No. 28750 (New Rule): R512-308. Out of Home Services, Guardianship Services and Placements

DAR File No.: 28750
Filed: 05/18/2006, 01:19
Received by: NL

 

RULE ANALYSIS

Purpose of the rule or reason for the change:

The Division needs to create this rule in order to clarify its guardianship services and placements.

 

Summary of the rule or change:

The Division will offer guardianship services to families who have custody of a minor child transferred to them from the state.

 

State statutory or constitutional authorization for this rule:

Sections 62A-4a-105 and 78-3a-103

 

Anticipated cost or savings to:

the state budget:

After careful analysis by the Finance Director for the Division, it was determined that this new rule will not increase costs or savings to the Division because this is clarifying conditions under which a subsidy can be given. Services will be provided within the current budget.

 

local governments:

After a careful review by the Finance Director for the Division of possible impact on local government, it was determined that there will be no increased costs or savings because this is clarifying conditions under which a subsidy can be given.

 

other persons:

After careful analysis by the Finance Director for the Division, it was determined that the families affected by this new rule will not see an increase in costs or savings because this is clarifying conditions under which a subsidy can be given.

 

Compliance costs for affected persons:

The Finance Director for the Division determined that affected persons involved with the Division should not see an increase in costs or savings because this is clarifying conditions under which a subsidy can be given.

 

Comments by the department head on the fiscal impact the rule may have on businesses:

There will be no impact on businesses. Lisa-Michele Church, Executive Director

 

The full text of this rule may be inspected, during regular business hours, at the Division of Administrative Rules, or at:

Human Services
Child and Family Services
120 N 200 W
SALT LAKE CITY UT 84103-1500

 

Direct questions regarding this rule to:

Carol Miller or Adam F Trupp at the above address, by phone at 801-538-4451 or 801-538-4462, by FAX at 801-538-3993 or 801-538-4016, or by Internet E-mail at [e-mail] or [e-mail]

 

Interested persons may present their views on this rule by submitting written comments to the address above no later than 5:00 p.m. on:

07/17/2006

 

This rule may become effective on:

07/25/2006

 

Authorized by:

Richard Anderson, Director

 

 

RULE TEXT

R512. Human Services, Child and Family Services.

R512-308. Out of Home Services, Guardianship Services and Placements.

R512-308-1. Purpose and Authority.

A. Guardianship services and placements provide a permanent, safe living arrangement for a child in the court-ordered custody of the Division or Department when it is not appropriate for the child to return home or be adopted, and continuing agency custody is not in the child's best interest.

B. Guardianship services are authorized by Sections 62A-4a-105(6) and 78-3a-103.

 

R512-308-2. Definitions.

A. "Child and Family Team" means a group that meets together as often as needed and works to support the family and assist them in meeting their needs. This may include the referent or other concerned individuals identified by the family as support persons.

B. "Guardianship" has the same meaning as defined in Section 78-3a-103.

C. "Division" means the Division of Child and Family Services.

 

R512-308-3. General Guardianship Qualifying Factors.

A. General qualifying factors apply for both relative and non-relative guardianship, and all factors must be met.

1. The child cannot safely return home. This requirement is met if the court determines that reunification with the child's parents is not possible or appropriate and the Child and Family Team and regional screening committee agree that adoption is not an appropriate plan for the child.

2. The parent and child have a significant bond but the parent is unable to provide ongoing care for the child, such as an emotional, mental, or physical disability, and the child's current caregiver has committed to raising the child to the age of majority and to facilitate visitation with the parent.

3. The prospective guardian must:

a. Be able to maintain a stable relationship with the child;

b. Have a strong commitment to providing a safe and stable home for the child on a long-term basis;

c. Have a means of financial support and connections to community resources; and

d. Be able to care for the child without Division supervision.

4. The child has no ongoing care or financial needs beyond basic maintenance and does not require the services of a case manager.

5. There are compelling reasons why the child cannot be adopted, such as when the child's tribe has exclusive jurisdiction or the tribe has chosen to intervene in the adoption proceedings. Under the Indian Child Welfare Act (ICWA) of 1978, Public Law No. 95-608, 92 Stat. 3069 codified at 25 U.S.C. 1901-63, a tribe has the right to determine the child's permanency. For this reason, the tribe has the authority to approve guardianship with the current caregiver.

 

R512-308-4. Non-Relative Qualifying Factors.

A. In addition to general qualifying factors in R512-308-3, all of the following factors apply to non-relative guardianship and must be met.

1. The child is in the Division's legal custody and has been in custody for at least 12 consecutive months. If this is a sibling group, at least one child must have been in custody for 12 consecutive months.

2. The prospective guardian is a licensed foster parent.

3. The child has lived for at least six months in the home of the prospective guardian. The regional director or designee may waive the six-month placement requirement for sibling groups if at least one sibling has been in the home for six months and meets all other eligibility criteria.

4. A Child and Family Team has formally assessed the placement and found that continuation with the caregiver is in the child's best interest and supports the safety, permanency, and well-being of the child.

