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Oregon Bulletin

August 1, 2011

 

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 7-2011

Filed with Sec. of State: 6-28-2011

Certified to be Effective: 6-28-11

Notice Publication Date: 5-1-2011

Rules Amended: 413-070-0651, 413-070-0655, 413-070-0660, 413-070-0665, 413-070-0670

Subject: OAR 413-070-0651 regarding the purpose of the rules about guardianship as a permanency plan, OAR 413-070-0655 regarding definitions of certain terms used in these rules, OAR 413-070-0660 regarding consideration of guardianship as a permanency plan, OAR 413-070-0665 regarding consideration of a substitute caregiver as a potential guardian, and OAR 413-070-0670 regarding approval and implementation of a guardianship permanency plan are being adopted because the Department does not have a policy that adequately and fully describes the responsibilities of the Department to determine the appropriate use of guardianship as a permanency plan unless the child is eligible for guardianship assistance. The new rules describe the responsibilities of the Department in determining the appropriateness of guardianship as a permanency plan for a child regardless of the child’s eligibility for guardianship assistance. The goal of a permanency plan is to develop safe and permanent family resources with the parents, relatives, or other people who will assume legal responsibility for the child during the remaining years of dependency and be accessible and supportive to the child in adulthood. Most of these rule changes make permanent rules adopted as temporary rules on December 29, 2010.

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

413-070-0651

Purpose

The purpose of these rules (OAR 413-070-0651 to 413-070-0670) is to describe the responsibilities of the Department to determine the appropriate use of guardianship, as established by the court under ORS 419B, as a permanency plan for a child in the care or custody of the Department.

Stat. Auth.: ORS 418.005 & 419B.369

Stats. Implemented: ORS 418.005, 419B.192 & 419B.369

Hist.: CWP 36-2010(Temp), f. & cert. ef. 12-29-10 thru 6-27-11; CWP 7-2011, f. & cert. ef. 6-28-11

413-070-0655

Definitions

The following definitions apply to OAR 413-070-0651 to 413-070-0670:

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

(2) “Concurrent permanent plan” means the alternate permanency plan whenever the child has been placed in substitute care when the goal of the permanency plan is to return the child to the parents. The concurrent permanent plan is developed simultaneously with the plan to return the child to the parents or legal guardians.

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

(4) “Foster care agency” means a private child-caring agency that offers to place children by taking physical custody of and then placing the children in a home certified by the agency.

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

(6) “Guardianship assistance” means assistance provided by the Department to a guardian on behalf of an eligible child to offset the costs associated with meeting the ongoing needs of the child. Guardianship assistance may include payments, medical coverage, or reimbursement of nonrecurring expenses.

(7) “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.

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

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

(10) “Permanency plan” means a written course of action for achieving safe and lasting family resources for the child. Although the plan may change as more information becomes available, the goal is to develop safe and permanent family resources with the parents, relatives, or other people who will assume legal responsibility for the child during the remaining years of dependency and be accessible and supportive to the child in adulthood.

(11) “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 a judgment of the court.

(12) “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(27)(c) 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 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 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 permanent 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.

(13) “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.

(14) “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.

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

Stat. Auth.: ORS 418.005

Stats. Implemented: ORS 418.005

Hist.: CWP 36-2010(Temp), f. & cert. ef. 12-29-10 thru 6-27-11; CWP 7-2011, f. & cert. ef. 6-28-11

413-070-0660

Consideration of Guardianship as a Permanency Plan

(1) The Department may consider guardianship as a permanency plan for a child in the care or legal custody of the Department based on the individual safety, permanency, and well-being needs of the child, when the Department has determined:

(a) The child is unable to safely return to the home of a parent; and

(b) Adoption is not an appropriate plan based on the best interest of the child.

(2) When considering guardianship as the permanency plan, the caseworker must:

(a) Consult with the child 14 years of age or older;

(b) Seek input from the child as developmentally appropriate, regardless of the age of the child;

(c) Assess the parents’ acceptance of guardianship as a permanency plan, their desire for continued contact with the child, and how this will impact the plan; and

(d) Document in the Department’s information system how the requirements of subsections (a), (b), and (c) of this section were met.

Stat. Auth.: ORS 418.005

Stats. Implemented: ORS 418.005

Hist.: CWP 36-2010(Temp), f. & cert. ef. 12-29-10 thru 6-27-11; CWP 7-2011, f. & cert. ef. 6-28-11

413-070-0665

Consideration of a Substitute Caregiver as a Potential Guardian

(1) Prior to considering a substitute caregiver as a potential guardian, the caseworker and the caseworker’s supervisor must comply with the requirements of both of the following subsections:

(a) Review the Department’s diligent efforts to identify, contact, and place a child with relatives and to place siblings together as required under Child Welfare Policy I-E.1.1, “Search for and Engagement of a Child’s Relatives”, OAR 413-070-0060 to 413-070-0087; and

(b) Confirm there are no current Department actions to:

(A) Identify a child’s relative as defined in OAR 413-070-0655(12)(a)–(d);

(B) Assess an identified relative as defined in OAR 413-070-0655(12)(a)–(d) who has either expressed an interest in and needs to be or currently is being assessed as a permanency resource.

(2) In order to be considered as a potential guardian, the substitute caregiver must:

(a) Have a current Certificate of approval from one of the following entities:

(A) The Department under Child Welfare Policy II-B.1, “Certification Standards for Foster Parents, Relative Caregivers, and Pre-Adoptive Parents”, OAR 413-200-0301 to 413-200-0396.

(B) Seniors and People with Disabilities Division, OAR 411-346-0100 to 411-346-0230, “Foster Homes for Children with Developmental Disabilities”.

(C) A foster care agency under Child Welfare Policy II-C.1.2, “Licensing Foster Care Agencies”, OAR 413-215-0301 to 413-215-0396.

(D) A participating tribe when the potential guardian is currently certified as a foster home by the participating tribe as meeting the tribe’s certification and licensing standards.

(E) Another state when the potential guardian is currently certified or otherwise approved by the state in which the potential guardian resides and approved as a placement for the child under the Interstate Compact on Placement of Children (ICPC).

(b) Agree with the Department that the child and any sibling under consideration, and the substitute caregiver can maintain a stable relationship and function effectively without Department supervision.

(c) Have an updated home study describing how the substitute caregiver’s skills and abilities meet the best interests and needs for safety and permanency for the child and any sibling under consideration.

(d) Have adequate means of financial support and connections to community resources.

(e) Have a strong commitment to caring permanently for the child and any sibling under consideration for whom the substitute caregiver has provided care.

(3) The caseworker must complete all of the following requirements and present the results to a permanency committee, when scheduled:

(a) Assess the ability of the substitute caregiver to provide safety, permanency, and well-being for the child and any sibling under consideration.

(b) Assess with the certifier of the substitute caregiver the extent to which the ongoing needs for safety, permanency, and well-being of the child and any sibling under consideration are being met pursuant to Child Welfare Policy I-E.3.1, “Placement Matching”, OAR 413-070-0640.

(c) Assess the commitment of the substitute caregiver to raise the child and any sibling under consideration.

(d) Provide the substitute caregiver with information regarding the duties and responsibilities of a guardian.

(e) Agree that the child, any sibling under consideration, and the substitute caregiver can maintain a stable relationship and function effectively without Department supervision.

(f) Consult with the substitute caregiver regarding guardianship assistance under Child Welfare Policy I-E.3.6.2, “Guardianship Assistance”, OAR 413-070-0900 to 413-070-0974.

(A) When guardianship assistance will be requested, inform the substitute caregiver of the eligibility, application, and ongoing requirements of guardianship assistance as described in Child Welfare Policy I-E.3.6.2, “Guardianship Assistance”, OAR 413-070-0900 to 413-070-0974.

(B) When guardianship assistance will not be requested or may not be approved due to eligibility restrictions, ensure that the substitute caregiver has sufficient financial support and connections to community resources to meet the needs of the child and any sibling under consideration without this assistance.

Stat. Auth.: ORS 418.005 & 419B.369

Stats. Implemented: ORS 418.005, 419B.192 & 419B.369

Hist.: CWP 36-2010(Temp), f. & cert. ef. 12-29-10 thru 6-27-11; CWP 7-2011, f. & cert. ef. 6-28-11

413-070-0670

Approval and Implementation of a Guardianship Permanency Plan

(1) When the Department is considering a change in a child’s permanency plan, the Department makes the determination pursuant to Child Welfare Policy I-E.3.6, “Legal Permanency, Concurrent Planning, and Use of Permanency Committee”, OAR 413-070-0500 to 413-070-0519, and the child’s caseworker schedules a permanency committee.

(2) The permanency committee must review all of the information presented to the committee and make recommendations to the Child Welfare Program Manager or designee regarding:

(a) Whether guardianship is an appropriate permanency plan for the child; and

(b) Whether the substitute caregiver can meet the child’s needs as described in subsection (3)(c) of this rule and should be considered as a potential guardian.

(3) The Child Welfare Program Manager or designee must decide whether guardianship is the appropriate permanency plan for the child based upon:

(a) How a permanency plan of guardianship meets the child’s needs, and the requirements of OAR 413-070-0660(1) and (2) and 413-070-0665(2) and (3);

(b) Whether the Department has provided the child and the child’s parents an opportunity to identify available permanency;

(c) Whether the substitute caregiver being considered as the potential guardian is able to meet the child’s needs pursuant to Child Welfare Policy I-E.3.1, “Placement Matching”, OAR 413-070-0640.

(4) Following the Child Welfare Program Manager or designee decision to approve guardianship as a permanency plan, the caseworker must:

(a) Request a permanency hearing before the court within 30 days of the decision.

(b) Prior to the court hearing, provide the court with supporting written documentation regarding the Department’s position that:

(A) Guardianship is in the child’s best interest; and

(B) Neither placement with parents nor adoption is an appropriate plan.

(5) At the court hearing, the caseworker must:

(a) Recommend that the court approve changing the child’s permanency plan to guardianship;

(b) Inform the court whether or not the potential guardian is applying for guardianship assistance; and

(c) When guardianship assistance is being requested, inform the court that after the Department has negotiated the amount or type of guardianship assistance with the potential guardian, a subsequent court hearing will be requested to allow the order of guardianship to be entered.

Stat. Auth.: ORS 418.005

Stats Implemented: ORS 418.005

Hist.: CWP 36-2010(Temp), f. & cert. ef. 12-29-10 thru 6-27-11; CWP 7-2011, f. & cert. ef. 6-28-11

 

Rule Caption: Changing OARs affecting Child Welfare programs.

Adm. Order No.: CWP 8-2011(Temp)

Filed with Sec. of State: 6-30-2011

Certified to be Effective: 6-30-11 thru 12-27-11

Notice Publication Date:

Rules Adopted: 413-010-0501, 413-010-0502

Rules Amended: 413-010-0500, 413-010-0505, 413-010-0510, 413-010-0515, 413-010-0520, 413-010-0525, 413-010-0530, 413-010-0535

Subject: OAR 413-010-0500 is being amended to restate the purposes of the contested case hearing rules and the policies about hearing rights, applicable rules, and computation of time. This rule is also being amended to remove definitions, which will be located in OAR 413-010-0501 and to remove its description of policies about representation which will be located in OAR 413-010-0502.

      OAR 413-010-0501 about the definitions is being adopted to set out definitions of certain terms used in the contested case rules. The definitions of some of the terms previously defined in OAR 413-010-0500 are being revised.

      OAR 413-010-0502 about representation in contested cases and who may attend a hearing is being adopted to set out set out and revise policies on this topic. These topics were previously covered in OAR 413-010-0500.

      OAR 413-010-0505 about hearing requests is being amended to clarify and correct references in the rule.

      OAR 413-010-0510 about the notice for a contested case hearing is being amended to more clearly specify that the required contents of a notice on the topic of the Department’s right to recover payments made pending a hearing decision.

      OAR 413-010-0515 about continuation of benefits is being amended to revise the circumstances and timelines under which payments and benefits may continue pending the hearing of a contested case.

      OAR 413-020-0520 about informal conferences and OAR 413-020-0525 about the burden of proof are being amended to indicate when defined terms are used.

      OAR 413-010-0530 about withdrawals and dismissals is being amended to clarify terms used in the rule.

      OAR 413-010-0535 about proposed and final orders is being amended to revise the date on which a proposed and final order becomes a final order when a party does not submit timely exceptions or argument.

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

413-010-0500

Purpose, Right to Request Hearing, Applicable Rules, and Computation of Time

(1) The purpose of these rules (OAR 413-010-0500 to 413-010-0535) is to:

(a) State the rights of individuals and entities to request a contested case hearing when the Department takes certain actions; and

(b) Set forth rules governing some aspects of the contested case hearings process.

(2) The individuals and entities described below have the right to request a contested case hearing under ORS Chapter 183. In order to exercise the right to a hearing, the individual or entity must submit and the Department must receive a hearing request which complies with OAR 413-010-0505 within the timeframes described in that rule.

(a) A child or young adult placed in substitute care by the Department may request a hearing in the manner set forth in OAR 413-010-0505 when the Department issues a notice and decision that includes a statement of hearing rights that:

(A) Reduces or terminates the base rate payment;

(B) Determines, denies, reduces or terminates a level of care payment;

(C) Determines, denies, reduces or terminates a level of personal care payment;

(D) Denies eligibility under Title IV-E of the Social Security Act when such denial impacts a benefit;

(E) Denies, reduces or terminates the base rate payment made on behalf of the child’s or young adult’s minor child when the minor child:

(i) Lives with the child or young adult in substitute care; and

(ii) Is not in the legal custody of the Department; or

(F) Denies eligibility for medical assistance under Child Welfare Policy I-E.6.2, “Title XIX and General Assistance Medical Eligibility,” (OAR 413-100-0400 through 413-100-0610) when such denial impacts assistance.

(b) A pre-adoptive family or an adoptive family applying for or receiving adoption assistance under Child Welfare Policy I-G.3.1, “Adoption Assistance,” (OAR 413-130-0000 to 413-130-0130) may request a hearing in the manner set forth in OAR 413-010-0505 when the Department issues a notice and decision that includes a statement of hearing rights and:

(A) Denies Title IV-E adoption assistance benefits;

(B) Denies adoption assistance from state funds;

(C) Reduces adoption assistance payments or terminates adoption assistance without the concurrence of the adoptive family;

(D) Reduces adoption assistance payments or terminates adoption assistance for a reason other than a child turning age 18 or a young adult turning age 21 when an extension has been granted; or

(E) Offers the family a specific amount or type of adoption assistance when the Department and the adoptive family or pre-adoptive family are unable to reach agreement through a negotiation or renegotiation under OAR 413-130-0070 or 413-130-0075.

