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Oregon State Archives

Oregon Bulletin

February 1, 2012

Department of Human Services,
Children, Adults and Families Division:
Child Welfare Programs
Chapter 413

Rule Caption: Changing OARs affecting Child Welfare programs.

Adm. Order No.: CWP 29-2011

Filed with Sec. of State: 12-27-2011

Certified to be Effective: 12-28-11

Notice Publication Date: 10-1-2011

Rules Amended: 413-020-0200, 413-020-0210, 413-020-0230, 413-020-0233, 413-020-0236, 413-020-0240, 413-020-0245, 413-020-0255

Subject: These rules about enhanced supervision and supervision planning are being changed because the Department is clarifying the structure in which decisions regarding level of care payments are made for guardianship assistance and adoption assistance. These rules are also being amended to fully implement the Fostering connection to Success and Increasing Adoptions Act of 2008 (122 Stat. 3949-3981) that provide for guardianship assistance payments and adoption assistance payments for eligible children up to age 21. These rules are also being amended to explain the Department’s responsibility for decision-making in level of care payments. Most of these rule changes make permanent changes adopted by temporary rule on June 30, 2011.

OAR 413-020-0200 about the purpose of the Department’s rules (OAR 413-020-0200 to 413-020-0255) regarding the Department’s responsibilities regarding enhanced supervision is being amended to clarify the purpose of the rules.

OAR 413-020-0210 about the definitions of key terms used in these rules is being amended to add current and remove and revise outdated definitions of certain terms used throughout these rules.

OAR 413-020-0230 about the referral for and review of the CANS screening is being amended to restate the referral and review of CANS screenings for children and young adults in substitute care and children and young adults receiving or about to receive guardianship assistance or adoption assistance.

OAR 413-020-0233 about when a supervision plan is required is being amended to restate when a supervision plan is or is not required subsequent to determination that a child needs enhanced supervision.

OAR 413-020-0236 is being amended to restate the Department responsibilities for supervision plans and use of physical restraint.

OAR 413-020-0240 is being amended to restate the limitations and reporting requirements when a physical restraint is used.

OAR 413-020-0245 is being amended to restate the monitoring responsibilities of the Department when a child or young adult has a supervision plan.

OAR 413-020-0255 is being amended to restate training required for planned use of physical restraint.

In addition, the above rules may also be changed to reflect new Department terminology and to correct formatting and punctuation.

Rules Coordinator: Annette Tesch—(503) 945-6067

413-020-0200

Purpose

The purpose of these rules (OAR 413-020-0200 to 413-020-0255), is to describe the responsibilities of the Department to:

(1) Identify the supervision needs of a child or young adult in substitute care with a certified family;

(2) Develop a supervision plan describing the actions and activities provided by a certified family, the Department, and other individuals to meet the child or young adult’s need for enhanced supervision;

(3) Describe the responsibilities of the certified family and the Department when physical restraint is used;

(4) Monitor the completion of behavior and crisis management training when physical restraint is included in a child or young adult’s supervision plan; and

(5) Conduct a CANS screening during the negotiation of guardianship assistance pursuant to OAR 413-070-0900 through 413-070-0974 or negotiation of adoption assistance pursuant to OAR 413-130-0000 through 413-130-0130.

Stat. Auth.: ORS 418.005

Stats. Implemented: ORS 418.005

Hist.: SCF 6-1995, f. 12-22-95, cert. ef. 12-29-95; SCF 4-1996, f. & cert. ef. 9-11-96; CWP 3-2003, f. & cert. ef. 1-7-03; CWP 6-2007, f. & cert. ef. 5-1-07; CWP 6-2009(Temp), f. & cert. ef. 7-1-09 thru 12-28-09; CWP 11-2009(Temp), f. & cert. ef. 9-25-09 thru 12-28-09; CWP 21-2009, f. & cert. ef. 12-29-09; CWP 9-2011(Temp), f. & cert. ef. 6-30-11 thru 12-27-11; CWP 29-2011, f. 12-27-11, cert. ef. 12-28-11

413-020-0210

Definitions

The following definitions apply to OAR 413-020-0200 to 413-020-0255:

(1) “Adoption assistance agreement” means a written agreement, binding on the parties to the agreement, between the Department and the pre-adoptive family or adoptive family of an eligible child or young adult, setting forth the assistance the Department is to provide on behalf of the child or young adult, the responsibilities of the pre-adoptive family or adoptive family and the Department, and the manner in which the agreement and amount of assistance may be modified or terminated.

(2) “Adoptive family” means an individual or individuals who have legalized a parental relationship to the child through a judgment of the court.

(3) “BRS” means Behavior Rehabilitation Services, a Medicaid funded program that provides behavioral intervention, counseling, or skill building services in a professional, shelter, or residential (including therapeutic foster care formerly referred to as proctor care) placement setting.

(4) “CANS screener” means an individual, who performs CANS screenings under the supervision of the Level of Care Manager, under a contract with the Department, and who annually completes the training in the use of the Oregon CANS Comprehensive Screening Tool with a documented reliability score of 0.70 or greater.

(5) “CANS screening” means Child and Adolescent Needs and Strengths screening, a process of gathering information on a child or young adult’s needs and strengths used for one or more of the following purposes:

(a) Identifying case planning, service planning, and supervision needs of the child or young adult in substitute care with a certified family;

(b) Determining the level of care payment while in substitute care with a certified family; and

(c) Determining the level of care payment included in an adoption assistance agreement or guardianship assistance agreement.

(6) “Certified family” means an individual or individuals who hold a current Certificate of Approval from the Department to operate a home to provide care, in the home in which he or she resides, to a child or young adult in the care or custody of the Department.

(7) “Certifier” means a Child Welfare employee who conducts assessments of applicants interested in providing relative or foster care to a child or young adult in the care or custody of the Department, determines whether or not to recommend approval of the operation of a relative care or foster home, and monitors the compliance of a relative care or foster care home with Child Welfare certification rules.

(8) “Child” means a person under 18 years of age.

(9) “Department” means Department of Human Services, Child Welfare.

(10) “Enhanced supervision” means the additional support, direction, observation, and guidance necessary to promote and ensure the safety and well-being of a child or young adult when the child or young adult qualifies for a level of care payment.

(11) “Foster parent” means an individual who operates a home that has been approved by the Department to provide care for an unrelated child or young adult placed in the home by the Department.

(12) “Guardian” means an individual who has been granted guardianship of the child through a judgment of the court.

(13) “Guardianship assistance” means assistance provided on behalf of an eligible child or young adult to offset the costs associated with establishing the guardianship and meeting the ongoing needs of the child or young adult. Guardianship assistance may be in the form of payments, medical coverage or reimbursement of nonrecurring guardianship expenses.

(14) “Guardianship assistance agreement” means a written agreement, binding on the parties to the agreement, between the Department and the guardian of an eligible child or young adult setting forth the assistance the Department is to provide on behalf of the child or young adult, the responsibilities of the guardian and the Department, and the manner in which the agreement and amount of assistance may be modified or terminated.

(15) “Level of care payment” means the payment provided to an approved or certified family, a guardian, a pre-adoptive family or an adoptive family based on the child or young adult’s need for enhanced supervision as determined by applying the CANS algorithm to the results of the CANS screening.

(16) “Mechanical restraint” means the use of any physical device to involuntarily restrain the movement of all or a portion of a child’s body as a means of controlling his or her physical activities in order to protect the child or other persons from injury. Mechanical restraint does not apply to movement restrictions stemming from medicinal, dental, diagnostic, or surgical procedures which are based on widely accepted, clinically appropriate methods of treatment by qualified professionals operating within the scope of their licensure.

(17) “Participating tribe” means a federally recognized Indian tribe in Oregon with a Title IV E agreement with the Department.

(18) “Physical restraint” means the act of restricting a child or young adult’s voluntary movement as an emergency measure to manage and protect the child or young adult or others from injury when no alternate actions are sufficient to manage the child or young adult’s behavior. Physical restraint does not include temporarily holding a child or young adult to assist him or her or assure his or her safety, such as preventing a child from running onto a busy street.

(19) “Potential guardian” means an individual who:

(a) Has been approved by the Department or participating tribe to be a child’s guardian; and

(b) Is in the process of legalizing the relationship to the child through the judgment of the court.

(20) “Pre-adoptive family” means an individual or individuals who:

(a) Has been selected to be a child’s adoptive family; and

(b) Is in the process of legalizing the relationship to the child through the judgment of the court.

(21) “Relative caregiver” means an individual who operates a home that has been approved by the Department to provide care for a related child or young adult placed in the home by the Department.

(22) “Seclusion” means the involuntary confinement of a child alone in a specifically designed room from which the child is physically prevented from leaving.

(23) “Supervision plan” means a documented set of strategies that is developed to assist a relative caregiver or foster parent in providing the additional support, observation, direction, and guidance necessary to promote and ensure a child or young adult’s safety and well-being.

(24) “Young adult” means a person aged 18 through 20 years.

Stat. Auth.: ORS 418.005 & 418.340

Stats. Implemented: ORS 418.005, 418.330, 418.335 & 418.340

Hist.: SCF 6-1995, f. 12-22-95, cert. ef. 12-29-95; SCF 4-1996, f. & cert. ef. 9-11-96; SCF 8-1997, f. 8-12-97, cert. ef. 8-25-97; CWP 3-2002, f. & cert. ef. 1-7-03; CWP 6-2007, f. & cert. ef. 5-1-07; CWP 6-2009(Temp), f. & cert. ef. 7-1-09 thru 12-28-09; CWP 11-2009(Temp), f. & cert. ef. 9-25-09 thru 12-28-09; CWP 21-2009, f. & cert. ef. 12-29-09; CWP 9-2011(Temp), f. & cert. ef. 6-30-11 thru 12-27-11; CWP 29-2011, f. 12-27-11, cert. ef. 12-28-11

413-020-0230

Referral for and Review of the CANS Screening

(1) The caseworker of the child or young adult must complete a CANS screening referral:

(a) Within the first 20 days of a child’s initial placement in substitute care with a certified family;

(b) Unless subsection (d) of this section applies, ten months from the date of the most recent CANS screening and annually thereafter when the child or young adult has continuously lived with a certified family and the certified family has received a level of care payment; and

(c) Unless subsection (d) of this section applies, five business days after a child or young adult, whose initial placement in substitute care was a BRS placement, moves to the home of a certified family.

(d) When a child’s permanency plan is adoption or guardianship and the caseworker has submitted an adoption assistance application or a guardianship assistance application, the caseworker must consult with the Adoption Assistance and Guardianship Assistance Unit prior to submitting a referral.

(2) After consultation with and approval of a supervisor, the caseworker of a child or young adult may complete and submit to the Level of Care Manager a CANS screening referral under any of the following circumstances unless subsection (1)(d) of this rule applies:

(a) When a child or young adult currently living with a certified family has never had a CANS screening and is currently exhibiting ongoing behavior or functioning that may indicate the need for enhanced supervision and a level of care payment;

(b) When a child or young adult returns to a placement with a certified family after a BRS placement of six months or longer;

(c) When a child or young adult is living with a certified family and the certified family has observed ongoing, documented changes in behavior or functioning which --

(A) Have not improved after a revision of the supervision actions and activities provided by the certified family and other individuals; or

(B) Endanger the safety of the child or young adult or the safety of others.

(3) An adoption assistance coordinator or guardianship assistance coordinator may complete and submit a CANS screening referral to the Level of Care Manager under the following circumstances:

(a) Written documentation of the current behavior and functioning of the child or young adult has been submitted to the adoption assistance and guardianship assistance coordinator by one of the following individuals:

(A) An adoptive family of the child or young adult, regardless of whether there has been a previous CANS screening;

(B) A child’s pre-adoptive family when the child is not in the legal custody of the Department;

(D) A potential guardian of the child or young adult who has been approved by a participating tribe.

(b) The written documentation submitted under subsection (a) of this section demonstrates ongoing behavior or functioning indicating the need for enhanced supervision and a level of care payment, and one of the following apply:

(A) A CANS screening has never been completed;

(B) A CANS screening has not been completed within the past twelve months; or

(C) The child or young adult exhibits a significant, ongoing change in behavior since the CANS screening that was completed within the 12 month period following the previous CANS screening.

(4) The Level of Care Manager, within five business days of receipt of a CANS screening referral submitted under section (2) or (3) of this rule:

(a) May approve a CANS screening after reviewing the referral, if the child or young adult’s behavior and functioning, as described in the referral, indicates a CANS screening is needed to assess the need for enhanced supervision and a level of care payment;

(b) Must notify the individual who submitted the CANS screening referral whether a CANS screening has been approved and the basis for the decision; and

(5) A CANS screener, upon receipt of the CANS screening referral submitted under section (1) or section (4) of this rule must:

(a) Review the referral information;

(b) Contact the caseworker, when the child is in substitute care, to gather information about the child or young adult’s strengths and needs;

(c) Contact the certified family, pre-adoptive family, adoptive family, potential guardian identified by a participating tribe, or guardian of the child or young adult and gather information about the child or young adult’s strengths and needs;

(d) Contact the child or young adult and other individuals who provide services to the child or young adult as appropriate and gather sufficient information to understand the child or young adult’s strengths and needs to complete the CANS screening; and

(e) When a child or young adult has current suicidal ideation or intent:

(A) Notify the child or young adult’s caseworker or adoption or guardianship assistance coordinator and, if applicable, notify the pre-adoptive family, adoptive family, potential guardian, or guardian; and

(B) Immediately develop a supervision plan with the certified family when the child or young adult is in substitute care with a certified family.

(6) After the CANS screener has gathered information regarding the child or young adult’s strengths and needs, as described in subsections (5)(a)-(d), the CANS screener rates each element of a child or young adult’s behavior and functioning on a scale of zero to three, in a manner consistent with the principles of the Child and Adolescent Needs and Strengths Comprehensive Screening Tool appropriate for the child or young adult’s age. The CANS screener documents the appropriate rating for each element and provides written explanation for any rating of either 2 or 3 on an element that is a need and any rating of 0 or 1 on an element that is a strength.

(a) When the child is five years old or younger, the CANS screener rates the child using the DHS 9601 - Child and Adolescent Needs and Strengths Comprehensive Screening Tool Ages Birth through Five, dated August 2009, and revised in June 2011, which by reference is incorporated in OAR 413-090-0010(2)(f)(A).

(b) When the child or young adult is six years old or older, the CANS screener rates the child or young adult using the DHS 9602 - Child and Adolescent Needs and Strengths Comprehensive Screening Tool ages Six through Twenty dated July, 2009, and revised in June 2011, which by reference is incorporated in OAR 413-090-0010(2)(f)(B).

(c) The Department maintains these documents on the Department’s website. Printed copies of these documents may be obtained by contacting the Department of Human Services, Children, Adults and Families, ATTN: Level of Care Manager, 500 Summer Street NE, E-93, Salem, OR 97301.

(7) The CANS screener must complete the activities in sections (5) and (6) and submit the CANS screening results to the Level of Care Manager within fifteen business days following the receipt of the referral.

(8) Within ten business days of the receipt of the CANS screening results, the Level of Care Manager or designee:

(a) Reviews the CANS screening results;

(b) Contacts the CANS screener when results appear inconsistent with the referral information or documentation of a child or young adult’s strengths and needs and may instruct the CANS screener to:

(A) Gather additional information;

(B) Reapply the CANS ratings; and

(d) Applies the CANS algorithm which by reference is incorporated in OAR 413-090-0010(2)(f)(C) to the approved CANS screening results to determine whether:

(A) The child or young adult living with a certified family is eligible for a level of care payment and requires enhanced supervision; or

(B) The child or young adult eligible for adoption assistance or guardianship assistance is eligible for a level of care payment.

(9) The Level of Care Manager may approve a revision of the ratings of an approved CANS screening when new or different information relevant to the correct application of the CANS screening has been presented:

(a) In preparation for a contested case hearing requested under OAR 413-010-0500(2)(a)-(c):

(b) During an informal conference under OAR 413-010-0520; or

(c) During the renegotiation of an adoption assistance agreement under OAR 413-130-0075 or a guardianship assistance agreement under OAR 413-070-0969.

(10) The Level of Care Manager or designee sends the CANS screening results to the following individuals:

(a) The child or young adult’s caseworker and the certified family, with whom the child or young adult is living, on behalf of the child or young adult; or

(b) The adoption assistance and guardianship assistance coordinator and child or young adult’s pre-adoptive family, adoptive family, guardian or the potential guardian identified by a participating tribe.

(11) When the caseworker receives a child or young adult’s CANS screening results, the caseworker must:

(a) Contact the certified family to review the CANS screening results;

(b) When the CANS screening results indicated the child or young adult currently has suicidal ideation or intent, review the supervision plan developed during the CANS screening no later than one business day after the receipt of the CANS screening results to determine whether the plan continues to be appropriate;

(d) Determine whether a supervision plan must be developed, modified, or terminated under OAR 413-020-0233 and 413-020-0236.

Stat. Auth.: ORS 418.005 & 418.340

Stats. Implemented: ORS 418.005, 418.330, 418.335 & 418.340

Hist.: SCF 6-1995, f. 12-22-95, cert. ef. 12-29-95; SCF 4-1996, f. & cert. ef. 9-11-96; CWP 3-2002, f. & cert. ef. 1-7-03; CWP 6-2007, f. & cert. ef. 5-1-07; CWP 6-2009(Temp), f. & cert. ef. 7-1-09 thru 12-28-09; CWP 11-2009(Temp), f. & cert. ef. 9-25-09 thru 12-28-09; CWP 21-2009, f. & cert. ef. 12-29-09; CWP 9-2011(Temp), f. & cert. ef. 6-30-11 thru 12-27-11; CWP 29-2011, f. 12-27-11, cert. ef. 12-28-11

413-020-0233

When a Supervision Plan is Required

(1) The caseworker must develop a supervision plan with the certified family with whom the child or young adult lives within 30 days of:

(a) The receipt of the CANS screening results that indicates enhanced supervision is necessary to maintain the safety and support the well-being of the child or young adult and the child or young adult qualifies for a level of care payment; or

(b) When a child or young adult who has enhanced supervision needs and is receiving a level of care moves from one certified family to another certified family.

(2) A supervision plan is not required for a level of care payment included in an adoption assistance agreement or guardianship assistance agreement.

Stat. Auth.: ORS 418.005

Stats. Implemented: ORS 418.005

Hist.: CWP 6-2007, f. & cert. ef. 5-1-07; CWP 6-2009(Temp), f. & cert. ef. 7-1-09 thru 12-28-09; CWP 11-2009(Temp), f. & cert. ef. 9-25-09 thru 12-28-09; CWP 21-2009, f. & cert. ef. 12-29-09; CWP 9-2011(Temp), f. & cert. ef. 6-30-11 thru 12-27-11; CWP 29-2011, f. 12-27-11, cert. ef. 12-28-11

413-020-0236

Development, Documentation, and Termination of a Supervision Plan

(1) After the caseworker has reviewed the CANS screening results for a child or young adult living with a certified family that indicates the child or young adult has enhanced supervision needs and qualifies for a level of care payment, the caseworker must:

(a) Contact the certified family to explain the supervision needs identified in the CANS screening results; and

(b) During a meeting with the certified family, the child or young adult, as appropriate, and others who may participate in a supervision plan, explain the supervision requirements necessary to maintain the safety and support the well-being of the child or young adult and develop a supervision plan that meets the supervision needs of the child or young adult.

(A) If the child or young adult qualifies for Level 1 (moderate needs), the supervision plan must require the certified family to provide an environment with the additional support, direction, observation, and guidance from the certified family necessary to ensure a child or young adult’s safety and well-being, beyond the level of supervision that typically is required for a child or young adult of the same age.

(B) If the child or young adult qualifies for Level 2 (intermediate needs), the supervision plan must require the certified family to provide a structured environment, additional support, direction, observation, and guidance necessary to ensure a child or young adult’s safety and well-being, beyond the level of supervision that typically is required for a child or young adult of the same age.

(C) If the child or young adult qualifies for Level 3 (advanced needs), the supervision plan must require the certified family to provide a highly structured environment, additional support, direction, observation, and guidance necessary to ensure a child or young adult’s safety and well-being, beyond the level of supervision that typically is required for a child or young adult of the same age.

(2) The supervision plan must include:

(a) The supervision actions or activities that are to be provided by the certified family and other individuals to meet the child or young adult’s identified needs. Examples of appropriate supervision actions or activities may include, but are not limited to: proactive use of space, use of routine, structure of the environment, positive reinforcement, and de-escalation techniques;

(b) The actions and assistance the Department will provide to support the certified family in addressing the supervision needs of the child or young adult and to maintain the child or young adult in the home;

(d) The persons responsible for monitoring the child or young adult’s supervision needs and the supervision actions and activities;

(e) How the persons responsible for monitoring the child or young adult’s supervision needs and the supervision actions and activities are to communicate with each other; and

(f) A requirement that the supervision plan be reviewed during the first face-to-face contact described in OAR 413-080-0059(1)(c) after the date the supervision plan is signed by the individuals identified in section (3) of this rule.

(3) The supervision plan must be signed by:

(a) The caseworker;

(b) The certified family;

(d) Any other individuals who are to provide specific actions or activities in the supervision plan.

(4) The supervision plan must be approved by the caseworker’s supervisor.

(5) A supervision plan may include physical restraint as a supervision action or activity only if the certified family has completed the physical restraint training requirements described in OAR 413-020-0240.

(6) A supervision plan that authorizes a certified family to use physical restraint must:

(a) Focus on intervention strategies that are designed to modify a child or young adult’s behavior without the need for physical restraint;

(b) Explain that a physical restraint is to be used only when the child or young adult’s behavior poses an imminent danger to self or others, and when no alternate actions are sufficient to stop a child or young adult’s behavior;

(d) Require the certified family:

(A) To document and report the circumstances of each use of physical restraint in writing as soon as reasonably possible after the use of physical restraint on a form approved by the Department, which explains:

(i) The behavior that required the use of physical restraint;

(ii) The specific attempts to stop the child or young adult’s behavior without the use of physical restraint;

(iii) The time the physical restraint started; and

(iv) The time the physical restraint ended.

(B) To orally report to the child or young adult’s caseworker or the caseworker’s supervisor within one business day of the physical restraint; and

(C) To submit the documentation required in paragraph (A) of this subsection to the child or young adult’s caseworker within two business days after the use of physical restraint.

(7) The caseworker must provide a copy of the signed supervision plan to the certified family and the certified family’s certifier, and file a copy in the Department’s information system.

(8) When a child or young adult has a supervision plan and the CANS screening results indicate that the child or young adult no longer has enhanced supervision needs and no longer qualifies for a level of care payment, the caseworker must:

(a) Terminate the supervision plan;

(b) Document in the Department’s information system the date the supervision plan terminated and the reason the plan terminated; and

(c) Notify the certified family and the certified family’s certifier that the supervision plan terminated and the reason the plan terminated.

Stat. Auth.: ORS 418.005

Stats. Implemented: ORS 418.005

413-020-0240

Use of Physical Restraint

(1) A physical restraint may be used by a certified family when the behavior of a child or young adult places the child or young adult or others in imminent risk of harm and only when:

(a) Good judgment indicates that a physical restraint may safely be implemented; and

(b) The certified family has received the individual Behavior and Crisis Management Training in physical restraint specific to the supervision needs of the child or young adult by Department trained staff.

(2) Physical restraint must be implemented with the least force necessary to prevent the risk of harm to self or others and should end as soon as the risk of harm no longer exists.

