Neb. Admin. Code tit. 479 — Child Welfare Payments

Chapter 1 Maintenance Payments and Guardianship Accounts

Neb. Admin. Code tit. 479, ch. 1 Maintenance Payments and Guardianship Accounts {#sec-479-nac-1 omnilex-key=us-ne-regs-official--title-479--479 NAC 1}

TITLE 479 CHILD WELFARE PAYMENTS

CHAPTER 1 MAINTENANCE PAYMENTS AND GUARDIANSHIP ACCOUNTS

001. SCOPE AND AUTHORITY . These regulations apply to children who are in the custody of the Department or Tribal Court that has a written agreement with the Department. These regulations set the provisions for issuing maintenance payments as allowed by Nebraska Revised Statute (Neb. Rev. Stat.) §§ 43-905, 43-1511 and Title IV of the Social Security Act. Child welfare payments are administered by the Department in accordance with state laws and the procedures established by the Department.

002. DEFINITIONS . The following definitions apply:

002.01 CHILD. Child means a person under the age of 19.

002.02 DEPARTMENT. Department means the Department of Health and Human Services, Division of Children and Family Services.

002.03 DEPARTMENT WARD. Department Ward means a child placed in the custody of the Department by law enforcement pursuant to Neb. Rev. Stat. § 43-250, court order pursuant to the Nebraska Juvenile Code or voluntary relinquishment.

002.04 FOSTER CARE. Foster Care means foster care as defined in Neb. Rev. Stat. § 71-1901.

002.05 MINOR PARENT. Minor Parent means a Child who is in the custody of the Department and is also a parent.

002.06 STEPPARENT. Stepparent means any individual legally married to a child’s parent.

002.07 SUPERVISED INDEPENDENT LIVING. A setting where the Child or Young Adult is living independently. The Child or Young Adult must be subject to the supervision of the Department either because the Child is in the custody of the Department or the Young Adult is participating in the Bridge to Independence program.

002.08 TRIBAL WARD. Tribal Ward means a Child who is in the custody of a Tribal Court that has a written agreement with the Department regarding the use of federal Title IV-E funds.

002.09 YOUNG ADULT. Young Adult means young adult as defined in Neb. Rev. Stat. § 43-4503.

003. GUARDIANSHIP ACCOUNTS . When a Child is a Department Ward, the Department will control and administer any assets of the Child pursuant to Neb. Rev. Stat. § 43-907 and federal law. The Department will establish a guardianship account for the assets and may use the assets of the Child to reimburse the Department for the child’s cost of care, if the child’s assets are over $1,000. This section does not apply to young adults participating in the Bridge to Independence Program.

003.01 DEPARTMENT AS PAYEE. When a Child placed in the custody of the Department is receiving financial benefits from another source, such as the Social Security Administration or the Department of Veterans Affairs, steps will be taken to have the Department named as the representative payee for those benefits.

003.01(A) WHEN CHILD TURNS 18. When a Child placed in the custody of the Department is 18 years of age or older, the Child may become the payee of his or her financial benefits. If this occurs when the Child is in a Supervised Independent Living setting, the Child may keep the financial benefits for personal use.

003.01(B) NOTICE. When the Department serves as representative payee for a state ward receiving social security benefits, the Department shall provide notice as required by Neb. Rev. Stat. § 43-907.

003.01(C) REQUESTS FOR RECORDS. When the Department receives a request for accounting records or upon the termination of the Department’s role as representative payee, the Department shall provide accounting records within thirty (30) days pursuant to Neb. Rev. Stat. § 43-907.

003.02 CALCULATION OF ASSETS. The assets of a Child in the custody of the Department will be calculated pursuant to the Department’s established policy.

003.03 USE OF ASSETS. Any assets under the control and administration of the Department pursuant to this section will only be used to pay for the personal expenses of the Child or to reimburse the Department for payments made on behalf of the Child. The assets may not be used to pay for expenses related to the parents or any other individual. The Department will authorize the use of the child’s assets as set forth in Department policy.

003.04 CLOSING THE GUARDIANSHIP ACCOUNT. When a Child is no longer in the custody of the Department or the Child reaches age 19, the child’s guardianship account through the Department will be closed. At the time of closure, any funds in the guardianship account will be dispersed as set forth in this section.

003.04(A) SOCIAL SECURITY ADMINISTRATION FUNDS. When the funds were received from the Social Security Administration, the remaining available funds are returned to the Social Security Administration.

003.04(B) OTHER FUNDS. When the funds were received from a source other than the Social Security Administration, the funds will be dispersed as follows:

(i) Unless a guardian or conservator has been appointed by the court, the funds will be returned to the Child, if the Child has reached the age of majority;

(ii) Unless a guardian or conservator has been appointed by the court, the funds will be returned to the child’s custodial parent, including adoptive parents, if the Child has not reached the age of majority; or

(iii) If a guardian or conservator has been appointed by the court, the funds will be released to the guardian or conservator.

003.04(C) DEATH OF CHILD. In the event of the death of a Child in the custody of the Department, available funds in the child’s guardianship account may be used to cover funeral and burial expenses. Any remaining funds will be returned as follows:

(i) When the funds were received from the Social Security Administration, the remaining available funds will be returned to the Social Security Administration; and

(ii) When the funds were received from a source other than the Social Security Administration, the funds will be returned to the child’s most recent custodial parent, including adoptive parents. If no parental rights are intact, the Department will determine how to disperse the funds.

004. FOSTER CARE MAINTENANCE PAYMENTS . Foster care maintenance payments paid by the Department are subject to the provisions in this section.

004.01 FOSTER FAMILY HOME. When a Child in the custody of the Department is placed in Foster Care in a foster family home as defined in Neb. Rev. Stat. § 71-1901, the foster care maintenance payment issued on behalf of the Child will be in the amount set by the Department’s established rate determination tool. The tool will be completed in accordance with Department policy.

004.01(A) FOSTER CARE MAINTENANCE PAYMENT AMOUNT. Foster care maintenance payments are issued the month following the care provided.

004.01(A)(i) FIRST MONTH OF PLACEMENT. For the first month of placement, payment begins from the day of placement so long as the Child is a Department Ward. If the Child is not in the custody of the Department, a foster care maintenance payment will not be issued by the Department for those days.