(c) A potential guardian or a guardian applying for or receiving guardianship assistance payments under Child Welfare Policy I-E.3.6.2, “Guardianship Assistance,” (OAR 413-070-0900 to 413-070-0982) in the manner set forth in OAR 413-010-0505 when the Department issues a notice and decision that includes a statement of hearing rights and:

(A) Denies Title IV-E guardianship assistance benefits;

(B) Terminates, reduces, or otherwise changes guardianship assistance payments without the concurrence of the guardian;

(C) Terminates guardianship assistance for a reason other than a child turning age 18 or a young adult turning age 21 when an extension has been granted; or

(D) Offers the family a specific amount or type of guardianship assistance when the Department and the guardian or potential guardian are unable to reach agreement through a negotiation or renegotiation under OAR 413-070-0917, 413-070-0939, or 413-070-0969.

(d) An applicant for a Certificate of Approval or a certified family may request a hearing in the manner set forth in OAR 413-010-0505 when the Department denies the application or revokes a certificate under Child Welfare Policy II-B.1, “Certification Standards for Foster Parents, Relative Caregivers, and Pre-Adoptive Parents,” (OAR 413-200-0301 to 413-200-0396);

(e) An applicant for a license to operate a private child-caring agency or a licensee may request a hearing in the manner set forth in OAR 413-010-0505 when the Department denies, suspends, or revokes a license or imposes a civil penalty under Child Welfare Policy II-C.1, “Licensing Umbrella Rules,” (OAR 413-215-0000 to 413-215-0131);

(f) An organization or school that operates a residential care program for children and is not also a private child-caring agency may request a hearing in the manner set forth in OAR 413-010-0505 when the Department orders the organization or school to alter the conditions under which a child lives or receives schooling or denies, suspends or revokes a license under Child Welfare Policy II-C.1, “Licensing Umbrella Rules,” (OAR 413-215-0000 to 413-215-0131);

(g) An applicant to adopt or an applicant for a Certificate of Approval may request a hearing in the manner set forth in OAR 413-010-0505 when the Department determines that the applicant is unfit based on the criminal offender information or a false statement regarding criminal offender information of the applicant or of another individual in the household of the applicant under Child Welfare Policy I-G.1.4, “Oregon Computerized Criminal History Checks and Nationwide Criminal History Checks through the FBI for Relative Caregivers, Foster Parents, Other Persons in the Household and Adoptive Parents for Children in the Care or Custody of DHS,” (OAR 413-120-0400 to 413-120-0470).

(3) A person may request a hearing in the manner set forth in OAR 413-010-0505 when that person has the right to a contested case hearing under a statute concerning Child Welfare Programs or a rule in Chapter 413.

(4) These rules (OAR 413-010-0500 to 413-010-0535), apply to contested cases arising from the properly made hearings requests described in sections (2) and (3) of this rule. The following other rules do or do not apply as noted:

(a) OAR 137-003-0501 to 137-003-0700 apply to these contested cases, except to the extent that rules in Chapter 413 are permitted to and provide otherwise.

(b) Rules in Chapter 461 do not apply to these contested cases unless a rule in Chapter 413 expressly refers to them.

Stat. Auth.: ORS 418.005

Stats. Implemented: ORS 183.411 - 183.685, 411.095, 418.005

Hist.: SOSCF 32-2001, f. 6-29-01 cert. ef. 7-1-01; CWP 6-2009(Temp), f. & cert. ef. 7-1-09 thru 12-28-09; CWP 10-2009(Temp), f. & cert. ef. 9-1-09 thru 12-28-09; CWP 20-2009, f. & cert. ef. 12-29-09; CWP 8-2011(Temp), f. & cert. ef. 6-30-11 thru 12-27-11

413-010-0501

Definitions

The following definitions apply to these rules (OAR 413-010-0500 to 413-010-0535):

(1) “Adoption assistance” means assistance provided by the Department on behalf of an eligible adoptive child or young adult, to offset the costs associated with adopting and meeting the ongoing needs of the child or young adult. Adoption assistance may be in the form of payments, medical coverage, nonrecurring adoption expenses, or a special payment.

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

(3) “Base rate payment” means a payment to the foster parent or relative caregiver at a rate established by the Department 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;

(c) Housing — including maintenance of household utilities, furnishings, and equipment;

(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

(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.

(4) “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.

(5) “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 they reside, to a child or young adult in the care or custody of the Department.

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

(7) “Foster parent” means a person 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.

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

(9) “Guardianship assistance” means assistance provided by the Department to a guardian 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.

(10) “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.

(11) “Level of personal care payment” means the payment to a qualified provider for performing the personal care services for an eligible child or young adult based on the child’s or young adult’s need for personal care services as determined by applying the personal care services algorithm to the results of the personal care services rating scale.

(12) “Licensee” means a private child-caring agency or an organization or school that offers a residential program for children (regulated pursuant to ORS 418.327) and holds a license issued by the Department.

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

(14) “Party” means a person entitled to a contested case hearing under these rules.

(15) “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.

(16) “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.

(17) “Private child-caring agency” is defined by the definitions in ORS 418.205, and means a “child-caring agency” that is not owned, operated, or administered by any governmental agency or unit.

(a) A “child-caring agency” means an agency or organization providing:

(A) Day treatment for disturbed children;

(B) Adoption placement services;

(C) Residential care, including but not limited to foster care or residential treatment for children;

(D) Outdoor youth programs (defined at OAR 413-215-0911); or

(E) Other similar services for children.

(b) A child-caring agency does not include residential facilities or foster care homes certified or licensed by the Department under ORS 443.400 to 443.455, 443.830, and 443.835 for children receiving developmental disability services.

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

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

Stat. Auth.: ORS 418.005

Stats. Implemented: ORS 183.411 - 183.685, 411.095, 418.005

Hist.: CWP 8-2011(Temp), f. & cert. ef. 6-30-11 thru 12-27-11

413-010-0502

Representation

(1) When a child or young adult has the right to a hearing because the Department takes an action under OAR 413-010-0500(2)(a), the foster parent or relative caregiver may:

(a) Request a hearing on behalf of the child or young adult; and

(b) Participate in the hearing as a representative on behalf of the child or young adult.

(2) When the Department takes an action to deny, reduce, or terminate a benefit or service that is provided under Title IV-E or Title XIX of the Social Security Act, a party may be represented by an attorney, a relative, a friend, or other spokesperson as authorized by federal law.

(3) In all other cases, a party may represent themselves or be represented by an attorney.

(4) The Department, with the consent of the Attorney General, has authorized its employees to represent the Department in cases involving the actions described in OAR 413-010-0500(2)(a).

(5) A Department employee acting as the Department’s representative may not make legal argument on behalf of the Department.

(a) “Legal argument” includes argument on:

(A) The jurisdiction of the Department to hear the contested case;

(B) The constitutionality of a statute or administrative rule or the application of a constitutional requirement to the Department; and

(C) The application of court precedent to the facts of the particular contested case proceeding.

(b) “Legal argument” does not include presentation of a motion, evidence, examination and cross-examination of a witness, or presentation of a factual argument or arguments on:

(A) The application of a statute or administrative rule to the facts in the contested case;

(B) Comparison of a prior Department action when handling a similar situation;

(C) The literal meaning of a statute or administrative rule directly applicable to an issue in the contested case;

(D) The admissibility of evidence; and

(E) The correctness of a procedure being followed in the contested case hearing.

(6) The Department may be represented in any contested case proceeding by the Department of Justice.

(7) Contested cases under these rules are not open to the public and are closed to nonparticipants, except nonparticipants may attend subject to the consent of each party and the Department.

Stat. Auth.: ORS 418.005

Stats. Implemented: ORS 183.411 - 183.685, 411.095, 418.005

Hist.: CWP 8-2011(Temp), f. & cert. ef. 6-30-11 thru 12-27-11

413-010-0505

Hearing Requests

(1) To request a hearing under OAR 413-010-0500(2)(a):

(a) The party or the party’s representative must complete and sign a hearing request form approved by the Department: and

(b) The form must be received by the Department not later than 30 days following the mailing date or date of personal delivery of the notice.

(2) Requests for a hearing under OAR 413-010-0500(2)(b)-(g) must be in writing and must be received by the Department by the date specified in the Department’s notice.

(3) In the event a request for a hearing is not timely, OAR 137-003-0528 applies, except to the extent provided otherwise in section (5) of this rule.

(4) If a contested case notice was sent by regular mail, and the party or party’s representative indicates that neither the party nor the party’s representative received or had actual knowledge of the contested case notice, the Department must advise the party or party’s representative of the right to request a hearing under section (5) of this rule.

(5) When the Department receives a hearing request that is not filed within the timeframe required by section (1) or section (2) of this rule but is filed no later than 60 days after a notice becomes a final order under OAR 413-010-0510(3):

(a) If the Department finds that the party and party’s representative did not receive the written notice and did not have actual knowledge of the notice, the Department refers the request for a hearing to the Office of Administrative Hearings (OAH) for a contested case hearing on the merits of the Department’s action described in the notice.

(b) The Department may refer the request for a hearing to the OAH for a contested case proceeding to determine whether the party or party’s representative received the written notice or had actual knowledge of the notice. At the hearing, the Department must show that the party or party’s representative had actual knowledge of the notice or that the Department mailed the notice to the correct address of the party or party’s representative.

(6) Upon receipt of a hearing request that is not described in OAR 413-010-0500(2), the Department may enter an order that the hearing request is not eligible for referral to OAH. Alternately, the Department may refer a hearing request to OAH for a decision on the question of whether there is a right to a contested case hearing.

Stat. Auth.: ORS 418.005

Stats. Implemented: ORS 183.411 - 183.685, 411.095, 418.005, 2009 OL ch. 126

Hist.: CWP 6-2009(Temp), f. & cert. ef. 7-1-09 thru 12-28-09; CWP 9-2009(Temp), f. & cert. ef. 8-12-09 thru 12-28-09; CWP 20-2009, f. & cert. ef. 12-29-09; CWP 8-2011(Temp), f. & cert. ef. 6-30-11 thru 12-27-11

413-010-0510

Notice

(1) When the Department takes any of the actions described in OAR 413-010-0500(2), the Department issues a written notice as described in OAR 137-003-0505 to the person that has the right to a contested case hearing.

(2) In addition to the information required by OAR 137-003-0505, when the Department takes any of the actions described in OAR 413-010-0500(2)(a)–(c), the written notice also must:

(a) Specify the date the notice is mailed or personally delivered;

(b) Specify the action the Department intends to take and the effective date of the action. If benefits are reduced or closed to reflect cost-of-living adjustments in benefits or other mass change under a program operated by a federal agency or to reflect a mass change to payments in another program operated by the Department, it is sufficient to meet this requirement that the notice state all of the following:

(A) The general nature of the change.

(B) Examples of how the change affects the benefits of the group of affected clients.

(C) The month in which the change will take place.

(c) Specify the circumstances under which payments or benefits are continued if a hearing is requested and whether continued payments or benefits may be subject to recovery by the Department if the Department’s action is upheld; and

(d) If the Department intends to terminate benefits or payments because the individual is ineligible for the benefits or payments or the program is terminated, state that the individual may reapply for assistance if circumstances affecting the eligibility of the individual change.

(3) Department notices indicate that the Department designates the record of the proceeding, including information in the Department’s file or files and materials added by a party, as the record upon default. The Department’s notice becomes a final order:

(a) The day after the date prescribed in the notice as the deadline for requesting the hearing if the party fails to request a hearing; or

(b) The day the Department or OAH mails an order dismissing the hearing request because the party withdraws the request or fails to appear on the date and at the time set for the hearing.

(4) When the Department terminates or reduces benefits or services under subsections (2)(a) through (2)(c) of OAR 413-010-0500, the Department must send the notice:

(a) At least 10 calendar days before the effective date of the action, except as provided in subsection (b) of this section.

(b) When the Department changes a benefit standard that results in the reduction, suspension or closure of a grant of public assistance:

(A) At least 30 days before the effective date of the action; or

(B) At least 10 working days before the effective date of the action when the Department has fewer than 60 days before the effective date to implement the proposed change.

(c) For purposes of this rule, the term “changes a benefit standard” means a change to the applicable inflation-adjusted contribution, income, or payment standard. It does not include the annual adjustment to a standard based on a federal or state inflation rate.

Stat. Auth.: ORS 418.005

Stats. Implemented: ORS 183.411 - 183.685, 411.095, 418.005

Hist.: CWP 6-2009(Temp), f. & cert. ef. 7-1-09 thru 12-28-09; CWP 20-2009, f. & cert. ef. 12-29-09; CWP 8-2011(Temp), f. & cert. ef. 6-30-11 thru 12-27-11

413-010-0515

Continuation of Benefits

(1) Except as otherwise provided in this rule, a recipient of benefits is entitled to receive continuing benefits when the Department takes any action to suspend, reduce, or terminate benefits or services as described in subsections (2)(a)(A)–(F), (2)(b) or (2)(c) of OAR 413-010-0500, and the Department has:

(a) Provided at least 10 days notice of such action as required by OAR 413-010-0510;

(b) Received a request for a hearing from the recipient not later than 30 days following the mailing date or date of personal delivery of the notice, whichever is earlier; and

(c) Received such request prior to the effective date of the action.

(2) Any continuing benefits authorized by this rule are subject to recovery by the Department to the extent that the Department’s action is sustained or otherwise upheld.

(3) Continuing benefits may not be provided:

(a) When the recipient specifically requests that he or she not receive continued assistance pending a hearing decision;

(b) After a final order is issued by the Department;

(c) After a change affecting the recipient’s grant, as described in subsections (2)(a)(A), (B), (D), and (E), (2)(b) or (2)(c) of OAR 413-010-0500, occurs while the hearing decision is pending and the recipient fails to request a hearing after notice of the change; or

(d) After a determination is made at a hearing that the sole issue is one of state or federal law or policy or change in state or federal law and not one of incorrect grant computation.

(4) Except as otherwise provided in this rule, if the Department provides less than 10 days notice of an action to suspend, reduce, or terminate benefits or services as described in subsections (2)(a)(A), (B), (D), and (E), (2)(b) or (2)(c) of OAR 413-010-0500, a recipient of benefits is entitled to receive continuing benefits if the Department:

(a) Receives a request for a hearing from the recipient within 10 days of the mailing of the notice of the action; and

(b) Determines that the action resulted from other than the application of federal or state law or policy or a change in state or federal law.