(3) If the behavior of a child or young adult places the child or young adult or others in imminent risk of harm, and good judgment indicates that a physical restraint cannot be implemented safely, the certified family must call the local law enforcement agency to request intervention. The certified family must:

(a) Orally report the incident to the caseworker and the caseworker’s supervisor as soon as reasonably possible;

(b) Document the incident in writing on a form approved by the Department; and

(4) If the child or young adult is injured during the incident, whether or not a physical restraint is used, the certified family immediately must notify the Department’s emergency 24-hour contact.

(5) A certified family may not use mechanical restraint or seclusion of a child or young adult in an emergency or at any other time as a supervision action or activity.

(6) Notwithstanding the training required in OAR 413-020-0255, when a situation arises and the behavior of a child or young adult places the child or young adult or another individual in imminent risk of harm and if good judgment indicates that a physical restraint may safely be implemented, the certified family may use a physical restraint even when:

(a) The certified family has not attended Behavior and Crisis Management Training; or

(b) The child or young adult does not have a supervision plan.

(c) If physical restraint is used under this section, the certified family must document and report the incident in accordance with the requirements of OAR 413-020-0236(6)(c).

Stat. Auth.: ORS 418.005

Stats. Implemented: ORS 418.005

Hist.: SCF 6-1995, f. 12-22-95, cert. ef. 12-29-95; SCF 4-1996, f. & cert. ef. 9-11-96; SOSCF 8-2001, f. 6-29-01, cert. ef. 7-1-01; CWP 3-2002, f. & cert. ef. 1-7-03; CWP 6-2007, f. & cert. ef. 5-1-07; CWP 6-2009(Temp), f. & cert. ef. 7-1-09 thru 12-28-09; CWP 11-2009(Temp), f. & cert. ef. 9-25-09 thru 12-28-09; CWP 21-2009, f. & cert. ef. 12-29-09; CWP 9-2011(Temp), f. & cert. ef. 6-30-11 thru 12-27-11; CWP 29-2011, f. 12-27-11, cert. ef. 12-28-11

413-020-0245

Responsibilities in Monitoring a Child or Young Adult’s Supervision in a Certified Family

(1) During each face-to-face contact described in OAR 413-080-0059, in addition to assessing the safety of the child or young adult, the caseworker must determine:

(a) Whether the certified family is meeting the supervision needs of the child or young adult.

(b) Whether the supervision needs of the child or young adult have changed.

(c) If there is a current supervision plan, whether the supervision actions and activities described in the supervision plan are effective in meeting the child or young adult’s supervision needs.

(2) If, after assessing the safety of the child or young adult as described in OAR 413-080-0059(2)(a), the caseworker determines that the child or young adult currently is safe in the home but his or her supervision needs are not being met, the caseworker must:

(a) Consult with the certified family’s certifier or the certifier’s supervisor to determine if available resources or training are able to provide the additional support the certified family may need to meet the child or young adult’s supervision needs;

(b) If there is a current supervision plan for the child or young adult, determine whether the supervision plan should be revised, and if so, meet with the certified family to revise the plan; and

(c) Determine whether there has been an observed, ongoing change in a child or young adult’s behavior or functioning such that the observed changes must be documented and submitted with a CANS screening under referral OAR 413-020-0230(2).

(3) The caseworker documents the monitoring activities described in this rule in the Department’s information system.

Stat. Auth.: ORS 418.005

Stats. Implemented: ORS 418.005

413-020-0255

Training and the Planned Use of Physical Restraint

(1) The Department has approved and schedules Behavior and Crisis Management Training as the standard training curriculum for any certified family who requires training on crisis management. The training curriculum focuses on strengthening a certified family’s supervision skills.

(2) Before implementing a supervision plan that authorizes a certified family to use physical restraint, the caseworker must:

(a) Consult with the certifier to confirm that the certified family has completed Behavior and Crisis Management Training; and

(b) Contact the Level of Care Manager to schedule the certified family to receive Behavior and Crisis Management Training, by Department-trained staff, in physical restraint specific to the supervision needs of the child or young adult.

(3) A foster care coordinator or designee may approve comparable behavior and crisis management training obtained by a certified family for a specific child or young adult in place of Behavior and Crisis Management Training if:

(a) The training was selected by a school district and used in the school; or

(b) The training was approved by the Department of Human Services, Addictions and Mental Health Division and used in a Children’s Intensive Mental Health Treatment Services program.

Stat. Auth.: ORS 418.005

Stats. Implemented: ORS 418.005

Rule Caption: Changing OARs affecting Child Welfare programs.

Adm. Order No.: CWP 30-2011

Filed with Sec. of State: 12-27-2011

Certified to be Effective: 12-28-11

Notice Publication Date: 10-1-2011

Rules Amended: 413-070-0900, 413-070-0905, 413-070-0909, 413-070-0917, 413-070-0919, 413-070-0925, 413-070-0934, 413-070-0939, 413-070-0944, 413-070-0949, 413-070-0959, 413-070-0964, 413-070-0969, 413-070-0970, 413-070-0974

Rules Repealed: 413-070-0929, 413-070-0979

Subject: OAR 413-070-0900 about the purpose is being amended to clarify the rule and to indicate that the rules now cover guardianship assistance that may be extended for certain young adults.

OAR 413-070-0905 about definitions of certain terms used in the guardianship assistance rules is being amended to add current and remove or revise outdated definitions of certain terms used throughout these rules.

OAR 413-070-0909 about funding of guardianship assistance is being amended to explain and update the funding sources for guardianship assistance, and indicate that new guardianship assistance will not be available for non-relative guardians.

OAR 413-070-0917 about eligibility is being amended to describe federal changes regarding establishment of guardianship assistance for a child placed outside of the United States, correct references, clarify caseworker duties regarding guardianship, set out sibling eligibility for guardianship assistance purposes, and describe the conditions for an extension of guardianship assistance on behalf of certain young adults. The temporary rule currently in place will be changed in the permanent rule to clarify the condition under which a child who is turning 18 and has a developmental disability may qualify for an extension of guardianship assistance.

OAR 413-070-0919 about eligibility and requirements for a child or young adult in the care or legal custody of a participating tribe is being amended to correct references, update terminology, and clarify requirements for child placement.

OAR 413-070-0925 about eligibility of a potential guardian is being amended to implement new federal education requirements for guardianship assistance and to remove what is now stated in Child Welfare Policy I-E.3.6.1, Guardianship as a Permanency Plan, OAR 413-070-0665(2).

OAR 413-070-0929 about determination of permanency plan for guardianship is being repealed because this topic is now covered in Child Welfare Policy I-E.3.6.1, Guardianship as a Permanency Plan, OAR 413-070-0651 to 413-070-0670.

OAR 413-070-0934 about application requirements and responsibilities is being amended to clarify Department responsibilities and situations that might delay the negotiation of guardianship assistance base rate.

OAR 413-070-0939 about guardianship assistance payments, medical assistance, and nonrecurring guardianship expenses is being amended to clarify and describe the guardianship assistance negotiation and review process. This rule is also being amended to describe requirements for medical assistance and social services, nonrecurring guardianship expenses, and overpayment responsibilities.

OAR 413-070-0944 about legal expenses of a guardian is being amended to clarify the legal expenses that are not authorized for reimbursement by the Department. This rule is also being amended to remove language about funding establishment of a guardianship because the topic is now covered in OAR 413-070-0949.

OAR 413-070-0949 about guardianship assistance agreement requirements is amended to more clearly explain what must be included in a guardianship assistance agreement and to indicate how this rule applies to young adults. The temporary rule currently in place will be changed in the permanent rule to indicate that guardianship assistance can continue when a child or young adult moves out of the guardian’s home for school or work if the guardianship assistance agreement so states.

OAR 413-070-0959 about court order of guardianship and OAR 413-070-0964 about changes guardians must report and annual reports guardian must provide are being amended to update and clarify these rules.

OAR 413-070-0964 about information guardians must report to the Department (and which was not amended by temporary rule) is being amended to clarify the circumstances and occurrences that a guardian needs to report to the Department.

OAR 413-070-0969 about renegotiation of a guardianship assistance agreement is being amended to update terminology and clarify the renegotiation process.

OAR 413-070-0970 about guardianship social support services is being amended to cover only topics that need to be in a rule.

OAR 413-070-0974 about review, adjustment, suspension, and termination of guardianship assistance is being amended to clarify the conditions under which guardianship assistance may be reviewed by the Department and how changes or termination of that agreement are made. This rule is also being amended to set out how this rule applies to a young adult who has an extension of guardianship assistance. The temporary rule currently in place will be changed in the permanent rule to more fully explain the conditions under which a guardianship assistance agreement may be reviewed, adjusted, suspended, terminated, and expire.

OAR 413-070-0979 about the guardianship assistance review committee and appeals procedure is being repealed because this topic is now covered in OAR 413-070-0939.

These rules are also being amended to make permanent the temporary rule changes adopted June 30, 2011.

In addition, the above rules may also be changed to reflect new Department terminology and to correct formatting and punctuation.

Rules Coordinator: Annette Tesch—(503) 945-6067

413-070-0900

Purpose

(1) The purpose of these rules, OAR 413-070-0900 to 413-070-0974, is to describe Department criteria for program eligibility and receipt of guardianship assistance for:

(a) A child in the care or custody of the Department or a participating tribe;

(b) A young adult on whose behalf an initial guardianship assistance agreement was entered into when the young adult was a child of age 16 or 17; or

(c) A young adult who qualifies for disability services and on whose behalf an initial guardianship assistance agreement was entered into when the young adult was a child.

(2) The State of Oregon is not responsible for guardianship assistance for a child or young adult placed for guardianship in Oregon by a public child welfare agency other than the Department.

Stat. Auth.: ORS 418.005 & 418.340

Stats. Implemented: ORS 418.005, 418.330, 418.335 & 418.340

Hist.: SOSCF 18-1999(Temp), f. & cert. ef. 9-14-99 thru 3-12-00; SOSCF 7-2000, f. & cert. ef. 2-10-00; SOSCF 43-2001, f. 12-31-01, cert. ef. 1-1-02; CWP 26-2003, f. & cert. ef. 7-31-03; CWP 8-2004, f. & cert. ef. 4-1-04; CWP 5-2009(Temp), f. & cert. ef. 3-31-09 thru 9-27-09; CWP 7-2009(Temp), f. & cert. ef. 7-1-09 thru 9-27-09; CWP 12-2009, f. & cert. ef. 9-28-09; CWP 18-2009(Temp), f. & cert. ef. 12-16-09 thru 6-14-10; CWP 6-2010, f. & cert. ef. 6-15-10; CWP 11-2011(Temp), f. & cert. ef. 6-30-11 thru 12-27-11; CWP 24-2011(Temp), f. 9-30-11, cert. ef. 10-1-11 thru 12-27-11; CWP 30-2011, f. 12-27-11, cert. ef. 12-28-11

413-070-0905

Definitions

The following definitions apply to OAR 413-070-0900 to 413-070-0974:

(1) “Base rate payment” means a payment to the foster parent or relative caregiver for the costs of providing the child or young adult with the following:

(a) Food — including the cost to cover a child or young adult’s special or unique nutritional needs;

(b) Clothing — including purchase and replacement;

(d) Daily supervision — including teaching and directing to ensure safety and well-being at a level which is appropriate based on the child or young adult’s chronological age;

(e) Personal incidentals — including personal care items, entertainment, reading materials, and miscellaneous items; and

(f) The cost of providing transportation — including local travel associated with expenditure for gas and oil, and vehicle maintenance and repair associated with transportation to and from extracurricular, child care, recreational, and cultural activities.

(2) “CANS screening” means Child and Adolescent Needs and Strengths screening, a process of gathering information on a child or young adult’s needs and strengths used for one or more of the following purposes:

(a) Identifying case planning, service planning, and supervision needs of the child or young adult in substitute care with a certified family;

(b) Determining the level of care payment while in substitute care with a certified family; and

(c) Determining the level of care payment included in an adoption assistance agreement or guardianship assistance agreement.

(3) “Child” means a person under 18 years of age.

(4) “Department” means the Department of Human Services, Child Welfare.

(5) “Enhanced supervision” means the additional support, direction, observation, and guidance necessary to promote and ensure the safety and well-being of the child or young adult when the child or young adult qualifies for a level of care payment.

(6) “Guardian” means an individual who has been granted guardianship of a child through a judgment of the court.

(7) “Guardianship assistance” means assistance on behalf of an eligible child or young adult to offset the costs associated with establishing the guardianship and meeting the ongoing needs of the child or young adult. Guardianship assistance may be in the form of a payment, medical coverage, or reimbursement of guardianship expenses.

(8) “Guardianship assistance agreement” means a written agreement, binding on the parties to the agreement, between the Department and the potential guardian or guardian setting forth the assistance the Department is to provide on behalf of the child or young adult, the responsibilities of the guardian and the Department, and the manner in which the agreement and amount of assistance may be modified or terminated.

(9) “Guardianship assistance agreement only” means a written agreement, binding on the parties to the agreement, between the Department and the potential guardian or guardian of an eligible child or young adult, when the potential guardian or guardian is not receiving a guardianship assistance payment or medical coverage at the time of the agreement but may request it at a later date.

(10) “Guardianship assistance base rate” means the portion of the guardianship assistance payment that is negotiated with the potential guardian or guardian and cannot exceed the amount of the Oregon foster care base rate payment for the child or young adult’s age.

(11) “Guardianship assistance payment” means a monthly payment made by the Department to the guardian on behalf of the eligible child or young adult.

(12) “Guardianship Assistance Review Committee” means a committee composed of local and central office staff who have expertise in the area of guardianship.

(13) “Level of care payment” means the payment provided to an approved or certified family, a guardian, a pre-adoptive family, or an adoptive family based on the child or young adult’s need for enhanced supervision as determined by applying the CANS algorithm to the results of the CANS screening.

(14) “Nonrecurring guardianship assistance agreement” means a written agreement, binding on the parties to the agreement, between the Department and the potential guardian of an eligible child for a one-time payment to reimburse the guardian for the reasonable and necessary expenses incurred in legally finalizing the guardianship.

(15) “Nonrecurring guardianship expenses” means a one-time payment of up to $2,000 per child which the Department will make to a guardian to assist with the reasonable and necessary expenses associated with obtaining legal guardianship of an eligible child.

(16) “Parent” means the biological or adoptive mother or the legal father of the child. A legal father is a man who has adopted the child or whose paternity has been established or declared under ORS 109.070, ORS 416.400 to 416.465, or by a juvenile court. In cases involving an Indian child under the Indian Child Welfare Act (ICWA), a legal father includes a man who is a father under applicable tribal law. “Parent” also includes a putative father who has demonstrated a direct and significant commitment to the child by assuming or attempting to assume responsibilities normally associated with parenthood unless a court finds that the putative father is not the legal father.

(17) “Participating tribe” means a federally recognized Indian tribe in Oregon with a Title IV E agreement with the Department.

(18) “Permanency Committee” means a group of individuals who are responsible for making a recommendation regarding a permanency plan or potential permanency resource when the child or young adult likely is not returning to his or her parent.

(19) “Potential guardian” means an individual who:

(a) Has been approved by the Department or participating tribe to be a child’s guardian; and

(b) Is in the process of legalizing the relationship to the child through the judgment of the court.

(20) “Registered Domestic Partner” means an individual joined in a domestic partnership that is registered with a county clerk in accordance with ORS 106.300 to 106.340.

(21) “Relative” means:

(a) An individual with one of the following relationships to the child or young adult through the child or young adult’s parent:

(A) Any blood relative of preceding generations denoted by the prefixes of grand, great, or great-great.

(B) Any half-blood relative of preceding generations denoted by the prefixes of grand, great, or great-great (individuals with one common biological parent are half-blood relatives).

(D) An aunt, uncle, nephew, niece, first cousin, and first cousin once removed.

(E) A spouse of anyone listed in paragraphs (A) to (D) of this subsection, even if a petition for annulment, dissolution, or separation has been filed or the marriage is terminated by death or divorce. To be considered a relative under this paragraph, the child or young adult must have had a relationship with the spouse prior to the child or young adult entering substitute care.

(F) For the purposes of an international adoption, relative means an individual described in paragraphs (A) to (D) of this subsection.

(b) An individual with one of the following relationships to the child or young adult:

(A) An individual defined as a relative by the law or customs of the child or young adult’s tribe if the child or young adult is an Indian child under the Indian Child Welfare Act or in the legal custody of a tribe.

(B) An individual defined as a relative of a refugee child or young adult under Child Welfare Policy I-E.2.2, “Placement of Refugee Children,” (OAR 413-070-0300 to OAR 413-070-0380).

(C) A stepparent described in OAR 413-100-0020(25)(e) or a former stepparent if the child or young adult had a relationship with the former stepparent prior to the child or young adult entering substitute care; a stepbrother, or a stepsister.

(D) The Registered Domestic Partner of the child or young adult’s parent or former Registered Domestic Partner of the child or young adult’s parent if the child or young adult had a relationship with the former domestic partner prior to the child or young adult entering substitute care.

(E) The adoptive parent of a child or young adult’s sibling.

(F) The unrelated legal or biological father or mother of a child’s half-sibling when the child’s half-sibling is living with the unrelated legal or biological father or mother.

(c) An individual identified by the child or young adult or the child or young adult’s family, or an individual who self-identifies, related to the child or young adult through the child or young adult’s parent by blood, adoption, or marriage to a degree other than an individual specified as a child or young adult’s relative in paragraphs (A) to (D) of subsection (a) of this section.

(d) An individual, although not related by blood, adoption, or marriage, identified as:

(A) A member of the family by the child or young adult or the child or young adult’s family; and

(B) Who had an emotionally significant relationship with the child or young adult or the child or young adult’s family prior to the time the Department placed the child in substitute care.

(e) For the purposes of these rules, OAR 413-070-0900 to 413-070-0974:

(A) A stepparent is considered a parent and is not a relative under these rules unless a petition for annulment, dissolution, or separation has been filed, or the marriage to the child’s adoptive or biological parent has been terminated by divorce or death:

(B) A foster parent may be considered a relative under these rules when:

(i) There is a compelling reason why adoption is not an achievable permanency plan;

(ii) The foster parent is currently caring for a child in the legal custody of the Department who has a permanency plan or concurrent permanency plan of guardianship;

(iii) The foster parent has cared for the child for at least the past 12 consecutive months; and

(iv) A Permanency Committee has recommended the foster parent for consideration as a guardian.

(22) “Sibling” means one of two or more children or young adults related:

(a) By blood or adoption through a common legal parent;

(b) Through the marriage of the children or young adults’ legal or biological parents; or

(c) Through a legal or biological parent who is the Registered Domestic Partner of the children or young adults’ legal or biological parent.

(23) “Substitute care” means the out-of-home placement of a child or young adult who is in the legal or physical custody and care of the Department.

(24) “Substitute caregiver” means a relative caregiver, foster parent, or provider authorized to provide care to a child or young adult in the legal or physical custody of the Department.

(25) “Young adult” means a person aged 18 through 20 years.

Stat. Auth.: ORS 418.005 & 418.340

Stats. Implemented: ORS 418.005, 418.330, 418.335 & 418.340

Hist.: SOSCF 18-1999(Temp), f. & cert. ef. 9-14-99 thru 3-12-00; SOSCF 7-2000, f. & cert. ef. 2-10-00; SOSCF 43-2001, f. 12-31-01, cert. ef. 1-1-02; CWP 14-2003, f. & cert. ef. 1-9-03; CWP 26-2003, f. & cert. ef. 7-31-03; CWP 8-2004, f. & cert. ef. 4-1-04; CWP 5-2009(Temp), f. & cert. ef. 3-31-09 thru 9-27-09; CWP 7-2009(Temp), f. & cert. ef. 7-1-09 thru 9-27-09; CWP 12-2009, f. & cert. ef. 9-28-09; CWP 18-2009(Temp), f. & cert. ef. 12-16-09 thru 6-14-10; CWP 1-2010(Temp), f. & cert. ef. 2-1-10 thru 6-14-10; CWP 18-2009(Temp), f. & cert. ef. 12-16-09 thru 6-14-10; CWP 6-2010, f. & cert. ef. 6-15-10; CWP 11-2011(Temp), f. & cert. ef. 6-30-11 thru 12-27-11; CWP 24-2011(Temp), f. 9-30-11, cert. ef. 10-1-11 thru 12-27-11; CWP 30-2011, f. 12-27-11, cert. ef. 12-28-11

413-070-0909

Funding of Guardianship Assistance

(1) Non-relative guardianship assistance established under the Title IV-E Waiver Project implemented July 1, 1997 under the Adoption and Safe Families Act of 1997 was funded by Title IV-E waiver funds until January 1, 2011. As of that time, Oregon general funds provided monies for non-relative guardianship assistance established under the waiver. Funding is no longer available for the establishment of new non-relative guardianship assistance, except as described in section (2) of this rule.

(2) When grandparents or other approved relatives make a permanent commitment to and assume legal guardianship of a child for whom they have cared as a substitute caregiver, the Department provides guardianship assistance as described in these rules (OAR 413-070-0900 to 413-070-0974).

(3) Effective January 1, 2009, guardianship assistance for Title IV-E children or young adults is funded in part with Title IV-E funds as authorized by the Fostering Connections to Success and Increasing Adoptions Act of 2008 (Public Law 110-351).

Stat. Auth.: ORS 418.005 & 418.340

Stats. Implemented: ORS 418.005, 418.330, 418.335 & 418.340

Hist.: CWP 12-2009, f. & cert. ef. 9-28-09; CWP 18-2009(Temp), f. & cert. ef. 12-16-09 thru 6-14-10; CWP 6-2010, f. & cert. ef. 6-15-10; CWP 11-2011(Temp), f. & cert. ef. 6-30-11 thru 12-27-11; CWP 30-2011, f. 12-27-11, cert. ef. 12-28-11

413-070-0917

Eligibility

(1) Eligibility: Child.

(a) Guardianship assistance will not be established for a child placed outside of the United States or a territory or possession thereof.

(b) A guardianship assistance agreement must be signed by the potential guardian and a Department representative before guardianship has been legally established by a state or participating tribal court.

(A) Be a United States citizen or qualified alien as described in OAR 413-100-0210(2) and in 8 USC 1641(b) or (c).

(B) Be removed from his or her home pursuant to a voluntary placement or as a result of a judicial determination that continuation in the home would be contrary to the welfare of the child.

(C) The Department or participating tribe has determined that neither return home nor adoption is an appropriate permanency option for the child.

(D) Be eligible for Title IV-E foster care maintenance payments during a six consecutive month period during which the child resided in the home of the potential guardian who was fully licensed, certified, or approved by the state or a participating tribe as meeting the licensure or certification requirements for a foster family home in the state where the home is located. The Department determines a child’s eligibility for a Title IV-E maintenance payment under Child Welfare Policy I-E.6.1, “Title IV-E Foster Care, Adoption Assistance and Guardianship Assistance Eligibility”, OAR 413-100-0000 to 413-100-0345.

(E) Be in the Department’s or participating tribe’s legal custody for a minimum of:

(i) Six months, if the potential guardian is the child’s relative as defined by OAR 413-070-0905(21)(a) through (d); or

(ii) Twelve months, if the potential guardian is a substitute caregiver who meets the definition of a relative under OAR 413-070-0905(21)(e)(B).

(F) Demonstrate a strong attachment to the potential guardian.

(G) Be consulted regarding the guardianship arrangement when the child has attained 14 years of age.