004.01(A)(ii) LAST MONTH OF PLACEMENT. No foster care maintenance payment will be issued for the last day of the child’s placement in the foster home.

004.01(B) FOSTER PARENT GRIEVANCE. A foster parent who disagrees with the foster maintenance rate that will be paid for a Child in his or her care may submit a written grievance to the Department. Grievances will be reviewed by the Director of the Division of Children and Family Services or his designee. The foster parent will receive a written response to the grievance.

004.02 OTHER OUT OF HOME PLACEMENTS. The Department may contract for Foster Care services that are provided outside of a foster family home setting.

004.03 PLACEMENT WITH PARENT OR STEPPARENT. When a Child in the custody of the Department is placed in the home of the child’s parent or Stepparent, no foster care maintenance payment will be made by the Department to the child’s parent or Stepparent. This provision applies even when parental rights have been terminated or relinquished.

005. SUPERVISED INDEPENDENT LIVING .

005.01 NO FOSTER CARE MAINTENANCE PAYMENT. A Child placed in a Supervised Independent Living setting is not considered to be in Foster Care and is not eligible for a foster care maintenance payment. This provision does not apply to Young Adults.

005.02 STIPEND. A Child placed in a Supervised Independent Living setting is eligible for assistance from the Department in the form of a stipend. The amount of the stipend will be determined in accordance with the Department’s established stipend determination tool. The stipend may be paid directly to the Child and will be paid at the beginning of the month for that month’s care.

006. PREGNANT OR PARENTING CHILDREN AND YOUNG ADULTS .

006.01 PREGNANT OR PARENTING CHILD. A child in the custody of the Department who is pregnant or parenting is eligible for funding as set forth in this section.

006.01(A) FOSTER CARE. When the Minor Parent is in Foster Care, the provisions of this subsection apply.

006.01(A)(i) PREGNANT CHILD. A pregnant Child who is in Foster Care, is eligible for a foster care maintenance payment that includes the costs of care for her baby during the third trimester of the pregnancy when the pregnant Child provides the Department with documentation verifying the baby’s expected delivery date. The amount paid to cover the costs of a care for the baby will be equivalent to the amount paid to a pregnant parent through the Department’s Temporary Assistance to Needy Families program.

006.01(A)(ii) MINOR PARENT. A Minor Parent, who is in Foster Care, is eligible for a foster care maintenance payment that includes the costs of care for his or her Child when the following criteria are met:

(a) The Minor Parent’s child is residing with the Minor Parent;

(b) The Minor Parent’s child is not in the custody of the Department; and

006.01(A)(ii)(1) ADDITIONAL CRITERIA FOR FATHER. When the Minor Parent is the father of the Child, the Department must be provided with documentation verifying that the paternity of the Child has been established by either: operation of law due to an individual's marriage to the mother at the time of conception, birth, or at any time during the period between conception and birth of the Child; by operation of law pursuant to Neb. Rev. Stat. § 43-1409; or by order of a court of competent jurisdiction.

006.01(A)(iii) PAYMENT. The amount paid to cover the costs of care for the Minor Parent’s Child will be equivalent to the amount that would be paid to the Minor Parent, if eligible, through the Department’s Temporary Assistance to Needy Families program. The additional foster care maintenance payment amount may be paid directly to the Minor Parent. Foster care maintenance payments under this section will be issued the month following each month of eligibility.

006.01(B) INDEPENDENT LIVING. When the Minor Parent is in an Independent Living setting, the Minor Parent is not eligible for a foster care maintenance payment for the costs of care for his or her Child.

006.01(C) BRIDGE TO INDEPENDENCE. When the Young Adult is participating in the Bridge to Independence program, the provisions of this subsection apply.

006.01(C)(i) PREGNANT YOUNG ADULT. A pregnant Young Adult who is participating in the Bridge to Independence program, is eligible for a foster care maintenance payment that includes the costs of care for her baby during the third trimester of the pregnancy when the pregnant Young Adult provides the Department with documentation verifying the baby’s expected delivery date. The amount paid to cover the costs of a care for the baby will be equivalent to the amount paid to a pregnant parent through the Department’s Temporary Assistance to Needy Families program.

006.01(C)(ii) YOUNG ADULT. A Young Adult who is participating in the Bridge to Independence program is eligible for a foster care maintenance payment that includes the costs of care for his or her Child when the following criteria are met:

(a) The Young Adult’s Child is residing with the Young Adult;

(b) The Young Adult’s Child is not in the custody of the Department; and

006.01(C)(ii)(1) ADDITIONAL CRITERIA FOR FATHER. When the Young Adult is the father of the Child, the Department must be provided with documentation verifying that the paternity of the Child has been established by either: operation of law due to an individual's marriage to the mother at the time of conception, birth, or at any time during the period between conception and birth of the Child; by operation of law pursuant to Neb. Rev. Stat. § 43-1409; or by order of a court of competent jurisdiction.

006.01(C)(iii) PAYMENT. The amount paid to cover the costs of care for the Young Adult’s Child will be equivalent to the amount that would be paid to the Young Adult, if eligible, through the Department’s Temporary Assistance to Needy Families program. The additional foster care maintenance payment amount may be paid directly to the Young Adult.

007. PAYMENT FOR TRANSPORTION . The costs of transportation for a Child in the custody of the Department are included in the foster care maintenance payment. A foster parent may only be reimbursed for the costs of transportation when the provisions of this section are met.

007.01 MILES PER CALENDAR MONTH. A foster parent may be eligible for reimbursement of transportation when the mileage exceeds 100 miles per child in a calendar month.

007.02 ELIGIBLE TRANSPORTATION COSTS. To be eligible for reimbursement, the provisions of this subsection must be met.

007.02(A) FOSTER PARENT MILEAGE LOG. The foster parent must provide the Department with a log that identifies the date of transportation, the Child for whom transportation was provided, the purpose of the transportation and the number of miles for each log entry.

007.02(B) NECESSITY. The only transportation miles that may be included in the mileage log and for which foster parents may be reimbursed are those miles that the foster parent would not have travelled if the Child were not placed in his or her home.