(5) Except as otherwise provided in this rule, if the Department provides less than 10 days notice of an action to suspend, reduce, or terminate benefits or services as described in subsection (2)(a)(C) or (F) of OAR 413-010-0500, or 5 days notice in cases of probable fraud as described in 42 CFR 431.214, a recipient of benefits is entitled to receive continuing benefits if the Department:

(a) Receives a request for a hearing from the recipient within 10 days of the mailing of the notice of the action; and

(b) Determines that the action resulted from other than the application of federal or state law or policy.

Stat. Auth.: ORS 418.005

Stats. Implemented: ORS 183.411 - 183.685, 411.095, 418.005

Hist.: CWP 6-2009(Temp), f. & cert. ef. 7-1-09 thru 12-28-09; CWP 9-2009(Temp), f. & cert. ef. 8-12-09 thru 12-28-09; CWP 20-2009, f. & cert. ef. 12-29-09; CWP 8-2011(Temp), f. & cert. ef. 6-30-11 thru 12-27-11

413-010-0520

Informal Conference

(1) The Department representative and the party or party’s representative may have an informal conference to discuss any of the matters listed in OAR 137-003-0575(4). The informal conference also may be used to:

(a) Provide an opportunity for the Department and the party to settle the matter;

(b) Ensure the party understands the reason for the action that is the subject of the hearing request;

(c) Give the party an opportunity to review the documents that are the basis for that action;

(d) Give the party an opportunity to review the rules that support the Department’s action;

(e) Give the party and the Department the chance to correct any misunderstanding of the facts; and

(f) Give the Department an opportunity to review its action.

(2) The party may, at any time prior to the hearing date, request an additional informal conference with the Department representative.

Stat. Auth.: ORS 418.005

Stats. Implemented: ORS 183.411 - 183.685, 411.095, 418.005

Hist.: CWP 6-2009(Temp), f. & cert. ef. 7-1-09 thru 12-28-09; CWP 20-2009, f. & cert. ef. 12-29-09; CWP 8-2011(Temp), f. & cert. ef. 6-30-11 thru 12-27-11

413-010-0525

Burden of Proof

In any contested case covered by these rules (OAR 413-010-0500 to 413-010-0535), the party has the burden of proof.

Stat. Auth.: ORS 418.005

Stats. Implemented: ORS 183.411 - 183.685, 411.095, 418.005

Hist.: CWP 6-2009(Temp), f. & cert. ef. 7-1-09 thru 12-28-09; CWP 20-2009, f. & cert. ef. 12-29-09; CWP 8-2011(Temp), f. & cert. ef. 6-30-11 thru 12-27-11

413-010-0530

Withdrawals and Dismissals

(1) Withdrawals.

(a) A party or party’s representative may withdraw a request for a hearing orally or in writing at any time before a final order has been issued on the contested case.

(b) Following a withdrawal under subsection (a) of this section, the Department or the Office of Administrative Hearings sends an order dismissing the hearing request to the party’s last known address. The party may cancel the withdrawal if a request to cancel the withdrawal is received by the Department representative up to the tenth work day following the date such an order is sent. If the party withdrew the hearing request in writing, the Department must receive a timely written request to cancel the withdrawal.

(c) The Department may withdraw any pending referral from OAH at any time before a final order is served when:

(A) The Department provides to the party the relief sought; or

(B) The Department and the party reach an agreement under ORS 183.417(3).

(2) Dismissals. An order dismissing a hearing request is issued when the party or the party’s representative does not appear at the time and place specified for the hearing.

(a) The dismissal by order is effective on the date the order is issued.

(b) The Department may reconsider and cancel the dismissal under OAR 137-003-0675 on request of the party on a timely showing that the party was unable to attend the hearing and unable to request a postponement for reasons beyond party’s reasonable control. The Department may refer the reconsideration decision to OAH.

Stat. Auth.: ORS 418.005

Stats. Implemented: ORS 183.411 - 183.685, 411.095, 418.005

Hist.: CWP 6-2009(Temp), f. & cert. ef. 7-1-09 thru 12-28-09; CWP 20-2009, f. & cert. ef. 12-29-09; CWP 8-2011(Temp), f. & cert. ef. 6-30-11 thru 12-27-11

413-010-0535

Proposed and Final Orders

(1) When the Department refers a contested case under these rules (OAR 413-010-0500 to 413-010-0535) to OAH, the Department indicates on the referral whether the Department is authorizing:

(a) A proposed order;

(b) A proposed and final order (OAR 137-003-0645(4); or

(c) A final order.

(2) During or after a contested case hearing, when it is determined that the correct application of OAR 413-020-0230, 413-090-0133, or 413-090-0150 requires the consideration of facts that differ from the facts on which the Department made a decision to deny, reduce, or terminate either a level of care payment or a level of personal care payment, the Department will reapply OAR 413-020-0230, 413-090-0133, or 413-090-0150 based on new or different facts.

(3) When the Department authorizes either a proposed order or a proposed and final order:

(a) The party may file written exceptions and written argument to be considered by the Assistant Director for Children, Adults, and Families Division or the Assistant Director’s designee. The exceptions and argument must be received at the location indicated in the order not later than the tenth day after service of the proposed order or proposed and final order.

(b) If the party does not submit timely exceptions or argument following a proposed and final order, the proposed and final order becomes a final order on the eleventh day after service of the proposed and final order unless the Department has issued a revised order or has notified the parties and the administrative law judge that the Department will issue the final order.

(c) When the Department receives timely exceptions or argument, the Department issues the final order, unless the Department requests that OAH issue the final order under OAR 137-003-0655.

(4) A request by a party for reconsideration or rehearing must be filed with the person who signed the final order within the time limits of OAR 137-003-0675.

(5) A final order should be issued or the case otherwise resolved no later than 90 days following the receipt of the request for a hearing.

(6) A final order is effective immediately upon being signed or as otherwise provided in the order.

(7) The Department reserves the right to withdraw or amend any final order issued by OAH or the Department at any time permitted by law.

Stat. Auth.: ORS 418.005

Stats. Implemented: ORS 183.411 - 183.685, 411.095, 418.005

Hist.: CWP 6-2009(Temp), f. & cert. ef. 7-1-09 thru 12-28-09; CWP 20-2009, f. & cert. ef. 12-29-09; CWP 8-2011(Temp), f. & cert. ef. 6-30-11 thru 12-27-11

 

Rule Caption: Changing OARs affecting Child Welfare programs.

Adm. Order No.: CWP 9-2011(Temp)

Filed with Sec. of State: 6-30-2011

Certified to be Effective: 6-30-11 thru 12-27-11

Notice Publication Date:

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.

      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.

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

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 a person 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 a person 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

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) 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) 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, a child or young adult’s caseworker 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 child or young adult’s safety 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 child or young adult’s current behavior and functioning has been submitted to the adoption assistance and guardianship assistance coordinator by one of the following individuals:

(A) A child or young adult’s adoptive family, 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;

(C) A child or young adult’s guardian, regardless of whether there has been a previous CANS screening; or

(D) A child or young adult’s potential guardian 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

(c) Must send an approved CANS screening referral to a CANS screener.

(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

(C) Resubmit the CANS screening results.

(c) Approves the CANS screening results unless subsection (b) applies; 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;

(c) Incorporate the needs and strengths identified in the CANS screening into the case plan; and

(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

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

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;

(c) The actions the child or young adult will take to support the supervision plan;

(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;

(c) The child or young adult, if able; and

(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 413-020-0255.

(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;

(c) Be approved by the Child Welfare program manager; and

(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) 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

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

413-020-0240

Use of Physical Restraint

(1) A physical restraint may only be used by a certified family if the behavior of a child or young adult places the child or young adult or others in imminent risk of harm, and only if good judgment indicates that a physical restraint may safely be implemented.

(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

(c) Submit the completed form to the caseworker within two business days.

(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

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

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

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 and the use of physical restraint. The training curriculum focuses on strengthening a certified family’s supervision skills and instructs the certified family in the use of a physical restraint as a supervision action.

(2) Before implementing a supervision plan that authorizes a certified family to use physical restraint, the caseworker must consult with the certifier to confirm that the certified family has completed Behavior and Crisis Management Training.

(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

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

 

Rule Caption: Changing OARs affecting Child Welfare programs.

Adm. Order No.: CWP 10-2011(Temp)

Filed with Sec. of State: 6-30-2011

Certified to be Effective: 6-30-11 thru 12-27-11

Notice Publication Date:

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.

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.

(c) The child depended on the relationship to meet the child’s 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(27)(c) 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

 

Rule Caption: Changing OARs affecting Child Welfare programs.

Adm. Order No.: CWP 11-2011(Temp)

Filed with Sec. of State: 6-30-2011

Certified to be Effective: 6-30-11 thru 12-27-11

Notice Publication Date:

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 Suspended: 413-070-0929, 413-070-0979

Subject: OAR 413-070-0900 about the purpose the rules about guardianship assistance is being amended to clarify the rule and to indicate that the rule 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.

      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 suspended 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 being amended to more clearly explain what must be included in a guardianship assistance agreement and to indicate the policies how this rule applies to young adults.

      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 413-070-0969 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.

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

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; or

(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.

(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

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;

(c) Housing — including maintenance of household utilities, furnishings, and equipment;

(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 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.

(15) “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.

(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).

(C) A sibling, also to include an individual with a sibling relationship to the child 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 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 413-070-0380).

(C) A stepparent described in OAR 413-100-0020(27)(c) 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

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

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 or the District of Columbia.

(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.

(c) To be eligible for guardianship assistance, a child must meet all of the following:

(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 prospective 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 prospective 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 prospective 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) When an initial guardianship assistance agreement is entered into on behalf of an individual who is age 16 or 17, the Department may approve an extension of the guardianship assistance agreement until the individual reaches the age of 21 only under the following conditions.

(A) The child, upon reaching the age of 18 on or after June 30, 2011, continues to be a ward of the court with guardianship by the current guardian.

(B) The young adult 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 80 hours a month; or

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

(b) The Department will review the young adult’s eligibility for continued guardianship assistance when an extension of guardianship assistance has been granted:

(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.

(c) In order for the extension of guardianship assistance 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 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.

(d) 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 subsections (1)(c)(B) through (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

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

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 remain in compliance with federal requirements that the child:

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

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

(c) Be enrolled in an independent study program in accordance with the law of the state of residence;

(d) Be incapable of attending school due to a documented medical condition; or

(e) Has completed secondary school.

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

413-070-0929

Determination of Permanency Plan: Guardianship

(1) The Department or a participating tribe may consider guardianship as the permanency plan for a child when all of the following conditions are met:

(a) The Department determines that adoption is not an appropriate permanency plan under Child Welfare Policies I-F.2, “Determining the Appropriateness of Adoption as a Permanency Plan for a Child” OAR 413-110-0300 to 413-110-0360 and I-F.3.2.1, “Termination of Parental Rights” OAR 413-110-0200 to 413-110-0252;

(b) The eligibility requirements in OAR 413-070-0915, 413-070-0917, 413-070-0919, and 413-070-0925 have been met for the purpose of guardianship assistance.

(c) The Department or participating tribe has consulted with the child, if 14 years of age or older, regarding guardianship as the permanency plan.

(d) The Department and the prospective guardian agree, and the Department documents in the child’s case record, that the child and the prospective guardian can maintain a stable relationship and function effectively without Department supervision.

(e) A Permanency Committee has recommended:

(A) Guardianship as an appropriate permanency plan for the child; and

(B) Guardianship is in the child’s best interests because the prospective guardian meets the safety, permanency, and well-being needs of the child.

(f) The court approves a guardianship permanency plan for the child under Child Welfare Policy I-E.3.6, “Achieving Permanency” OAR 413-070-0500 to 413-070-0517.

(2) Each parent with legal rights or standing consents to the permanency plan of guardianship or has been given adequate notice of the permanency plan under state or tribal law when the Department or participating tribe requests a court order establishing guardianship.

(3) When guardianship has been approved as a child’s permanency plan, and guardianship assistance is being considered, the child’s case plan must include:

(a) How the child meets the eligibility requirements described in OAR 413-070-0917.

(b) The steps taken by the Department or participating tribe to determine that it is not appropriate for the child to return home or be adopted.

(c) The efforts made by the Department or participating tribe to discuss with the substitute caregiver adoption rather than guardianship as the preferred permanency plan and why adoption was not chosen.

(d) The efforts made by the Department or participating tribe to discuss the guardianship plan with each parent of the child or the reasons why efforts were not made.

(e) The reasons why permanent placement with a fit and willing guardian through a guardianship assistance arrangement is in the child’s best interests.

(f) The efforts made by the Department or participating tribe to discuss with each parent of the child the guardianship assistance arrangement or the reasons why no such efforts were made.

(g) The reasons, if any, that siblings were separated during placement.

Stat. Auth.: ORS 418.005

Stats. Implemented: ORS 418.005

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 413-070-0920, CWP 18-2009(Temp), f. & cert. ef. 12-16-09 thru 6-14-10; CWP 6-2010, f. & cert. ef. 6-15-10; Suspended by CWP 11-2011(Temp), f. & cert. ef. 6-30-11 thru 12-27-11

413-070-0934

Application Requirements

(1) Except as described in subsections (a) and (b) 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 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

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.

(C) The cost of 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

(C) Attend and participate in the Guardianship Assistance Review Committee.

(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 must 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 fourteen 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 rule.

(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 the subject of a guardianship assistance agreement established under the Title IV-E Waiver Project and 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 or the District of Columbia 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, a territory or possession thereof or the District of Columbia.

(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;

(C) Attorney fees;

(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

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

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

(C) The child or young adult is placed in the United States, a territory or possession thereof, or the District of Columbia.

(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 to exchange the following protected health information without the guardian’s, child’s or young adult’s authorization 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 child or young adult’s hospital or medical provider;

(C) The hospital or medical provider’s Medicaid number;

(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.

(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

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

413-070-0964

Changes That Must be Reported and Annual Report

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

(a) A change of address;

(b) A planned move by the guardian, child or young adult from his or her state of residency; or

(c) Any circumstance described in OAR 413-070-0974(2).

(2) 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.

(3) When the court does not require an annual report under section (2) 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

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;

(c) Document the needs of the child or young adult;

(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;

(c) A settlement agreement; or

(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

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

413-070-0974

Review, Adjustment, Suspension, 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;

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

(c) Has not received the required annual report from the guardian; or

(d) Receives information that indicates a review is necessary based on a change in the needs of the child or family circumstance.

(2) The Department may review a guardianship assistance agreement, upon being informed of any one of the following circumstances:

(a) The child or young adult:

(A) Is out of the home of the potential guardian or guardian 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.

