essential to reversing the referral. Clearly, losing one’s home will not only adversely affect “others in the child’s household,” but it could also “impair the ability of the child to return home” if the family is financially devastated by the cost of foster care. This sort of devastation is prohibited under 18 NYCRR §422.4. The rule, however, does not contemplate generalized exclusions based on economic status because such an exclusion would eliminate the “possibility of case-specific determinations.” (See Response to Comment, New York State Register, August 16, 1995, p. 28).

In addition to the prohibition against an adverse affect on the child or others in the home, the new rule requires that “Parents must be informed of their legal obligations to contribute towards the costs of their children’s foster care when applications for foster care are made.” [18 NYCRR §422.5(a)] Thus, no family, adoptive or otherwise, should be surprised by the demand for payment for foster care services. Further, this provision may provide an argument that adoptive parents should be informed before their adoptions are finalized that this sort of demand for payment may surface if their child must return to care.

Finally, the social services district is required to “determine the costs of foster care for each child for whom a referral is made.” [18 NYCRR §422.5(d)(3)]. By definition, these costs are either 1) the costs of care and maintenance of the child plus other expenses incurred and administrative costs associated with the placement [18 NYCRR §422.5(d)(3)(i & ii)] or 2) “those costs that are equivalent to the amount of any adoption subsidy payment provided in accordance with section 421.24 of this Title.” [18 NYCRR §422.5(d)(3)(iii)]. Therefore, by definition, the costs of the foster care placement should not exceed the amount of the subsidy. The only caveat is that in addition to the above definitions of support, the section states that “[n]othing herein is intended to preclude the right of the State and social services district to recover from the parents the costs of any medical assistance paid on behalf of the child:’ [18 NYCRR §422.5(d)(3)(iii)].  Thus, arguably, adoptive parents could be required to pay their subsidy plus the cost of medical assistance. Still, it is important to note that the costs of foster care itself should not exceed the amount of the adoption subsidy.

To further bolster the point, one must refer to a comment made concerning this rule when it was proposed. The commenter raised the point that making a referral for child support when adoption subsidies were-being paid would be “unnecessarily burdensome” to the social services district. (Comment, New York State Register, Aug. 16, 1995, p. 28). The response of the rule’s writers was that first, under Title IV-E of the Social Security Act, the subsidy payments must continue until the state determines that the parents are no longer legally responsible for the child or until the child is no longer receiving any support from the parents. More importantly for the purposes of this memo, the rule’s writers state “Nothing prevents the State … from seeking an order requiring parents who receive adoption subsidy payments on behalf of a child who enters foster care to contribute toward the costs of care for that child.” (Response to Comments, New York State Register, Aug. 16, 1995, p. 28). This response suggests that although the state has the authority to seek contribution from the adoptive parents, it is by no means required to seek contribution. This response also suggests that the construction of the rule did not necessarily contemplate that those receiving an adoption subsidy would be required to pay child support equaling the amount of the subsidy; it certainly follows that payment over and above the amount of the subsidy was not contemplated. The state “may” seek to require adoptive parents to contribute, but it is not required to do so.

Therefore, the mere elimination of the language in 18 NYCRR §422.3 that “the amount of support … shall not exceed the amount of the subsidy payment which the parent receives,” does not necessarily connote a shift in the meaning of the regulation which would require the adoptive parents to provide support over and above the amount of their subsidy. Instead, the broader construction of the regulations may be read to maintain the earlier protections for adoptive parents.

Source: Memo to Judith Ashton from Kelly M. Corbett, Esq., former AFFCNY Program Director, June, 12, 2000.   See New York State Title 18 Code Rules and Regulations , Subchapter C, Article 2 for text of 18 NYCRR §422.4 prohibiting referral to support collection if such referral adversely affects the health, safety or welfare of the child on whose behalf such payments are to be made.

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