007.02(C) MILEAGE PER CHILD. If more than one Child is placed in the home and being transported, the foster parent must keep a separate log for each Child and if transportation of more than one Child occurs at the same time, the miles may only be included on one of the mileage logs.

007.02(D) REIMBURSEMENT RATE. The amount of the mileage reimbursement paid to the foster parents will be determined in accordance with the Department’s established mileage payment determination tool.

008. OVERPAYMENTS . The Department may take all reasonable steps necessary to correct overpayments. Overpayments may be recouped from any future payments to the individual that received the overpayment, even if the future payments are for a different Child or Young Adult.

History

Effective 2023-08-19

Chapter 7 Guardianship Assistance Program

Neb. Admin. Code tit. 479, ch. 7 Guardianship Assistance Program {#sec-479-nac-7 omnilex-key=us-ne-regs-official--title-479--479 NAC 7}

001. SCOPE AND AUTHORITY . This chapter governs guardianship assistance agreements that may be entered into with the Department pursuant to Nebraska Revised Statute (Neb. Rev. Stat.) § 43-284.02 or Title IV-E of the Social Security Act.

002. PRE-EXISTING AGREEMENTS . All subsidized guardianship agreements or guardianship assistance agreements which were previously executed and is finalized prior to the implementation of these regulations are subject to the regulations which were in place at the time the guardianship was finalized.

003. DEFINITIONS . The following definitions apply:

003.01 GUARDIANSHIP ASSISTANCE AGREEMENT. Guardianship Assistance Agreement means a Nebraska Guardianship Assistance Agreement or a Title IV-E Kinship Guardianship Assistance Agreement between the Department and the Prospective Guardians to assist with the costs of care for the child who is the subject of the Guardianship Assistance Agreement.

003.02 MEDICAL PROFESSIONAL. Medical Professional means a physician or advanced practice registered nurse (APRN) or physician assistant (PA) when the APRN or PA is practicing under the supervision of a physician. A Medical Professional must be licensed by the Nebraska Department of Health and Human Services, Division of Public Health, or its equivalent in another state, at the time of service.

003.03 NEBRASKA GUARDIANSHIP ASSISTANCE AGREEMENT. A Guardianship Assistance Agreement entered into between the Department and the Prospective Guardians in which the eligibility requirements for Title IV-E Kinship Guardianship Assistance have not been met.

003.04 PROSPECTIVE GUARDIAN. The individual or individuals seeking to become the court-appointed guardian for the child who would be the subject of a Guardianship Assistance Agreement.

003.05 STEPPARENT. Stepparent means a person who is legally married to a parent of the child who is the subject of the guardianship assistance agreement.

003.06 TITLEIV-E KINSHIP GUARDIANSHIP ASSISTANCE AGREEMENT. A Guardianship Assistance Agreement entered into between the Department and Prospective Guardians when the Prospective Guardians are relatives of the child and are licensed to provide foster care and the Department has determined all eligibility criteria of this chapter and Title IV-E of the Social Security Act have been met.

004. GUARDIANSHIP ASSISTANCE AGREEMENTS . All guardianship assistance agreements are subject to the provisions in this chapter.

004.01 APPROVAL BEFORE GUARDIANSHIP IS FINALIZED. The guardianship assistance agreement must be signed by the guardian or guardians and the Department prior to the date of the court order establishing the guardianship. When more than one individual is being appointed as guardian of a child, each individual seeking appointment as guardian must sign the agreement. The guardianship must be established by the court within six months of the Guardianship Assistance Agreement being signed by all parties. When the guardianship is not finalized within the six month time frame, the guardianship assistance agreement is no longer valid and a new application must be submitted by the potential guardians.

004.02 APPLICATION. An application for a Guardianship Assistance Agreement must be submitted by the prospective guardian prior to finalization of the guardianship. Eligibility will be determined based on the factors set forth in this chapter.

004.03 ELIGIBILITY FOR TITLE IV-E GUARDIANSHIP ASSISTANCE AGREEMENT. When the Department determines the child qualifies for guardianship assistance pursuant to Title IV-E of the Social Security Act, the child will be eligible for a Title IV-E Guardianship Assistance Agreement when all other eligibility requirements set forth in this chapter and Title IV-E of the Social Security Act are met. When all eligibility requirements of this chapter are met, but all eligibility requirements of Title IV-E of the Social Security Act are not met, the child will be eligible for a Nebraska Guardianship Assistance Agreement.

004.03(A) SUCCESSOR GUARDIAN. Notwithstanding any other provision, the eligibility of a child for a Title IV-E Kinship Guardianship Assistance Agreement under Title IV-E of the Social Security Act shall not be affected by reason of the replacement of a relative guardian with a successor guardian named in the Title IV-E Kinship Guardianship Assistance Agreement, including any amendment thereto.

004.04 ELIGIBILITY FOR GUARDIANSHIP ASSISTANCE AGREEMENT. To be eligible for a guardianship assistance agreement all eligibility criteria must be met.

004.04(A) ELIGIBILITY CRITERIA.

(i) The child that is the subject of the Guardianship Assistance Agreement must be in the custody of the Department immediately prior to the guardianship being finalized;

(ii) The child that is the subject of the guardianship assistance agreement must be a citizen of the United States or a qualified alien as defined in the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA). The Department must have documentation to confirm the child’s United States Citizenship or qualified alien status;

(iii) The child that is the subject of the Guardianship Assistance Agreement must be under 19 years of age;

(iv) The child that is the subject of the Guardianship Assistance Agreement has resided in the home of the prospective guardian for at least six months;

(v) The child that is the subject of the Guardianship Assistance Agreement cannot return to the home of the parents;

(vi) The child that is the subject of the Guardianship Assistance Agreement demonstrates a strong attachment to the prospective guardian and the prospective guardian has a strong commitment to caring permanently for the child;

(vii) Adoption would not be in the best interest of the child that is the subject of the Guardianship Assistance Agreement;

(viii) Unless it is not in the best interests of the child, efforts were made to place the child without a Guardianship Assistance Agreement; and

(ix) The prospective guardians verify that the guardianship cannot occur without a Guardianship Assistance Agreement because the child’s present and anticipated future needs have been determined to exceed the family’s ability to meet those needs without assistance.