(C) Is placed in substitute care.

(D) Is no longer receiving financial support from the guardian.

(E) Is incarcerated for more than three consecutive months.

(F) Is adopted.

(G) Is emancipated.

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

(I) Marries.

(J) Dies.

(b) The young adult no longer meets the requirements of OAR 413-070-0917(2).

(c) The guardian:

(A) Is no longer legally responsible for the financial support of the child or young adult.

(B) Has not complied with the requirements of the guardianship assistance agreement.

(C) Terminates the guardianship.

(D) Dies.

(d) The court:

(A) Vacates the guardianship.

(B) Modifies the guardianship.

(C) Terminates wardship over the child or young adult.

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

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

(4) 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;

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

(d) Continued guardianship assistance is no longer appropriate.

(5) The Department must terminate guardianship assistance for a child or young adult effective on the date of any one of the following:

(a) The child is emancipated.

(b) Child custody or guardianship is awarded to another individual.

(c) The child or young adult dies.

(d) The child or young adult marries.

(e) The child or young adult is adopted.

(f) The guardian dies or, in the case of more than one guardian, both die.

(g) The guardian terminates the guardianship.

(h) A young adult receiving guardianship no longer meets the requirements of OAR 413-070-0917(2).

(6) When there is an across-the-board reduction or increase in the base rate payment or level of care payment, the Department, following a case-by-case review, based on the specific needs of the child or young adult and without concurrence of the guardian, may adjust 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. 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.

(7) The guardianship assistance agreement automatically expires when the child reaches the age of 18 or, when an extension has been granted under OAR 413-070-0917(2), up to the age of 21 as documented in 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 413-070-0940, 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

413-070-0979

Guardianship Assistance Review Committee and Appeals Procedure

(1) The Guardianship Assistance Review Committee serves as a consultation and review body for the Guardianship Assistance program.

(a) Guardianship Assistance program staff may refer unusual or exceptionally costly benefit requests to the Guardianship Assistance Review Committee for consultation; or

(b) If, during negotiations of guardianship assistance benefits, Guardianship Assistance program staff and the guardian family or prospective guardian family is unable to reach agreement, the matter may be referred to the Guardianship Assistance Review Committee for review at the request of Guardianship Assistance program staff or the guardian family or prospective guardian family.

(2) The guardian family or prospective guardian family and the family’s assigned caseworker must provide written documentation for the Committee’s consideration.

(3) The caseworker for the prospective guardian family may participate in a Guardianship Assistance Review Committee meeting by telephone.

(4) The Guardianship Assistance Review Committee reviews relevant materials and provides a recommendation regarding the level of benefits to the Department’s guardianship assistance coordinator. The Guardianship Assistance Review Committee must consider the special needs of the child and the financial circumstances of the guardian family or prospective guardian family.

(5) If the guardian family or prospective guardian family is unsatisfied with the guardianship assistance offer made by the Guardianship Assistance Review Committee, the family may request further review by the Department’s Adoption and Guardianship Program Manager.

(6) A request for further review must be made in writing and received by the Department’s Adoption and Guardianship Program Manager within 14 days from the date the Guardianship Assistance Review Committee recommendation is provided to the guardian family or prospective guardian family.

(7) The Adoption and Guardianship Program Manager reviews the material and makes a decision within 60 days from the date of the Guardianship Assistance Review Committee recommendation.

(8) After receipt of the Adoption and Guardianship Program Manager’s decision, the guardian family or prospective guardian family may request a contested case hearing as provided in Child Welfare Policy I-A.5.2, “Contested Case Hearings” OAR 413-010-0500 to 413-010-0535.

Stat. Auth.: ORS 418.005

Stats. Implemented: ORS 418.005

Hist.: CWP 6-2010, f. & cert. ef. 6-15-10; Suspended by CWP 11-2011(Temp), f. & cert. ef. 6-30-11 thru 12-27-11

 

Rule Caption: Changing OARs affecting Child Welfare programs.

Adm. Order No.: CWP 12-2011(Temp)

Filed with Sec. of State: 6-30-2011

Certified to be Effective: 6-30-11 thru 12-27-11

Notice Publication Date:

Rules Amended: 413-090-0000, 413-090-0005, 413-090-0010, 413-090-0021, 413-090-0030, 413-090-0040, 413-090-0050

Subject: These rules about the responsibilities of the Department on behalf of a child or young adult to provide foster care maintenance payments to a certified family; an independent living housing subsidy to an eligible child or young adult who is in the legal custody of the Department, living independently; and payment to an individual eligible for a Chafee housing payment of the Department are being amended to implement provisions of the Fostering Connections to Success and Increasing Adoptions Act of 2008.

      OAR 413-090-0000 is also being amended to clarify the purposes of OAR 413-090-0000 to 413-090-0050.

      OAR 413-090-0005 about the definitions of key terms used in these rules is also being amended to add current and remove outdated definitions of certain terms used throughout these rules.

      OAR 413-090-0010 about payments authorized by the Department is also being amended to revise the eligibility criteria for payments the Department will authorize for family foster care, level of care payments, and payment for a child of a dependent parent, and the payments to youth eligible for a Chafee housing payment or independent living housing payment.

      OAR 413-090-0021 about periodic review of eligibility for level of care payments is also being amended to set out the effective date of changes in payments and when a CANS screening is conducted.

      OAR 413-090-0030 about payment for temporary absences from family foster care is also being amended to revise and clarify the criteria for receiving these payments.

      OAR 413-090-0040 about payments during adoptive supervision is also being amended to clarify the type of payments and criteria for receiving them.

      OAR 413-090-0050 about payment to a certified family moving to another state is also being amended to clarify the payments provided.

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

413-090-0000

Purpose

These rules, OAR 413-090-0000 to 413-090-0050, describe the responsibilities of the Department for payment of the following costs on behalf of a child or young adult.

(1) Foster care maintenance payments to a certified family:

(2) An independent living housing subsidy to an eligible child or young adult who is in the legal custody of the Department, living independently; and

(3) Payment to an individual eligible for a Chafee housing payment.

Stat. Auth.: ORS 418.005

Stats. Implemented: ORS 418.005

Hist.: SCF 6-1995, f. 12-22-95, cert. ef. 12-29-95; CWP 9-2003, f. & cert. er. 1-7-03; CWP 20-2006(Temp), f. & cert. ef. 10-13-06 thru 4-10-07; CWP 5-2007, f. 3-30-07, cert. ef. 4-1-07; CWP 6-2009(Temp), f. & cert. ef. 7-1-09 thru 12-28-09; CWP 9-2009(Temp), f. & cert. ef. 8-12-09 thru 12-28-09; CWP 10-2009(Temp), f. & cert. ef. 9-1-09 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 12-2011(Temp), f. & cert. ef. 6-30-11 thru 12-27-11

413-090-0005

Definitions

The following definitions apply to OAR 413-090-0000 to 413-090-0050:

(1) “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.

(2) “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;

(c) Housing — including maintenance of household utilities, furnishings, and equipment;

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

(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.

(3) “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; 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.

(4) “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 they reside, to a child or young adult in the care or custody of the Department.

(5) “Chafee housing payment” means a payment to assist in covering the costs of room and board made to an eligible individual between 18 and 20 years of age who was discharged from the care and custody of the Department or one of the federally recognized tribes on or after reaching 18 years of age.

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

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

(8) “Dependent parent” means a child or young adult in the legal custody of the Department who is the parent of a child.

(9) “Enhanced shelter care payment” means a limited term payment provided to a certified family when a child or young adult in the care or custody of the Department moves to a certified family’s home from a placement with a Behavior Rehabilitation Service provider and there is no current level of care determination applicable to the child or young adult.

(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 care payments” means one or more of the following payments to a certified family, authorized at rates established by the Department, for the board and care of a child or young adult for whom the Department has placement and care responsibility:

(a) The base rate payment;

(b) The level of care payment, if any;

(c) Shelter care payment or enhanced shelter care payment;

(d) Mileage reimbursement, paid at the current Department mileage reimbursement rate paid to child welfare staff, for transportation of a child or young adult remaining in the same school he or she was attending prior to placement in substitute care; and

(e) The board and care of the child of a dependent parent, unless the dependent parent receives cash benefits under a program administered by the Department of Human Services under chapter 461 of the Oregon Administrative Rules.

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

(13) “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.

(14) “Independent living housing subsidy” means a payment to assist in covering the costs of room, board, or other monthly expenses made to an eligible individual who is in the care and custody of the Department and living independently.

(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 need for enhanced supervision of the child or young adult as determined by applying the CANS algorithm to the results of the CANS screening.

(16) “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.

(17) “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.

(18) “Shelter care payment “ means a payment provided to a certified family during the first 20 days of substitute care for a child or young adult in the care or custody of the Department.

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

Stat. Auth.: ORS 418.005

Stats. Implemented: ORS 418.005

Hist.: SOSCF 20-1999, f. 9-15-99, cert. ef. 9-20-99; CWP 9-2003, f. & cert. er. 1-7-03; CWP 20-2006(Temp), f. & cert. ef. 10-13-06 thru 4-10-07; CWP 5-2007, f. 3-30-07, cert. ef. 4-1-07; CWP 6-2009(Temp), f. & cert. ef. 7-1-09 thru 12-28-09; CWP 10-2009(Temp), f. & cert. ef. 9-1-09 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 12-2011(Temp), f. & cert. ef. 6-30-11 thru 12-27-11

413-090-0010

Authorized Payments

(1) Family Foster Care.

(a) Shelter care payment. The Department reimburses a certified family a shelter care payment on behalf of a child or young adult during the first twenty days of substitute care after the Department has obtained physical or legal custody of the child or young adult. The daily shelter care payment is:

(A) $24.60 for a child five years or younger;

(B) $28.00 for a child 6 through 12 years of age; and

(C) $31.60 for a child or young adult 13 through 20 years of age.

(b) Base rate payment. The Department reimburses a certified family a base rate payment on behalf of a child or young adult in the Department’s physical or legal custody when a child or young adult is placed in the certified family’s home.

(A) Payment is made on a monthly basis, or prorated for a portion of a month, when the base rate payment is for less than all days in the month, and made after the month in which the care has been provided.

(B) The base rate payment starts the twenty-first day of a child’s placement in substitute care and includes the day the child or young adult enters the home, but excludes the day the child or young adult leaves the home.

(C) The base rate payment is:

(i) $639 per month for a child five years or younger;

(ii) $728 per month for a child 6 through 12 years of age; and

(iii) $823 per month for a child or young adult 13 through 20 years of age.

(D) The Department does not reimburse the base rate payment to a certified family when reimbursement for shelter care payment or enhanced shelter care payment applies.

(c) Enhanced shelter care payment. The Department reimburses a certified family an enhanced shelter care payment rate on behalf of a child or young adult during the first 20 days of substitute care with a certified family after a child or young adult has been in placement with a Behavior Rehabilitation Service provider and there is no current level of care payment determination applicable to the child or young adult. The daily enhanced shelter care payment is:

(A) $29.40 for a child five years or younger;

(B) $33.50 for a child 6 through 12 years of age; and

(C) $37.90 for a child or young adult 13 through 20 years of age.

(d) Mileage reimbursement. The Department reimburses a certified family for mileage, paid at the current Department mileage reimbursement rate paid to child welfare staff, when the certified family must provide transportation for a child or young adult in order to remain in the same school he or she was attending prior to placement in substitute care.

(2) Level of care payment.

(a) The Department reimburses a level of care payment to a certified family on behalf of a child or young adult when the CANS screening results indicate the child or young adult has enhanced supervision needs.

(b) The initial level of care payment to a certified family begins:

(A) No earlier than the twenty first day of substitute care; or

(B) Ninety days prior to the date an initial CANS screening was approved for a child or young adult in substitute care over 111 days.

(c) A level of care payment to a certified family may commence the first day following the end of enhanced shelter care payment.

(d) The Foster Care Program Manager may approve commencing the level of care payment beyond the timeframes in subsections (b) and (c) of this section when a delay in scheduling, completing, scoring or approving the CANS screening results in a potential loss or interruption of a level of care payment.

(e) When the CANS screening results indicate the child or the young adult eligible for adoption assistance or guardianship assistance needs enhanced supervision, the Department includes the level of care payment in:

(A) An adoption assistance agreement with a pre-adoptive family or an adoptive family pursuant to Child Welfare Policy I-G.3.1, “Adoption Assistance” OAR 413-130-0000 to 413-130-0130; or

(B) A guardianship assistance agreement with a potential guardian or a guardian pursuant to Child Welfare Policy I-E.3.6.2, “Guardianship Assistance”, OAR 413-070-0900 to 413-070-0979.

(f) A CANS screener rates each element of a child or young adult’s behavior and functioning through the CANS screening on a scale of zero to three and the ratings determine whether a child or young adult meets the criteria for one of three levels of care. These ratings are determined using the following exhibits, which by this reference are incorporated into this rule:

(A) DHS 9601 — Child and Adolescent Needs and Strengths Comprehensive Screening Tool Ages Birth through Five, adopted January 5, 2009 and revised in June, 2011.

(B) DHS 9602 — Child and Adolescent Needs and Strengths Comprehensive Screening Tool Ages Six through Twenty, adopted January 5, 2009 and revised in June 2011.

(C) Child and Adolescent Needs and Strengths Algorithm, adopted February 9, 2009.

(D) The Department maintains these documents on the Department’s website. Printed copies of all three exhibits may be obtained by contacting the Department of Human Services, Children, Adults and Families, ATTN: Level of Care Manager, 500 Summer Street NE, E93, Salem, OR 97301.

(g) The level of care payment is:

(A) $212 per month for Level 1 (moderate needs).

(B) $414 per month for Level 2 (intermediate needs).

(C) $850 per month for Level 3 (advanced needs).

(3) The Department reimburses a certified family an applicable base rate payment for a child of a dependent parent when both are living with the certified family unless the dependent parent receives a TANF grant under programs administered by the Department of Human Services under chapter 461 of the Oregon Administrative Rules or has other means of financial support.

(4) The Department reimburses a Chafee housing payment or an independent living housing subsidy to an eligible individual up to a maximum of $600 per month of eligibility pursuant to Child Welfare Policy I-B.2.3.5, “Youth Transitions”, OAR 413-030-0400 to 413-030-0460.

(5) Payments prohibited. The Department may not authorize payment for the care of a child or young adult to more than one certified family per day.

(6) A payment by the Department under this rule is inalienable by any assignment or transfer and exempt from execution, levy, attachment, and garnishment under the laws of the state of Oregon.