(2) When guardianship as a permanency plan has been approved, the caseworker must document each of the following in the child’s case plan:

(a) How the child meets the eligibility requirements;

(b) The steps the Department has taken to determine that return to the home or adoption is not appropriate;

(c) The efforts the Department has made to discuss adoption with the child’s relative caregiver and the reasons why adoption is not an option;

(d) The efforts the Department has made to discuss kinship guardianship with the child’s parent or parents or the reasons why efforts were not made;

(e) The reason why a permanent placement with a potential relative guardian and receipt of a kinship guardian assistance payment is in the child’s best interests; and

(f) The reasons for any separation of siblings during placement. If the child’s placement with the potential relative guardian does not include siblings, the case plan must also include a description of the reasons why the child is separated from siblings during placement.

(3) Extension of Guardianship Assistance for a Young Adult.

(a) The Department may approve an extension of a guardianship assistance agreement for an individual under the age of 21 when the individual reaches the age of 18 on or after October 1, 2011 and meets paragraph (A) of this subsection, or when the individual reaches the age of 18 on or after June 30, 2011 and meets paragraph (B) of this subsection.

(A) An initial guardianship assistance agreement is entered into on behalf of a child and at the time of the child’s 18th birthday, he or she:

(i) Qualifies as an individual with a developmental disability as determined by the Oregon Department of Human Services, Developmental Disabilities Services;

(ii) Qualifies as an individual with a developmental disability as determined by the equivalent developmental disability program if living in a state other than Oregon; or

(iii) Qualifies for Supplemental Security Income (SSI) as determined by the Social Security Administration.

(B) An initial guardianship assistance agreement is entered into on behalf of a child who is age 16 or 17 when the child, upon reaching the age of 18, is:

(i) Completing secondary school (or equivalent);

(ii) Enrolled in post-secondary or vocational school;

(iii) Participating in a program or activity that promotes or removes barriers to employment;

(iv) Employed for at least 80 hours a month; or

(v) Determined incapable of any of the above due to a documented medical condition, physical disability, or mental disability.

(b) In order for the extension of guardianship assistance as described in paragraph (a)(A) of this section to continue on behalf of a young adult, the guardian or potential guardian must submit to the Department, upon request and before the child’s 18th birthday, documentation from the agency making the determination described in subparagraphs (a)(A)(i) to (iii) of this section.

(c) If an individual does not meet the requirements under subsection (a) of this section or the guardian or potential guardian does not submit the documentation before the individual’s 18th birthday as required in subsection (b) of this section, the Department may not approve an extension of a guardianship assistance agreement.

(d) An extension of guardianship assistance approved pursuant to subsection (a) of this section will continue until the young adult turns 21 years old.

(e) In order for the extension of guardianship assistance as described in paragraph (a)(B) of this section to continue on behalf of a young adult, the guardian must submit to the Department, upon request:

(A) Proof that the young adult continues to be enrolled in a secondary, post-secondary, vocational school, or a program or activity that promotes or removes barriers to employment;

(B) Proof that the young adult is employed for at least 80 hours a month; or

(C) Verification from a medical or mental health professional that the young adult is incapable of attending school or obtaining employment due to a medical condition.

(f) The Department will review the eligibility of the young adult for continued guardianship assistance when an extension of guardianship assistance has been granted under subsection (a) of this section:

(A) At least annually; or

(B) When information is received that indicates the young adult may no longer be eligible for guardianship assistance or may be eligible for guardianship assistance in a different amount.

(g) The guardian must notify the Department, orally or in writing, of any changes in circumstances that may make the young adult:

(A) Ineligible for guardianship assistance; or

(B) Eligible for guardianship assistance in a different amount.

(4) Siblings. Each sibling of a child or young adult eligible for guardianship assistance is also eligible for guardianship assistance, without meeting the eligibility requirements set forth in paragraphs (1)(c)(B) to (F) of this rule, when:

(a) The sibling is placed in a guardianship with the same potential guardian or guardian, whether the siblings are placed at the same time or not; and

(b) The potential guardian or guardian and the Department agree that both of the following are appropriate:

(A) Placing the child’s sibling in the home of the potential guardian or guardian; and

(B) Guardianship as a permanency plan for the sibling.

Stat. Auth.: ORS 418.005 & 418.340

Stats. Implemented: ORS 418.005, 418.330, 418.335 & 418.340

Hist.: SOSCF 7-2000, f. & cert. ef. 2-10-00; SOSCF 43-2001, f. 12-31-01, cert. ef. 1-1-02; CWP 26-2003, f. & cert. ef. 7-31-03; CWP 8-2004, f. & cert. ef. 4-1-04; CWP 5-2009(Temp), f. & cert. ef. 3-31-09 thru 9-27-09; CWP 7-2009(Temp), f. & cert. ef. 7-1-09 thru 9-27-09; CWP 12-2009, f. & cert. ef. 9-28-09; CWP 18-2009(Temp), f. & cert. ef. 12-16-09 thru 6-14-10; CWP 6-2010, f. & cert. ef. 6-15-10; CWP 11-2011(Temp), f. & cert. ef. 6-30-11 thru 12-27-11; CWP 24-2011(Temp), f. 9-30-11, cert. ef. 10-1-11 thru 12-27-11; CWP 30-2011, f. 12-27-11, cert. ef. 12-28-11

413-070-0919

Eligibility and Requirements for a Child or Young Adult in the Care or Custody of a Participating Tribe

(1) In addition to guardianship assistance program criteria under these rules, OAR 413-070-0900 to 413-070-0974, the following requirements apply to a child in the care or custody of a participating tribe:

(a) The child must be placed in a foster home approved by the participating tribe that meets the certification and licensing standards of the participating tribe; and

(b) The participating tribe must document how continued placement with the potential guardian is in the best interests of the child and meets the child’s needs for safety and permanency.

(2) The participating tribe must:

(a) Conduct and prepare a written home study of the guardian;

(b) Have a current Title IV-E agreement with the Department which includes participation in the guardianship assistance program;

(c) Notify the Adoption Assistance and Guardianship Assistance Unit within 30 days after reestablishing custody of a child or young adult in a guardianship placement established under these rules, OAR 413-070-0900 to 413-070-0974; and

(d) Provide the Adoption Assistance and Guardianship Assistance Unit with a copy of the court order terminating the guardianship within 30 days of the termination, when applicable.

Stat. Auth.: ORS 418.005 & 418.340

Stats. Implemented: ORS 418.005, 418.330, 418.335 & 418.340

Hist.: CWP 18-2009(Temp), f. & cert. ef. 12-16-09 thru 6-14-10; CWP 18-2009(Temp), f. & cert. ef. 12-16-09 thru 6-14-10; CWP 6-2010, f. & cert. ef. 6-15-10; CWP 11-2011(Temp), f. & cert. ef. 6-30-11 thru 12-27-11; CWP 30-2011, f. 12-27-11, cert. ef. 12-28-11

413-070-0925

Eligibility: Prospective Guardian

The Department may approve a potential guardian for guardianship assistance when the potential guardian:

(1) Meets the requirements of Child Welfare Policy I-E.3.6.1, “Guardianship as a Permanency Plan”, OAR 413-070-0665(2); and:

(2) Agrees to ensure that, if the child has attained the minimum age for compulsory attendance under the law of the state of residence but has not completed secondary school, the child is:

(a) Enrolled in an elementary or secondary school as determined by the law of the state of residence;

(b) Home schooled in accordance with the law of the state of residence;

(d) Incapable of attending school due to a documented medical condition.

Stat. Auth.: ORS 418.005 & 418.340

Stats. Implemented: ORS 418.005, 418.330, 418.335 & 418.340

Hist.: SOSCF 18-1999(Temp), f. & cert. ef. 9-14-99 thru 3-12-00; SOSCF 7-2000, f. & cert. ef. 2-10-00; SOSCF 43-2001, f. 12-31-01, cert. ef. 1-1-02; CWP 26-2003, f. & cert. ef. 7-31-03; CWP 8-2004, f. & cert. ef. 4-1-04; CWP 5-2009(Temp), f. & cert. ef. 3-31-09 thru 9-27-09; CWP 7-2009(Temp), f. & cert. ef. 7-1-09 thru 9-27-09; CWP 12-2009, f. & cert. ef. 9-28-09; CWP 18-2009(Temp), f. & cert. ef. 12-16-09 thru 6-14-10; CWP 1-2010(Temp), f. & cert. ef. 2-1-10 thru 6-14-10; CWP 18-2009(Temp), f. & cert. ef. 12-16-09 thru 6-14-10; CWP 6-2010, f. & cert. ef. 6-15-10; CWP 11-2011(Temp), f. & cert. ef. 6-30-11 thru 12-27-11; CWP 24-2011(Temp), f. 9-30-11, cert. ef. 10-1-11 thru 12-27-11; CWP 30-2011, f. 12-27-11, cert. ef. 12-28-11

413-070-0934

Application Requirements

(1) Except as described in subsections (a) — (c) of this section, the Adoption Assistance and Guardianship Assistance Unit must begin negotiation of the guardianship assistance agreement no later than 60 days after receipt of the completed guardianship assistance application.

(a) The Department may delay negotiation of the guardianship assistance base rate when the child is due for an updated CANS screening, a new CANS screening is warranted, or a CANS screening is in process or completed but a decision is pending regarding the level of care payment under OAR 413-020-0230.

(b) When there are extenuating circumstances regarding the child or family, the Department may delay negotiation following a request by the caseworker, guardian, or potential guardian.

(c) When a guardianship assistance application is delayed, the Adoption Assistance and Guardianship Assistance Unit must begin negotiation of the guardianship assistance base rate no later than 30 days from receipt of the final decision regarding the level of care payment.

(2) A guardianship assistance application is considered complete when the Adoption Assistance and Guardianship Assistance Unit has received a signed application and all supporting documentation.

Stat. Auth.: ORS 418.005, & 418.340

Stats. Implemented: ORS 418.005, 418.330, 418.335 & 418.340

Hist.: SOSCF 18-1999(Temp), f. & cert. ef. 9-14-99 thru 3-12-00; SOSCF 7-2000, f. & cert. ef. 2-10-00; SOSCF 43-2001, f. 12-31-01, cert. ef. 1-1-02; CWP 26-2003, f. & cert. ef. 7-31-03; CWP 8-2004, f. & cert. ef. 4-1-04; CWP 5-2009(Temp), f. & cert. ef. 3-31-09 thru 9-27-09; Suspended by CWP 7-2009(Temp), f. & cert. ef. 7-1-09 thru 9-27-09; CWP 12-2009, f. & cert. ef. 9-28-09; Renumbered from 413-070-0965, CWP 18-2009(Temp), f. & cert. ef. 12-16-09 thru 6-14-10; CWP 6-2010, f. & cert. ef. 6-15-10; CWP 11-2011(Temp), f. & cert. ef. 6-30-11 thru 12-27-11; CWP 24-2011(Temp), f. 9-30-11, cert. ef. 10-1-11 thru 12-27-11; CWP 30-2011, f. 12-27-11, cert. ef. 12-28-11

413-070-0939

Guardianship Assistance Payments, Medical Assistance, and Nonrecurring Guardianship Expenses

(1) When a guardianship assistance payment or medical assistance is not being provided, a potential guardian or guardian may enter into a guardianship assistance agreement only.

(2) The monthly guardianship assistance payment may not exceed the total of:

(a) The guardianship assistance base rate; and

(b) When applicable, the level of care payment determined by the CANS screening conducted under OAR 413-020-0230.

(3) The monthly guardianship assistance base rate:

(a) Is determined through discussion and negotiation between the Department and the potential guardian or guardian.

(b) May not exceed the current foster care base rate payment the child or young adult would be eligible to receive in foster care as determined by OAR 413-090-0010(1)(b).

(c) Is negotiated between the potential guardian of a child or guardian of a child or young adult and the Department, taking into consideration relevant factors which include, but are not limited to:

(A) The ordinary and special needs of the child or young adult.

(B) The services and goods required to meet the needs of the child or young adult.

(D) The circumstances of the potential guardian or guardian and their ability to provide the required services and goods for the child or young adult.

(E) The resources available to the potential guardian or guardian such as medical coverage, private health insurance, public education, other income sources, and community resources.

(F) A guardianship assistance payment may be reduced when other sources of income are received by the potential guardian or guardian or the child or young adult.

(d) Is intended to combine with the resources of the potential guardian or guardian to provide for the needs of the child or young adult.

(4) When, during negotiation of the guardianship assistance base rate payment, the Adoption Assistance and Guardianship Assistance Coordinator and the potential guardian or the guardian are unable to reach agreement, the Adoption Assistance and Guardianship Assistance Coordinator, the potential guardian, or the guardian may request a review by the Guardianship Assistance Review Committee. When a review is requested:

(a) An Adoption Assistance and Guardianship Assistance Coordinator must:

(A) Prepare documentation for the scheduled Guardianship Assistance Review Committee;

(B) Notify the potential guardian or guardian and the assigned caseworkers of the date of the committee; and

(b) The potential guardian or guardian may provide written documentation to the Adoption Assistance and Guardianship Assistance Coordinator for review and consideration by the Guardianship Assistance Review Committee.

(c) The caseworker for the potential guardian and the caseworker for the child may participate in a Guardianship Assistance Review Committee meeting and may present information and respond to questions. The caseworkers may not participate in the deliberations of the Guardianship Assistance Review Committee.

(d) The Guardianship Assistance Review Committee members must:

(A) Consider written documentation provided by the potential guardian or guardian, caseworkers, and the Adoption Assistance and Guardianship Assistance Coordinator.

(B) Review materials submitted to the Guardianship Assistance Review Committee, deliberate, and make a recommendation regarding the guardianship assistance base rate.

(e) At the conclusion of the Guardianship Assistance Review Committee, the Adoption Assistance and Guardianship Assistance Coordinator must:

(A) Document the recommendation of the Guardianship Assistance Review Committee; and

(B) Submit the recommendation to the Assistant Adoption Program Manager or designee within one business day of the Guardianship Assistance Review Committee meeting.

(f) The Assistant Adoption Program Manager or designee must:

(A) Attend the Guardianship Assistance Review Committee and may ask clarifying questions, but does not participate in the deliberation or recommendation of the Guardianship Assistance Review Committee; and

(B) Make a decision and provide written notification of the decision regarding the guardianship assistance base rate to the Adoption Assistance and Guardianship Assistance Coordinator within one business day of receipt of the documentation from the Guardianship Assistance Review Committee.

(g) The Adoption Assistance and Guardianship Assistance Coordinator must notify the potential guardian or guardian of the Assistant Adoption Program Manager or designee’s decision, including a written notice, within ten business days of the decision.

(5) A potential guardian or guardian unsatisfied with the guardianship assistance base rate decision of the Assistant Adoption Program Manager or designee under paragraph (4)(f)(B) of this rule may submit a written request for review of the decision by the Adoption Program Manager or designee within 14 days of the written notice in subsection (4)(g) of this rule.

(6) The Adoption Program Manager or designee must complete each of the following actions.

(a) Review and consider:

(A) The materials submitted to the Guardianship Assistance Review Committee;

(B) The recommendation of the committee;

(C) The decision made by the Assistant Adoption Program Manager or designee following the review committee recommendation; and

(D) The information presented by the potential guardian or guardian in the request submitted under section (5) of this rule.

(b) Make a decision within 60 days of the date of the request for review.

(c) Provide written notification to the potential guardian or guardian and the Adoption Assistance and Guardianship Assistance Coordinator within ten business days of the decision in subsection (b) of this section.

(7) The monthly level of care payment:

(a) Is determined based on the results of a CANS screening conducted under OAR 413-020-0230.

(b) Cannot exceed the amount of the level of care payment set forth in OAR 413-090-0010(2)(g).

(c) Is included in the guardianship assistance payment when the child or young adult qualifies for a level of care payment and when requested by the potential guardian or guardian.

(8) When a potential guardian or guardian is unsatisfied with the final guardianship assistance offer from the Department, consisting of the guardianship assistance base rate and, when applicable, a level of care payment, the potential guardian or guardian has the right to a contested case hearing under Child Welfare Policy I-A.5.2, “Contested Case Hearings”, OAR 413-010-0500 to 413-010-0535.

(9) An initial guardianship assistance payment begins on the date the state or tribal court legally establishes the guardianship provided there is a written guardianship assistance agreement signed by all parties.

(10) A guardianship assistance payment to a guardian for the child or young adult is inalienable, not assignable or transferable, and exempt from execution, levy, attachment, garnishment, and other legal process under the laws of Oregon, as long as the payment can be identified as a guardianship assistance payment and is kept separate from other money in the guardian’s possession.

(11) The guardian may apply to be the designated payee for any benefit the child or young adult receives if the benefit program allows such application.

(12) Medical assistance and social services.

(a) A child or young adult who is the subject of a guardianship assistance agreement funded by Title IV-E funds as authorized by the Fostering Connection to Success and Increasing Adoptions Act of 2008 (Public Law 110-351) is categorically eligible for medical assistance through Title XIX and social services under Title XX when:

(A) The guardianship is in effect; and

(B) A guardianship assistance payment is being made to the guardian.

(b) A child or young adult who is not eligible for Title XIX medical assistance is eligible for medical assistance under Child Welfare Policy I-E.6.2, “Title XIX and General Assistance Medical Eligibility”, OAR 413-100-0400 to 413-100-0610 when:

(A) The child or young adult resides in Oregon; or

(B) The child or young adult resides outside of Oregon but in the United States or a territory or possession thereof and is not able to obtain medical assistance in his or her place of residence.

(c) Medical assistance is not provided for a child or young adult who resides outside of the United States or a territory or possession thereof.

(13) Nonrecurring guardianship expenses.

(a) The Department will reimburse a guardian up to $2,000 per eligible child for approved nonrecurring guardianship expenses, including but not limited to:

(A) The cost of a home study;

(B) Court costs;

(D) Physical and psychological examinations required for the guardianship; and

(E) Travel to visit with the child prior to placement.

(b) Payment for nonrecurring guardianship expenses may not duplicate expenses covered by the Interstate Compact for Placement of Children or another resource available to the potential guardian.

(c) Documentation of nonrecurring guardianship expenses is required and must be submitted prior to execution of the nonrecurring guardianship assistance agreement. The nonrecurring guardianship assistance agreement, indicating the nature and amount of the nonrecurring guardianship expenses, must be signed by the potential guardian and a Department representative prior to the establishment of the guardianship.

(d) Payment for nonrecurring guardianship expenses is made when the Department receives the court order establishing the guardianship.

(14) Overpayment.

(a) If the Department issues a guardianship assistance payment on behalf of a child or young adult after the date the guardianship assistance agreement automatically expires, the Department may seek reimbursement of the overpayment and the guardian must repay the Department.

(b) If the guardian fails to comply with any provisions of the guardianship assistance agreement, including failing to notify the Department of any of the events or circumstances described in OAR 413-070-0964 and 413-070-0974(2), the Department may collect any guardianship assistance payment or medical assistance which the Department would not have provided had the guardian complied with the provisions of the guardianship assistance agreement.

Stat. Auth.: ORS 418.005 & 418.340

Stats. Implemented: ORS 418.005, 418.330, 418.335 & 418.340

Hist.: SOSCF 18-1999(Temp), f. & cert. ef. 9-14-99 thru 3-12-00; SOSCF 7-2000, f. & cert. ef. 2-10-00; SOSCF 43-2001, f. 12-31-01, cert. ef. 1-1-02; CWP 14-2003, f. & cert. ef. 1-9-03; CWP 26-2003, f. & cert. ef. 7-31-03; CWP 8-2004, f. & cert. ef. 4-1-04; CWP 5-2009(Temp), f. & cert. ef. 3-31-09 thru 9-27-09; CWP 7-2009(Temp), f. & cert. ef. 7-1-09 thru 9-27-09; CWP 12-2009, f. & cert. ef. 9-28-09; Renumbered from 413-070-0930, CWP 18-2009(Temp), f. & cert. ef. 12-16-09 thru 6-14-10; CWP 1-2010(Temp), f. & cert. ef. 2-1-10 thru 6-14-10; CWP 6-2010, f. & cert. ef. 6-15-10; CWP 11-2011(Temp), f. & cert. ef. 6-30-11 thru 12-27-11; CWP 24-2011(Temp), f. 9-30-11, cert. ef. 10-1-11 thru 12-27-11; CWP 30-2011, f. 12-27-11, cert. ef. 12-28-11

413-070-0944

Legal Expenses of a Guardian

The Department may not authorize payment for legal services provided:

(1) For the potential guardian or guardian in connection with a contested case hearing; or

(2) To defend or retain a guardianship upon challenge by another party once a guardianship is established.

Stat. Auth.: ORS 418.005 & 418.340

Stats. Implemented: ORS 418.005, 418.330, 418.335 & 418.340

Hist.: SOSCF 18-1999(Temp), f. & cert. ef. 9-14-99 thru 3-12-00; SOSCF 7-2000, f. & cert. ef. 2-10-00; SOSCF 43-2001, f. 12-31-01, cert. ef. 1-1-02; CWP 26-2003, f. & cert. ef. 7-31-03; CWP 8-2004, f. & cert. ef. 4-1-04; CWP 5-2009(Temp), f. & cert. ef. 3-31-09 thru 9-27-09; CWP 7-2009(Temp), f. & cert. ef. 7-1-09 thru 9-27-09; CWP 12-2009, f. & cert. ef. 9-28-09; Renumbered from 413-070-0960, CWP 18-2009(Temp), f. & cert. ef. 12-16-09 thru 6-14-10; CWP 6-2010, f. & cert. ef. 6-15-10; CWP 11-2011(Temp), f. & cert. ef. 6-30-11 thru 12-27-11; CWP 30-2011, f. 12-27-11, cert. ef. 12-28-11

413-070-0949

Guardianship Assistance Agreement Requirements

(1) Before a guardian may receive guardianship assistance, there must be a negotiated written guardianship assistance agreement between the Department and the potential guardian or guardian signed by all parties prior to the court order establishing the legal guardianship.

(2) The guardianship assistance agreement must include each of the following:

(a) A statement indicating that a guardianship assistance agreement remains in effect without regard to the state of residency of the guardian.

(b) The effective date of the initial guardianship assistance agreement is the date of the court order of guardianship.

(c) That the Department will pay the nonrecurring guardianship expenses associated with obtaining legal guardianship of the child, to the extent the nonrecurring guardianship expenses do not exceed $2,000 per child.

(d) That the child or young adult for whom the Department is providing a guardianship assistance payment remains eligible for medical assistance provided:

(A) The guardianship remains in effect;

(B) A payment is being made; and

(e) Information regarding garnishment of guardianship assistance payments as set forth in OAR 413-070-0939(10).

(f) That the guardian agrees to comply with the reporting requirements under OAR 413-070-0964.

(g) That the guardian understands that a guardianship assistance agreement may be reviewed and the guardianship assistance may be adjusted, suspended, or terminated under OAR 413-070-0974.

(h) A statement indicating that the guardian understands that the provisions of ORS 192.520 allow the Oregon Health Plan (OHP) and the OHP managed care plans without the authorization of the guardian, child, or young adult to exchange the following protected health information for the purpose of treatment activities related to the behavioral or physical health of the child or young adult when the child or young adult is the recipient of OHP services:

(A) The name and Medicaid recipient number of the child or young adult;

(B) The name of the hospital or medical provider of the child or young adult;

(D) Each diagnosis for the child or young adult;

(E) Each treatment activity’s date of service;

(F) Each treatment activity’s procedure or revenue code;

(G) The quantity of units or services provided; and

(H) Information about medication prescription and monitoring.

(i) The amount of the guardianship assistance and the manner in which it is to be provided.

(j) The basis and requirements for periodic changes in the guardianship assistance payment, in consultation with the guardian, based on the circumstances of the guardian and the needs of the child or young adult.