004.04(B) PARENT ELIGIBILITY. No parent is eligible for a Guardianship Assistance Agreement on behalf of their child, even if parental rights have been relinquished or terminated. No stepparent is eligible for a Guardianship Assistance Agreement on behalf of their stepchild.

004.04(C) CRIMINAL RECORDS CHECK REQUIREMENTS. All Prospective Guardians and any individual 18 years of age or older residing in the Prospective Guardians’ household must submit to the records checks set forth in this chapter and meet the approval requirements of this section in order for the Department to enter into a Guardianship Assistance Agreement with the Prospective Guardians.

004.04(C)(i) RECORDS TO BE SEARCHED. All Prospective Guardians and any individual 18 years of age or older residing in the Prospective Guardians’ household must consent to the Department receiving all background checks identified in this section. For each Prospective Guardian and any individual 18 years of age or older residing in the Prospective Guardians’ household, the following checks will be reviewed by the Department:

(1) State Central Register or Registry of child protection maintained by any state in which the individual has lived within the past 5 years;

(2) Nebraska Adult Protective Services Central Registry;

(3) Appropriate local lawenforcement agency;

(4) National Sex Offender Registry;

(5) State-level criminal history; and

(6) Fingerprint-based National Criminal History Check.

004.04(C)(ii) CRIMINAL RECORDS APPROVAL REQUIREMENTS. If the Prospective Guardians or any individual 18 years of age or older residing in the household has a criminal history or history of child abuse or neglect, the Department will determine whether to enter into a Guardianship Assistance Agreement based on the provisions in this chapter.

004.04(C)(ii)(1) GUARDIANSHIP ASSISTANCE AGREEMENT NOT AUTHORIZED. The Prospective Guardians cannot enter into a Guardianship Assistance Agreement with the Department when:

(a) Any of the Prospective Guardians or any individual 18 years of age or older living in the household has been convicted of a felony involving abuse or neglect of a child, spousal abuse, a crime against a child or children, or a crime of violence including rape, sexual assault, or homicide, but not including other physical assault or battery;

(b) Any of the Prospective Guardians or any individual 18 years of age or older living in the household is identified as a perpetrator on a child abuse and neglect central registry or an adult abuse and neglect central registry; or

(c) Any of the Prospective Guardian or any individual 18 years of age or older living in the household has a conviction date within the past five years for a felony involving a drug-related offense, physical assault or battery.

004.04(C)(iii) TIME FRAME FOR CRIMINAL RECORDS CHECK. To meet the requirements of this chapter, the results of the criminal records checks for each individual are valid for two years from the date the results were issued. If the Guardianship Assistance Agreement is not signed by all parties during the time frame when the results are valid, new criminal records checks will be required.

004.05 GUARDIANSHIP ASSISTANCE AGREEMENT PROVISIONS. A guardianship assistance agreement may include one or more of the following:

(1) A Guardianship Assistance payment negotiated between the Department and the guardians in accordance with the Department’s established rate determination tool. In no case may the amount of the guardianship assistance payment exceed the foster care maintenance payment which would have been paid by the Department if the child with respect to whom the Guardianship Assistance payment is made had been in a foster family home;

(2) Special Services payments made for a specific service or item related to the child’s needs for a specified period of time. No special services payments will be included if other resources or programs are available to assist with the services; or

(3) Non-recurring expenses or one or both of the following:

(a) Legal fees directly related to the finalization of the guardianship for the child; or

(b) Funeral assistance if the child with respect to whom the Guardianship Assistance Agreement is made is diagnosed by a medical professional as being terminally ill and the life expectancy of the child is less than 20 years old. The prospective guardians will not receive any funeral assistance under the Guardianship Assistance Agreement prior to the child’s death. Any funds expended by the guardians in anticipation of the child’s death will only be reimbursed by the Department if the child’s death occurs during the duration of the Guardianship Assistance Agreement for the child.

004.05(A) GUARDIANSHIP ASSISTANCE PAYMENTS. The following provisions apply to all Guardianship Assistance Payments.

004.05(A)(i) DEDUCTIONS FROM PAYMENTS. Any other maintenance payments received for the child, such as Social Security Disability Insurance benefits or survivor benefits, Supplemental Security Income, Veteran’s Administration benefits or Aid to Dependent Children benefits, will be deducted from the guardianship assistance payment.

004.05(A)(ii) CHILD SUPPORT. Any child support amount paid to the guardians for support of the child that is the subject of the Guardianship Assistance Agreement will be deducted from the guardianship assistance payment.

004.05(A)(iii) USE OF ASSISTANCE. A guardian who receives payment of guardianship assistance shall use the guardianship assistance funds for the benefit of the child. The Department will consider use of the guardianship assistance funds on the following supports and services as using the funds for the benefit of the child:

(1) Clothing purchases;

(2) Incidental items;

(3) Insurance;

(4) Food;

(5) Housing, other than maintenance of the guardian’s home;

(6) Education;

(7) Medical expenses; or

(8) Transportation.

004.06 DESIGNATION OF SUCCESSOR GUARDIAN. A prospective guardian who enters into a Guardianship Assistance Agreement with the Department must designate a successor guardian for the child in case of the death of the guardian. Payment of the guardianship assistance will cease upon the death of the guardian unless the Guardianship Assistance Agreement provides for assignment to a successor guardian. In the event an individual who was previously a parent for the child is appointed as guardian for the child, even if parental rights have been terminated or relinquished, payment of the guardianship assistance must cease.

004.06(A) EXCEPTION. Guardianship assistance payments can continue for up to six months following the death of the guardian or guardians pending the appointment of a guardian or conservator if the child is placed in the temporary custody of a family member or other individual. In the event this child is placed in the custody of an individual who was previously a legal parent for the child, even if parental rights have been terminated or relinquished, the guardianship assistance payment will cease.

004.07 REVIEW. The Guardianship Assistance Agreement will be reviewed every twelve months to determine:

(1) That the child continues to be a legal dependent of the guardian;

(2) The guardian continues to use the guardianship assistance payments for the benefit of the child; and

(3) That the child continues to need the provisions of the Guardianship Assistance Agreement.