[Publications: Publications referenced are available from the agency.]

[ED. NOTE: Exhibits referenced are available from the agency.]

Stat. Auth.: ORS 418.005 & 418.340

Stats. Implemented: ORS 418.005, 418.330, 418.335, 418.340, 418.470 & 418.625

Hist.: SCF 6-1995, f. 12-22-95, cert. ef. 12-29-95; SOSCF 2-1999, f. & cert. ef. 3-5-99; SOSCF 20-1999, f. 9-15-99, cert. ef. 9-20-99; CWP 9-2003, f. & cert. er. 1-7-03; CWP 20-2003(Temp), f. 1-31-03 thru 7-30-03; CWP 27-2003, f. & cert. ef. 7-31-03; CWP 34-2003(Temp), f. 10-31-03, cert. ef. 11-1-03 thru 4-28-04; CWP 7-2004, f. & cert. ef. 4-1-04; CWP 20-2006(Temp), f. & cert. ef. 10-13-06 thru 4-10-07; CWP 5-2007, f. 3-30-07, cert. ef. 4-1-07; CWP 28-2007(Temp), f. 12-31-07, cert. ef. 1-1-08 thru 6-27-08; CWP 10-2008, f. 6-27-08, cert. ef. 6-28-08; CWP 6-2009(Temp), f. & cert. ef. 7-1-09 thru 12-28-09; CWP 9-2009(Temp), f. & cert. ef. 8-12-09 thru 12-28-09; CWP 10-2009(Temp), f. & cert. ef. 9-1-09 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 12-2011(Temp), f. & cert. ef. 6-30-11 thru 12-27-11

413-090-0021

Periodic Review of Eligibility for Level of Care Payments

(1) When the Department conducts a CANS screening for a child or young adult in substitute care under subsection (1)(b) of OAR 413-020-0230 and the results indicate the child or young adult’s level of care has changed, the Department adjusts the child or young adult’s level of care payment as follows:

(a) When a level of care payment increases, change in payment begins the first day of the month in which the increased level of care payment was approved.

(b) When a level of care payment decreases, change in payment begins the first day of the month following the month in which the decreased level of care payment was approved unless continuing benefits have been requested through a request for a contested case hearing.

(2) When the Department determines, denies, adjusts or terminates a level of care payment to a child or young adult living with a certified family, the Department follows Child Welfare Policy I-A.5.2, “Contested Case Hearings” OAR 413-010-0500 to 413-010-0535.

(3) A CANS screening may be conducted for a child or young adult living with a potential guardian, a guardian, a pre-adoptive family, or an adoptive family when a referral is received pursuant to OAR 413-020-0230(3).

Stat. Auth.: ORS 418.005 & 418.340

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

Hist.; 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 12-2011(Temp), f. & cert. ef. 6-30-11 thru 12-27-11

413-090-0030

Payment for Temporary Absences from Family Foster Care

(1) The Department may continue the base rate payment and any level of care payment to the certified family during a child or young adult’s temporary absence from the home for 14 days or less, when:

(a) The plan is for the child or young adult to return to the care of the same certified family; and

(b) No other certified family is receiving a base rate payment or level of care payment for the child or young adult during the period of the absence.

(2) Hospitalization. The Department may continue the base rate payment and level of care payment to the certified family when the child or young adult requires hospitalization for medical treatment and the certified family continues to exercise caregiving responsibilities in anticipation of the return of the child or young adult. Hospitalization for medical treatment is not considered a substitute care placement with a duplicate payment.

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; SOSCF 20-1999, f. 9-15-99, cert. ef. 9-20-99; CWP 9-2003, f. & cert. er. 1-7-03; CWP 20-2006(Temp), f. & cert. ef. 10-13-06 thru 4-10-07; CWP 5-2007, f. 3-30-07, cert. ef. 4-1-07; CWP 6-2009(Temp), f. & cert. ef. 7-1-09 thru 12-28-09; CWP 9-2009(Temp), f. & cert. ef. 8-12-09 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 12-2011(Temp), f. & cert. ef. 6-30-11 thru 12-27-11

413-090-0040

Payments During Adoptive Supervision

When a child is free for adoption and placed in an approved or certified family’s home designated by the Department’s Adoption Program Manager as the child’s pre-adoptive family, the Department pays base rate payment and any level of care payment to the pre-adoptive family until the adoption assistance payment commences. See Child Welfare Policy I-G.3.1, “Adoption Assistance”, OAR 413-130-0000 to 413-130-0130 for the adoption assistance eligibility requirements of the Adoption Assistance Program.

[ED. NOTE: Exhibits referenced are available from the agency.]

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; SOSCF 20-1999, f. 9-15-99, cert. ef. 9-20-99; CWP 9-2003, f. & cert. er. 1-7-03; CWP 5-2007, f. 3-30-07, cert. ef. 4-1-07; 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 12-2011(Temp), f. & cert. ef. 6-30-11 thru 12-27-11

413-090-0050

Out-of-State Payment to a Certified Family Moving to Another State

(1) A certified family who receives Department approval to move out-of-state with a child that the Department has placed in the home may continue to receive base rate and level of care for that child or young adult for up to 180 days or until licensed or certified in the receiving state, whichever is earlier.

(2) The Administrator of the Office of Permanency and Safety for Children or the Foster Care Program Manager may extend the 180 day limit for continuing to receive current base rate payment and level of care payment when the licensure or certification process in the receiving state has not been completed due to circumstances beyond the control of the Department.

(3) Once the home is licensed or certified in the receiving state, the Department authorizes payment at Oregon’s established base rate payment and level of care payment rates.

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; SOSCF 20-1999, f. 9-15-99, cert. ef. 9-20-99; CWP 9-2003, f. & cert. er. 1-7-03; CWP 20-2006(Temp), f. & cert. ef. 10-13-06 thru 4-10-07; CWP 5-2007, f. 3-30-07, cert. ef. 4-1-07; 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 12-2011(Temp), f. & cert. ef. 6-30-11 thru 12-27-11

 

Rule Caption: Changing OARs affecting Child Welfare programs.

Adm. Order No.: CWP 13-2011

Filed with Sec. of State: 6-30-2011

Certified to be Effective: 6-30-11

Notice Publication Date: 9-1-2010

Rules Amended: 413-100-0000, 413-100-0010, 413-100-0020, 413-100-0030, 413-100-0060, 413-100-0070, 413-100-0080, 413-100-0110, 413-100-0120, 413-100-0130, 413-100-0160, 413-100-0180, 413-100-0190, 413-100-0200, 413-100-0210, 413-100-0220, 413-100-0230, 413-100-0240, 413-100-0250, 413-100-0260, 413-100-0270, 413-100-0280, 413-100-0300, 413-100-0310, 413-100-0320, 413-100-0335, 413-100-0345

Subject: OAR 413-100-0000 about the purpose of the Department’s Title IV-E Foster Care, Adoption Assistance, and Guardianship Assistance eligibility rules (OAR 413-100-0000 to 413-100-0345), OAR 413-100-0010 about the Title IV-E funding eligibility requirements, OAR 413-100-0020 about the definitions used in the Department’s Title IV-E Foster Care and General Assistance funding eligibility rules, OAR 413-100-0130 about the requirements for documenting the certification or licensure of foster homes, OAR 413-100-0060 about which placements of and payments for children are Title IV-E reimbursable, OAR 413-100-0070 about which children’s cases are referred for Title IV-E eligibility determinations, OAR 413-100-0080 about the effective date of Title IV-E eligibility, OAR 413-100-0110 about how the Department determines the effective date for closure of Title IV-E eligibility, OAR 413-100-0120 about how the Department verifies Title IV-E eligibility, OAR 413-100-0130 about how Title IV-E eligibility determinations are made under the Aid to Families with Dependent Children (AFDC) administrative rules in effect on July 16, 1996 had an application for AFDC program benefits been made, OAR 413-100-0160 about the financial need eligibility requirement of the AFDC program, OAR 413-100-0180 about how the Department treats the earned income of a student when determining AFDC program eligibility, OAR 413-100-0190 about how the Department treats unearned income when determining AFDC program eligibility, OAR 413-100-0200 about how the Department treats lump-sum benefit payments when determining AFDC program eligibility, OAR 413-100-0210 about citizenship and immigration status requirements for Title IV-E eligibility, OAR 413-100-0220 about the residency requirements for a child for Title IV-E eligibility, OAR 413-100-0230 about the age limitations on a child’s Title IV-E eligibility, OAR 413-100-0240 about which judicial findings must be made for a child to be Title IV-E eligible, OAR 413-100-0250 about how the Department treats voluntary custody and voluntary placement agreements when determining Title IV-E eligibility, OAR 413-100-0260 about when a child in placement based on a voluntary relinquishment is Title IV-E eligible, OAR 413-100-0270 about when and how the Department redetermines a child’s Title IV-E eligibility, OAR 413-100-0280 about when the Department must redetermine deprivation for a child at the relinquishment or termination of parental rights; OAR 413-100-0300 about when the Department refers a Title IV-E case to the Division of Child Support of the Oregon Department of Justice; OAR 413-100-0310 about when a Title IV-E eligible child also is eligible for Title XIX Medicaid benefits; OAR 413-100-0320 about the requirements for a child’s Title XIX Medicaid eligibility; OAR 413-100-0335 about Title IV-E eligibility determinations for children eligible for adoption assistance benefits, and OAR 413-100-0345 about Title IV-E eligibility determinations for children eligible for guardianship assistance benefits are being amended to clarify the Department’s policies for this program, include definitions used throughout the Title IV-E Foster Care, Guardianship Assistance, and Adoption Assistance funding eligibility rules (OAR 413-100-0000 to 413-100-0345), reflect current Department terminology, and bring the Title IV-E Foster Care, Guardianship Assistance, and Adoption Assistance funding eligibility rules into compliance with federal requirements.

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

413-100-0000

Purpose

The purpose of these rules, OAR 413-100-0000 to 413-100-0345, is to describe the Department’s responsibilities and criteria for making Title IV-E eligibility determinations for children in substitute care for whom the Department has placement and care responsibility and Adoption Assistance and Guardianship Assistance Title IV-E eligibility determinations. These determinations are used to ensure proper federal reimbursement.

Stat. Auth.: ORS 409.010, 409.050 & 418.005

Stats. Implemented: ORS 409.010, 409.050 & 418.005

Hist.: SCF 6-1995, f. 12-22-95, cert. ef. 12-29-95; SOSCF 20-2000(Temp), f. & cert. ef. 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 14-2007, f. & cert. ef. 8-1-07; CWP 6-2010, f. & cert. ef. 6-15-10; CWP 13-2011, f. & cert. ef. 6-30-11

413-100-0010

Eligibility Requirements

(1) The Adoption Assistance and Child Welfare Act of 1980, Public Law 96-272, took effect on June 17, 1980. It amended Title IV-E of the Social Security Act, which provides federal payments to the states for foster care maintenance and adoption assistance payments made on behalf of certain eligible children. The Adoption and Safe Families Act (ASFA) took effect on November 18, 1997, and enacted further federal requirements for claiming these funds and enhancing permanency for children. The Deficit Reduction Act of 2005 took effect on February 8, 2006, and further clarified the federal requirements for Title IV-E foster care maintenance, adoption assistance, medical coverage, and administrative funds.

(2) The Administration for Children and Families is the federal agency that adopts regulations and monitors the States’ Title IV-E foster care and adoption assistance programs. Oregon’s Title IV-E program is administered by the Department of Human Services. The Department of Human Services acts as the applicant for the child and provides Title IV-E foster care payments to foster parents on behalf of eligible children, consistent with:

(a) The standards established by state and federal legislation and regulations, federal policy, and the State plan for the Title IV-E program; and

(b) The established financial and parental deprivation standards for the Aid to Families with Dependent Children (AFDC) program, which was in effect on July 16, 1996, excluding changes implemented by the Oregon Options Waiver.

(3) The Fostering Connections to Success and Increasing Adoptions Act of 2008 (122 Stat. 3949-3981) was signed into law on October 7, 2008 enacting further federal requirements to help youth in foster care by promoting permanent families for children and young adults through relative guardianship and adoption and improving education and health care. Additionally --

(a) Effective April 1, 2010, the Act delinks Title IV-E eligibility redeterminations from AFDC eligibility; and

(b) Effective October 1, 2010, the Act extends federal support for young adults in foster care, guardianship, and adoption through 20 years of age.

[ED. NOTE: Exhibits referenced are available from the agency.]

Stat. Auth.: ORS 409.010, 409.050 & 418.005

Stats. Implemented: ORS 409.010, 409.050 & 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 4-1998, f. 2-5-98, cert. ef. 2-6-98; SOSCF 20-2000(Temp), f. & cert. ef. 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 14-2007, f. & cert. ef. 8-1-07; CWP 6-2010, f. & cert. ef. 6-15-10; CWP 13-2011, f. & cert. ef. 6-30-11

413-100-0020

Definitions

The following definitions apply to OAR 413-100-0000 to 413-100-0345:

(1) “AFDC” means the Aid to Families with Dependent Children Program as it existed on July 16, 1996, excluding changes implemented by the Oregon Options Waiver.

(2) “Assistance unit” means a group of individuals whose needs, income, and resources are considered together to determine their public assistance eligibility and the grant amount.

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

(4) “Child care institution” means a private child care institution, or a public child care institution which accommodates no more than 25 children, licensed by the state or tribe in which it is situated or approved by the agency of the state or tribal licensing authority (with respect to child care institutions on or near Indian reservations) responsible for licensing or approval of institutions of this type as meeting the standards established for such licensing or approval. “Child care institution” does not include detention facilities, forestry camps, training schools, or any other facility operated primarily for the detention of children who are determined to be delinquent.

(5) “Child support” means any voluntary or court-ordered contribution by an absent parent. Support includes, but is not limited to, money payments, education, and necessary and proper shelter, food, clothing, and medical attention.

(6) “Constructive removal” means the non-physical, paper, or legal removal of a child who is not living with a specified relative when the voluntary custody or voluntary placement agreement is signed or the judicial order is entered. Constructive removal is described further in OAR 413-100-0135(3)(b).

(7) “Countable income” means the amount of available income, including earned and unearned income not specifically excluded by OAR 461-140-0040, used to determine eligibility for public assistance.

(8) “Date the child is considered to have entered foster care” means the earlier of the following:

(a) The date that the court found the child to be within the jurisdiction of the court under ORS 419B.100; or

(b) 60 days from the date of removal.

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

(10) “Earned income” means all legal reportable income resulting from an individual’s employment or self-employment.