(k) The additional services and assistance for which the child or young adult and guardian are eligible under the agreement and the procedure by which the guardian may apply for such services.

(l) When the Department has agreed to include such language, that the Department may continue to provide guardianship assistance for a child or young adult when child or young adult moves out of the home of the guardian to attend college or live independently.

(3) The Department must provide the guardian with a copy of the guardianship assistance agreement.

Stat. Auth.: ORS 418.005 & 418.340

Stats. Implemented: ORS 418.005, 418.330, 418.335 & 418.340

Hist.: SOSCF 18-1999(Temp), f. & cert. ef. 9-14-99 thru 3-12-00; SOSCF 7-2000, f. & cert. ef. 2-10-00; SOSCF 43-2001, f. 12-31-01, cert. ef. 1-1-02; CWP 26-2003, f. & cert. ef. 7-31-03; CWP 49-2003(Temp), f. 12-31-03, cert. ef. 1-1-04 thru 4-28-04; CWP 8-2004, f. & cert. ef. 4-1-04; CWP 5-2009(Temp), f. & cert. ef. 3-31-09 thru 9-27-09; CWP 7-2009(Temp), f. & cert. ef. 7-1-09 thru 9-27-09; CWP 12-2009, f. & cert. ef. 9-28-09; Renumbered from 413-070-0935, CWP 18-2009(Temp), f. & cert. ef. 12-16-09 thru 6-14-10; CWP 1-2010(Temp), f. & cert. ef. 2-1-10 thru 6-14-10; CWP 6-2010, f. & cert. ef. 6-15-10; CWP 11-2011(Temp), f. & cert. ef. 6-30-11 thru 12-27-11; CWP 24-2011(Temp), f. 9-30-11, cert. ef. 10-1-11 thru 12-27-11; CWP 30-2011, f. 12-27-11, cert. ef. 12-28-11

413-070-0959

Court Order of Guardianship

(1) Guardianship assistance may only be provided for a legal guardianship established under ORS 419B.365 or 419B.366, as provided under ORS 419B.367 to 419B.369, or as provided by the statutory code or laws of a participating tribe.

(2) The Department or participating tribe may not pursue a court order establishing an assisted guardianship until a guardianship assistance agreement between the Department and the potential guardian has been signed by all parties.

(3) The Department or participating tribe, through counsel if the child is in the legal custody of the Department, must move the court for an order establishing the guardianship and, when the child is in the legal custody of the Department or participating tribe, directing one of the following:

(a) Termination of Department or participating tribe’s legal custody and dismissal of the Department or participating tribe as a party to the case; or

(b) If the child has been committed permanently to the Department, an order setting aside the order of permanent commitment and relieving the Department of responsibility for the care, placement, and supervision of the child.

(4) The Department may not provide guardianship assistance if the court establishes guardianship but orders the Department or participating tribe to continue supervision of the child or guardian.

(5) The guardian is not eligible for payments provided under Child Welfare Policies I-E.5.1, “Foster Care Payments for a Child or Young Adult Living with a Certified Family or Living Independently”, OAR 413-090-0000 to 413-090-0050 and I-E.5.1.2, “Personal Care Services”, OAR 413-090-0100 to 413-090-0210 once the guardianship is effective and the Department’s or participating tribe’s custody of the child is dismissed by court order.

Stat. Auth.: ORS 418.005 & 418.340

Stats. Implemented: ORS 418.005, 418.330, 418.335 & 418.340

Hist.: SOSCF 7-2000, f. & cert. ef. 2-10-00; SOSCF 43-2001, f. 12-31-01, cert. ef. 1-1-02; CWP 26-2003, f. & cert. ef. 7-31-03; CWP 49-2003(Temp), f. 12-31-03, cert. ef. 1-1-04 thru 4-28-04; CWP 8-2004, f. & cert. ef. 4-1-04; CWP 5-2009(Temp), f. & cert. ef. 3-31-09 thru 9-27-09; CWP 7-2009(Temp), f. & cert. ef. 7-1-09 thru 9-27-09; CWP 12-2009, f. & cert. ef. 9-28-09; Renumbered from 413-070-0937, CWP 18-2009(Temp), f. & cert. ef. 12-16-09 thru 6-14-10; CWP 6-2010, f. & cert. ef. 6-15-10; CWP 11-2011(Temp), f. & cert. ef. 6-30-11 thru 12-27-11; CWP 30-2011, f. 12-27-11, cert. ef. 12-28-11

413-070-0964

Changes That Must be Reported and Annual Report

(1) A guardian receiving guardianship assistance must immediately report, orally or in writing, to the Adoption Assistance and Guardianship Assistance Unit any changes in circumstances of the child, young adult, or guardian that makes the child or young adult ineligible for guardianship assistance including when:

(a) The child or young adult:

(A) Is emancipated;

(B) Dies;

(D) Is adopted.

(b) The court:

(A) Vacates the guardianship; or

(B) Terminates wardship over the child or young adult, unless the guardianship is a tribal court guardianship and the guardianship remains in effect under tribal law.

(2) A guardian receiving a guardianship assistance payment must immediately report, orally or in writing, to the Department’s Adoption Assistance and Guardianship Assistance Unit any changes in circumstances of the child, young adult, or guardian that may make the child or young adult ineligible for guardianship assistance including when:

(a) The child or young adult:

(A) Is out of the home of a guardian for more than a thirty day period or, if more than one guardian, is out of the home of both guardians for more than a thirty day period;

(B) Has a change in needs including but not limited to eligibility for a change in the level of care payment based on a new CANS screening;

(D) Is no longer receiving financial support from a guardian or, if there is more than one guardian, both guardians;

(E) Is incarcerated for more than three consecutive months; or

(F) Has a change in any benefit received other than tribal dividend payments.

(b) A guardian is, or if more than one guardian, both guardians are:

(A) No longer legally responsible for the financial support of the child or young adult;

(B) No longer responsible for the child or young adult; or

(d) The court:

(A) Modifies the guardianship, or

(B) Awards child custody or guardianship to another individual.

(3) A guardian receiving a guardianship assistance payment must immediately report, orally or in writing, to the Adoption Assistance and Guardianship Assistance Unit the following:

(a) When there are two guardians and one guardian dies, the surviving guardian must notify the Department.

(b) When there is a change in address.

(4) The guardian, within 30 days after each annual anniversary of the court appointment of guardianship, must file a written report with the court and submit a copy of the report to the Adoption Assistance and Guardianship Assistance Unit.

(5) When the court does not require an annual report under section (4) of this rule as part of the appointment of guardianship, the Department requires the guardian to submit an annual report to the Adoption Assistance and Guardianship Assistance Unit within 30 days after each anniversary of the appointment of guardianship.

Stat. Auth.: ORS 418.005 & 418.340

Stats. Implemented: ORS 418.005, 418.330, 418.335 & 418.340

Hist.: SOSCF 18-1999(Temp), f. & cert. ef. 9-14-99 thru 3-12-00; SOSCF 7-2000, f. & cert. ef. 2-10-00; SOSCF 43-2001, f. 12-31-01, cert. ef. 1-1-02; CWP 14-2003, f. & cert. ef. 1-9-03; CWP 19-2003(Temp), f. & cert. ef. 1-23-03 thru 6-20-03; CWP 26-2003, f. & cert. ef. 7-31-03; CWP 8-2004, f. & cert. ef. 4-1-04; CWP 5-2009(Temp), f. & cert. ef. 3-31-09 thru 9-27-09; CWP 7-2009(Temp), f. & cert. ef. 7-1-09 thru 9-27-09; CWP 12-2009, f. & cert. ef. 9-28-09; Renumbered from 413-070-0945 & 413-070-0955, CWP 18-2009(Temp), f. & cert. ef. 12-16-09 thru 6-14-10; CWP 1-2010(Temp), f. & cert. ef. 2-1-10 thru 6-14-10; CWP 6-2010, f. & cert. ef. 6-15-10; CWP 11-2011(Temp), f. & cert. ef. 6-30-11 thru 12-27-11; CWP 24-2011(Temp), f. 9-30-11, cert. ef. 10-1-11 thru 12-27-11; CWP 30-2011, f. 12-27-11, cert. ef. 12-28-11

413-070-0969

Renegotiation of a Guardianship Assistance Agreement

(1) A potential guardian or guardian may request that the Department consider renegotiation of the guardianship assistance agreement. The request for renegotiation must:

(a) Be in writing in a format provided by the Department to the potential guardian or guardian;

(b) Document changes in the circumstances of the potential guardian or guardian, when applicable;

(d) Provide information about the financial expenses of the potential guardian or guardian in meeting the needs of the child or young adult;

(e) Provide information about the expenses required to meet the needs of the child or young adult; and

(f) Provide additional documentation of the child or young adult’s current behaviors when the child or young adult meets the eligibility requirements for consideration of a level of care payment under OAR 413-020-0230 and the potential guardian or guardian is requesting a level of care payment.

(2) Renegotiation of the guardianship assistance base rate will be conducted as described in OAR 413-070-0939(2) and (3).

(3) Referrals for CANS screenings are described in OAR 413-020-0230.

(4) The Department may require a renegotiation of the guardianship assistance agreement when the Department determines that the child or young adult is eligible for guardianship assistance in a different amount, as described in OAR 413-070-0974.

(5) A new guardianship assistance agreement must be signed by all parties each time a new guardianship assistance payment is agreed upon by the potential guardian or guardian and the Department.

(6) Unless section (7) of this rule applies, the Department may authorize a renegotiated guardianship assistance payment increase or decrease beginning on a date no earlier than the first day of the month in which the Department receives the written request for renegotiation.

(7) The Department may approve up to twelve months of retroactive payments unless a contested case hearing was requested and a subsequent decision necessitates a payment of more than twelve months. The decision includes any decision by the Department including:

(a) A final order;

(b) A stipulated final order;

(d) Any other agreement resulting in withdrawal of the contested case.

Stat. Auth.: ORS 418.005 & 418.340

Stats. Implemented: ORS 418.005, 418.330, 418.335 & 418.340

Hist.: CWP 18-2009(Temp), f. & cert. ef. 12-16-09 thru 6-14-10; CWP 6-2010, f. & cert. ef. 6-15-10; CWP 11-2011(Temp), f. & cert. ef. 6-30-11 thru 12-27-11; CWP 30-2011, f. 12-27-11, cert. ef. 12-28-11

413-070-0970

Guardianship Social Support Services

The guardian or child in an assisted guardianship may request family support services as described in Child Welfare Policy I-B.2.3.1, “Family Support Services”, OAR 413-030-0000 to 413-030-0030 from the Department.

Stat. Auth.: ORS 418.005 & 418.340

Stats. Implemented: ORS 418.005, 418.330, 418.335 & 418.340

Hist.: SOSCF 18-1999(Temp), f. & cert. ef. 9-14-99 thru 3-12-00; SOSCF 7-2000, f. & cert. ef. 2-10-00; SOSCF 43-2001, f. 12-31-01, cert. ef. 1-1-02; CWP 26-2003, f. & cert. ef. 7-31-03; CWP 8-2004, f. & cert. ef. 4-1-04; CWP 5-2009(Temp), f. & cert. ef. 3-31-09 thru 9-27-09; Suspended by CWP 7-2009(Temp), f. & cert. ef. 7-1-09 thru 9-27-09; CWP 12-2009, f. & cert. ef. 9-28-09; CWP 18-2009(Temp), f. & cert. ef. 12-16-09 thru 6-14-10; CWP 6-2010, f. & cert. ef. 6-15-10; CWP 11-2011(Temp), f. & cert. ef. 6-30-11 thru 12-27-11; CWP 30-2011, f. 12-27-11, cert. ef. 12-28-11

413-070-0974

Review, Adjustment, Suspension, Expiration, and Termination of Guardianship Assistance

(1) The Department may review a guardianship assistance agreement when the Department:

(a) Receives information indicating that the child or young adult may no longer be eligible for guardianship assistance or may be eligible for guardianship assistance in a different amount, including when the Department receives information regarding any of the circumstances described in OAR 413-070-0964;

(b) Determines, when the child or young adult is not residing in the home of the guardian, that a periodic review of the guardianship assistance agreement is required;

(c) Receives information that indicates a review is necessary based on a change in the needs of the child or young adult or circumstances of the family;

(d) Receives information that the young adult no longer meets the requirements for continued assistance, if the Department has agreed to extend guardianship assistance under OAR 413-070-0917(3); or

(e) Determines that the guardian has not complied with the requirements of the guardianship assistance agreement.

(2) Department review of a guardianship assistance agreement may result in a renegotiation, suspension, adjustment, or termination of the guardianship assistance agreement or guardianship assistance payments.

(3) Guardianship assistance may be adjusted at any time by mutual agreement between the guardian and the Department.

(4) When there is an across-the-board reduction or increase in the base rate payment or level of care payment that the child or young adult would be eligible to receive if the child or young adult were in foster care, the Department may, after a case-by-case review and without concurrence of the guardian, adjust the monthly guardianship assistance payment to an amount that does not exceed the new foster care payment the child or young adult would be eligible to receive if currently in foster care, as follows:

(a) In the case of a reduction, only those payments that exceed the amount the child or young adult would be eligible for if currently in foster care would be reduced, and the reduction would only be to the amount that the child or young adult would be eligible to receive if currently in foster care.

(b) In the case of an increase, the Department, considering the needs of the child or young adult and the circumstances of the guardian, may increase the guardianship assistance payment to an amount that does not exceed the new foster care payment the child or young adult would receive if currently in foster care.

(5) If, upon review under section (1) of this rule or an adjustment under section (4) of this rule, the Department intends to adjust guardianship assistance without the concurrence of the guardian, the Department will provide the guardian and the child or young adult with written notice as described in Child Welfare Policy I-A.5.2, “Contested Case Hearings”, OAR 413-010-0500 to 413-010-0535.

(6) Unless terminated under sections (7) or (8) of this rule, the guardianship assistance agreement and the Department’s obligation to provide guardianship assistance expires automatically on the date any of the following events occur:

(a) When the child:

(A) Reaches the age of 18 or, when an extension has been granted under OAR 413-070-0917(3), under the age of 21 as documented in the guardianship assistance agreement;

(B) Is emancipated;

(D) Marries;

(E) Is adopted; or

(F) No longer meets the requirements for continued guardianship assistance if the Department has agreed to continue guardianship assistance under OAR 413-070-0917(3).

(b) A guardian dies, or if more than one guardian, both die.

(A) Vacates the guardianship order or otherwise terminates the guardianship;

(B) Terminates wardship over the child or young adult, unless the guardianship is a tribal court guardianship and the guardianship remains in effect under tribal law; or

(7) Guardianship assistance may be suspended at any time by mutual agreement between the Department and the guardian.

(8) After a review and on a case-by-case basis, the Department may terminate a guardianship assistance agreement upon ten days written notice to the potential guardian or guardian when the Department determines that:

(a) The potential guardian or guardian is no longer responsible for the child or young adult;

(b) The potential guardian or guardian is no longer providing support to the child or young adult; or

(c) The child or young adult is no longer eligible for guardianship assistance or is eligible for guardianship assistance in a different amount.

Stat. Auth.: ORS 418.005 & 418.340

Stats. Implemented: ORS 418.005, 418.330, 418.335 & 418.340

Hist.: SOSCF 18-1999(Temp), f. & cert. ef. 9-14-99 thru 3-12-00; SOSCF 7-2000, f. & cert. ef. 2-10-00; SOSCF 43-2001, f. 12-31-01, cert. ef. 1-1-02; CWP 14-2003, f. & cert. ef. 1-9-03; CWP 26-2003, f. & cert. ef. 7-31-03; CWP 8-2004, f. & cert. ef. 4-1-04; CWP 5-2009(Temp), f. & cert. ef. 3-31-09 thru 9-27-09; CWP 7-2009(Temp), f. & cert. ef. 7-1-09 thru 9-27-09; CWP 12-2009, f. & cert. ef. 9-28-09; Renumbered from 413-070-0940, CWP 18-2009(Temp), f. & cert. ef. 12-16-09 thru 6-14-10; CWP 1-2010(Temp), f. & cert. ef. 2-1-10 thru 6-14-10; CWP 6-2010, f. & cert. ef. 6-15-10; CWP 11-2011(Temp), f. & cert. ef. 6-30-11 thru 12-27-11; CWP 24-2011(Temp), f. 9-30-11, cert. ef. 10-1-11 thru 12-27-11; CWP 30-2011, f. 12-27-11, cert. ef. 12-28-11

Rule Caption: Changing OARs affecting Child Welfare programs.

Adm. Order No.: CWP 31-2011

Filed with Sec. of State: 12-27-2011

Certified to be Effective: 12-28-11

Notice Publication Date: 10-1-2011

Rules Amended: 413-070-0063

Subject: OAR 413-070-0063 is being amended to clarify the definition of the term relative as used in rules that set out the Department’s responsibility to search for and engage a child or young adult’s relatives. This amendment also aligns the definition with the definition of the term “relative” used in other child welfare rules, and makes permanent changes to this rule adopted by temporary rule on June 30, 2011. In addition, the above rule may also be changed to reflect new Department terminology and to correct formatting and punctuation.

Rules Coordinator: Annette Tesch—(503) 945-6067

413-070-0063

Definitions

The following definitions apply to OAR 413-070-0060 to 413-070-0093:

(1) “Caregiver relationship” means a relationship between a person and a child that meets the requirements of the following subsections:

(a) The relationship has existed for the 12 months immediately preceding the initiation of a dependency proceeding, at least six months during a dependency proceeding, or half of the child’s life if the child is less than six months of age.

(b) The person had physical custody of the child or resided in the same household as the child and provided the child on a daily basis with the love, nurturing, and other necessities required to meet the child’s psychological and physical needs.

(d) A caregiver relationship does not include a relationship between a child and a person who is the unrelated foster parent of the child unless the relationship continued for a period of at least twelve consecutive months.

(2) “Certificate of approval” means a document that the Department issues to approve the operation of a child-specific relative caregiver home, child-specific foster home, pre-adoptive home, or a regular foster home.

(3) “Child” means a person under 18 years of age.

(4) “Department” means the Department of Human Services, Child Welfare.

(5) “Designee” means a person who the designator directly and immediately supervises or a person with equal or greater management responsibility than the designator.

(6) “Foster parent” means an individual who operates a home that has been approved by the Department to provide care for an unrelated child or young adult placed in the home by the Department.

(7) “Indian child” is any unmarried person under 18 years of age who is either a member of an Indian tribe or is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe.

(8) “Parent” means the biological or adoptive mother or the legal father of the child. A legal father is a man who has adopted the child or whose paternity has been established or declared under ORS 109.070, ORS 416.400 to 416.465, or by a juvenile court. In cases involving an Indian child under the Indian Child Welfare Act (ICWA), a legal father includes a man who is a father under applicable tribal law. “Parent” also includes a putative father who has demonstrated a direct and significant commitment to the child by assuming or attempting to assume responsibilities normally associated with parenthood, unless a court finds that the putative father is not the legal father.

(9) “Registered domestic partner” means an individual joined in a domestic partnership that has been registered by a county clerk in accordance with ORS 106.300 to 106.340.

(10) “Relative” means:

(a) An individual with one of the following relationships to the child or young adult through the parent of the child or young adult:

(A) Any blood relative of preceding generations denoted by the prefixes of grand, great, or great-great.

(B) Any half-blood relative of preceding generations denoted by the prefixes of grand, great, or great-great (individuals with one common biological parent are half-blood relatives).

(C) A sibling, also to include an individual with a sibling relationship to the child or young adult through a putative father.

(D) An aunt, uncle, nephew, niece, first cousin, and first cousin once removed.

(E) A spouse of anyone listed in paragraphs (A) to (D) of this subsection, even if a petition for annulment, dissolution, or separation has been filed or the marriage is terminated by divorce or death. To be considered a relative under this paragraph, the child or young adult must have had a relationship with the spouse prior to the child or young adult entering substitute care.

(F) For the purposes of an international adoption, relative means an individual described in paragraphs (A) to (D) of this subsection.

(b) An individual with one of the following relationships to the child or young adult:

(A) An individual defined as a relative by the law or custom of the tribe of the child or young adult if the child or young adult is an Indian child under the Indian Child Welfare Act or in the legal custody of a tribe.

(B) An individual defined as a relative of a refugee child or young adult under Child Welfare Policy I-E.2.2, “Placement of Refugee Children” OAR 413-070-0300 to 413-070-0380.

(C) A stepparent described in OAR 413-100-0020(25)(e) or former stepparent if the child or young adult had a relationship with the former stepparent prior to the child or young adult entering substitute care; a stepbrother; or a stepsister.

(D) The registered domestic partner of the parent of the child or young adult or a former registered domestic partner of the parent of the child or young adult if the child or young adult had a relationship with the former domestic partner prior to entering substitute care.

(E) The adoptive parent of a sibling of the child or young adult.

(F) The unrelated legal or biological father or mother of a half-sibling of the child or young adult when the half-sibling of the child or young adult is living with the unrelated legal or biological father or mother.

(c) An individual identified by the child or young adult or the family of the child or young adult, or an individual who self-identifies, related to the child or young adult through the parent of the child or young adult by blood, adoption, or marriage to a degree other than an individual specified as a relative in paragraphs (A) to (D) of subsection (a) of this section.

(d) An individual, although not related by blood, adoption, or marriage identified as:

(A) A member of the family by the child or young adult or by the family of the child or young adult; and

(B) An individual who had an emotionally significant relationship with the child or young adult or the family of the child or young adult prior to the time the Department placed the child in substitute care.

(e) For eligibility for the Guardianship Assistance program:

(A) A stepparent is considered a parent and is not a relative for the purpose of eligibility for Guardianship Assistance unless a petition for annulment, dissolution, or separation has been filed, or the marriage to the child’s adoptive or biological parent has been terminated by divorce or death.

(B) A foster parent may only be considered a relative for the purpose of eligibility for Guardianship Assistance and only when the requirements of all of the following subparagraphs are met:

(i) There is a compelling reason why adoption is not an achievable permanency plan;

(ii) The foster parent is currently caring for a child in the legal custody of the Department who has a permanency plan or concurrent permanency plan of guardianship;

(iii) The foster parent has cared for the child for at least the past 12 consecutive months; and

(iv) The Department has approved the foster parent for consideration as a guardian.

(11) “Relative caregiver” means an individual who operates a home that has been approved by the Department to provide care for a related child or young adult placed in the home by the Department.

(12) “Relative search” means the efforts of the Department to identify, locate, and document the contact with a child or young adult’s relatives.

(13) “Safety service provider” means a participant in a protective action or ongoing safety plan whose actions, assistance, or supervision help a family in managing a child’s safety.

(14) “Sibling” means one of two or more children or young adults related:

(a) By blood or adoption through a common legal parent;

(b) Through the marriage of the children or young adult’s legal or biological parents; or

(c) Through a legal or biological parent who is the registered domestic partner of the children or young adults’ legal or biological parent.

(15) “Substitute care” means the out-of-home placement of a child or young adult who is in the legal or physical custody and care of the Department.

(16) “Young adult” means a person aged 18 through 20 years who remains in the care and custody of the Department, and lives in substitute care or lives independently through the Department’s Independent Living Subsidy Program.

Stat. Auth.: ORS 418.005

Stats. Implemented: ORS 109.119, 418.005, 419A.004, 419B.192)

Hist.: SOSCF 19-1998(Temp), f. & cert. ef. 10-30-98 thru 4-28-99; SOSCF 6-1999, f. & cert. ef. 4-29-99; SOSCF 3-2001(Temp) f. & cert. ef. 1-24-01 thru 7-22-01; SOSCF 34-2001, f. 6-29-01 cert. ef. 7-1-01; CWP 10-2010, f. & cert. ef. 7-1-10; CWP 10-2011(Temp), f. & cert. ef. 6-30-11 thru 12-27-11; CWP 31-2011, f. 12-27-11, cert. ef. 12-28-11

Rule Caption: Changing OARs affecting Child Welfare programs.