004.07(A) REVIEW TIME FRAMES. At the time of review, the guardian will receive a written notice of the Guardianship Assistance Agreement review and a review form from the Department. The guardian must return the review form to the Department within 30 days of the date of the notice or the Department may suspend the guardianship assistance payments.

004.07(B) SUSPENSION AFTER REVIEW. If the Department is unable to verify whether the guardian is legally responsible for the child or using the guardianship assistance payment for the benefit of the child, the Department may suspend issuance of the guardianship assistance payment until verification is received.

005. CHANGE IN GUARDIANSHIP ASSISTANCE AGREEMENT PROVISIONS . The guardian may request a change in the Guardianship Assistance Agreement provisions by submitting a written request on the Department approved form. Guardianship Assistance Agreement provisions may be modified if the Department determines an amended agreement is necessary based on a change in family circumstances, a change in the child’s special needs or a change in law or regulation.

005.01 CHANGE IN TITLE IV-E KINSHIP GUARDIANSHIP ASSISTANCE AGREEMENT. Title IV-E Kinship Guardianship Assistance Agreements may be modified as authorized by this section.

005.01(A) INCREASE IN ASSISTANCE PAYMENT. The guardian of a child who is the subject of a Title IV-E Kinship Guardianship Assistance Agreement may request an increase in the guardianship assistance payment. The guardian must provide documentation to support the need for an increase in the payment. The amount of the guardianship assistance payment must not exceed the amount the child would have received in foster care at the time of the request.

005.01(B) CHANGE IN SPECIAL SERVICES. Special services may be added to a Title IV-E KinshipGuardianshipAssistanceAgreementwhentheDepartmentdeterminesthere is a change in family circumstances or a change in the child’s special needs.

005.02 CHANGE IN NEBRASKA GUARDIANSHIP ASSISTANCE AGREEMENTS. Nebraska Guardianship Assistance Agreements may be modified as authorized by this section.

005.02(A) INCREASE IN ASSISTANCE PAYMENT. The guardian of a child who is the subject of a Nebraska Guardianship Assistance Agreement may request an increase in the guardianship assistance payment if either the child is at least 13 years old or the current guardianship has been established for at least five (5) years. The guardian must provide documentation to support the need for an increase in the payment. The amount of the guardianship assistance payment must not exceed the amount the child would have received in foster care at the time of the request.

005.02(B) CHANGE IN SPECIAL SERVICES. Special services may be added to Nebraska Guardianship Assistance Agreement when the Department determines there is a change in family circumstances or a change in the child’s special needs.

006. EXTENDED GUARDIANSHIP ASSISTANCE . A young adult is eligible to participate in the Extended Guardianship Assistance program if:

(A) The Young Adult is at least 19 years of age but less than 21 years of age;

(B) The Young Adult was the subject of a Guardianship Assistance Agreement that took effect after the Young Adult had attained16 years of age;

(D) The Young Adult was previously adjudicated to be within the meaning of Neb. Rev. Stat. § 43-247(3)(a) or the equivalent under tribal law;

(E) The Young Adult meets the education or employment criteria for the Bridge to Independence program; and

(F) The Young Adult is not participating in the Bridge to Independence program.

006.01 USE OF FUNDS. A guardian who receives payment of Extended Guardianship Assistance shall use the guardianship assistance funds for the benefit of the Young Adult. The Department will consider use of the guardianship assistance funds on the following supports and services as using the funds for the benefit of the Young Adult:

(A) Clothing purchases;

(B) Incidental items;

(D) Food;

(E) Housing, other than maintenance of the guardian’s home;

(F) Education;

(G) Medical expenses;

(H) Transportation; or

(I) Other services and supports the Department determines will help the young adult transition into adulthood.

007. CHANGE IN GUARDIAN INFORMATION . A Guardianship Assistance Agreement may be modified to add guardians when there is a court order appointing additional guardians and all of the following are met:

(A) The guardian that entered into the current Guardianship Assistance Agreement continues to be a court-appointed guardian of the child;

(B) The Department is provided a copy of the court order appointing additional guardians;

(D) An amended Guardianship Assistance Agreement is signed by all guardians.

007.01 PAYMENT AFTER ADDING GUARDIANS. Payment will continue to be made in the same manner as before the modification, unless all guardians agree in writing that a change in payee should occur.

008. SUSPENSION OF GUARDIANSHIP ASSISTANCE PAYMENT . The Department may suspend the guardianship assistance payment when:

(A) The Department determines the guardians are not using the guardianship assistance payment for the benefit of the child; or

(B) TheDepartmentisunabletodeterminewhethertheguardiansareusingtheguardianship assistance payment for the benefit of the child.

008.01 GUARDIANSHIP ASSISTANCE PAYMENT WHEN CHILD IS OUT OF HOME. When the child is no longer residing in the home of the guardian, the guardianship assistance payment may be reduced or terminated. To continue to receive a guardianship assistance payment, the guardian must provide documentation to the Department proving the amount of financial support used to benefit the child for each month. The Department will determine the amount of the guardianship assistance payment based on the documentation provided by the guardian.

008.01(A) EXCEPTION. When the child is the subject of a Title IV-E Kinship Guardianship Assistance Agreement, the guardianship assistance payment will be reduced only when agreed to in writing by all guardians who entered into the agreement.

009. REINSTATEMENT OF GUARDIANSHIP ASSISTANCE PAYMENT . When a guardianship assistance payment has been suspended or reduced, the full guardianship assistance payment may be reinstated when the Department determines the basis for suspension or reduction in payment has been resolved. A guardianship assistance payment cannot be reinstated if the guardians who entered into the current Guardianship Assistance Agreement are no longer the guardians of the child.

010. TRANSFER OF GUARDIANSHIP ASSISTANCE AGREEMENT . A Guardianship Assistance Agreement may not be transferred to new guardians, except as authorized in the Designation of Successor Guardian section of this chapter.

011. TERMINATION OF GUARDIANSHIP ASSISTANCE AGREEMENT . A Guardianship Assistance Agreement terminates when:

(A) All guardians who have entered into the Guardianship Assistance Agreement request termination of the agreement;

(B) The guardianship assistance agreement does not include a designation of guardian as allowed by law and all guardians are deceased;

(D) The child dies;

(E) The child becomes an emancipated minor;

(F) The child marries or enlists in the military;

(G) The Department determines all guardians who have entered into the Guardianship Assistance Agreement are no longer appointed by the court to be guardians of the child; or

(H) The child is no longer residing with a guardian who has entered into the Guardianship Assistance Agreement and the guardian is not cooperating in a plan for the child to return home.