(11) “Eligibility month” means --

(a) The month in which the court was petitioned or court action was initiated that resulted in the child’s “constructive” or “physical” removal from the home of his or her specified relative; or

(b) The month a voluntary custody or voluntary placement agreement is signed.

(12) “Family” means for purposes of determining Title IV-E foster care eligibility under these rules, the parent or parents, stepparent, or relative or relatives from whom the child is removed.

(13) “First cousin once-removed” means a child of a first cousin.

(14) “Foster care” means 24 hour substitute care for children placed away from their parents or guardians and for whom the Department has placement and care responsibility. This includes but is not limited to placements in foster family homes, foster homes of relatives, group homes, emergency shelters, residential facilities, child care institutions, and pre-adoptive homes. A child is in foster care in accordance with this definition regardless of whether the foster care facility is licensed and payments are made by the Department or local agency for the care of the child, whether adoption subsidy payments are being made prior to the finalization of the adoption, or whether there is Federal matching of any payments that are made.

(15) “Foster home”, as defined in ORS 418.625(3), means any home maintained by a person who has under the care of the person in such home any child under the age of 21 years unattended by the child’s parent or guardian, for the purpose of providing such child with care, food, and lodging. This definition does not include any foster home under the direct supervision of a private child caring agency or institution certified by the Department, any home under the direct supervision of a custodial parent for the purpose of providing respite care, or any developmental disability child foster home as defined in ORS 443.830.

(16) “Incapacity” means a physical or mental defect, illness, or impairment that reduces substantially or eliminates the individual’s ability to support or care for the child and may be expected to last a period of at least 30 days.

(17) “Indian child” means any unmarried person who is under age 18 and is either:

(a) A member of an Indian tribe; or

(b) Eligible for membership in an Indian tribe and the biological child of a member of an Indian tribe.

(18) “Need” means, using the Department AFDC standards, the monetary amount by which an individual or family’s requirements exceeds all of the income and resources available to the individual or family.

(19) “Nunc pro tunc order” means, under Oregon law, a court order that restores to the record an action that actually occurred, but was inadvertently or mistakenly omitted from the record.

(20) “Parent” means, under the AFDC rules in effect on July 16, 1996, the biological or legal (step or adoptive) mother or father of a person.

(a) If the mother lives with a male, who either she or he claims is the father of the child, and no one else claims to be the father, he is treated as the father even if paternity has not been legally established.

(b) The Voluntary Acknowledgment Form (HS 45-21, available from Vital Statistics) jointly signed by the mother and putative father, is a legal document that establishes paternity and allows the father’s name to be added to the birth certificate.

(c) A stepparent relationship exists if:

(A) The person is legally married to the child’s biological or adoptive parent; and

(B) The marriage has not been terminated by legal separation, divorce or death.

(d) A legal adoption erases all prior legal and blood relationships and establishes the adoptive parent as the legal parent. However, the biological parent is also considered a parent if both of the following are true:

(A) The child lives with the biological parent; and

(B) The legal parent, who is the adoptive parent, has given up care, control, and supervision of the child.

(21) “Payment or need standard” means the amount set by the Department as the AFDC net income limit. It is used to determine the actual grant amount. This amount refers to the payment or need standard in effect on July 16, 1996.

(22) “Physical removal” means the removal of a child that occurs when a child is placed in substitute care, who was living with the specified relative when the voluntary custody or voluntary placement agreement was signed or court proceedings were initiated.

(23) “Removal home” means the home from which the child was removed as a result of a judicial finding, voluntary custody agreement, or voluntary placement agreement. This term is further described at OAR 413-100-0135(3).

(24) “Resource” means any personal or real property that is or can be made available to meet the need of the assistance unit that the Department does not specifically exclude from consideration.

(25) “Specified relative” means:

(a) A parent as defined in this rule;

(b) Any blood relative or half-blood relative, including persons of preceding generations denoted by the prefixes of grand, great, or great-great (persons with one common biological parent are half-blood relatives);

(c) A sibling, aunt, uncle, nephew, niece, first cousin, and first cousin once-removed;

(d) A person who legally adopts a child or the child’s parent, other legally adopted children of such persons, and any persons related to the child through the adoption who meet the degree of relationship specified in subsection (b) or (c) of this section;

(e) A stepmother, stepfather, stepbrother, or stepsister; or

(f) A spouse of anyone listed in subsections (b) to (e) of this section, even if the marriage is terminated by death or divorce.

(26) “Unearned income” means all income that does not directly result from an individual’s employment or self-employment.

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

Stat. Auth.: ORS 409.010, 409.050, 418.005 & 418.625

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

Hist.: SCF 6-1995, f. 12-22-95, cert. ef. 12-29-95; SOSCF 4-1998, f. 2-5-98, cert. ef. 2-6-98; SOSCF 20-2000(Temp), f. & cert. ef. 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 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 11-2008(Temp), f. 6-27-08, cert. ef. 6-28-08 thru 12-24-08; CWP 21-2008, f. & cert. ef. 9-2-08; CWP 19-2009(Temp), f. & cert. ef. 12-16-09 thru 6-14-10; CWP 6-2010, f. & cert. ef. 6-15-10; CWP 13-2011, f. & cert. ef. 6-30-11

413-100-0030

Certification Documentation Requirements for Title IV-E Foster Care

(1) Documentation of a certificate or license is required in the case file, certification file, or licensing file.

(2) The following documentation is required for an out-of-state foster home placement:

(a) Verification that the out-of-state foster home or child caring agency is certified, licensed, or approved by the agency in that state which is responsible for licensing or approval of such facilities; or

(b) In states where relative homes are not certified, a statement in writing that the home would meet the state’s standards for certification or licensure, including a statement of the period of time for which a formal license or certificate would be issued for that home and a copy of the verification that a criminal history check was completed and approved.

Stat. Auth.: ORS 409.010, 409.050 & 418.005

Stats. Implemented: ORS 409.010, 409.050 & 418.005

Hist.: SCF 6-1995, f. 12-22-95, cert. ef. 12-29-95; 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 13-2011, f. & cert. ef. 6-30-11

413-100-0060

Title IV-E Reimbursable Placements and Payments

(1) To be Title IV-E eligible and reimbursable, a child or young adult must be placed in a Title IV-E reimbursable placement.

(2) Reimbursable Placements. There are four types of out-of-home placements that meet the Title IV-E foster care definition of a reimbursable placement. They are:

(a) The home of a certified non-relative foster parent;

(b) The home of a certified relative caregiver;

(c) A private, non-medical group home or crisis residential center licensed by the state; or

(d) A public non-medical group home or child caring agency with a licensed capacity of less than 26 beds.

(3) Foster care maintenance payments are made only on behalf of an eligible child or young adult who is:

(a) In the foster family home of an individual, whether the payments are made to such individual, a public or private child placement, or a child caring agency; or

(b) In a child care institution, whether the payments are made to such institution, a public or private child placement, or a child caring agency.

(4) Reimbursable Payments. Title IV-E foster care maintenance payments for a child or young adult in foster care may cover expenses listed in the following subsections:

(a) The cost for and the cost of providing food, clothing, shelter, daily supervision, school supplies, a child or young adult’s personal incidentals, liability insurance with respect to the child or young adult, and reasonable travel to the child or young adult’s home for visitation with family or other caretakers, and reasonable travel for the child to remain in the school in which the child is enrolled at the time of placement. Local travel associated with providing the items listed in this subsection also is an allowable expense.

(b) For a child care institution, the Title IV-E foster care maintenance payment must include reimbursement for the institution’s reasonable administrative and operating expenses required to provide the items described in subsection (a) of this section.

Stat. Auth.: ORS 409.010, 409.050 & 418.005

Stats. Implemented: ORS 409.010, 409.050 & 418.005

Hist.: SCF 6-1995, f. 12-22-95, cert. ef. 12-29-95; SOSCF 4-1998, f. 2-5-98, cert. ef. 2-6-98; SOSCF 20-2000(Temp), f. & cert. ef. 8-11-00 thru 2-6-01; SOSCF 4-2001, f. & cert. ef. 2-7-01; CWP 14-2007, f. & cert. ef. 8-1-07; CWP 6-2010, f. & cert. ef. 6-15-10; CWP 13-2011, f. & cert. ef. 6-30-11

413-100-0070

Application for Title IV-E Foster Care

(1) A child or young adult in substitute care for whom the Department has responsibility for placement and care must be referred for a Title IV-E eligibility determination.

(2) Under no circumstances may Title IV-E foster care eligibility or reimbursement be authorized on behalf of any child or young adult prior to the establishment of eligibility by the Department’s Title IV-E Eligibility Specialist. A child or young adult may not be Title IV-E eligible based on presumed eligibility.

Stat. Auth.: ORS 409.010, 409.050 & 418.005

Stats. Implemented: ORS 409.010, 409.050 & 418.005

Hist.: SCF 6-1995, f. 12-22-95, cert. ef. 12-29-95; SOSCF 20-2000(Temp), f. & cert. ef. 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 14-2007, f. & cert. ef. 8-1-07; CWP 6-2010, f. & cert. ef. 6-15-10; CWP 13-2011, f. & cert. ef. 6-30-11

413-100-0080

Effective Eligibility Date

The effective date of a child or young adult’s Title IV-E eligibility is the date when all of the other eligibility criteria prescribed in OAR 413-100-0020 to 413-100-0320 are met and one of the following applies:

(1) The date of the child or young adult’s placement in substitute care, if the Department is responsible for the child or young adult’s placement and care.

(2) The first of the month in which the Department obtains responsibility for the child or young adult’s placement and care if the child or young adult enters substitute care prior to the Department obtaining placement and care responsibility.

(3) The first of the month in which the “reasonable efforts” finding is made when the court delays making the finding, as long as the Reasonable Efforts to Prevent the Removal finding is obtained within 60 days of placement.

(4) When the Department has retained responsibility for placement and care and the child or young adult is returning to foster care from a trial home visit, the placement date or the date that the child or young adult meets all Title IV-E eligibility criteria after a Title IV-E redetermination of eligibility under OAR 413-100-0270 is completed.

(5) When the Department has retained responsibility for placement and care and the court has retained wardship, and the child or young adult returning to foster care is not considered to have been on a trial home visit, the date the Department completes a new Title IV-E eligibility determination under these rules, OAR 413-100-0000 to 413-100-0345.

(6) The first of the month in which the voluntary placement agreement or voluntary custody agreement is signed by each party, if placement occurs prior to the signing of the agreement.

(7) The date of placement in a certified relative caregiver home when the relative has received a TANF non-needy (NNR) grant and repayment is authorized to the TANF agency.

(8) The effective certification date of the relative caregiver’s home when a TANF non-needy (NNR) grant has not been received.

(9) The effective certification date when the Department of Human Services Financial Services unit has reimbursed the Department of Human Services Office of Self Sufficiency Programs for the relative caregiver’s TANF non-needy (NNR) grant retroactive to the certification date.

(10) The first of the month in which a non-certified home becomes certified, if the child or young adult was placed in the home at that time.

(11) When applicable, the date the child or young adult is no longer receiving SSI benefits.

Stat. Auth.: ORS 409.010, 409.050 & 418.005

Stats. Implemented: ORS 409.010, 409.050 & 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 4-1998, f. 2-5-98, cert. ef. 2-6-98; SOSCF 20-2000(Temp), f. & cert. ef. 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 14-2007, f. & cert. ef. 8-1-07; CWP 6-2010, f. & cert. ef. 6-15-10; CWP 13-2011, f. & cert. ef. 6-30-11

413-100-0110

Effective Closure Date

The effective closure date for cases no longer meeting Title IV-E eligibility criteria is the earliest of the following:

(1) The end of the month in which eligibility ceased to exist.

(2) Retroactive to the end of the month in which eligibility ceased to exist, even if the information that ended the child or young adult’s eligibility became known to the Department after the fact.

(3) The date that the custodial or non-custodial parent or the parents establish residency in the home in which the child or young adult resides if one or both parents are providing caretaking responsibility for the child or young adult.

(4) The date the foster parent or relative caregiver’s certificate of approval or a child caring agency’s license expires or is revoked.

(5) The 181st day of placement for a voluntary placement if a court has not approved the continuation of the placement within 180 days of the date that the child or young adult was placed. The placement date, not the date that the agreement was signed, begins the 180-day count.

(6) The date of the child or young adult’s placement in a facility that is considered to be outside the scope of foster care.

(7) The date that the Department ceases to have responsibility for the placement and care of the child or young adult.

(8) The date the child is emancipated.

(9) The date the young adult no longer meets the age requirements for Title IV-E eligibility under OAR 413-100-0230.

Stat. Auth.: ORS 409.010, 409.050 & 418.005

Stats. Implemented: ORS 409.010, 409.050 & 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; 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 14-2007, f. & cert. ef. 8-1-07; CWP 6-2010, f. & cert. ef. 6-15-10; CWP 13-2011, f. & cert. ef. 6-30-11

413-100-0120

Verification of Eligibility

(1) When the Department determines a child or young adult is ineligible for Title IV-E foster care, based on the information available at the time of the initial determination, the child or young adult is not eligible for Title IV-E foster care maintenance payments for the entire duration of that substitute care episode.

(2) To verify Title IV-E foster care eligibility, the Department must obtain acceptable documentary evidence to support certain eligibility factors. The Department determines which eligibility factors require verification and the types of acceptable documentary evidence. The Department may:

(a) Decide to require verification of additional eligibility factors; and

(b) Deny an application or end ongoing benefits when acceptable verification is not provided or available.

(3) Verification is required for the following eligibility factors:

(a) Residency;

(b) U.S. Citizenship status;

(c) Age;

(d) Removal from the home of the specified relative;

(e) Judicial language in Court Orders;

(f) Countable family, child, or young adult income and benefits;

(g) Parental deprivation;

(h) Family, child, or young adult resources; and

(i) The child or young adult is placed in a certified foster or relative caregiver’s home or a licensed child caring agency.

Stat. Auth.: ORS 409.010, 409.050 & 418.005

Stats. Implemented: ORS 409.010, 409.050 & 418.005

Hist.: SCF 6-1995, f. 12-22-95, cert. ef. 12-29-95; SOSCF 20-2000(Temp), f. & cert. ef. 8-11-00 thru 2-6-01; SOSCF 4-2001, f. & cert. ef. 2-7-01; CWP 14-2007, f. & cert. ef. 8-1-07; CWP 6-2010, f. & cert. ef. 6-15-10; CWP 13-2011, f. & cert. ef. 6-30-11

413-100-0130

Eligibility Determinations — AFDC Linkage

(1) For an initial Title IV-E eligibility determination, the Department reconstructs the facts of the removal home to determine if the child or young adult, in the eligibility month, received AFDC or would have been eligible to receive AFDC under rules in effect on July 16, 1996, had an application been made.