Adm. Order No.: CWP 32-2011

Filed with Sec. of State: 12-27-2011

Certified to be Effective: 12-28-11

Notice Publication Date: 10-1-2011

Rules Amended: 413-100-0135, 413-100-0150

Subject: These rule changes are part of the implementation of PL 110-351 Fostering Connections to Success and Increasing Adoptions Act of 2008 (122 Stat. 3949 - 3981) for Title IV-E eligibility. OAR 413-100-0135 is being amended to clarify the removal and specified relative criteria as it applies to children ages 0 through 17, and to young adults, ages 18 through 20. OAR 413-100-0150 is being amended to explain that OASDI means Old-Age, Survivors, and Disability Insurance (OASDI) so the rule can be better understood by Department staff or the public. These rule changes make permanent changes adopted by temporary rule on June 30, 2011.

In addition, the above rules may also be changed to reflect new Department terminology and to correct formatting and punctuation.

Rules Coordinator: Annette Tesch—(503) 945-6067

413-100-0135

Eligibility Determinations — Living with a “Specified Relative” and “Removal”

(1) Specified Relative Requirements. To meet Title IV-E eligibility requirements the child or young adult, at the time of the child’s removal from his or her home, must have been living with and removed from the same specified relative, as defined in OAR 413-100-0020.

(2) Removal Requirements for a child age 17 or younger. To meet Title IV-E eligibility requirements, the child’s removal from the home must occur pursuant to:

(a) A voluntary custody agreement or voluntary placement agreement, signed by a parent or specified relative, that results in the “physical” or “constructive” removal of the child from the home; or

(b) A judicial order that requires the child’s “physical” or “constructive” removal from the parent or specified relative and gives the Department responsibility for the placement and care of the child.

(3) Removal Requirements for a young adult age 18, 19 or 20. To meet Title IV-E eligibility requirements, the young adult’s removal from the home must occur pursuant to:

(a) Court ordered removal prior to age 18. A judicial order that requires the child’s “physical” or “constructive” removal from the parent or specified relative and gives the Department responsibility for the placement and care of the child. No new court ordered removal is required at the age of 18 or older to remain eligible for Title IV-E foster care maintenance payments, as long as the young adult remains in continuous foster care.

(b) A voluntary placement agreement prior to age 18, signed by a parent or specified relative, that results in the “physical” or “constructive” removal of the child from the home. No new voluntary placement agreement is required after the young adult attains the age of 18 for Title IV-E purposes as long as the young adult remains in continuous foster care.

(4) Removal Home Requirements. Effective June 9, 2006, for Title IV-E eligibility purposes, the child’s removal home must meet the requirements of one of the following subsections:

(a) Physical Removal. The Department considers a child’s removal a physical removal when the judicial order or the signing of a voluntary custody or voluntary placement agreement results in the removal of the child from the physical custody of the parent or specified relative and gives the Department responsibility for the placement and care of the child.

(b) Constructive Removal. The Department considers a child’s removal a constructive removal:

(A) When the child is living in the home of an interim caretaker (relative or non-relative) at the time of removal but the child lived with a parent or specified relative within the six months prior to the judicial order, voluntary custody agreement, or voluntary placement agreement which resulted in the constructive removal of the child from the parent or specified relative and gave the Department responsibility for the placement and care of the child; or

(B) When the parent or specified relative and the child live in another relative’s home, the Department considers the child’s removal a constructive removal from the parent or specified relative if:

(i) The parent or specified relative moves out of the home within the six months prior to the removal;

(ii) The child remains in the relative’s home; and

(iii) Within six months of the date the parent or specified relative left the relative’s home there is a judicial order or voluntary custody or placement agreement that results in the removal of the child from the parent or specified relative and gives the Department responsibility for the placement and care of the child.

Stat. Auth.: ORS 409.050 & 418.005

Stats. Implemented: ORS 409.010, 409.050, 418.005 & 418.625

Hist.: SOSCF 20-2000(Temp), f. 8-11-00 thru 2-6-01; SOSCF 4-2001, f. & cert. ef. 2-7-01; SOSCF 44-2001, f. 12-31-01 cert. ef. 1-1-02; CWP 30-2003(Temp), f. & cert. ef. 9-2-03 thru 2-28-04; CWP 2-2004, f. & cert. ef. 2-10-04; CWP 1-2007(Temp), f. & cert. ef. 2-7-07 thru 8-6-07; CWP 14-2007, f. & cert. ef. 8-1-07; CWP 6-2010, f. & cert. ef. 6-15-10; CWP 14-2011(Temp), f. & cert. ef. 6-30-11 thru 12-27-11; CWP 32-2011, f. 12-27-11, cert. ef. 12-28-11

413-100-0150

Parental Deprivation

(1) The continued absence of one or both birth or adoptive parents, or a stepparent from the home constitutes the basis for deprivation of parental support or care.

(2) Deprivation of parental support in relation to the home from which the child is removed exists when:

(a) Death of a parent. Either parent of a child is deceased.

(b) Continued absence of the parent from the home. There is a Continued Absence of one or both parents when:

(A) One or both parents are out of the home and the nature of this absence is such as to either interrupt or terminate the parent’s functioning as a provider of maintenance, physical care, or guidance for the child;

(B) There is evidence of continued absence of over 30 days duration; or

(c) Physical or mental incapacity. Incapacity is documented as parental deprivation in a one-parent or two-parent household as follows:

(A) One or both parents’ receipt of Supplemental Security Income (SSI) or being found eligible for Old-Age, Survivors, and Disability Insurance (OASDI) or SSI based on disability or blindness;

(B) One or both parents receive Social Security Benefits (SSB) based on disability or blindness; or

(C) One or both parents have a physical or mental defect, illness, or impairment that is expected to last at least 30 days, is supported by competent medical testimony, and substantially reduces or eliminates the parent’s ability to support or care for the child.

(d) Unemployment or underemployment may be documented as parental deprivation in a two-parent household if each parent meets one of the following criteria:

(A) Is working less than 100 hours per month; or

(B) Has a temporary one-month increase to over 100 hours, but:

(i) Worked less than 100 hours in each of the two previous months; and

(ii) Is expected to work less than 100 hours in the following month.

Stat. Auth.: ORS 409.050 & 418.005

Stats. Implemented: ORS 409.010, 409.050, 412.144 & 418.005

Hist.: SCF 6-1995, f. 12-22-95, cert. ef. 12-29-95; SCF 1-1997, f. 2-18-97, cert. ef. 3-1-97; SOSCF 20-2000(Temp), f. & cert. ef. 8-11-00 thru 2-6-01; SOSCF 4-2001, f. & cert. ef. 2-7-01; CWP 30-2003(Temp), f. & cert. ef. 9-2-03 thru 2-28-04; CWP 2-2004, f. & cert. ef. 2-10-04; CWP 14-2007, f. & cert. ef. 8-1-07; CWP 6-2010, f. & cert. ef. 6-15-10; CWP 14-2011(Temp), f. & cert. ef. 6-30-11 thru 12-27-11; CWP 32-2011, f. 12-27-11, cert. ef. 12-28-11

Rule Caption: Changing OARs affecting Child Welfare programs.

Adm. Order No.: CWP 33-2011

Filed with Sec. of State: 12-27-2011

Certified to be Effective: 12-28-11

Notice Publication Date: 10-1-2011

Rules Amended: 413-100-0900, 413-100-0905, 413-100-0910, 413-100-0915, 413-100-0920, 413-100-0925, 413-100-0930, 413-100-0940

Subject: OAR 413-100-0905 defining certain terms used in rules about educational services for a child or young adult in substitute care is being changed to define the term “child”

OAR 413-100-0915 about ensuring the enrollment of a child or young adult in substitute care in school or an educational setting is being amended to clarify the approval process for international study, clarify who has responsibilities for decision making on a child’s school or educational setting, and clarify the Department’s responsibilities to maintain a child in full time attendance in school, except for medical reasons, under Chapter 581 of the Oregon Administrative Rules.

OAR 413-100-0925 about consent for special education services for a child or young adult in substitute care is being amended to clarify authority to consent to special education services for a young adult.

OAR 413-100-0930 about the right to a child’s education records for a child in substitute care is being amended to clarify the protections for special education records.

The above rules are also being amended to make permanent changes adopted by temporary rules on June 30, 2011. These rules along with OAR 413-100-0900, 413-100-0910, 413-100-0920, and 413-100-0940 are also being amended to identify defined terms.

In addition, the above rules may also be changed to reflect new Department terminology and to correct formatting and punctuation.

Rules Coordinator: Annette Tesch—(503) 945-6067

413-100-0900

Purpose

The purpose of these rules, OAR 413-100-0900 to 413-100-0940, is to describe the activities required to:

(1) Ensure that regular education and special education services are provided to promote academic achievement of a child or young adult in the care and custody of the Department; and

(2) Ensure that public preschool education, early intervention education programs, and appropriate post-secondary education or training opportunities are explored for an eligible child or young adult in the care or custody of the Department.

Stat. Auth.: ORS 409.050 & 418.005

Stats. Implemented: ORS 409.050, 418.005, 419B.192, 419B.220 & 419B.343

Hist.: CWP 30-2007(Temp), f. 12-31-07, cert. ef. 1-1-08 thru 6-27-08; CWP 13-2008, f. 6-27-08, cert. ef. 6-28-08; CWP 33-2011, f. 12-27-11, cert. ef. 12-28-11

413-100-0905

Definitions

The following definitions apply to OAR 413-100-0900 to 413-100-0940:

(1) “CASA” means Court Appointed Special Advocate, a volunteer who is appointed by the court, is a party to the juvenile proceeding, and is an advocate for the child pursuant to ORS 419A.170.

(2) “Child” means a person under 18 years of age.

(3) “Department” means the Department of Human Services, Child Welfare.

(4) “GED” means a General Educational Development certificate issued pursuant to ORS 326.550.

(5) “Homeless individual” for the purposes of the McKinney-Vento Homeless Education Act means children and youth who have a right to public school enrollment and are awaiting foster care placement or are in temporary foster settings awaiting permanent placement under ORS 339.115(7).

(6) “IEP team” means the participants who determine whether the child is a child with a disability and who develop the individualized education program (IEP) for the child as described under OAR 581-015-2000(15) and 581-015-2210(1).

(7) “Parent”, except as provided otherwise in OAR 413-100-0930, means the biological or adoptive mother or the biological, legal, or adoptive father of the child.

(8) “Special education,” as defined in OAR 581-015-2000(33), means specially designed instruction, at no cost to the parents, to meet the unique needs of a child with a disability, including instruction in the classroom, instruction in the home, and instruction in hospitals, institutions, special schools, and other settings. The term includes specially designed instruction in physical education, speech language services, vocational education, travel training, and orientation and mobility services.

(9) “Special education services” means assistance provided to a child with a disability to meet the child’s unique needs and includes instruction in the classroom, in the home, and in hospitals, institutions, special schools, and other settings.

(10) “Substitute caregiver” means a relative caregiver, foster parent, or provider who is authorized to provide care to a child who is in the legal or physical custody of the Department.

(11) “Surrogate” means an individual who has been appointed to safeguard a child’s rights in the special education decision-making process. The individual may be appointed pursuant to applicable Department of Education administrative rules and statutes or by the juvenile court.

(12) “Young adult” means a person aged 18 through 20 years.

Stat. Auth.: ORS 409.050 & 418.005

Stats. Implemented: ORS 409.010, 418.005, 419B.192, 419B.220 & 419B.343

Hist.: CWP 30-2007(Temp), f. 12-31-07, cert. ef. 1-1-08 thru 6-27-08; CWP 13-2008, f. 6-27-08, cert. ef. 6-28-08; CWP 15-2011(Temp), f. & cert. ef. 6-30-11 thru 12-27-11; CWP 33-2011, f. 12-27-11, cert. ef. 12-28-11

413-100-0910

Role of the Department in the Education of a Child or Young Adult

The Department promotes the academic achievement of a child or young adult by participating as a member of the team that performs the academic assessment, planning, and goal setting for the child or young adult. The caseworker works collaboratively with the parent or legal guardian whenever appropriate; the local school district and school officials; the substitute caregiver; the surrogate, if one is appointed; the CASA and attorney of the child or young adult; local Department of Education District Homeless Liaison; and service providers involved in the case plan of the child or young adult, as appropriate, in order to ensure school enrollment and promote academic achievement.

Stat. Auth.: ORS 409.050 & 418.005

Stats. Implemented: ORS 409.050, 418.005, 419B.192, 419B.220 & 419B.343

Hist.: CWP 30-2007(Temp), f. 12-31-07, cert. ef. 1-1-08 thru 6-27-08; CWP 13-2008, f. 6-27-08, cert. ef. 6-28-08; CWP 33-2011, f. 12-27-11, cert. ef. 12-28-11

413-100-0915

Ensure a Child or Young Adult’s Enrollment in School or Educational Setting

(1) When a child or young adult is in substitute care, the child’s caseworker must arrange school enrollment and educational services under the following requirements.

(a) Preferred school or educational setting when a child first enters substitute care and at each placement move while the child or young adult remains in substitute care. The preferred school or educational setting when a child first enters substitute care is the school or educational setting the child attended prior to entry into substitute care unless:

(A) Remaining in the same school or educational setting is not in the best interest of the child; and

(B) Continuing to attend the same school or educational setting is not consistent with the ongoing safety plan or jeopardizes the child’s safety.

(b) Consideration of continuity of previous school placement when a child is in substitute care. A child who meets the definition of a homeless individual under the McKinney-Vento Homeless Education Act must be referred to the local Department of Education District Homeless Liaison, and may qualify for services available through the Act.

(2) Responsibility for ensuring school enrollment. The caseworker must ensure a child or young adult in the Department’s care or custody is enrolled in a school or educational setting, through eligibility established under ORS 339.115.

(3) Responsibility for school or educational setting placement decisions. The juvenile court makes the finding whether it is in the child’s or young adult’s best interest to continue to attend the school that the child or young adult attended prior to placement in substitute care by the Department. The child or young adult shall be considered a resident of the school district the child or young adult attended prior to placement and may continue to attend the school the child or young adult attended prior to placement through the highest grade level of the school, in accordance with ORS 339.133.

(a) A caseworker must consider recommendations from the child’s or young adult’s parents or legal guardian, attorney, CASA, school, and surrogate, if one has been appointed, and substitute caregiver in making the decision on school enrollment.

(b) The child’s or young adult’s IEP team makes the decision regarding special education services provided to the child or young adult when the child or young adult is receiving or eligible to receive special education services.

(c) The young adult makes the decision regarding educational services and school placement when educational rights have been passed to the young adult.

(d) When a child is in the care or custody of the Department under a Voluntary Placement Agreement, the parent or legal guardian retains legal authority over the child and continues to be responsible to exercise and perform all parental duties and legal responsibilities except those that the parent or legal guardian specifically delegates to the Department by the signed agreement.

(4) Regardless of the authority to make school or educational placement setting decisions in section (3) of this rule, the caseworker must ensure the school or educational setting is consistent with the ongoing safety plan of the child or young adult.

(5) Additional responsibilities when a private school, charter school, alternative school, or international study program is considered.

(a) Private School. Except as provided in subsections (3)(c)-(d) of this rule, when considering the enrollment of the child or young adult in a private school, the caseworker must:

(A) Ensure that enrollment would be consistent with the child’s or young adult’s permanency plan;

(B) Determine whether the school is accredited in the state in which the school is located;

(C) Verify that an entity or person other than the Department will pay all costs except those approved under OAR 413-100-0935;

(D) Consider the religious affiliation of the child or young adult and the parent or legal guardian when considering enrollment in a religiously-affiliated private school;

(E) Consider recommendations from the child’s or young adult’s parents, attorney, CASA, and substitute caregiver; and

(F) Obtain approval from the Child Welfare program manager.

(b) Charter school or alternative school. Except as provided in subsections (3)(c)-(d) of this rule, when considering the enrollment of a child or young adult in a charter school or alternative school, the caseworker must:

(A) Ensure that enrollment would be consistent with the child’s or young adult’s permanency plan;

(B) Verify that the charter school is approved by the local school district board or the Oregon Department of Education;

(D) Obtain approval from the Child Welfare program manager.

(c) International study program. Except as provided in subsections (3)(c)-(d) of this rule, when considering enrolling a child or young adult in an international study program, the caseworker must:

(A) Ensure that enrollment is consistent with the child’s or young adult’s permanency plan;

(B) Verify that the international study program is accredited;

(D) Obtain approval from the Child Welfare program manager, the District Manager, the Diversity and International Affairs Manager; and

(E) Obtain approval of the juvenile court.

(6) Additional responsibilities when considering a GED program. Except as provided in subsections (3)(c)-(d) of this rule, when considering a GED program for the child or young adult, whether the program is held at a public school or at a location other than a public school, the caseworker must:

(a) Determine, that obtaining a GED meets the child’s or young adult’s educational needs better than obtaining a high school diploma;

(b) Verify that a GED program is consistent with the child’s or young adult’s case plan;

(d) Obtain approval from the Child Welfare program manager.

(7) Additional responsibilities when considering home schooling. Except as provided in subsections (3)(c)-(d) of this rule, when considering home schooling for the child or young adult in the substitute caregiver’s home, the caseworker must:

(a) Determine that a home schooling environment would not interfere with the child’s or young adult’s social development;

(b) Determine that home schooling would promote inclusion in the substitute caregiver’s home;

(d) Determine that the child’s or young adult’s enrollment in a home school program is permitted by state law in another state if the child or young adult is placed in another state through the Interstate Compact on the Placement of Children;

(e) Obtain the approval of the child’s or young adult’s parent, as defined in OAR 413-100-0905(7), or guardian for the substitute caregiver to act as a private teacher;

(f) Verify the substitute caregiver has provided written notification to the education service district of intent to provide home schooling;

(g) Obtain the approval of the Child Welfare program manager; and

(h) Obtain the approval of the juvenile court.

(8) Transportation to school. After the school or educational setting has been determined, the caseworker must assess the school district’s available transportation options and, if school district transportation is unavailable, select and arrange the most reliable, safe, cost-effective transportation option to transport the child or young adult to and from the school or educational setting.

(9) Once a school or educational setting has been selected for a child or young adult, the caseworker must notify the school or educational setting that the child or young adult is in the legal custody of the Department and may provide information about the reason the child or young adult is in substitute care to the staff of the school or educational setting only when providing such information to a particular staff person is necessary for the child’s or young adult’s education planning or to ensure the safety of the child, young adult, or others in the school with whom the child or young adult has contact.

(10) Unless a child or young adult has achieved high school graduation or is incapable of attending school for a medical reason, the Department will ensure school enrollment under Chapter 581 of Oregon Administrative Rules for a child or young adult in the custody of the Department.

(11) The caseworker must document in the case plan of the child or young adult all of the following:

(a) Information about the current school or educational setting of the child or young adult.

(b) All schools or educational settings the child or young adult has attended since the date the child or young adult has been in the custody of the Department.

(d) The number of high school credits each child or young adult 14 years of age or older has earned.

(e) The child’s surrogate, if one has been appointed.

(f) The reason for any change in the child’s or young adult’s school or educational setting.

(g) Information regarding the child’s or young adult’s educational records, which may include but is not limited to:

(A) Report cards;

(B) Transcripts;

(D) A 504 plan, developed under the provisions of Section 504 of the Rehabilitation Act of 1973; and

(E) A transition plan.

(h) The basis the child or young adult is incapable of attending school under section (10) of this rule should that section apply.

Stat. Auth.: ORS 409.050 & 418.005

Stats. Implemented: ORS 409.010, 418.005, 419B.192, 419B.220 & 419B.343

413-100-0920

Consent for School Activities

Once the Department has determined the child’s or young adult’s school or educational setting, the substitute caregiver may give permission for the child or young adult to attend school-related activities such as, but not limited to, school enrollment, field trips within the state of Oregon, routine social events, sporting events, and cultural events.

Stat. Auth.: ORS 409.050 & 418.005

Stats. Implemented: ORS 409.050, 418.005, 419B.192, 419B.220 & 419B.343

Hist.: CWP 30-2007(Temp), f. 12-31-07, cert. ef. 1-1-08 thru 6-27-08; CWP 13-2008, f. 6-27-08, cert. ef. 6-28-08; CWP 33-2011, f. 12-27-11, cert. ef. 12-28-11

413-100-0925

Consent for Special Education Services

(1) When a child or young adult is in the care and custody of the Department, and there is reason to believe the child has a disability under the Individuals with Disabilities Education Act, 20 USC §§ 1400 et seq., or the Oregon Department of Education administrative rules regarding special education (OAR 581, Division 15), the caseworker must identify who is the parent or surrogate making educational decisions for the child or young adult.

(2) If a surrogate has not been appointed, or if more than one person is qualified to make special education decisions for the child or young adult, the caseworker may ask the court to determine the education decision maker. Persons who qualify to make educational decisions include:

(a) The biological or adoptive parent of the child or young adult.

(b) A foster parent or relative caregiver of the child or young adult.

(d) An individual acting in the place of a biological or adoptive parent (including a grandparent, stepparent, or other relative) with whom the child or young adult lives, or a person who is legally responsible for the welfare of the child or young adult.

(3) When a child or young adult with a disability is being considered for home schooling, in addition to the requirements of OAR 413-100-0915, the caseworker must:

(a) Ensure the surrogate of the child or young adult has approved home schooling; and

(b) Ensure the surrogate participates in the special education planning for the child or young adult in the home school environment.

Stat. Auth.: ORS 409.050 & 418.005

Stats. Implemented: ORS 409.050, 418.005, 419B.192, 419B.220 & 419B.343

413-100-0930

Rights to a Child’s Education Records

(1) The Family Educational Rights and Privacy Act (FERPA), 20 USC § 1232g, protects the authority of parents to review their minor children’s education records, limit the records’ release without written consent by the parents, and correct errors in those records. 34 CFR 99.3, one of FERPA’s implementing regulations, defines “parent” as “a natural parent, a guardian, or an individual acting as a parent in the absence of a parent or a guardian.” Under this definition, a Department employee may act as a “parent,” for FERPA purposes, if the Department is the legal guardian of the child.

(2) A Department employee may demonstrate his or her authority to exercise the FERPA rights of a child’s parent by providing the educational agency or institution with evidence that the Department is the legal guardian of the child, which may include a juvenile court order appointing the Department as the legal guardian of the child.

(3) This rule does not apply to the special education records for a student who is eligible for special education services or is suspected of being eligible for special education services under the Individuals with Disabilities Education Act, 20 USC §§ 1400 et seq., or the Oregon Department of Education administrative rules regarding special education (OAR 581, Division 015). To receive these records, a Department employee may:

(a) Receive information from the school of a child’s personally identifiable information in connection with a child protective services (CPS) investigation under OAR 581-021-0380;

(b) Be advised by the school of a child’s disabling conditions prior to an interview with the child during the course of a CPS assessment under ORS 419B.045;

(d) Seek a release of information to obtain the special education records from a child’s or young adult’s parent, guardian, surrogate, or from a young adult whose special education rights have been passed to the student.

Stat. Auth.: ORS 409.050 & 418.005

Stats. Implemented: ORS 326.575, 336.187, 409.010, 418.005, 419B.045, 419B.192, 419B.220 & 419B.343

413-100-0940

Early Education and Post-Secondary Education

(1) The caseworker must ensure that an eligible child in the care or custody of the Department has the same access to public preschool education and early intervention education programs as eligible children not in the care or custody of the Department. In meeting this obligation, the caseworker must ensure a child victim under three years old has been referred to an early intervention education program.