011.01 EXCEPTIONS. The following are exceptions to the termination criteria set forth in this chapter.

011.01(A) AGE EXCEPTION. When a childreachesage19,theGuardianshipAssistance Agreement will not terminate if the child is eligible for and enrolls in the extended guardianship assistance program. The Guardianship Assistance Agreement will terminate when the child is no longer enrolled in or eligible for Extended Guardianship Assistance.

011.02(B) OUT OF HOME EXCEPTION. When a child is no longer residing with a guardian, the Guardianship Assistance Agreement will not terminate if the child is attending college or vocational training, is living independently, or is residing in an out of home treatment facility, but continuing to receive supports and services from a guardian who entered into the Guardianship Assistance Agreement.

012. RIGHT TO APPEAL . A guardian or prospective guardian has the right to request a fair hearing as allowed by law, including, but not limited to, the provisions for appeal set forth in this chapter.

012.01 PROSPECTIVE GUARDIAN. The prospective guardian has the right to request a fair hearing under the Administrative Procedures Act if:

(1) The prospective guardian disagrees with the determination by the Department that a child is ineligible for guardianship assistance;

(2) The prospective guardian disagrees with the guardianship assistance payment determined by the Department;

(3) The guardian disagrees with the determination by the Department that a child is not eligible for a Title IV-E Kinship Guardianship Assistance Agreement; or

(4) The child was denied guardianship assistance based on a means test of the guardian's income.

012.01(A) TIMELINE TO APPEAL. The appeal must be filed in writing within 90 days of the action or inaction. No change in coverage will occur while the appeal is pending.

012.02 GUARDIAN. A guardian receiving guardianship assistance on behalf of a child has the right to request a fair hearing under the Administrative Procedures Act if:

(1) The Department reduces or terminates the Guardianship Assistance Agreement;

(2) Facts about the child's special needs were not presented to the guardian prior to finalization of the guardianship;

(3) The guardians were not informed they could apply for a Guardianship Assistance Agreement when the child was in the Department's custody; or

(4) The Department denied the request of the guardian for an increase in guardianship assistance payment.

012.02(A) TIMELINE TO APPEAL. The appeal must be filed in writing within 90 days of when the action or inaction of the Department is known or should have been known by the guardian. No change in coverage will occur while the appeal is pending.

History

Effective 2022-06-13

Chapter 8 Adoption Assistance Program

Neb. Admin. Code tit. 479, ch. 8 Adoption Assistance Program {#sec-479-nac-8 omnilex-key=us-ne-regs-official--title-479--479 NAC 8}

001. SCOPE AND AUTHORITY . This chapter governs Adoption Assistance Agreements that may be entered into with the Department pursuant to Nebraska Revised Statute (Neb. Rev. Stat.) §§ 43-117 and 43-118 or Title IV-E of the Social Security Act.

001.01 CONFLICT RESOLUTION. In the event there is a conflict between this chapter and any other Department regulations regarding the Adoption Assistance Program, this chapter shall be controlling.

002. PRE-EXISTING AGREEMENTS . All Subsidized Adoption Agreements or Adoption Assistance Agreements executed and the adoption finalized prior to the implementation of these regulations are subject to the regulations in place at the time the adoption was finalized.

003. DEFINITIONS . The following definitions apply:

003.01 ADOPTION ASSISTANCE AGREEMENT. Adoption Assistance Agreement means a Nebraska Adoption Assistance Agreement or a Title IV-E Adoption Assistance Agreement entered into between the Department and the Adoptive Parent(s) to assist with the costs of care for the child who is the subject of the Adoption Assistance Agreement.

003.02 ADOPTIVE PARENT. Adoptive Parent means the individual or individuals who either intend to adopt the child for whom adoptive assistance agreement is being requested or have adopted the child who is the subject of an adoptive assistance agreement.

003.03 MEDICAL PROFESSIONAL. Medical Professional means a physician or advanced practice registered nurse (APRN) or physician assistant (PA) when the APRN or PA is practicing under the supervision of a physician. A Medical Professional must be licensed by the Nebraska Department of Health and Human Services, Division of Public Health, or its equivalent in another state, at the time of service.

003.04 MENTAL HEALTH PROFESSIONAL. Mental Health Professional means a psychologist, psychiatrist, licensed mental health practitioner, licensed clinical social worker, or licensed alcohol and drug counselor who provides mental health or substance use treatment services and is licensed by the Nebraska Department of Health and Human Services, Division of Public Health, or its equivalent in another state certified to provide medical or mental health treatment. Mental Health Professional includes a provisionally licensed mental health practitioner, a provisionally licensed psychologist, and a provisionally licensed alcohol and drug counselor.

003.05 NEBRASKA ADOPTION ASSISTANCE AGREEMENT. Nebraska Adoption Assistance Agreement means an Adoption Assistance Agreement entered into between the Department and the Adoptive Parent(s) and the eligibility requirements for Title IV-E Adoption Assistance have not been met.

003.06 STEPPARENT. Stepparent means a person who is legally married to a parent of the child who is the subject of the Adoption Assistance Agreement.

003.07 TITLE IV-E ADOPTION ASSISTANCE AGREEMENT. Title IV-E Adoption Assistance Agreement means an Adoption Assistance Agreement entered into between the Department and the Adoptive Parent(s) and all eligibility criteria of this chapter and Title IV-E of the Social Security Act have been met.

003.08 YOUNG ADULT. Young Adult means young adult as defined in Neb. Rev. Stat. § 43-4503.

ADOPTION ASSISTANCE AGREEMENTS FOR CHILDREN IN THE CUSTODY OF THE DEPARTMENT. All Adoption Assistance Agreements for children who are in the custody of the Department at the time the adoption is entered are subject to the provisions of this section.