(2) AFDC Relatedness. The child or young adult meets the “AFDC relatedness” test if the requirements of one of the following subsections are met:

(a) The child:

(A) Lived with the specified relative within six months of removal;

(B) Received or would have been eligible to receive AFDC in the removal home under the rules in effect on July 16, 1996, in the eligibility month had an application been made; and

(C) Remains within the resource limits that were in effect prior to the implementation of the Oregon Options Waiver under Section 1115 of the Social Security Act, effective July 1, 1996.

(b) The young adult:

(A) Lived with the specified relative within six months of removal prior to age 18;

(B) Received or would have been eligible to receive AFDC in the removal home under the rules in effect on July 16, 1996, in the eligibility month, had an application been made; and

(C) Remains within the resource limits that were in effect prior to the implementation of the Oregon Options Waiver under Section 1115 of the Social Security Act, effective July 1, 1996.

Stat. Auth.: ORS 409.010, 409.050, 412.144 & 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 4-1998, f. 2-5-98, cert. ef. 2-6-98; 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 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 13-2011, f. & cert. ef. 6-30-11

413-100-0160

AFDC Eligibility — Financial Need

(1) A child removed from the home of a specified relative who was not receiving AFDC requires the Department to reconstruct the child’s situation to determine whether under rules in effect on July 16, 1996 the child was AFDC eligible.

(2) If the child is physically removed from a parent’s home:

(a) The Department:

(A) Considers the income and resources of the parent, parents, or stepparent from whom the child was removed in the eligibility month;

(B) Determines the countable gross earned income of all the family members in the assistance unit including the $90 standard earned income deduction, when applicable;

(C) Determines the countable unearned income of all the family members in the assistance unit including the $50 child support deduction, when applicable; and

(D) Excludes SSI or a combination of SSI and SSA benefits as countable income. The Department excludes the parent or child receiving SSI or a combination of SSI and other Social Security benefits and excludes them from the number in the household for AFDC calculations.

(b) An assistance unit is not eligible when all available countable earned and unearned income (in the eligibility month) exceeds the Adjusted Income payment or need standard under rules in effect on July 16, 1996.

(3) If a child is removed from a minor parent who resides in his or her parents’ home, the minor parent’s parents live together, and the minor parent is under age 18, has never married, and is not legally emancipated, the assets of the parents of the minor parent are deemed as follows:

(a) The resources of the parents of the minor parent are excluded.

(b) The income of the parents of the minor parent is deemed available to the minor parent if the minor parent and his or her child live with the parents of the minor parent.

(c) The amount of the deemed income of the parents of the minor parent is determined as follows:

(A) When applicable, a $90 earned income deduction is allowed.

(B) The needs of the parents of the minor parent and their dependents, living in the same household and not included in the benefit group, are deducted at the AFDC Payment Standard.

(C) Amounts paid to the legal dependents of the parents of the minor parent not living in the household are deducted.

(D) Payments of alimony and child support are deducted.

(E) Any remaining income is countable deemed income to the minor parent.

(4) If a child is removed, physically or constructively, from the home of a specified relative who is not a parent of the child, the Department:

(a) Considers the child as a household of one;

(b) Determines the countable earned and unearned income and resources available to the child;

(c) Disregards the income and resources of each caretaker relative;

(d) Includes the child placed in substitute care in the household of one’s assistance unit;

(e) Denies Title IV-E eligibility when all available countable income and unearned income (in the eligibility month) exceeds the No Adult payment or need standard for the ADC-BAS and Medically Needy programs under rules in effect on July 16, 1996.

Stat. Auth.: ORS 409.010, 409.050 & 418.005

Stats. Implemented: ORS 409.010, 409.050 & 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 4-1998, f. 2-5-98, cert. ef. 2-6-98; 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 13-2011, f. & cert. ef. 6-30-11

413-100-0180

AFDC Eligibility — Earned Income of Students

(1) A child or young adult with a GED or high school diploma and employed must have his or her earnings considered as income that reduces the maintenance payment, even if they are attending a secondary education program. Otherwise, the child or young adult is not eligible for Title IV-E foster care eligibility.

(2) Effective April 1, 2010, section (1) of this rule no longer applies to Title IV-E eligibility redeterminations.

(3) Earned income is not counted for:

(a) A child, 18 years old or younger, who is a full-time student in grade 12 or below (or the equivalent level of vocational training or GED courses); or

(b) A child, who is a full-time or part-time student (as defined by the institution) in grade 12 or below (or in the equivalent level of vocational training or GED courses), and not employed full-time.

Stat. Auth.: ORS 409.010, 409.050, 412.144 & 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; SOSCF 20-2000(Temp), f. & cert. ef. 8-11-00 thru 2-6-01; SOSCF 4-2001, f. & cert. ef. 2-7-01; CWP 14-2007, f. & cert. ef. 8-1-07; CWP 6-2010, f. & cert. ef. 6-15-10; CWP 13-2011, f. & cert. ef. 6-30-11

413-100-0190

AFDC Eligibility — Unearned Income

(1) For Title IV-E foster care purposes, all unearned income and benefits potentially available to the child must be counted against his or her maintenance payment on a dollar-for-dollar basis.

(2) Benefits awarded to the child for which the Department is not yet payee and benefits not readily available to the child still must be counted.

(3) Effective April 1, 2010, sections (1) and (2) of this rule no longer apply to Title IV-E eligibility redeterminations.

(4) The following are examples of countable unearned income:

(a) All Social Security benefits;

(b) Veteran’s benefits;

(c) Cash contributions from any source;

(d) State or private accident or disability payments;

(e) Personal injury settlements;

(f) Lump sum income (except SOIL and IRS recoveries and lump sum support payments applied in the month of receipt to offset prior months Title IV-E maintenance costs);

(g) Effective April 1, 2010, subsection (f) of this section no longer applies to Title IV-E eligibility redeterminations.

(h) Child support;

(i) Railroad Retirement and other pensions;

(j) Annuities, dividends, interest, royalties.

Stat. Auth.: ORS 409.010, 409.050, 412.144 & 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; SOSCF 20-2000(Temp), f. & cert. ef. 8-11-00 thru 2-6-01; SOSCF 4-2001, f. & cert. ef. 2-7-01; CWP 14-2007, f. & cert. ef. 8-1-07; CWP 6-2010, f. & cert. ef. 6-15-10; CWP 13-2011, f. & cert. ef. 6-30-11

413-100-0200

AFDC Eligibility — Lump Sum Benefits

(1) Lump sum benefits must be used to offset a child’s cost of care. Federal lump sum benefits paid to the Department must be applied retroactively to reimburse the Department from the date paid placement was initiated. The Department must be the representative payee. This can be accomplished by contacting the Children’s Benefit Unit of the Department.

(2) A Title IV-E eligible child receiving lump sum benefits exceeding the cost of care is ineligible for Title IV-E foster care during the months that the calculated lump sum exceeds the foster care maintenance payment.

(3) Effective April 1, 2010, sections (1) and (2) of this rule no longer apply to Title IV-E eligibility redeterminations.

Stat. Auth.: ORS 409.010, 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; SOSCF 44-2001, f. 12-31-01 cert. ef. 1-1-02; CWP 14-2007, f. & cert. ef. 8-1-07; CWP 13-2011, f. & cert. ef. 6-30-11

413-100-0210

U.S. Citizenship and Qualified Aliens

A Title IV-E eligible child or young adult must be:

(1) A United States citizen; or

(2) A qualified alien is defined by the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA), P.L. 104-193. Under Section 431 of PRWORA a qualified alien’s access to federal public benefits is restricted for five years beginning on the date of the alien’s entry into the United States, unless subsection (b), (c), or (d) of this section applies. Under PRWORA a qualified alien is:

(a) An alien lawfully admitted for permanent residence under the Immigration and Nationality Act (the “Act”);

(b) An alien granted asylum under Section 208 of the Act;

(c) A refugee admitted to the United States under section 207 of the Act;

(d) An alien paroled into the United States under section 212(d)(5) of the Act for a period of at least one year;

(e) An alien whose deportation is being withheld under Section 243(h) of the Act;

(f) An alien granted conditional entry under section 203(a)(7) of the Act as in effect prior to April 1, 1980;

(g) If the child is a qualified alien who is placed with a qualified alien or United States citizen, the date the child entered the United States is irrelevant and the five-year restriction on federal public benefits does not apply; or

(h) If the child is a qualified alien who entered the United States on or after August 22, 1996, and is placed with an unqualified alien, the child would be subject to the five-year residency requirement for federal public benefits at section 403(a) of PRWORA unless the child is in one of the excepted groups identified at section 403(b).

Stat. Auth.: ORS 409.010, 409.050, 412.144 & 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; SOSCF 20-2000(Temp), f. & cert. ef. 8-11-00 thru 2-6-01; SOSCF 4-2001, f. & cert. ef. 2-7-01; CWP 14-2007, f. & cert. ef. 8-1-07; CWP 6-2010, f. & cert. ef. 6-15-10; CWP 13-2011, f. & cert. ef. 6-30-11

413-100-0220

Residency

There is no minimum time-of residency requirement for a child to be eligible for Title IV-E foster care. There need only be the intent that the child reside in the State of Oregon.

Stat. Auth.: ORS 409.010, 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; SOSCF 20-2000(Temp), f. & cert. ef. 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 14-2007, f. & cert. ef. 8-1-07; CWP 13-2011, f. & cert. ef. 6-30-11

413-100-0230

Age Requirements

To be Title IV-E eligible, at the time of removal an individual must be:

(1) A child 17 years of age or younger.

(2) At redetermination:

(a) A child, 17 years of age or younger;

(b) A young adult, 18 years of age, regularly attending school or training, and on track to obtain a high school diploma or equivalent.

(A) “Attending” means the student’s full-time or half-time school attendance as defined by the school.

(B) A student is considered to be attending school for the full month in which the student completes or discontinues school or training.

(C) “Regularly attending school” means the student is enrolled in and attending any of the following:

(i) A school in grade 12 or below;

(ii) GED classes in lieu of high school; or

(iii) A course of vocational or technical training in lieu of high school.

(D) A child is considered to be regularly attending school during a training program, vacation, illness, or family emergency.

(c) A young adult, 18 through 20 years of age, who is:

(A) Completing his or her secondary education or a program leading to an equivalent credential;

(B) Enrolled in an institution that provides post-secondary or vocational education;

(C) Participating in a program or activity designed to promote, or remove barriers to employment;

(D) Employed for at least 80 hours per month; or

(E) Determined unable to perform any of the activities in paragraphs (A) to (D) of this section due to a physical condition, mental disability or physical disability documented by medical evidence and regularly updated information in the case plan of the young adult.

Stat. Auth.: ORS 409.010, 409.050, 412.144 & 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; SOSCF 20-2000(Temp), f. & cert. ef. 8-11-00 thru 2-6-01; SOSCF 4-2001, f. & cert. ef. 2-7-01; CWP 14-2007, f. & cert. ef. 8-1-07; CWP 6-2010, f. & cert. ef. 6-15-10; CWP 13-2011, f. & cert. ef. 6-30-11

413-100-0240

Judicial Finding Requirements for Title IV-E Eligibility

(1) Contrary to the Welfare or Best Interest Findings Requirement. If the child’s removal from the home was not the result of a voluntary placement or voluntary custody agreement a child is not Title IV-E eligible for the duration of the substitute care episode, unless the first court ruling that addresses the removal includes a determination to the effect that continued residence in the home would be contrary to the welfare of the child or that placement would be in the best interest of the child.

(2) Reasonable Efforts Finding at Removal. If the child’s removal from the home was not the result of a voluntary placement or voluntary custody agreement a child is not Title IV-E eligible for the duration of the substitute care episode, unless a judicial finding is made, no later than 60 days from the date the child was removed, to the effect that reasonable efforts have been made to prevent or eliminate the need for removal or that reasonable efforts are not required to prevent a child’s removal from the home or to reunify the child and family.

(3) When a court determines that reasonable efforts to return the child home are not required, a permanency hearing is held within 30 days of that determination, unless the requirements of the permanency hearing were fulfilled at the court hearing in which the court determined that reasonable efforts to reunify the child and family are not required. Reasonable efforts to prevent a child’s removal from the home or to reunify the child and family are not required when the Department obtains a judicial finding that such efforts are not required because one or more of the following subsections applies:

(a) The court has determined that the parent has subjected the child to aggravated circumstances;

(b) As described in ORS 419B.340, the court has determined that the parent has been convicted of:

(A) Murder of another child of the parent;

(B) Voluntary manslaughter of another child of the parent;

(C) Aiding or abetting, attempting, conspiring, or soliciting to commit an offense described in subparagraphs (A) or (B) of this subsection;

(D) A felony assault that results in serious bodily injury to the child or another child of the parent; or

(c) The parental rights of the parent with respect to a sibling have been terminated involuntarily.

(4) Annual Reasonable Efforts Finding.

(a) If the child’s removal from the home was not the result of a voluntary placement or voluntary custody agreement unless a judicial finding is made, no later than 12 months from the date the child is considered to have entered foster care, to the effect that reasonable efforts have been made for reunification of the family or to achieve the permanency plan, the child is temporarily ineligible for Title IV-E foster care. The child remains temporarily ineligible for Title IV-E foster care until such a judicial finding is made.

(b) At least once every 12 months thereafter while the child or young adult is in foster care, unless a judicial determination of reasonable efforts to finalize a permanency plan is made, the child or young adult is temporarily ineligible for Title IV-E foster care. The date of the child or young adult’s last judicial determination determines the date the next judicial determination is due. The child or young adult remains temporarily ineligible for Title IV-E foster care until such a judicial finding is made.

(5) Judicial orders concerning placements.

(a) If the court disagrees with the Department’s placement recommendation, Title IV-E eligibility may continue if --

(A) The court heard the relevant testimony and will continue to work with all parties, including the Department, to make appropriate placement decisions; and

(B) The Department continues to have responsibility for the placement and care of the child or young adult.

(b) If the court recommends a placement or names the child or young adult’s placement in the court order as an endorsement or approval of the Department’s placement choice the child or young adult’s Title IV-E foster care eligibility is not affected.

(6) Nunc Pro Tunc Orders. The Department considers a nunc pro tunc order to correct the omission of a “best interest” or “reasonable efforts” finding only if a court transcript accompanies the order and verifies that the judicial determination was made at the original removal hearing.