(2) The caseworker must ensure that a child or young adult in the care or custody of the Department has access to the information and resources available to explore post-secondary education and training opportunities. In meeting this obligation the caseworker must include education in any child’s or young adult’s plan for transition to independent living.

Stat. Auth.: ORS 409.050 & 418.005

Stats. Implemented: ORS 409.050, 418.005, 419B.192, 419B.220 & 419B.343

Hist.: CWP 30-2007(Temp), f. 12-31-07, cert. ef. 1-1-08 thru 6-27-08; CWP 13-2008, f. 6-27-08, cert. ef. 6-28-08; CWP 33-2011, f. 12-27-11, cert. ef. 12-28-11

Rule Caption: Changing OARs affecting Child Welfare programs.

Adm. Order No.: CWP 34-2011(Temp)

Filed with Sec. of State: 12-27-2011

Certified to be Effective: 12-28-11 thru 6-25-12

Notice Publication Date:

Rules Amended: 413-120-0420, 413-120-0460

Rules Suspended: 413-120-0470

Subject: OAR 413-120-0420 and 413-120-0460 are being amended and 413-120-0470 is being suspended to bring the rules about background check requirements for relative caregivers, foster parents, adoptive parents, and other persons in household into alignment with the new certification rules with respect to the background check requirements for respite providers and the contested case hearing rights of applicants who have been denied.

Rules Coordinator: Annette Tesch—(503) 945-6067

413-120-0420

Definitions

For purposes of these rules (OAR 413-120-0400 to 413-120-0470):

(1) “Adoption applicant” is an individual who applies for adoption approval.

(2) “Agency agreement” means a written agreement between the Oregon State Police and a Criminal Justice or designated agency as defined by ORS 181.010 authorized to receive criminal offender information, specifying the terms and conditions of accessing and receiving Oregon computerized criminal history information to assure compliance with state and federal regulations.

(3) “Battery” means the use of physical force to injure, damage, or abuse or to cause offensive physical contact.

(4) “CAF” means the Children, Adults, and Families Division of DHS.

(5) “Child” means an individual under the age of 18.

(6) “Computerized Criminal History (CCH) System” means the administration and maintenance of on-line computer files of significant criminal offender information by OSP.

(7) “Contested case hearing” means a hearing conducted under ORS Chapter 183 and applicable administrative rules.

(8) “Criminal offender information” is defined in ORS 181.010(3) and includes records, fingerprints and photographs, received, compiled and disseminated by OSP for purposes of identifying criminal offenders and alleged offenders, as to such individuals’ records of arrests, the nature and disposition of criminal charges, including sentencing, confinement and release, and includes the OSP Computerized Criminal History System.

(9) “Designated agency” means any DHS unit required to access Oregon criminal offender information for the following purposes: to implement a federal or state statute, executive order or administrative rule that expressly refers to criminal conduct and contains requirements or exclusions expressly based on criminal conduct; for agency employment or licensing purposes; or for other demonstrated and legitimate needs when designated by order of the Governor.

(10) “DHS” means the Department of Human Services, which accesses criminal offender information as a designated agency or a criminal justice agency, and requests fingerprint-based criminal offender information from the FBI and OSP on certain individuals or programs who provide care or treatment to children as regulated by DHS.

(11) “FBI” means the Federal Bureau of Investigation.

(12) “Fingerprint-based criminal offender information” means criminal offender information compiled and maintained by OSP Bureau of Criminal Identification regarding individuals who have been arrested for crimes where law enforcement agencies have submitted fingerprints and other identifying data as required by ORS 181.515 or federal statutes, or as deemed appropriate by the submitting law enforcement agency for the purpose of identification.

(13) “Foster parent” means an individual who operates a home that has been approved by DHS to provide care for an unrelated child or young adult placed in the home by DHS.

(14) “Information required” means all information requested by DHS for processing criminal record checks, including fingerprint checks.

(15) “National crime information databases” means the National Crime Information Center and its incorporated criminal history databases managed by the FBI.

(16) “OSP” means the Oregon State Police.

(17) “Other person in household” means:

(a) An individual 18 years of age or older who is living in the home, and is not a child or young adult as defined by this rule;

(b) An individual providing relief or respite care whether paid or unpaid; or

(c) A member of the household under 18 years of age if there is reason to believe that member may pose a risk to children placed in the home.

(18) “Private adoption agency” means an agency licensed by the State of Oregon to provide adoption services within the state and which contracts with DHS to study adoptive parents seeking to adopt children in the custody of DHS.

(19) “Relative caregiver” means an individual who operates a home that has been approved by DHS to provide care for a related child or young adult who is placed in the home by DHS.

(20) “Respite care” means a formal planned arrangement to relieve a certified family’s responsibilities by an individual temporarily assuming responsibility for the care and supervision of the child or young adult in the home of the respite provider or certified family. Respite care must be less than 14 consecutive days.

(21) “Subject individual” means an individual who:

(a) Applies to adopt a child in the custody of DHS as described in Child Welfare Policies I-G.1.3, “Adoption Applications”, OAR 413-120-0190 to 413-120-0240 and I-G.2.1, “Minimum Standards for Adoptive Homes”, OAR 413-120-0300 to 413-120-0310;

(b) Applies to be a foster parent, relative caregiver, or pre-adoptive parent as described in Child Welfare Policy II-B.1, “Certification Standards for Foster Parents, Relative Caregivers, and Pre-Adoptive Parents”, OAR 413-200-0301 to 413-200-0401; or

(22) “Violence” means the use of physical force to injure, damage, or abuse.

(23) “Young adult” means an individual aged 18 through 20 years who remains in the care and custody of the Department, and lives in substitute care or lives independently through the Department’s Independent Living Subsidy Program.

Stat. Auth.: ORS 418.005

Stats. Implemented: ORS 181.537, 181.010 - 181.560 & 418.016

Hist.: SCF 6-1995, f. 12-22-95, cert. ef. 12-29-95; SOSCF 4-1999, f. & cert. ef. 3-22-99; SOSCF 1-2000(T), f. & cert. ef. 1-14-00 thru 7-12-00; SOSCF 14-2000, f. & cert. ef. 7-13-00; SOSCF 23-2001, f. 6-29-01, cert. ef. 7-1-01; SOSCF 11-2002(Temp), f. & cert. ef. 9-13-02 thru 3-12-03; CWP 21-2003, f. & cert. ef. 3-13-03; CWP 31-2007(Temp), f. 12-31-07, cert. ef. 1-1-08 thru 6-27-08; CWP 3-2008, f. & cert. ef. 5-15-08; CWP 22-2008(Temp), f. & cert. ef. 10-1-08 thru 3-30-09; CWP 1-2009, f. & cert. ef. 2-2-09; CWP 34-2011(Temp), f. 12-27-11, cert. ef. 12-28-11 thru 6-25-12

413-120-0460

Procedures

(1) Any subject individual applying to be a relative caregiver, foster or adoptive parent, or an other person in household must consent to a criminal offender information records check at the time of application. After an initial certification, a relative caregiver, foster parent, or other person in household of a foster parent or relative caregiver must consent to a criminal offender information records check prior to re-certification every two years. An adoption applicant and other person in household must consent to a criminal offender information records check once a year after the initial criminal records check is completed. Each applicant must be notified of this requirement at the time they apply for a certificate of approval or adoption approval. Criminal offender information records check consent forms must contain a notice that an applicant for a certificate of approval, or adoption approval and an other person in household are subject to a fingerprint-based criminal offender records check of national crime information databases that is conducted as required by ORS 181.537, ORS 181.557, and sections (5) and (6) of this rule.

(2) An adoptive applicant approved as a relative caregiver or foster or adoptive parent and who has submitted to a criminal offender information records check within the 12 months preceding the date on which he or she applied to adopt may be exempt from a new criminal offender information records check.

(3) DHS may not issue a certificate of approval for relative or foster care or approve an adoption home if a subject individual refuses to be fingerprinted when required. DHS may deny a certificate of approval for a relative caregiver or foster parent, or approval as an adoptive parent if a subject individual makes a false statement about having been arrested for or convicted of any crime or crimes.

(4) A subject individual must provide all information required for a criminal offender information records check, including fingerprints where required, on forms and fingerprint cards provided by DHS and according to procedures established by DHS, including:

(a) A properly completed and signed DHS Form CF 1011F from the subject individual;

(b) If the subject individual acknowledges a prior arrest or conviction for a crime listed in these rules (OAR 413-120-0400 to 413-120-0470), an explanation of the relationship between the facts that support the arrest or conviction and all intervening circumstances and written authorization for DHS to verify the information; and

(c) A completed FBI fingerprint card (FD 258) with red overprinting in the reason fingerprinted block from the subject individual when required.

(5) As part of the consent to a criminal offender information records check, DHS may request a subject individual to consent to the use of his or her social security number in conducting the criminal offender information records check. A subject individual indicates consent by signature.

(6) DHS must obtain and forward a fingerprint card to request criminal offender information on a subject individual from OSP and the FBI as follows:

(a) At the time of initial application DHS must obtain a fingerprint card from any subject individual applying to be a relative caregiver, foster or adoptive parent, or an other person in household, and DHS must initiate a fingerprint-based criminal offender records check of national crime information databases.

(b) If a subject individual is arrested or convicted for a crime within the certification period of a currently certified home, and the home remains certified after the arrest or conviction, DHS must obtain a fingerprint card and initiate a fingerprint-based criminal offender records check of national crime information databases prior to re-certification.

(c) If a subject individual lives outside of Oregon for more than 60 consecutive days within the certification period of a currently certified home, DHS must obtain a fingerprint card and initiate a fingerprint-based criminal offender records check of national crime information databases prior to re-certification.

(d) An other person in household, as defined in OAR 413-120-0420, not in the home at the time of certification, is subject to a fingerprint-based criminal offender records check at the time he or she is identified as an other person in household. DHS must obtain a fingerprint card and initiate a fingerprint-based criminal offender records check of national crime information databases prior to re-certification.

(e) Notwithstanding subsections (a) - (c) of this section, when the subject individual is a prospective respite care provider, the required criminal offender information records check on the subject individual must include a fingerprint-based check of national crime information databases only if one or more of the following circumstances exist:

(A) The prospective respite provider has resided outside of Oregon for 60 or more consecutive days within the last five years preceding the date on which he or she provides written consent for DHS to conduct a criminal offender information records check.

(B) As a result of the DHS review of other criminal records, the prospective respite provider’s own disclosure, or by any other means, it is known that the prospective respite provider has a history of criminal convictions or arrests.

(C) DHS has determined that a fingerprint-based check of national crime information databases is warranted due to uncertainty about the true identity of the prospective respite provider or any other concern on the part of DHS.

(f) In the absence of any of the circumstances described in paragraphs (e)(A) - (e)(C) of this section, a fingerprint-based check of national crime information databases is not required; however DHS must complete a statewide check of the Oregon Law Enforcement Data System (LEDS) before the prospective respite provider can provide respite care. If a fingerprint-based check of national crime information databases is required due to the existence of any of the circumstances described in paragraphs (e)(A) - (e)(C) of this section, the prospective respite provider may provide respite care prior to completion of the required fingerprint-based check, at the discretion of DHS and only after DHS has completed the required LEDS check.

(7) DHS may grant an exception to the fingerprint requirement of this rule if DHS determines that the subject individual is unable to submit fingerprints due to a physical or mental condition that makes compliance impossible or presents an undue safety risk to applicant or staff. To grant an exception, the Criminal History Exception Request Form (DHS 1011D) must be signed by the District Manager or designee.

(8) No applicant may be issued or may retain a certificate of approval as a relative caregiver or a foster parent, or approval as an adoptive parent unless the following criminal offender information safety standards are met:

(a) Completion of a documented check of Oregon LEDS;

(b) Authorization and initiation of the other requirements to complete the criminal offender information records check process, including a fingerprint-based criminal offender check of national crime information databases when required for a subject individual;

(c) Granting of an exception for approval as required and authorized by OAR 413-120-0450 for any criminal convictions either acknowledged by the applicant or reported by the criminal offender information system; and

(d) Reconsideration of the approval upon receipt of any criminal history information not available at the time of previous approval.

(9) DHS reviews the criminal offender information, including fingerprint-based criminal offender information when obtained, of a subject individual. The assessment of fitness, based on the criminal offender information, that reflects the decision-making criteria, must be documented and filed in the relative caregiver, foster home, or adoption home record. The LEDS, OSP, and FBI reports may not be filed in these records and must be destroyed within 90 days.

(10) A subject individual determined not fit to be approved as an adoptive resource pursuant to these rules must be denied approval for adoption of a child in the custody of DHS.

(11) Unless an exception for approval is granted under these rules DHS must revoke a certificate of approval for a foster parent or relative caregiver, deny a renewal application, or remove from consideration for child placement an approved relative caregiver, family foster home, or approved adoption applicant if a subject individual is convicted of a crime in Oregon or any other jurisdiction since the time of the last approval.

(12) If DHS determines that the subject individual is not fit to be certified or approved as a relative caregiver or foster or adoptive parent based on criminal offender information or a false statement related to criminal offender information in the application, unless the subject individual voluntarily withdraws from the process, the Child Welfare field office must notify the subject individual in writing that the subject individual:

(a) Has a right to inspect and challenge his or her Oregon criminal offender information through OSP procedures as adopted per ORS 181.555(3) and OAR 257-010-0035;

(b) May challenge the accuracy or completeness of any entry on the subject individual’s criminal records provided by the FBI by filing a challenge with the Assistant Director of the FBI Identification Division, Washington, D.C., 20537-9700; and

(c) May appeal DHS’s determination of unfitness or indicate an intent to challenge information in the OSP or FBI report by requesting a contested case hearing pursuant to ORS chapter 183 and OAR Child Welfare Policy I-A.5.2, “Contested Case Hearings”, OAR 413-010-0500 to 413-010-0535 provided that DHS receives the request for a contested case hearing in writing within 30 days from the date of mailing the notice.

(13) Upon the determination of DHS that an applicant for relative care, foster care, or adoption of a child in the custody of DHS under Child Welfare rules is not fit based on the criminal offender information or false statement of criminal offender information of an other person in household, the certifier, adoption worker, or private agency adoption worker must inform --

(a) The other person in household whose record was reviewed of the right to inspect and challenge the subject individual’s Oregon criminal offender information through OSP procedures as adopted per ORS 181.555(3) and OAR 257-010-0035 and the person’s rights under ORS 181.557(2)(b);

(b) The other person in household whose record was reviewed of the right to challenge the accuracy or completeness of any entry on the subject individual’s criminal records provided by the FBI by filing a challenge with the Assistant Director of the FBI Identification Division, Washington, D.C., 20537-9700; and

(c) The relative caregiver, foster parent, or adoption applicant whose approval is affected by the other person in household’s criminal offender information or false statement about criminal offender information, via certified mail, that:

(A) Based on the other person in household’s criminal offender information or false statement about criminal offender information, DHS may not certify or approve the relative caregiver, foster parent, or adoption applicant as long as the other person in household remains in the home or provides care to a child in the home; and

(B) The relative caregiver, foster parent, or adoption applicant may appeal in a contested case hearing the DHS determination of unfitness based on the criminal offender information or false statement of criminal offender information concerning an other person in household, provided that DHS receives the applicant’s request for a contested case hearing in writing within 30 days from the date of mailing the notice to the applicant.

(14) Child Welfare Policy I-A.5.2, “Contested Case Hearings”, OAR 413-010-0500 to 413-010-0535 describes the requirements and process for requesting a contested case hearing due to a denial or revocation of a Certificate of Approval or a denial of approval to adopt, based on the criminal history, or false statement with regard to criminal history, of an applicant or other person in the household.

Stat. Auth.: ORS 418.005

Stats. Implemented: ORS 181.537, 181.010 - 181.560 & 418.016

413-120-0470

Rights for Review and Contested Case Hearings

(1) Contested case hearings are conducted by the Office of Administrative Hearings (OAH) under ORS Chapter 183 and OAR 137-003-0501 to 137-003-0700. Relative care, foster care, or adoption applicants have the right to appeal a decision made by DHS under its rules that the applicant is not fit for approval for placement of a child in the custody of DHS based on an authorized criminal offender information records check, or a false statement concerning a criminal offender information records check of the applicant or other person in household. An applicant must notify DHS in writing of the request for a contested case hearing within 30 calendar days after the notice is mailed by DHS to the applicant.

(2) DHS and OAH have no jurisdiction in a contested case hearing over allegations that the criminal offender information received from OSP or the FBI is inaccurate, incomplete, or maintained in violation of any federal or state law.

(3) DHS is entitled to rely on the criminal offender information supplied by OSP and the FBI until OSP or the FBI notifies DHS that the information has been changed or corrected. If an applicant has timely requested a contested case hearing, DHS will refer the matter to OAH for a hearing after the subject individual has been afforded a reasonable time to correct or complete the record, or has declined to do so.

(4) Prior to a contested case hearing being referred to OAH, DHS will convene an informal conference between DHS, the subject individual and his or her legal representative, if any, to review all available information and determine the need for a contested case hearing. At this informal conference, the subject individual must verify whether he or she has exercised his or her right to inspect or challenge the criminal offender information record or records or has declined to do so.

(5) To preserve the confidentiality of the records and the privacy of the subject individual, any contested case hearing under this rule will not be open to the public.

(6) The issues at a contested case hearing under this rule must be limited to the following matters:

(a) Whether the subject individual made a false statement in the application about a conviction or an arrest, has refused to consent to the criminal records check, or refused to be fingerprinted.

(b) Whether the subject individual has been convicted of a crime described in OAR 413-120-0450(4).

(A) The DHS determination that the behavior which resulted in the conviction is relevant to qualification to provide care as a relative caregiver, foster or adoptive parent, or fitness to be an other person in household; and

(B) The relationship between the facts supporting the conviction and the intervening circumstances as affecting the qualification to provide care as a relative caregiver, foster or adoptive parent, or fitness to be an other person in household.

(d) The relationship between the behavior that led to an arrest or arrests as affecting the qualification to provide care as a relative caregiver, foster or adoptive parent, or fitness to be an other person in household.

(7) A fingerprint card required for evidence in a contested case hearing must be destroyed by DHS when the contested case hearing procedure and any judicial review are concluded and final.

Stat. Auth.: ORS 418.005

Stats. Implemented: ORS 181.537, 181.010 - 181.560 & 409.015

Hist.: SCF 6-1995, f. 12-22-95, cert. ef. 12-29-95; SOSCF 4-1999, f. & cert. ef. 3-22-99; SOSCF 14-2000, f. & cert. ef. 7-13-00; SOSCF 23-2001, f. 6-29-01, cert. ef. 7-1-01; SOSCF 11-2002(Temp), f. & cert. ef. 9-13-02 thru 3-12-03; CWP 21-2003, f. & cert. ef. 3-13-03; CWP 31-2007(Temp), f. 12-31-07, cert. ef. 1-1-08 thru 6-27-08; CWP 3-2008, f. & cert. ef. 5-15-08; CWP 22-2008(Temp), f. & cert. ef. 10-1-08 thru 3-30-09; CWP 1-2009, f. & cert. ef. 2-2-09; Suspended by CWP 34-2011(Temp), f. 12-27-11, cert. ef. 12-28-11 thru 6-25-12

Rule Caption: Changing OARs affecting Child Welfare programs.

Adm. Order No.: CWP 35-2011

Filed with Sec. of State: 12-27-2011

Certified to be Effective: 12-28-11

Notice Publication Date: 10-1-2011

Rules Adopted: 413-130-0015, 413-130-0055

Rules Amended: 413-130-0000, 413-130-0010, 413-130-0020, 413-130-0040, 413-130-0050, 413-130-0070, 413-130-0075, 413-130-0080, 413-130-0090, 413-130-0100, 413-130-0110, 413-130-0125, 413-130-0130

Rules Repealed: 413-130-0045, 413-130-0060, 413-130-0115

Rules Ren. & Amend: 413-130-0030 to 413-130-0077

Subject: OAR 413-130-0000 is being amended to clarify the purposes of the rules about adoption assistance and to explain when adoption assistance may be extended for certain young adults.

OAR 413-130-0010 is being amended to add current and revise or remove outdated definitions of terms used throughout the rules about adoption assistance.

OAR 413-130-0015 is being adopted to describe the methods of funding for adoption assistance (state or federal funds) and how the Department responds to adoption assistance applications when neither are available.

OAR 413-130-0020 about special needs determination for adoption assistance eligibility is being amended to clarify the special needs determination requirements.

OAR 413-130-0030 about eligibility for nonrecurring expenses is being renumbered to OAR 413-130-0077.

OAR 413-130-0040 about eligibility for an adoption assistance payment is being amended to revise its description of federal requirements. This rule is also being amended to revise its description of when state-funded adoption assistance may be provided for children.

OAR 413-130-0045 about the connection between a child’s immigrant status and adoption assistance is being repealed. This topic is being covered in OAR 413-130-0040.

OAR 413-130-0050 is being amended to revise the description of adoption assistance application requirements and responsibilities and give timelines for the negotiation process of adoption assistance base rate.

OAR 413-130-0055 is being adopted to implement HB 2052 (2011), which implements the federal Fostering Connections to Success and Increasing Adoptions Act of 2008, allowing extension of adoption assistance for certain young adults. This rule is also being amended to clarify the conditions under which a child who is turning 18 may be eligible to extend adoption assistance and to explain how a child with a developmental disability may qualify for an extension of adoption assistance.

OAR 413-130-0060 about written agreements between the Department and adoptive or pre-adoptive families when there is no current need for adoption assistance benefits is being repealed because the topic is now covered in OAR 413-130-0070.

OAR 413-130-0070 is being amended revise the policies about the negotiation of adoption assistance base rate, level of care requirements, and the review process when an agreement cannot be reached during negotiation.

OAR 413-130-0075 is being amended to update terminology and clarify the conditions under which a pre-adoptive family or adoptive family can request a renegotiation of an adoption assistance agreement.

OAR 413-130-0077 is being renumbered from OAR 413-130-0030 and amended to comply with federal requirements regarding citizenship or residency in the U.S. for an adopted child to receive nonrecurring adoption expenses.

OAR 413-130-0080 is being amended to update terminology and references, and clarify the expenses that the Department will reimburse for nonrecurring expenses.

OAR 413-130-0090 is being amended to clarify Department authorization of a special payment for unanticipated short-term costs directly related to the special needs of a child or young adult.

OAR 413-130-0100 about medical assistance and social services is being amended to remove topics now covered in Child Welfare Policy I-E.6.2, “Title XIX and General Assistance Medical Eligibility”, OAR 413-100-0400 to 413-100-0610.

OAR 413-130-0110 is being amended to reorganize and make the rule easier to understand. It also sets out new federal education requirements for adoption assistance and the policies about changes of payees and overpayments.

OAR 413-130-0115 about the adoption assistance review committee and appeals procedure is being repealed because this topic is now covered in OAR 413-130-0070.

OAR 413-130-0125 is being amended to state when adjustments may and may not be made to adoption assistance. This rule also sets out the policy about automatic expiration of an adoption assistance agreement. This rule is also being amended to state how an adoption assistance payment may be modified by an across-the-board increase or reduction.

OAR 413-130-0130 is being amended to clarify the conditions under which the Department may consider adoption applications after a judgment of adoption has been issued.

Most of these rule changes make permanent temporary rule changes adopted June 30, 2011.