004.01 APPROVAL BEFORE ADOPTION DECREE. The Adoption Assistance Agreement must be signed by the Adoptive Parent(s) and DHHS prior to the date of adoption. If two individuals are adopting a child, both individuals must sign the agreement. The adoption must occur within six months of the Adoption Assistance Agreement being signed by all parties. If the adoption does not occur within the six month time frame, the Adoption Assistance Agreement is no longer valid and a new application must be submitted by the Adoptive Parent(s).

004.02 ADOPTION ASSISTANCE AGREEMENT APPLICATION. An application for an Adoption Assistance Agreement must be submitted by the Adoptive Parent(s) prior to finalization of the adoption. Eligibility will be determined based on the factors set forth in this chapter.

004.03 ELIGIBILITY FOR TITLE IV-E ADOPTION ASSISTANCE AGREEMENT. When the Department determines the child qualifies for adoption assistance pursuant to Title IV-E of the Social Security Act, the child will be eligible for a Title IV-E Adoption Assistance Agreement when all other eligibility requirements set forth in this chapter and Title IV-E of the Social Security Act are met. When all eligibility requirements of this chapter are met, but all eligibility requirements of Title IV-E of the Social Security Act are not met, the child will be eligible for a Nebraska Adoption Assistance Agreement.

004.04 ELIGIBILTY FOR ADOPTION ASSISTANCE AGREEMENT. To be eligible for Adoption Assistance Agreement, all eligibility criteria and additional eligibility requirements of this section must be met.

004.04(A) ELIGIBILITY CRITERIA FOR THE CHILD. The child who is the subject of the Adoption Assistance Agreement must met the following criteria:

(i) The child must be in the custody of Department;

(ii) The child must be a citizen of the United States or an qualified alien as defined in the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA). The Department must have documentation to confirm the child’s United States citizenship or qualified alien status;

(iii) The child must be unable to return to the home of the parents; and

(iv) The child must meet the special needs criteria set forth in this chapter.

004.04(B) GENERAL ELIGIBILITY CRITERIA. In order for a child to qualify for an Adoption Assistance Agreement, in addition to the eligibility criteria for the child, the following criteria must be met:

(1) The Adoptive Parents meet the criteria set forth in the criminal records check section of this chapter;

(2) The family's circumstances necessitate an Adoption Assistance Agreement as set forth in this chapter; and

(3) Efforts were made to place the child without an Adoption Assistance Agreement.

004.04(B)(i) EXCEPTION TO EFFORTS. Efforts to place the child without an Adoption Assistance Agreement are not required if the Department determines it would not be in the best interests of the child.

004.04(C) SPECIAL NEEDS CRITERIA. To be eligible for an Adoption Assistance Agreement, the child that is the subject of the Adoption Assistance Agreement must meet at least one of the following special needs criteria:

(1) The child is age eight (8) or older;

(2) The child is a member in a sibling group of three or more and the adoptee and at least two of the siblings are placed in the same adoptive home;

(3) A Medical or Mental Health Professional has diagnosed the child with a behavioral, emotional, physical or mental disability; or

(4) A Medical or Mental Health Professional has determined the child to be at risk of a behavioral, emotional, physical or mental disability.

004.02(C)(i) DOCUMENTATION OF DIAGNOSIS. Documentation of a Medical or Mental Health Professional’s diagnosis or determination of risk must be less than six months old at the time the Adoption Assistance Agreement is signed by both parties.

004.04(D) FAMILY CIRCUMSTANCES. For a child to be eligible for an Adoption Assistance Agreement, the Adoptive Parent(s) must verify that the adoption cannot occur without an Adoption Assistance Agreement because the child’s present and anticipated future needs have been determined to exceed the family’s ability to meet those needs. Any adoption assistance payment that is agreed upon is not intended to cover all the costs of care of the child, but is for the purpose of assisting with the costs of care.

004.04(E) PARENT ELIGIBILITY. No parent is eligible for an Adoption Assistance Agreement on behalf of his or her child, even if parental rights have been relinquished or terminated. No stepparent is eligible for an Adoption Assistance Agreement on behalf of his or her stepchild.

004.05 ADOPTION ASSISTANCE AGREEMENT PROVISIONS. An Adoption Assistance Agreement may include one or more of the following:

(1) An adoption assistance payment negotiated between the Department and the Adoptive Parent(s) in accordance with the Department’s established rate determination tool. In no case may the amount of the adoption assistance payment exceed the foster care maintenance payment which would have been paid by the Department if the child with respect to whom the adoption assistance payment is made had been in a foster family home;

(2) Special services payments made for a specific service or item related to the child’s needs for a specified period of time. No special services payments will be included if other resources or programs are available to assist with the services; or

(3) Non-recurring adoption expenses, including but not limited to:

(i) Legal fees directly related to the adoption of the child; and

(ii) Funeral assistance if the child being adopted is diagnosed by a medical professional as being terminally ill and the life expectancy of the child is less than 20 years old.

004.05(A) ADOPTION ASSISTANCE PAYMENTS. The following provisions apply to adoption assistance payments.

004.05(A)(i) DEDUCTIONS FROM PAYMENTS. Any other maintenance payments received for the child, such as Social Security Disability Insurance benefits or survivor benefits, Supplemental Security Income, Veteran’s Administration benefits, or Aid to Dependent Children benefits, will be deducted from the agreed to adoption assistance payment.

004.05(A)(ii) USE OF ASSISTANCE. An Adoptive Parent who receives an adoption assistance payment shall use the adoption assistance funds for the benefit of the child. The Department will consider use of the adoption assistance funds on the following supports and services as using the funds for the benefit of the child:

(1) Clothing purchases;

(2) Incidental items;

(3) Insurance;

(4) Food;

(5) Housing, other than maintenance of the Adoptive Parent’s home;

(6) Education;

(7) Medical expenses;

(8) Child support payments; or

(9) Transportation.

004.06 DESIGNATION OF A GUARDIAN. An Adoptive Parent who enters into an Adoption Assistance Agreement with the Department must designate a guardian for the child in case of the death of the Adoptive Parent(s). Payment of the adoption assistance will cease upon the death of the Adoptive Parent(s) unless the Adoption Assistance Agreement provides for assignment to a guardian or conservator. In the event an individual who was previously a legal parent for the child is appointed as guardian for the child, even if parental rights have been terminated or relinquished, payment of the adoption assistance must cease.