(7) A court order that references state or tribal law to substantiate judicial determinations is not acceptable, even if the law provides that a removal must be based on a judicial determination that remaining in the home would be contrary to the child’s welfare or that removal may be ordered only after reasonable efforts have been made.

Stat. Auth.: ORS 409.010, 409.050, 418.005 & 419B.340

Stats. Implemented: ORS 409.010, 409.050, 418.005 & 419B.340

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; 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 14-2007, f. & cert. ef. 8-1-07; CWP 6-2010, f. & cert. ef. 6-15-10; CWP 13-2011, f. & cert. ef. 6-30-11

413-100-0250

Voluntary Custody and Voluntary Placement Agreements

(1) In accordance with ORS 412.084, when a child is in substitute care pursuant to a Voluntary Custody Agreement or Voluntary Placement Agreement, the Department must, within 180 days of the date of placement, obtain a judicial finding to the effect that continuation of the placement is in the best interest of the child. This best interest finding also is a requirement for continuation of the child’s Title IV-E eligibility for more than 180 days. This judicial finding may be obtained in a court hearing or by a letter to the court that results in an ex parte court order containing the best interest finding. Findings of reasonable efforts to prevent or eliminate the removal and to achieve the permanency plan are not required for Title IV-E eligibility.

(2) If the finding in section (1) of this rule is not made within the first 180 days after the placement, the child or young adult becomes ineligible for Title IV-E 181 days after the placement and is not Title IV-E eligible for the duration of the substitute care episode.

Stat. Auth.: ORS 409.010, 409.050, 412.084, 418.005, 419B.175, 419B.180 & 419B.185

Stats. Implemented: ORS 409.010, 409.050, 412.084, 418.005, 419B.175, 419B.180 & 419B.185

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; SOSCF 44-2001, f. 12-31-01 cert. ef. 1-1-02; CWP 14-2007, f. & cert. ef. 8-1-07; CWP 6-2010, f. & cert. ef. 6-15-10; CWP 13-2011, f. & cert. ef. 6-30-11

413-100-0260

Voluntary Relinquishments

(1) A child in placement based on a voluntary relinquishment is Title IV-E eligible if:

(a) Within 60 days of placement, or within six months of a voluntary relinquishment to a private adoption agency, the first court order issued has a judicial finding to the effect that remaining in the home would be “contrary to the welfare” of the child or “placement is in the child’s best interest”; and

(b) Within 60 days of placement, there is a judicial finding to the effect that “reasonable efforts” have been made to prevent or eliminate the need for removal from the home.

(2) When all other eligibility criteria are met, Title IV-E eligibility is effective the first of the month in which the judicial finding was made.

Stat. Auth.: ORS 409.050, 418.005

Stats. Implemented: ORS 409.010, 418.005

Hist.: SCF 6-1995, f. 12-22-95, cert. ef. 12-29-95; SOSCF 20-2000(Temp), f. & cert. ef. 8-11-00 thru 2-6-01; SOSCF 4-2001, f. & cert. ef. 2-7-01; CWP 14-2007, f. & cert. ef. 8-1-07; CWP 13-2011, f. & cert. ef. 6-30-11

413-100-0270

Title IV-E Foster Care Eligibility Redetermination

(1) The Department must redetermine, for each month a child or young adult is in substitute care, whether the child or young adult continues to be Title IV-E eligible. This redetermination must be completed no later than 12 months from the date the child is considered to have entered foster care, and every 12 months thereafter for the duration of the child or young adult’s substitute care episode. Eligibility may resume the first of the month in which all eligibility criteria are met.

(2) A child or young adult may lose and regain eligibility. The loss of eligibility in any one month does not permanently end the child or young adult’s eligibility in future months.

(3) Title IV-E Specialists must redetermine the child or young adult’s circumstances to ensure the child or young adult continues to meet all of the following criteria for continued Title IV E eligibility:

(a) The child or young adult must continue to meet the age requirements under OAR 413-100-0230;

(b) The judicial finding requirements under OAR 413-100-0240 continue to be met; and

(c) The child or young adult was placed in a fully certified foster or relative caregiver home or with a licensed child caring agency during the redetermination period.

Stat. Auth.: ORS 409.010, 409.050 & 418.005

Stats. Implemented: ORS 409.010, 409.050 & 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 14-2007, f. & cert. ef. 8-1-07; CWP 6-2010, f. & cert. ef. 6-15-10; CWP 13-2011, f. & cert. ef. 6-30-11

413-100-0280

Redetermination of Deprivation at Relinquishment or Termination of Parental Rights

The Fostering Connections to Success and Increasing Adoptions Act of 2008 (122 Stat. 3949-3981) delinked Title IV-E eligibility redeterminations from AFDC eligibility, effective April 1, 2010. A redetermination of deprivation at relinquishment or termination of parental rights is no longer required.

Stat. Auth.: ORS 409.050, 418.005

Stats. Implemented: ORS 409.010, 418.005

Hist.: SCF 6-1995, f. 12-22-95, cert. ef. 12-29-95; SOSCF 20-2000(Temp), f. & cert. ef. 8-11-00 thru 2-6-01; SOSCF 4-2001, f. & cert. ef. 2-7-01; CWP 14-2007, f. & cert. ef. 8-1-07; CWP 13-2011, f. & cert. ef. 6-30-11

413-100-0300

Parental Referral to Division of Child Support

Unless an exception is granted pursuant to Child Welfare Policy I-E.7.1, “Child Support Referrals”, OAR 413-100-0800 to 413-100-0850, every case involving a Title IV-E eligible child must be referred to the Division of Child Support of the Oregon Department of Justice.

Stat. Auth.: ORS 409.010, 409.050 & 418.005

Stats. Implemented: ORS 409.010, 409.050 & 418.005

Hist.: SCF 6-1995, f. 12-22-95, cert. ef. 12-29-95; SOSCF 20-2000(Temp), f. & cert. ef. 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 14-2007, f. & cert. ef. 8-1-07; CWP 13-2011, f. & cert. ef. 6-30-11

413-100-0310

Title XIX Medicaid Eligibility

A child found Title IV-E eligible is categorically eligible for Title XIX Medicaid benefits, as described in OAR 413-100-0430, except that a child found Title IV-E eligible who does not have a social security number is ineligible for Title XIX Medicaid benefits until a social security number application has been completed.

Stat. Auth.: ORS 409.010, 409.050 & 418.005

Stats. Implemented: ORS 409.010, 409.050 & 418.005

Hist.: SCF 6-1995, f. 12-22-95, cert. ef. 12-29-95; SOSCF 20-2000(Temp), f. & cert. ef. 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 14-2007, f. & cert. ef. 8-1-07; CWP 13-2011, f. & cert. ef. 6-30-11

413-100-0320

Consolidated Omnibus Reconciliation Act (COBRA) and Title XIX Medicaid

(1) The COBRA of 1985, PL 99-272 enacted on April 7, 1986, permits a Title IV-E eligible child in paid substitute care or receiving adoption assistance to receive Title XIX Medicaid coverage from the state in which he or she resides.

(2) For a Title IV-E foster care eligible child being placed outside of Oregon, the Title IV-E Specialist must notify and provide the following documentation to the foster or adoptive parents:

(a) Confirmation of the child’s Title IV-E eligibility;

(b) Notification of the discontinuance of the child’s Oregon Medicaid coverage; and

(c) A letter stating the child’s eligibility under COBRA for applying for Title XIX Medicaid coverage in the child’s new state of residence.

Stat. Auth.: ORS 409.010, 409.050 & 418.005

Stats. Implemented: 409.010, 409.050 & 418.005

Hist.: SCF 6-1995, f. 12-22-95, cert. ef. 12-29-95; SOSCF 4-1998, f. 2-5-98, cert. ef. 2-6-98; SOSCF 20-2000(Temp), & cert. ef. 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 14-2007, f. & cert. ef. 8-1-07; CWP 6-2010, f. & cert. ef. 6-15-10; CWP 13-2011, f. & cert. ef. 6-30-11

413-100-0335

Adoption Assistance Title IV-E Eligibility Determination

(1) To be eligible for Title IV-E adoption assistance through age 17, the child must:

(a) Meet the age and education requirements specified in OAR 413-100-0230; and

(b) Meet one of the applicable child eligibility criteria as specified in section (2) of this rule; or

(c) Meet one of the non-applicable child eligibility criteria specified in section (4) of this rule.

(d) Effective October 1, 2011, to be eligible for an extension of Title IV-E adoption assistance through age 20, the young adult must also be part of an adoption assistance agreement that was made effective after the child reached 16 years of age, but before the child attained 18 years of age.

(2) For the purposes of this rule, effective October 1, 2009, an “applicable child”, as defined in section 473(e) of the Social Security Act, is a child who meets the requirements of at least one of the following subsections:

(a) The child’s oldest age attained in the current federal fiscal year (October 1 through September 30) meets the applicable child age requirements;

(A) The applicable child age requirements are set forth in the following document, which by this reference, is incorporated into this rule; Applicable Child — Age Requirements.

(B) The Department maintains this document on the Department’s Child Welfare policy website at http://www.dhs.state.or.us/policy/ childwelfare/cross_index.htm. A printed copy of this document may be obtained by contacting the Department of Human Services, Children, Adults and Families, Federal Compliance Unit, Attn: Title IV-E Federal Compliance Specialist, 500 Summer Street NE, Salem, Oregon 97301.

(b) The child has been in foster care under the responsibility of the Title IV-E agency for any 60 consecutive month period prior to finalization of the adoption; or

(c) The child is a sibling of another child the Department has determined is an applicable child and both children are placed in the same adoption arrangement.

(d) A child found to be an applicable child under subsections (2)(a) to (c) of this section must meet the applicable child eligibility requirements, inclusive of the special needs criteria, described in section 473(a)(2)(A)(ii) of the Social Security Act to be eligible for Title IV-E adoption assistance.

(3) An applicable child is not eligible for Title IV-E adoption assistance when:

(a) The child is not a citizen or resident of the United States; and

(b) The child was adopted outside of the United States or was brought into the United States for the purpose of being adopted.

(c) A child that is not a citizen or resident of the United States, and was adopted outside of the U.S. or brought into the U.S. for the purpose of being adopted may be eligible for Title IV-E adoption assistance for any subsequent adoptions if the initial adoption fails and the child is placed into foster care. For the subsequent adoption, the child will have to meet the Title IV-E eligibility requirements under this rule.

(4) A child who does not meet the applicable child criteria in section (1) must qualify under one of the following subsections:

(a) The child’s eligibility for Title IV-E foster care was established at the time of removal.

(b) The child meets all eligibility requirements for Supplemental Security Income (SSI) benefits.

(c) The child’s payments in a certified family home or private child caring agency are covered by the foster care maintenance payment being made for his or her minor parent.

(d) The child’s eligibility for an adoption assistance payment was established for a prior adoption and the child is now available for adoption because of one of the following:

(A) The prior adoption has been dissolved and the parental rights of each adoptive parent have been terminated or relinquished; or

(B) Each adoptive parent of the child has died.

(5) Private Agency Adoptions: To be eligible for Title IV-E adoption assistance, a child voluntarily relinquished to a public or private nonprofit agency must meet all of the following criteria:

(a) The child meets the eligibility criteria for Supplemental Security Income (SSI);

(b) The child is in a subsequent adoption, if he or she received Title IV-E adoption assistance in a previous adoption;

(c) The child must meet the Title IV-E AFDC eligibility requirements (as described in OAR 413-100-0130 through 413-100-0230); and

(d) The child must meet Judicial Removal requirements, as described below:

(A) The child must be voluntarily relinquished either to the State agency (or another public agency [including Tribes] with whom the State has a Title IV-E agreement), or to a private, nonprofit agency; and

(B) Within six months of the date the child last lived with a specified relative, a petition must be filed with the court to remove the child from the home; and

(C) The court must make a subsequent judicial determination to the effect that remaining in the home would be contrary to the child’s welfare.

(e) The child must meet the special needs criteria (as described in OAR 413-130-0020).

(f) Failure to meet any of the requirements listed above will result in a denial of Title IV-E adoption assistance eligibility.

(6) Independent Adoptions. To be eligible for Title IV-E adoption assistance, a child voluntarily relinquished to an individual must meet the following criteria:

(a) The child meets the eligibility criteria for Supplemental Security Income (SSI); or

(b) The child is in a subsequent adoption and he or she received Title IV-E adoption assistance in a previous adoption.

(c) The child must meet the special needs criteria (as described in OAR 413-130-0020).

(7) Eligibility after Removal from an Adoption Assistance Placement.

(a) Finalized Adoption: When a child in a finalized adoption is placed in substitute care:

(A) The local office must open a new case for the child; and

(B) The Title IV-E Specialist must perform an eligibility determination for Title IV-E foster care, based on the removal from the adoptive parents.

(b) Non-finalized Adoption: When a child in a non-finalized adoptive placement is placed in substitute care:

(A) The local office must open a substitute care service for the child; and

(B) The Title IV-E Specialist must perform an eligibility redetermination for Title IV-E foster care, based on the original removal of the child.

(8) Eligibility for Title IV-E adoption assistance may not be presumed for a child placed with a guardian, and receiving a guardianship assistance payment through the Department’s Guardianship Assistance program. The Title IV-E Specialist must complete an adoption assistance eligibility determination (CF 969c) based on the original removal of the child.

Stat. Auth.: ORS 418.005 & 418.330 - 418.340

Stats. Implemented: ORS 418.005 & 418.330 - 418.340

Hist.: CWP 19-2009(Temp), f. & cert. ef. 12-16-09 thru 6-14-10; CWP 6-2010, f. & cert. ef. 6-15-10; CWP 13-2011, f. & cert. ef. 6-30-11

413-100-0345

Guardianship Assistance Eligibility

(1) To be eligible for Title IV-E guardianship assistance, the prospective guardian must meet the definition of a relative, as defined in Child Welfare Policy I-E.1.1, “Search for and Engagement of Relatives”, under OAR 413-070-0063(10).

(2) To be eligible for Title IV-E guardianship assistance through age 17, the child must:

(a) Meet the age and education requirements specified in OAR 413-100-0230; and

(b) Be a United States citizen or a qualified alien (see OAR 413-100-0210) and meet the requirements of at least one of the following subsections:

(A) The child must have been removed from his or her home pursuant to a voluntary placement agreement or as a result of a judicial determination that continuation in the home would be contrary to the welfare of the child and the child must be or have been eligible to receive a Title IV-E foster care maintenance payment while residing in the home of the prospective relative guardian who met all certification requirements for any six consecutive months;

(B) The child is in receipt of Supplemental Security Income (SSI)