In addition, the above rules may also be changed to reflect new Department terminology and to correct formatting and punctuation.

Rules Coordinator: Annette Tesch—(503) 945-6067

413-130-0000

Purpose

(1) The purpose of these rules (OAR 413-130-0000 to 413-130-0130) is to describe the criteria for program eligibility and the types of adoption assistance that may be established for --

(a) A child in the legal custody of:

(A) The Department;

(B) A participating tribe; or

(b) A child relinquished by a parent directly to a pre-adoptive family residing in Oregon.

(2) These rules do not include criteria for program eligibility for adoption assistance for a child placed for adoption in Oregon by another public child welfare agency, as adoption assistance is the responsibility of the sending state.

Stat. Auth.: ORS 418.005, 418.340

Stats. Implemented: ORS 418.005, 418.330, 418.335 & 418.340

Hist.: SCF 2-1995, f. & cert. ef. 8-21-95; SCF 6-1995, f. 12-22-95, cert. ef. 12-29-95; SOSCF 8-1999, f. & cert. ef. 5-17-99; CWP 16-2008, f. & cert. ef. 7-1-08; CWP 6-2009(Temp), f. & cert. ef. 7-1-09 thru 12-28-09; CWP 22-2009, f. & cert. ef. 12-29-09; CWP 16-2011(Temp), f. & cert. ef. 6-30-11 thru 12-27-11; CWP 35-2011, f. 12-27-11, cert. ef. 12-28-11

413-130-0010

Definitions

The following definitions apply to OAR 413-130-0000 to 413-130-0130:

(1) “Adoption assistance” means assistance provided on behalf of an eligible child or young adult to offset the costs associated with adopting and meeting the on-going needs of the child or young adult. Adoption assistance may be in the form of payments, medical coverage, reimbursement of nonrecurring expenses, or special payments.

(2) “Adoption assistance agreement” means a written agreement, binding on the parties to the agreement, between the Department and the pre-adoptive family or adoptive family of an eligible child or young adult, setting forth the assistance the Department is to provide on behalf of the child or young adult, the responsibilities of the pre-adoptive family or adoptive family and the Department, and the manner in which the agreement and amount of assistance may be modified or terminated.

(3) “Adoption assistance agreement only” means a written agreement, binding on the parties to the agreement, between the Department and the pre-adoptive family or adoptive family of an eligible child or young adult, when the pre-adoptive family or adoptive family is not receiving an adoption assistance payment or medical coverage at the time of the agreement but may request it at a later date.

(4) “Adoption assistance base rate” means the portion of the adoption assistance payment that is negotiated with a pre-adoptive family or an adoptive family and cannot exceed the amount of the Oregon foster care base rate payment for the child’s or young adult’s age.

(5) “Adoption assistance payment” means a monthly payment made by the Department to the pre-adoptive family or adoptive family on behalf of an eligible child or young adult.

(6) “Adoption Assistance Review Committee” means a committee composed of local and central office staff with expertise in the area of adoption.

(7) “Adoptive family” means an individual or individuals who have legalized a parental relationship to the child who joined the family through a judgment of the court.

(8) “Applicable child” has the same meaning as in OAR 413-100-0335.

(9) “Base rate payment” means a payment to the foster parent or relative caregiver for the costs of providing the child or young adult with the following:

(a) Food — including the cost to cover a child’s or young adult’s special or unique nutritional needs;

(b) Clothing — including purchase and replacement;

(d) Daily supervision — including teaching and directing to ensure safety and well-being at a level which is appropriate based on the child’s or young adult’s chronological age;

(e) Personal incidentals — including personal care items, entertainment, reading materials, and miscellaneous items; and

(10) “CANS screening” means Child and Adolescent Needs and Strength screening, a process of gathering information on a child’s or young adult’s needs and strengths used for one or more of the following purposes:

(a) Identifying case planning, service planning, and supervision needs of the child or young adult in substitute care with a certified family; and

(b) Determining the level of care payment while in substitute care with a certified family; and

(c) Determining the level of care payment included in an adoption assistance agreement or guardianship assistance agreement.

(11) “Child” means a person under 18 years of age.

(12) “Department” means the Department of Human Services, Child Welfare.

(13) “Enhanced supervision” means the additional support, direction, observation, and guidance necessary to promote and ensure the safety and well-being of a child or young adult when the child or young adult qualifies for a level of care payment.

(14) “Legally free” means that, with respect to a child, the legal rights of all parents with legal standing have been judicially terminated, voluntarily relinquished, or otherwise terminated by operation of law, thus allowing for the child to be adopted.

(15) “Level of care payment” means the payment provided to an approved or certified family, a guardian, a pre-adoptive family, or an adoptive family based on the child’s or young adult’s need for enhanced supervision as determined by applying the CANS algorithm to the results of the CANS screening.

(16) “Licensed adoption agency” means an adoption agency licensed by the state of Oregon to place children for adoption, or an adoption agency that holds a license from another state and is authorized under the laws of that state to place children for adoption.

(17) “Nonrecurring adoption assistance agreement” means a written agreement, binding on the parties to the agreement, between the Department and the pre-adoptive family of an eligible child for a one-time payment to reimburse the adoptive family for the reasonable and necessary expenses incurred in legally finalizing the adoption of a child who has been determined to have special needs.

(18) “Nonrecurring expenses” mean a one-time payment up to $1,500 per child, which the Department will pay to an adoptive family to assist with the reasonable and necessary expenses incurred in legally finalizing the adoption of an eligible child.

(19) “Parent” means the biological or adoptive mother or the legal father of the child. A legal father is a man who has adopted the child or whose paternity has been established or declared under ORS 109.070, ORS 416.400 to 416.465, or by a juvenile court. In cases involving an Indian child under the Indian Child Welfare Act (ICWA), a legal father includes a man who is a father under applicable tribal law. “Parent” also includes a putative father who has demonstrated a direct and significant commitment to the child by assuming or attempting to assume responsibilities normally associated with parenthood unless a court finds that the putative father is not the legal father.

(20) “Participating tribe” means a federally recognized Indian tribe in Oregon with a Title IV-E agreement with the Department.

(21) “Pre-adoptive family” means an individual or individuals who:

(a) Has been selected to be the child’s adoptive family; and

(b) Is in the process of legalizing the relationship to the child through the judgment of the court.

(22) “Qualified alien” has the same meaning as in OAR 413-100-0210(2) and 8 USC 1641(b).

(23) “Qualified vendor attorney” means an attorney who has a price agreement with the Department to process the adoption of a child who is eligible for adoption assistance.

(24) “Sibling” means one of two or more children or young adults related:

(a) By blood or adoption through a common legal parent;

(b) Through the marriage of the legal or biological parents of the children or young adults; or

(c) Through a legal or biological parent who is the registered domestic partner of the legal or biological parent of the children or young adults.

(25) “Special payment” means a payment for unanticipated short-term costs which are directly related to the special needs of the child or young adult or are essential to the welfare of the child or young adult, and are not covered by another resource available to the adoptive family.

(26) “Substitute care” means the out-of-home placement of a child or young adult who is in the legal or physical custody and care of the Department.

(27) “Young adult” means a person aged 18 through 20 years.

Stat. Auth.: ORS 418.005, 418.340

Stats. Implemented: ORS 418.005, 418.330, 418.335 & 418.340

Hist.: SCF 2-1995, f. & cert. ef. 8-21-95; SCF 6-1995, f. 12-22-95, cert. ef. 12-29-95; SOSCF 8-1999, f. & cert. ef. 5-17-99; SOSCF 7-2002, f. 3-28-02, cert. ef. 4-1-02; CWP 23-2005(Temp), f. 12-30-05, cert. ef. 1-1-06; CWP 16-2006, f. 6-30-06, cert. ef. 7-1-06; CWP 16-2008, f. & cert. ef. 7-1-08; CWP 6-2009(Temp), f. & cert. ef. 7-1-09 thru 12-28-09; CWP 22-2009, f. & cert. ef. 12-29-09; CWP 16-2011(Temp), f. & cert. ef. 6-30-11 thru 12-27-11; CWP 25-2011(Temp), f. 9-30-11, & cert. ef. 10-1-11 thru 12-27-11; CWP 35-2011, f. 12-27-11, cert. ef. 12-28-11

413-130-0015

Funding for Adoption Assistance

(1) The Department makes efforts to establish Title IV-E adoption assistance eligibility under Child Welfare Policy I-E.6.1, “Title IV-E Foster Care, Adoption Assistance, and Guardianship Assistance Eligibility”, OAR 413-100-0335 to access federal reimbursement for adoption assistance.

(2) A child determined to have special needs under OAR 413-130-0020 who is ineligible for Title IV-E funded adoption assistance is eligible for state funded adoption assistance as described in OAR 413-130-0040. Administration of state funded adoption assistance is dependent upon the availability of such funds.

(3) When all available state funds are obligated, the Department must continue to:

(a) Accept new applications;

(b) Accept requests to adjust an adoption assistance payment; and

(4) As state funds become available, an adoption assistance payment may be made according to the date that the adoption assistance agreement is signed by all parties. The adoption assistance agreement may be retroactive for up to twelve months only when a foster care base rate payment, level of care payment, or personal care service payment was not made on behalf of the child.

(5) When state funds are unavailable and a new adoption assistance application is received, the pre-adoptive family may sign an adoption assistance agreement only to prevent delay in finalizing the adoption, with the understanding that adoption assistance may be requested at a later date.

Stat. Auth.: ORS 418.005, 418.340

Stats. Implemented: ORS 418.005, 418.330, 418.335 & 418.340

Hist.: CWP 16-2011(Temp), f. & cert. ef. 6-30-11 thru 12-27-11; CWP 35-2011, f. 12-27-11, cert. ef. 12-28-11

413-130-0020

Special Needs Determination for Adoption Assistance Eligibility

(1) In order to be eligible for adoption assistance, funded through either federal or state funds, a child must be determined to have special needs.

(2) The Department must make the determination that the child has special needs under each of the following subsections:

(a) The child cannot or should not be returned to the home of his or her parent or parents. This decision is based on one of the following paragraphs:

(A) An order from a court of competent jurisdiction terminating parental rights.

(B) The existence of a petition for termination of parental rights.

(C) A voluntary relinquishment of parental rights for a child under the jurisdiction of the court, in the custody of the Department, or in a subsequent adoption when there was an adoption assistance agreement in place during the prior adoption.

(D) A voluntary relinquishment of parental rights and a judicial determination that remaining in the home of a specified relative as defined in Child Welfare Policy I-E.6.1, “Title IV-E Foster Care, Adoption Assistance, and Guardianship Assistance Eligibility”, OAR 413-100-0020 would be contrary to the welfare of the child. The request for the judicial determination must be filed within six months of the time the child last lived with the specified relative.

(E) For a child who can be adopted in accordance with state or tribal law without a termination of parental rights or voluntary relinquishment of parental rights, the valid reason why the child cannot or should not be returned to the home of his or her parents.

(F) In the case of an orphan, verification of the death of the parent or parents.

(b) The child has at least one of the following factors or conditions that make adoptive placement difficult to achieve:

(A) A documented medical, physical, mental, emotional condition or other clinically diagnosed disability, or a documented history of abuse or neglect or other identified predisposing factor that places the child at significant risk for future problems that need treatment;

(B) Is a member of a sibling group which will be placed together and is difficult to place because there are three or more children, or if in a sibling group of two, at least one of the children is six years of age or older;

(C) Is a member of an ethnic, racial, or cultural minority (such as African American, Hispanic, Asian, Indian, or Pacific Islander); or

(D) Is eight years of age or older.

(3) A reasonable but unsuccessful effort to place the child with an appropriate adoptive family for adoption without adoption assistance has been made, unless such an effort is not in the best interest of the child for reasons including placement with a relative or another person with whom the child has an established significant relationship.

Stat. Auth.: ORS 418.005, 418.340

Stats. Implemented: ORS 418.005, 418.330, 418.335 & 418.340

Hist.: SCF 2-1995, f. & cert. ef. 8-21-95; SCF 6-1995, f. 12-22-95, cert. ef. 12-29-95; SCF 6-1996, f. & cert. ef. 9-17-96; SOSCF 8-1999, f. & cert. ef. 5-17-99; SOSCF 7-2002, f. 3-28-02, cert. ef. 4-1-02; CWP 16-2008, f. & cert. ef. 7-1-08; CWP 6-2009(Temp), f. & cert. ef. 7-1-09 thru 12-28-09; CWP 22-2009, f. & cert. ef. 12-29-09; CWP 16-2011(Temp), f. & cert. ef. 6-30-11 thru 12-27-11; CWP 25-2011(Temp), f. 9-30-11, & cert. ef. 10-1-11 thru 12-27-11; CWP 35-2011, f. 12-27-11, cert. ef. 12-28-11

413-130-0040

Eligibility for Adoption Assistance Payments

(1) In determining eligibility for an adoption assistance payment, the Department may not impose an income eligibility requirement for the pre-adoptive family or adoptive family.

(2) To be eligible for a Title IV-E funded adoption assistance payment, a child must meet all of the following requirements.

(a) Be a citizen of the United States or a qualified alien as described in OAR 413-100-0210(2) and in 8 USC 1641(b) or (c).

(b) When the child is a qualified alien and is placed with a pre-adoptive parent who is an unqualified alien, the child must meet the five year residency requirement set forth in The Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Public Law 104-193.

(3) A licensed adoption agency, participating tribe, or another individual applying to receive adoption assistance on behalf of a child determined to have special needs must make all requested efforts to assist the Department in establishing Title IV-E eligibility.

(4) Except as provided in section (5) of this rule, a child determined to be ineligible for a Title IV-E adoption assistance payment is eligible for a state-funded adoption assistance payment when the child meets all of the following criteria.

(a) Is in the legal custody of:

(A) The Department;

(B) A participating tribe; or

(b) Is not eligible for or receiving adoption assistance for the same child through another state.

(d) Meets the requirements in section (6) of this rule.

(5) A child relinquished by a parent directly to a family residing in Oregon who is not eligible for a Title IV-E funded adoption assistance payment is only eligible for a state funded adoption assistance payment when--

(a) A state funded adoption assistance agreement was previously in effect on behalf of the child;

(b) The pre-adoptive family or adoptive family is not eligible for or receiving adoption assistance for the same child through another state;

(d) The child meets the requirements in section (6) of this rule.

(6) In addition to the eligibility requirements in section (4) or (5) of this rule, a child must also be a citizen of the United States to receive a state funded adoption assistance payment when the child is being brought into the United States for the purpose of adoption or being placed outside of the United States, or a territory or possession thereof.

(7) When an adopted child becomes legally free for re-adoption due to the voluntary relinquishment of parental rights, the termination of the rights of the legal parent or parents, or the death of the legal parent or parents:

(a) The child must be determined to have special needs under OAR 413-130-0020 at the time the child again becomes available for adoption; and

(b) The determination of funding eligibility of the adopted child for adoption assistance remains as it was the last time the child was determined eligible for adoption assistance.

Stat. Auth.: ORS 418.005, 418.340

Stats. Implemented: ORS 418.005, 418.330, 418.335 & 418.340

Hist.: SCF 2-1995, f. & cert. ef. 8-21-95; SCF 6-1995, f. 12-22-95, cert. ef. 12-29-95; SOSCF 8-1999, f. & cert. ef. 5-17-99; SOSCF 11-1999(Temp), f. & cert. ef. 6-3-99 thru 11-30-99; SOSCF 7-2002, f. 3-28-02, cert. ef. 4-1-02; CWP 16-2008, f. & cert. ef. 7-1-08; CWP 6-2009(Temp), f. & cert. ef. 7-1-09 thru 12-28-09; CWP 22-2009, f. & cert. ef. 12-29-09; CWP 16-2011(Temp), f. & cert. ef. 6-30-11 thru 12-27-11; CWP 25-2011(Temp), f. 9-30-11, & cert. ef. 10-1-11 thru 12-27-11; CWP 35-2011, f. 12-27-11, cert. ef. 12-28-11

413-130-0050

Adoption Assistance Application Requirements and Responsibilities

(1) A licensed adoption agency recommending adoption assistance for a pre-adoptive family must verify and document that recruitment efforts under OAR 413-130-0020(2)(c) were made for the child.

(2) A pre-adoptive family under OAR 413-130-0040(5) may contact the Adoption Assistance and Guardianship Assistance Unit for help in submitting a written adoption assistance application directly to the Department.

(3) A pre-adoptive family of a child in the custody of the Department must notify the Department in writing if they choose not to accept any form of adoption assistance.

(4) An adoption assistance application is considered complete when the Adoption Assistance and Guardianship Assistance Unit has received a signed adoption assistance application form and all supporting documentation.

(5) Except as described in subsections (a) to (c) of this section, the Adoption Assistance and Guardianship Assistance Unit must begin negotiation of the adoption assistance agreement no later than 60 days after receipt of a completed adoption assistance application submitted for a legally free child in the home of an approved pre-adoptive family.

(a) The Department may delay negotiation of the adoption assistance base rate for a completed application when the child is due for an updated CANS screening, a new CANS screening is warranted, or a CANS screening is in process or completed but a decision is pending regarding the level of care payment.

(b) The Department may delay negotiation following a request by the caseworker, the pre-adoptive family, or adoptive family when there are extenuating circumstances regarding the child or family.

(c) When negotiation is delayed under subsections (a) or (b) of this section, the Adoption Assistance and Guardianship Assistance Unit must begin negotiation of the adoption assistance base rate no later than 30 days from receipt of the final decision regarding the level of care payment.

Stat. Auth.: ORS 418.005, 418.340

Stats. Implemented: ORS 418.005, 418.330, 418.335 & 418.340

Hist.: SCF 2-1995, f. & cert. ef. 8-21-95; SCF 6-1995, f. 12-22-95, cert. ef. 12-29-95; SOSCF 8-1999, f. & cert. ef. 5-17-99; SOSCF 7-2002, f. 3-28-02, cert. ef. 4-1-02; CWP 16-2008, f. & cert. ef. 7-1-08; CWP 6-2009(Temp), f. & cert. ef. 7-1-09 thru 12-28-09; CWP 22-2009, f. & cert. ef. 12-29-09; CWP 16-2011(Temp), f. & cert. ef. 6-30-11 thru 12-27-11; CWP 25-2011(Temp), f. 9-30-11, & cert. ef. 10-1-11 thru 12-27-11; CWP 35-2011, f. 12-27-11, cert. ef. 12-28-11

413-130-0055

Extension of Adoption Assistance for a Young Adult

(1) The Department may approve an extension of an adoption assistance agreement for an individual under the age of 21 when the individual reaches the age of 18 on or after October 1, 2011 and meets subsection (a) or (b) of this section.

(a) An initial adoption assistance agreement was entered into on behalf of a child, and at the time of his or her 18th birthday, he or she:

(A) Qualifies as an individual with a developmental disability as determined by the Oregon Department of Human Services, Developmental Disabilities Services;

(B) If living in a state other than Oregon, qualifies as an individual with a developmental disability as determined by the equivalent developmental disability program in that state; or

(b) An initial adoption assistance agreement was entered into on behalf of a child who is age 16 or 17, and upon reaching the age of 18, he or she is:

(A) Completing secondary school (or equivalent);

(B) Enrolled in post-secondary or vocational school;

(D) Employed for at least 80 hours a month; or

(E) Determined incapable of any of the above due to a documented medical condition, physical disability, or mental disability.

(2) In order for the extension of adoption assistance as described in subsection (1)(a) of this rule to continue on behalf of a young adult, the adoptive family must submit to the Department, upon request and before the child’s 18th birthday, documentation from the agency making the determination described in paragraphs (1)(a)(A) through (C) of this rule.

(3) If an individual does not meet the requirements under subsection (1)(a) of this rule or the adoptive family does not submit the documentation before the individual’s 18th birthday as required in section (2) of this rule, the Department may not approve an extension of an adoption assistance agreement.

(4) An extension of adoption assistance approved pursuant to subsection (1)(a) of this rule will continue until the young adult turns 21 years old.

(5) In order for the extension of adoption assistance as described in subsection (1)(b) of this rule to continue on behalf of a young adult, the adoptive family must submit to the Department, upon request:

(a) Proof that the young adult continues to be enrolled in a secondary, post-secondary, vocational school, or a program or activity that promotes or removes barriers to employment;

(b) Proof that the young adult is employed for at least 80 hours a month; or

(c) Verification from a medical or mental health professional that the young adult is incapable of attending school or obtaining employment due to a medical condition.

(6) The Department will review the young adult’s eligibility for continued adoption assistance when an extension of adoption assistance has been granted under subsection (1)(b) of this rule:

(a) At least annually; or

(b) When information is received that indicates the young adult may no longer be eligible for adoption assistance or may be eligible for adoption assistance in a different amount.

(7) The adoptive family must notify the Department, orally or in writing, of any changes in circumstances that may make the young adult:

(a) Ineligible for adoption assistance; or

(b) Eligible for adoption assistance in a different amount.

Stat. Auth.: ORS 418.005 & 418.340

Stats. Implemented: ORS 418.005, 418.330, 418.335 & 418.340

Hist.: CWP 16-2011(Temp), f. & cert. ef. 6-30-11 thru 12-27-11; CWP 25-2011(Temp), f. 9-30-11, & cert. ef. 10-1-11 thru 12-27-11; CWP 35-2011, f. 12-27-11, cert. ef. 12-28-11

413-130-0070

Negotiation and Determination of the Monthly Adoption Assistance Payment

(1) When adoption assistance is not provided, a pre-adoptive family or adoptive family may enter into an adoption assistance agreement only.

(2) The monthly adoption assistance payment may not exceed the total of:

(a) The adoption assistance base rate; and

(b) When applicable, the level of care payment determined by the CANS screening conducted under OAR 413-020-0230.

(3) The monthly adoption assistance base rate:

(a) Is determined through discussion and negotiation between the Department and the pre-adoptive family or adoptive family.

(b) May not exceed the current foster care base rate payment the child or young adult would be eligible to receive in foster care under OAR 413-090-0010(1)(b).

(c) Is negotiated between the pre-adoptive family or adoptive family and the Department, taking into consideration relevant factors which include, but are not limited to:

(A) The ordinary and special needs of the child or young adult;

(B) The services and goods required to meet the needs of the child or young adult;

(D) The circumstances of the pre-adoptive family or adoptive family and their ability to provide the required services and goods for the child or young adult; and

(E) The resources available to the pre-adoptive family or adoptive family such as medical coverage, private health insurance, public education, other income sources and community resources.

(4) When, during negotiation of the adoption assistance base rate, the Adoption Assistance and Guardianship Assistance Coordinator and the pre-adoptive family or adoptive family are unable to reach agreement, the Adoption Assistance and Guardianship Assistance Coordinator or the family may request a review by the Adoption Assistance Review Committee. When a review is requested:

(a) An Adoption Assistance and Guardianship Assistance Coordinator must:

(A) Prepare documentation for the scheduled Adoption Assistance Review Committee;

(B) Notify the pre-adoptive family or adoptive family and the assigned caseworkers of the date of the committee; and

(b) The pre-adoptive family or adoptive family may provide written documentation to the Adoption Assistance and Guardianship Assistance Coordinator for the review and consideration by the Adoption Assistance Review Committee.

(c) The caseworker for the pre-adoptive family or adoptive family and the caseworker for the child or young adult may participate in an Adoption Assistance Review Committee meeting and may present information and respond to questions. The caseworkers may not participate in the deliberations of the Adoption Assistance Review Committee.

(d) The Adoption Assistance Review Committee members must:

(A) Consider written documentation provided by the pre-adoptive family or adoptive family, the caseworker for the pre-adoptive family or adoptive family, the caseworker for the child or young adult, and the Adoption Assistance and Guardianship Assistance Coordinator.