5. The Division has no concerns with the care the child has received in the home.

6. The child has a stable and positive relationship with the prospective guardian.

7. The child has reached the age of 12 years. The regional director or designee may waive the age requirement for members of a sibling group placed with a non-relative if at least one sibling is 12 years of age or older and meets all other guardianship criteria and adoption is not the best permanency option for the younger children.

 

R512-308-5. Relative Qualifying Factors.

A. In addition to general qualifying factors found in R512-308-3, all of the following factors apply for relative guardianship and must be met.

1. The child's prospective guardian is a relative who meets the relationship requirements of the Department of Workforce Services Specified Relative Program, which currently includes:

a. Grandfather or grandmother;

b. Brother or sister;

c. Uncle or aunt;

d. First cousin;

e. First cousin once removed (a first cousin's child);

f. Nephew or niece;

g. Persons of preceding generations as designated by prefixes of grand, great, great great, or great great great;

h. Spouses of any relative mentioned above even if the marriage has been terminated;

i. Persons that meet any of the above-mentioned relationships by means of a step relationship; or

j. Relatives that meet one of these relationships by legal adoption.

2. If not licensed as a foster parent, the relative has completed kinship screening, including a home study and background checks, in accordance with kinship practice guidelines.

3. The child's needs may be met without continued Division funding. In order to be considered for a guardianship subsidy, the prospective relative guardian must be a licensed foster parent and demonstrate that they cannot qualify for a Specified Relative Grant through the Department of Workforce Services as outlined in R512-308-6.

 

R512-308-6. Guardianship Subsidy Availability, Scope, Duration.

A. Guardianship subsidies are available to meet the care and maintenance needs for children in foster care:

1. For whom guardianship has been determined as the most appropriate primary goal.

2. Who do not otherwise have adequate resources available for their care and maintenance.

3. Who meet the qualifying factors described in R512-308-4 Non-Relative Qualifying Factors and who cannot qualify to receive a Specified Relative Grant from the Department of Workforce Services.

a. The caseworker must be provided with a copy of a denial letter from the Department of Workforce Services or written proof that the relationship requirements do not apply, such as through relevant birth certificates.

b. Approval from the regional guardianship screening committee and regional administration is required in making this determination.

B. If a prospective guardian is found to be receiving both a Specified Relative Grant and guardianship subsidy for the same child, the caseworker will notify the Department of Workforce Services and appropriate actions may be taken for repayment.

C. Guardianship subsidies are available through the month in which the child reaches age 18.

D. Each region may establish a limit to the number of eligible children who may receive guardianship subsidies.

E. Guardianship subsidies are subject to the availability of state funds designated for this purpose.

 

R512-308-7. Regional Guardianship Subsidy Screening Committee.

A. Each region shall establish at least one regional guardianship subsidy screening committee. This committee may be combined with another appropriate committee, such as the adoption subsidy committee or placement committee.

B. The regional guardianship subsidy screening committee shall be comprised of at least five members. A minimum of three members must be present for making decisions regarding a guardianship subsidy. Decisions shall be made by consensus.

C. The regional guardianship subsidy screening committee is responsible to:

1. Verify that a child qualifies for a guardianship subsidy.

2. Approve the level of need and amount of monthly subsidy for initial requests, changes, and renewals.

3. Document the committee's decisions.

4. Coordinate supportive services to prevent disruptions and preserve permanency.

 

R512-308-8. Determining Guardianship Subsidy Amounts.

A. The regional guardianship subsidy screening committee will determine the subsidy amount by considering the special needs of the child and the circumstances of the guardian family. The caseworker presents to the committee information regarding the special needs of the child, the guardian family income and expenses, and/or the guardian family's special circumstances.

B. All of the following factors must be considered when determining the amount of the monthly subsidy to be granted:

1. All sources of financial support for the child including Supplemental Security Income, Social Security benefits, and other benefits. The regional guardianship subsidy committee may require verification of financial support.

a. If a child is receiving benefit income and the income can continue after guardianship is granted, this amount will be deducted from the guardianship subsidy amount.

b. The guardianship subsidy should not replace other available income, such as Supplemental Security Income.

C. A guardianship subsidy will not exceed the levels indicated in Level I and Level II below, and may be less based upon the ongoing needs of the child and the needs of the guardian family.

1. Guardianship Level I (Basic): Guardianship Level I is for a child who may have mild to moderate medical needs, psychological, emotional, or behavioral problems, and who requires parental supervision and care. The amount of guardianship subsidy for a child whose needs are within Level I may be any amount up to the lowest basic foster care rate.

2. Guardianship Level II (Specialized): Guardianship Level II is for a child who may be physically disabled, developmentally delayed, medically needy or medically fragile, or have a serious emotional disorder. The amount of the guardianship subsidy may range from the lowest basic foster care rate to the lowest specialized foster care rate.

D. Children who are receiving the structured foster care rate in foster care or who are in a group or residential setting are considered for the Guardianship Level II rate.

E. Guardianship subsidies may not exceed the Guardianship Level II rate.

F. Guardianship subsidies are funded with state general funds within regional foster care budgets. A region has the discretion to limit the number of guardianship subsidies or reduce guardianship subsidy rates based on the availability of funds.

G. Changing the amount of the guardianship subsidy.

1. The amount of a guardianship subsidy does not automatically increase when there is a foster care rate change or as the child ages.

2. A guardian may request a guardianship subsidy review when seeking an increase in the guardianship subsidy amount, not to exceed the maximum amount allowable for the child's level of need. The guardian must complete the Request for Subsidy Increase Form to provide documentation to justify the request.

3. The request must be reviewed and approved by the regional guardianship subsidy screening committee. If approved, a new Guardian Subsidy Agreement will be completed.

4. The Division must provide written notice of agency action by certified mail at least 30 days in advance if a guardianship subsidy rate is going to be reduced.

 

R512-308-9. Guardianship Subsidy Agreement.

A. A Guardianship Subsidy Agreement specifies the terms for financial support for the child's basic needs.

B. A guardianship subsidy worker will complete the Guardianship Subsidy Agreement.

C. The effective date of the initial agreement is the date of the court order granting guardianship.

D. A Guardianship Subsidy Agreement must:

1. Be signed by the guardian and the Division prior to any payments being made.

2. Identify the reason a subsidy is needed.

3. List the amount of the monthly payment.

4. Identify dates the agreement is in effect.

5. Identify responsibilities of the guardian.

6. Identify under what circumstances the agreement may be amended or terminated and the time period for agreement reviews.

7. Include a provision for a reduction or termination in the amount of the guardianship subsidy in the event a legislative or executive branch action affects the Division's budget or expenditure authority, making it necessary for the Division to reduce or terminate guardianship subsidies or if a regional office determines that reduction is necessary due to regional budget constraints.

8. Include a provision for assignment of benefits to the Office of Recovery Services in accordance with the Office of Recovery Services requirements.

9. Include a provision for re-payment of any financial entitlement made by the Department or Division to the guardian that was incorrectly paid.

 

R512-308-10. Notification Regarding Changes.

A. The guardian must notify the Division if:

1. There is no longer a need for a guardianship subsidy.

2. The guardian is no longer legally responsible for the support of the child.

3. The guardian is no longer providing any financial support to the child or is providing reduced financial support for the child.

4. The child no longer resides with the guardian.

5. The guardian has a change in address.

6. The child has run away.

7. The guardian is planning to move out-of-state.

 

R512-308-11. Reviews, Renewals, and Recertifications.

A. Reviews:

1. A guardianship subsidy worker will review each Guardianship Subsidy Agreement annually. The family situation, child's needs, and amount of the guardianship subsidy payment may be considered.

2. Prior to review, the guardian must complete the Guardianship Subsidy Recertification form provided by the Division to verify that the guardian continues to support the child. If the Recertification form is not received after adequate notice, the guardianship subsidy may be delayed or face possible termination.

B. Renewals:

1. In order for guardianship assistance payments to continue, this agreement shall be renewed at intervals of up to three years until the child's 18th birthday.

2. The Department or Division shall provide written notification to the guardians before the next renewal date and shall supply the guardian with the appropriate forms.

3. The Department, the Division, and the guardian may negotiate the terms of a new agreement at any time. In order to be effective, all new agreements shall be in writing, on a form approved by the Department or the Division, and signed by the parties. Oral modifications or agreements shall bind the Department, the Division, and the guardian.

C. Recertification:

1. In order for guardianship assistance payments to continue, the guardian must recertify annually by completing and submitting the Annual Guardianship Assistance Recertification form to the Department or the Division.

 

R512-308-12. Appeals/Fair Hearings.

A. When a decision is made to deny, reduce, or terminate a guardianship subsidy, the Division shall send by certified mail a written Notice of Agency Action. The notice shall also include information about how to request a fair hearing.

 

R512-308-13. Termination.

A. A Guardianship Subsidy Agreement will be terminated if any of the following circumstances occur:

1. The terms of the agreement are concluded.

2. The guardian requests termination.

3. The child reaches age 18 years.

4. The child dies.

5. The guardian parent dies or, in a two parent family, if both guardian parents die.

6. The guardian parents' legal responsibility for the child ceases.

7. The Department or Division determines that the child is no longer receiving financial support from the guardian parent.

8. The child marries.

9. The child enters the military.

10. The child is adopted.

11. The child is placed in foster care.

12. The Department or Division determines that funding restrictions prevent continuation of subsidies for all guardians.

B. A guardianship subsidy payment may be terminated or suspended, as appropriate, if any of the following occur. The decision to terminate or suspend must be made by the regional guardianship subsidy screening committee.

1. The child is incarcerated for more than 30 days.

2. The child is out of the home for more than a 30-day period or is no longer living in the home.

3. The guardian fails to return the annual Recertification form or to complete the renewed Guardianship Subsidy Agreement within five working days of the renewal date.

4. There is a supported finding of child abuse or neglect against the guardian.

 

KEY: foster care, guardianship

Date of Enactment or Last Substantive Amendment: July 25, 2006

Authorizing, Implemented, or Interpreted Law: 62A-4a-105, 78-3a-103