(B) Review materials submitted to the Adoption Assistance Review Committee, deliberate, and make a recommendation regarding the adoption assistance base rate.

(e) At the conclusion of the Adoption Assistance Review Committee, the Adoption Assistance and Guardianship Assistance Coordinator must:

(A) Document the recommendation of the Adoption Assistance Review Committee; and

(B) Submit the recommendation to the Assistant Adoption Program Manager or designee within one business day of the Adoption Assistance Review Committee meeting.

(f) The Assistant Adoption Program Manager or designee must:

(A) Attend the Adoption Assistance Review Committee and may ask clarifying questions, but does not participate in the deliberation or recommendation of the Adoption Assistance Review Committee; and

(B) Make a decision and provide written notification of the decision regarding the adoption assistance base rate to the Adoption Assistance and Guardianship Assistance Coordinator within one business day of the Adoption Assistance Review Committee meeting.

(g) The Adoption Assistance and Guardianship Assistance Coordinator must notify the pre-adoptive family or adoptive family of the Assistant Adoption Program Manager or designee’s decision, including a written notice, within ten business days of the decision.

(5) A pre-adoptive family or adoptive family unsatisfied with the adoption assistance base rate decision of the Assistant Adoption Program Manager or designee under paragraph (4)(f)(B) of this rule may submit a written request for a review of the decision by the Adoption Program Manager or designee within 14 days of the date of the written notice in subsection (4)(g) of this rule.

(6) The Adoption Program Manager or designee must complete each of the following actions.

(a) Review and consider:

(A) The materials submitted to the Adoption Assistance Review Committee;

(B) The recommendation of the committee;

(D) The information presented by the pre-adoptive family or adoptive family in the request submitted under section (5) of this rule.

(b) Make a decision within 60 days of the date of the request for review.

(c) Provide written notification to the pre-adoptive family or adoptive family and the Adoption Assistance and Guardianship Assistance Coordinator within ten business days of the decision in subsection (b) of this section.

(7) The monthly level of care payment:

(a) Is determined based on the results of a CANS screening conducted under OAR 413-020-0230;

(b) May not exceed the amount of the level of care payment set forth in OAR 413-090-0010(2)(g); and

(c) Is included in the adoption assistance payment when the child or young adult qualifies for a level of care payment and when requested by the pre-adoptive family or adoptive family.

(8) When a pre-adoptive family or adoptive family is unsatisfied with the final adoption assistance offer from the Department, consisting of the adoption assistance base rate and, when applicable, a level of care payment, the pre-adoptive family or adoptive family has the right to a contested case hearing under Child Welfare Policy I-A.5.2, “Contested Case Hearings”, OAR 413-010-0500 to 413-010-0535.

(9) An initial adoption assistance payment begins on a date determined by the Department when all of the following criteria are met:

(a) The child is legally free for adoption;

(b) Unless the child is in the custody of a pre-adoptive family eligible to apply for adoption assistance under OAR 413-130-0040(5) or the Department has approved an adoptive family to apply for adoption assistance under OAR 413-130-0130 -- the Department, participating tribe, or licensed adoption agency has approved the pre-adoptive family as the adoptive placement; and

(c) An adoption assistance agreement has been signed by the pre-adoptive family or adoptive family and by the Department representative.

(10) An adoption assistance payment is issued at the end of each month of eligibility.

(11) An adoption assistance payment made to a pre-adoptive family or an adoptive family by the Department is inalienable by any assignment or transfer and exempt from garnishment, levy, or execution under the laws of this state.

Stat. Auth.: ORS 418.005 & 418.340

Stats. Implemented: ORS 418.005, 418.330, 418.335 & 418.340

Hist.: SCF 2-1995, f. & cert. ef. 8-21-95; SCF 6-1995, f. 12-22-95, cert. ef. 12-29-95; SOSCF 8-1999, f. & cert. ef. 5-17-99; SOSCF 7-2002, f. 3-28-02, cert. ef. 4-1-02; CWP 16-2008, f. & cert. ef. 7-1-08; CWP 23-2008, f. & cert. ef. 10-1-08; CWP 6-2009(Temp), f. & cert. ef. 7-1-09 thru 12-28-09; CWP 22-2009, f. & cert. ef. 12-29-09; CWP 16-2011(Temp), f. & cert. ef. 6-30-11 thru 12-27-11; CWP 25-2011(Temp), f. 9-30-11, & cert. ef. 10-1-11 thru 12-27-11; CWP 35-2011, f. 12-27-11, cert. ef. 12-28-11

413-130-0075

Renegotiation of an Adoption Assistance Payment

(1) The Department, pre-adoptive family, or adoptive family may request renegotiation of an adoption assistance agreement. When the pre-adoptive family or adoptive family has previously signed an adoption assistance agreement only and requests adoption assistance at a later date, it is considered a renegotiation.

(2) A request for renegotiation of the adoption assistance agreement made by a pre-adoptive family or adoptive family must:

(a) Be in writing in a format provided by the Department to the pre-adoptive family or adoptive family;

(b) Document changes in the circumstances of the pre-adoptive family or adoptive family, when applicable;

(d) Provide information about the financial expenses of the pre-adoptive family or adoptive family in meeting the needs of the child or young adult; and

(e) Provide additional documentation of the child’s or young adult’s current behaviors when the child or young adult meets the eligibility requirements for consideration of a level of care payment under OAR 413-020-0230 and the pre-adoptive family or adoptive family is requesting a level of care payment.

(3) Renegotiation of the adoption assistance base rate will be conducted using the negotiation process described in OAR 413-130-0070(2)-(8).

(4) A new adoption assistance agreement must be signed by all parties each time the adoption assistance payment changes as a result of renegotiation.

(5) The Department may authorize a renegotiated adoption assistance payment increase or decrease for the period commencing the first day of the month in which the Department receives the documentation required to complete the requested renegotiation, or another date agreed upon by the pre-adoptive family or adoptive family and the Department.

(6) The Department may approve up to twelve months of retroactive payments unless a contested case hearing was requested and a subsequent decision necessitates a payment of more than twelve months. The decision includes any decision by the Department, including:

(a) A final order;

(b) A stipulated final order;

(d) Any other agreement resulting in withdrawal of the contested case.

Stat. Auth.: ORS 418.005, 418.340

Stats Implemented: ORS 418.005, 418.330, 418.335 & 418.340

Hist.: SOSCF 8-1999, f. & cert. ef. 5-17-99; SOSCF 7-2002, f. 3-28-02, cert. ef. 4-1-02; CWP 16-2008, f. & cert. ef. 7-1-08; CWP 6-2009(Temp), f. & cert. ef. 7-1-09 thru 12-28-09; CWP 22-2009, f. & cert. ef. 12-29-09; CWP 16-2011(Temp), f. & cert. ef. 6-30-11 thru 12-27-11; CWP 25-2011(Temp), f. 9-30-11, & cert. ef. 10-1-11 thru 12-27-11; CWP 35-2011, f. 12-27-11, cert. ef. 12-28-11

413-130-0077

Eligibility for Nonrecurring Expenses

(1) Except as provided in section (2) of this rule, a pre-adoptive family is eligible for reimbursement of nonrecurring expenses through Title IV-E funding on behalf of a child determined to have special needs under OAR 413-130-0020 when the child is in the custody of:

(a) The Department, a participating tribe, a licensed adoption agency; or

(b) An Oregon family following a relinquishment of parental rights by the legal parent directly to the Oregon family.

(2) For applications received on or after October 1, 2010, reimbursement for nonrecurring expenses is prohibited on behalf of an applicable child who:

(a) Is not a citizen or resident of the United States; and

(b) Was either adopted outside the United States or was brought to the United States for the purpose of being adopted.

Stat. Auth.: ORS 418.005, 418.340

Stats. Implemented: ORS 418.005, 418.330, 418.335 & 418.340

Hist.: SCF 2-1995, f. & cert. ef. 8-21-95; SCF 6-1995, f. 12-22-95, cert. ef. 12-29-95; SOSCF 8-1999, f. & cert. ef. 5-17-99; SOSCF 7-2002, f. 3-28-02, cert. ef. 4-1-02; SOSCF 7-2002, f. 3-28-02, cert. ef. 4-1-02; CWP 16-2008, f. & cert. ef. 7-1-08; CWP 6-2009(Temp), f. & cert. ef. 7-1-09 thru 12-28-09; CWP 22-2009, f. & cert. ef. 12-29-09; CWP 16-2011(Temp), f. & cert. ef. 6-30-11 thru 12-27-11, Renumbered from 413-130-0030; CWP 25-2011(Temp), f. 9-30-11, & cert. ef. 10-1-11 thru 12-27-11; CWP 35-2011, f. 12-27-11, cert. ef. 12-28-11

413-130-0080

Payment for Nonrecurring Expenses

(1) An agreement, indicating the nature and amount of nonrecurring expenses, must be signed prior to the final judgment of adoption. Payment for nonrecurring expenses is made when the Department receives the final judgment of adoption.

(2) The Department will reimburse an adoptive family up to $1,500 for each eligible child for approved nonrecurring expenses, including but not limited to:

(a) The cost of a home study;

(b) Court costs;

(d) Physical and psychological examinations required for the adoption; and

(e) Travel to visit with the adoptive child prior to the placement.

(3) The Department will consider requests for nonrecurring expenses that:

(a) Are submitted with written documentation to the Adoption Assistance and Guardianship Assistance Unit;

(b) Are not in violation of state or federal law; and

(A) The Interstate Compact for Placement of Children;

(B) A Department contract with a licensed adoption agency; or

(4) When a pre-adoptive family indicates that they will be using a qualified vendor attorney, the Adoption Assistance and Guardianship Assistance Unit must send the pre-adoptive family a list of qualified vendor attorneys.

(5) The pre-adoptive family may select and contact an attorney from the list of qualified vendor attorneys, in which case the pre-adoptive family must:

(a) Sign the legal fees agreement; and

(b) Send the legal fees agreement to the attorney, who will sign it and return it to the Department for payment after the judgment of adoption is received.

(6) The pre-adoptive family may privately retain an attorney, in which case:

(a) The adoptive family is responsible for paying the attorney; and

(b) The Department will reimburse the adoptive family reasonable charges equal to the amount allowed for a qualified vendor attorney unless the Adoption Assistance and Guardianship Assistance Coordinator has determined that a higher amount may be considered due to extraordinary circumstances.

Stat. Auth.: ORS 418.005, 418.340

Stats. Implemented: ORS 418.005, 418.330, 418.335 & 418.340

413-130-0090

Special Payments

(1) A request for a special payment:

(a) May be made after finalization of the adoption by an adoptive family who has an existing adoption assistance agreement with the Department; and

(b) Must include documentation from the adoptive family when requested by the Department.

(2) The Department may authorize a special payment for a limited duration, on a case-by-case basis, subject to the availability of resources.

(3) An approved special payment may only be issued to the adoptive family.

Stat. Auth.: ORS 418.005, 418.340

Stats. Implemented: ORS 418.005, 418.330, 418.335 & 418.340

413-130-0100

Medical Assistance

(1) A child or young adult who is the subject of an adoption assistance agreement funded by Title IV-E funds is categorically eligible for medical assistance through Title XIX and eligible for social services through Title XX.

(2) A child or young adult who is the subject of an adoption assistance agreement funded with state general funds is eligible for medical assistance under Child Welfare Policy I-E.6.2, “Title XIX and General Assistance Medical Eligibility”, OAR 413-100-0400 to 413-100-0610 when:

(a) The child or young adult resides in Oregon; or

(b) The child or young adult resides outside of Oregon but in the United States or a territory or possession thereof and is not able to obtain medical assistance in his or her place of residence.

(3) When the adoptive child or young adult resides outside of Oregon, the Department provides the necessary documentation to the state of residence of the child or young adult through the Interstate Compact on Adoption and Medical Assistance (ICAMA) to assist the pre-adoptive family or adoptive family in obtaining medical assistance for the child or young adult.

(4) Medical assistance is not provided for a child or young adult who resides outside of the United States, a territory or possession thereof.

Stat. Auth.: ORS 418.005, 418.340

Stats. Implemented: ORS 418.005, 418.330, 418.335 & 418.340

413-130-0110

Administration of Approved Adoption Assistance

(1) Except as provided in OAR 431-130-0130, in order for the Department to provide adoption assistance on behalf of an eligible child:

(a) An adoption assistance agreement must be signed by each individual who is a party to the agreement and a Department representative; and

(b) The adoption assistance agreement must be in effect before the judgment of adoption.

(2) An adoption assistance agreement must include each of the following:

(a) A statement indicating that an adoption assistance agreement remains in effect regardless of the state or residency of the pre-adoptive family or the adoptive family and the child.

(b) An effective date which:

(A) Must be after the completion of a signed adoption assistance application; and

(B) Except as provided in OAR 413-120-0130, must be before the date of the judgment of adoption.

(c) Information identifying the eligibility of the child or young adult to receive medical assistance and specifying the eligibility of the child or young adult for Title XIX and XX.

(d) Information that ORS 192.520 allows the Oregon Health Plan (OHP) and OHP managed care plans to exchange the following protected health information without authorization from the pre-adoptive family or adoptive family for the purpose of treatment activities related to behavioral or physical health of the child or young adult when the child or young adult is the recipient of OHP services:

(A) The name and Medicaid recipient number for the child or young adult;

(B) The hospital or medical provider for the child or young adult;

(D) Each diagnosis for the child or young adult;

(E) Each treatment activity’s date of service;

(F) Each treatment activity’s procedure or revenue code;

(G) The quantity of units or services provided; and

(H) Information about medication prescription and monitoring.

(e) Specification of the amount and nature of all adoption assistance to be provided.

(f) A statement informing the pre-adoptive family or adoptive family of the right to a contested case hearing under Child Welfare Policy I-A.5.2, “Contested Case Hearings”, OAR 413-010-0500 to 413-010-0535.

(3) The Department remains financially responsible for providing the services specified in the adoption assistance agreement if the needed service is not available in the new state or service area of residence, except as described in OAR 413-130-0100(4).

(4) The foster care base rate payment, level of care payment, any level of personal care payment, and medical coverage end when adoption assistance begins. Medical assistance, as determined by the child’s eligibility, may continue when requested by the pre-adoptive family or adoptive family.

(5) The Department may require documentation from the pre-adoptive family or adoptive family verifying that the child:

(a) Is enrolled in an elementary or secondary school as determined by the law of the state of residence;

(b) Is home schooled in accordance with the law of the state of residence;

(d) Has completed secondary school; or

(e) Is incapable of attending school due to a documented medical condition, mental disability, or physical disability.

(6) A pre-adoptive family or adoptive family must immediately inform the Adoption Assistance and Guardianship Assistance Unit of a change in circumstances that may make them ineligible for adoption assistance or eligible for an adoption assistance payment in a different amount.

(7) An individual who is a party to an adoption assistance agreement may request a change of payee due to a divorce, legal separation, or other judicially recognized modification of custody.

(a) The requesting individual must provide the Department with the current address and telephone number of the current payee.

(b) The Department must notify the current payee that there has been a request to change the payee within 30 days of receipt of a request for a change of payee.

(c) Unless the current payee submits a challenge to the request to change payee within 30 days of the date the Department sends the notice in subsection (b) of this section, the request to change payee will be approved.

(d) If the change of payee is challenged, the Department requires legal documentation describing physical custody of the child to make a change in payee.

(e) The new payee must be one of the parties to the adoption assistance agreement.

(8) Overpayment.

(a) If the Department issues an adoption assistance payment on behalf of a child or young adult after the date the adoption assistance agreement automatically expires, the Department may seek reimbursement of the overpayment and the pre-adoptive family or the adoptive family must repay the Department.

(b) If the pre-adoptive family or adoptive family fails to comply with any provisions of the adoption assistance agreement, including failing to notify the Department of any of the events or circumstances described in section (6) of this rule, the Department may collect any adoption assistance payment or medical assistance which the Department would not have provided had the pre-adoptive family or adoptive family complied with the provisions of the adoption assistance agreement.

Stat. Auth.: ORS 418.005, 418.340

Stats. Implemented: ORS 418.005, 418.330, 418.335 & 418.340

Hist.: SCF 2-1995, f. & cert. ef. 8-21-95; SCF 6-1995, f. 12-22-95, cert. ef. 12-29-95; SOSCF 8-1999, f. & cert. ef 5-17-99; SOSCF 11-1999(Temp), f. & cert. ef. 6-3-99 thru 11-30-99; SOSCF 22-1999, f. & cert. ef. 11-24-99; SOSCF 7-2002, f. 3-28-02, cert. ef. 4-1-02; CWP 16-2006, f. 6-30-06, cert. ef. 7-1-06; CWP 16-2008, f. & cert. ef. 7-1-08; CWP 6-2009(Temp), f. & cert. ef. 7-1-09 thru 12-28-09; CWP 22-2009, f. & cert. ef. 12-29-09; CWP 16-2011(Temp), f. & cert. ef. 6-30-11 thru 12-27-11; CWP 25-2011(Temp), f. 9-30-11, & cert. ef. 10-1-11 thru 12-27-11; CWP 35-2011, f. 12-27-11, cert. ef. 12-28-11

413-130-0125

Adjustments of Adoption Assistance

(1) The Department may request updated information from the pre-adoptive family or the adoptive family when the Department becomes aware of a change in circumstances that may make the pre-adoptive family or the adoptive family ineligible for adoption assistance or eligible for adoption assistance in a different amount.

(2) When the adoptive family divorces, legally separates, or is party to a judicially recognized modification of custody, the Department may request updated information, including financial information, to reflect the change in family circumstances.

(3) When there is an across-the-board reduction or increase in the base rate payment or level of care payment that the child or young adult would be eligible to receive if the child or young adult were in foster care, the Department may, after a case-by-case review and without concurrence of the adoptive family, adjust the adoption assistance payment to an amount that does not exceed the new foster care payment the child or young adult would receive if currently in foster care, as follows:

(b) In the case of an increase, the Department, considering the needs of the child or young adult and the circumstances of the adoptive family, may increase the adoption assistance payment to an amount that does not exceed the new foster care payment the child or young adult would receive if currently in foster care.

(4) If, upon an adjustment under section (3) of this rule, the Department intends to adjust an adoption assistance payment without the concurrence of the adoptive family, the Department will provide the adoptive family and the child or young adult with written notice as described in Child Welfare Policy I-A.5.2, “Contested Case Hearings”, OAR 413-010-0500 to 413-010-0535.

(5) The Department, with the concurrence of the pre-adoptive family or adoptive family, may adjust or suspend the adoption assistance payment to reflect a change in the pre-adoptive family or adoptive family’s circumstances or expenses on behalf of the child or young adult.

(6) The Department will terminate the adoption assistance agreement upon ten days written notice to the pre-adoptive family or adoptive family when it becomes known to the Department that the pre-adoptive family or adoptive family is no longer providing any support to the child or young adult or is no longer legally responsible for the support of the child or young adult, including under the following circumstances:

(a) When the parental rights of the adoptive family have been terminated or relinquished.

(b) When the child becomes an emancipated minor.

(A) Marries.

(B) Enlists in the military.

(d) When the young adult no longer meets the eligibility requirements in OAR 413-130-0055.

(7) The adoption assistance agreement automatically expires when the child reaches the age of 18 or, when an extension has been granted under OAR 413-130-0055, no later than when the young adult reaches the age of 21 as documented in the adoption assistance agreement.

Stat. Auth.: ORS 418.005, 418.340

Stats. Implemented: ORS 418.005, 418.330, 418.335 & 418.340

Hist.: CWP 16-2003, f. 1-21-03, cert. ef. 2-1-03; CWP 38-2003(Temp), f. & cert. ef. 11-19-03 thru 5-17-04; CWP 4-2004, f. & cert. ef. 4-1-04; CWP 16-2008, f. & cert. ef. 7-1-08; CWP 6-2009(Temp), f. & cert. ef. 7-1-09 thru 12-28-09; CWP 22-2009, f. & cert. ef. 12-29-09; CWP 16-2011(Temp), f. & cert. ef. 6-30-11 thru 12-27-11; CWP 25-2011(Temp), f. 9-30-11, & cert. ef. 10-1-11 thru 12-27-11; CWP 35-2011, f. 12-27-11, cert. ef. 12-28-11

413-130-0130

Post Judgment of Adoption Applications for Adoption Assistance

(1) An adoptive family asking to apply for adoption assistance after the judgment of adoption must submit a written request to the Adoption Assistance and Guardianship Assistance Unit, 500 Summer Street NE, E-71, Salem, Oregon 97301, based on one or more of the following extenuating circumstances:

(a) Relevant facts regarding the child, the biological family, or background of the child were known, but not shared with the adoptive family prior to legal finalization of the adoption;

(b) Adoption assistance was denied based on an assessment of the financial need of the adoptive family;

(c) The Department determined the child was ineligible for adoption assistance, but information becomes known which indicates a review of the determination is appropriate; or

(d) The Department failed to advise the adoptive family of a special needs child of the availability of adoption assistance.

(2) Upon receipt of the written request, the Department must determine, within 30 days, whether the child meets Title IV E eligibility requirements.

(3) The Department or adoptive family may seek historic information regarding the child to determine eligibility for adoption assistance through a:

(a) Request to the adoption registry as provided by ORS 109.425 through 109.507; or

(b) Court order to review the sealed adoption file.

(4) When a child is Title IV-E eligible, a decision is made through a contested case hearing on whether the adoptive family may apply for adoption assistance after the judgment of adoption based on the extenuating circumstances in section (1) of this rule:

(a) The Adoption Assistance and Guardianship Assistance Coordinator must write a summary of the situation and submit a hearing referral and supporting documentation to the Office of Administrative Hearings within 45 days of receipt of the request in section (1) of this rule.

(b) An adoptive family has the burden of proof to show that extenuating circumstances exist. The Department may provide corroborating facts to both the adoptive family and the administrative law judge.

(c) The contested case hearing is conducted under Child Welfare Policy I-A.5.2, “Contested Case Hearings”, OAR 413-010-0500 to 413-010-0535.

(5) When a child does not meet Title IV E eligibility requirements, the Adoption Program Manager determines if extenuating circumstances under section (1) of this rule exist that justify accepting an adoption assistance application from the adoptive family.

(a) The Adoption Assistance and Guardianship Assistance Coordinator must prepare information for review by the Adoption Program Manager including information submitted by both the adoptive family and Department records.

(b) A written finding will be sent to the adoptive family within 60 days of the receipt of the request for review.

(c) When the Adoption Program Manager finds that extenuating circumstances do not exist, the adoptive family may request a contested case hearing under Child Welfare Policy I-A.5.2, “Contested Case Hearings”, OAR 413-010-0500 to 413-010-0535.

(A) The administrative law judge in the contested case hearing reviews whether the adoptive family may submit an application for adoption assistance.

(B) The approval of the adoption assistance application is a separate determination made by the Department.

(6) When the decision, through a contested case hearing or Adoption Program Manager review, is that the adoptive family is eligible to apply for adoption assistance on behalf of the child, an adoption assistance application may be signed, effective the date of the written request described in section (1) of this rule. The process for application in OAR 413-130-0050 and negotiation in OAR 413-130-0070 apply.

Stat. Auth.: ORS 418.005, 418.340

Stats. Implemented: ORS 418.005, 418.330, 418.335 & 418.340

Rule Caption: Changing OARs affecting Child Welfare programs.

Adm. Order No.: CWP 36-2011

Filed with Sec. of State: 12-27-2011

Certified to be Effective: 12-28-11

Notice Publication Date:</