004.06(A) EXCEPTION. Adoption assistance payments can continue for up to six months following the death of the Adoptive Parent(s) pending the appointment of a guardian or conservator if the child is placed in the temporary custody of a family member or other individual. In the event this child is placed in the custody of an individual who was previously a legal parent for the child, even if parental rights have been terminated or relinquished, the adoption assistance payment will cease.

004.07 REVIEW. The Adoption Assistance Agreement will be reviewed every twelve months to determine:

(1) That the child continues to be a legal dependent of the Adoptive Parent(s);

(2) The Adoptive Parents continue to use the adoption assistance payments for the benefit of the child; and

(3) That the child continues to need the provisions of the Adoption Assistance Agreement.

004.07(A) REVIEW TIME FRAMES. At the time of review, the Adoptive Parent(s) will receive a written notice of the Adoption Assistance Agreement review and a review form from the Department. The Adoptive Parent(s) must return the review form to the Department within 30 days of the date of the notice or the Department may suspend the adoption assistance payments.

004.07(B) SUSPENSION AFTER REVIEW. If the Department is unable to verify whether the Adoptive Parent is legally responsible for the child or using the adoption assistance payment for the benefit of the child, the Department may suspend issuance of the adoption assistance payment until verification is received.

004.07(C) OVERPAYMENTS. The Department may take all reasonable steps necessary to correct overpayments. Overpayments may be recouped from any future payments to the individual that received the overpayment, even if the future payments are for a different child or Young Adult.

004.08 CHANGE IN ADOPTION ASSISTANCE AGREEMENT PROVISIONS. Adoptive Parents may request a change in the Adoption Assistance Agreement provisions by submitting a written request on the Department approved form. Adoption Assistance Agreement provisions may be modified if the Department determines an amended agreement is necessary based on a change in family circumstances, a change in the child’s special needs or a change in law or regulation.

004.08(A) INCREASE IN ADOPTION ASSISTANCE PAYMENT. The Adoptive Parent(s) may request an increase in the adoption assistance payment. The Adoptive Parent(s) must provide documentation to support the need for an increase in the payment. The amount of the adoption assistance payment must not exceed the amount the child would have received in foster care at the time of the request.

004.08(B) CHANGE IN SPECIAL SERVICES. Special services may be added to an Adoption Assistance Agreement when the Department determines there is a change in family circumstances or a change in the child’s special needs.

004.09 EXTENDED ADOPTION ASSISTANCE. A Young Adult is eligible to participate in the extended adoption assistance program if:

(1) The Young Adult is at least 19 years of age but less than 21 years of age;

(2) The Young Adult was the subject of an Adoption Assistance Agreement that took effect after the Young Adult had attained 16 years of age;

(3) The Young Adult was the subject of the subsidized Adoption Assistance Agreement until 19 years of age;

(4) The Young Adult was previously adjudicated to be within the meaning of Neb. Rev. Stat. § 43-247(3)(a) or the equivalent under tribal law;

(5) The Young Adult meets the education or employment criteria for the Bridge to Independence program; and

(6) The Young Adult is not participating in the Bridge to Independence program.

004.09(A) USE OF ASSISTANCE. An Adoptive Parent who receives payment of extended adoption assistance shall use the adoption assistance funds for the benefit of the Young Adult. The Department will consider use of the adoption assistance funds on the following supports and services as using the funds for the benefit of the Young Adult:

(i) Clothing purchases;

(ii) Incidental items;

(iii) Insurance;

(iv) Food;

(v) Housing, other than maintenance of the adoptive parent’s home;

(vi) Education;

(vii) Medical expenses;

(viii) Child Support Payments;

(ix) Transportation; or

(x) Other services and supports the Department determines will help the young adult transition into adulthood.

004.10 SUSPENSION OF ADOPTION ASSISTANCE PAYMENT. The Department may suspend the adoption assistance payment when:

(1) The Department determines the Adoptive Parents are not using the adoption assistance payment for the benefit of the child; or

(2) The Department is unable to determine whether the Adoptive Parents are using the adoption assistance payment for the benefit of the child.

004.10(A) ADOPTION ASSISTANCE PAYMENT WHEN CHILD IS OUT OF HOME. When the child is no longer residing in the home of the Adoptive Parent(s), the adoption assistance payment may be reduced or terminated. To continue to receive an adoption assistance payment, the Adoptive Parent(s) must provide documentation to the Department proving the amount of financial support used to benefit the child for each month. The Department will determine the amount of the adoption assistance payment based on the documentation provided by the Adoptive Parent(s).

004.10(A)(i) EXCEPTION. When the Adoption Assistance Agreement is IV-E funded, the adoption assistance payment will be reduced only when agreed to in writing by the Adoptive Parent(s).

004.11 REINSTATEMENT OF ADOPTION ASSISTANCE PAYMENT. When an adoption assistance payment has been suspended or reduced, the full adoption assistance payment may be reinstated when the Department determines the basis for suspension or reduction in payment has been resolved. An adoption assistance payment cannot be reinstated if the Adoptive Parents who entered into the current adoption assistance agreement are no longer the legal parents of the child.

004.12 TRANSFER OF ADOPTION ASSISTANCE AGREEMENT. An Adoption Assistance Agreement may not be transferred to new Adoptive Parents.

004.13 FUNDING AFTER AGE 18. A child’s eligibility for a Title IV-E Adoption Assistance Agreement must be re-determined when the child turns 18 years of age. This determination should occur immediately prior to the child turning age 18. If the child no longer continues to meet the Title IV-E eligibility requirements as set forth in 42 USC 673, Section 473 of the Social Security Act, the child’s Adoption Assistance Agreement will no longer be covered by the Social Security Act and the Title IV-E Adoption Assistance Agreement will become a Nebraska Adoption Assistance Agreement.

005. ADOPTION ASSISTANCE FOR WARDS OF A LICENSED CHILD PLACEMENT AGENCY . All Adoption Assistance Agreement for children who are not in the custody of the Department and are in the custody of a child placement agency at the time the adoption is entered are subject to the provisions of this section.

005.01 APPROVAL BEFORE ADOPTION DECREE. The Adoption Assistance Agreement must be signed by the Adoptive Parent(s) and the Department prior to the date of adoption. If two individuals are adopting the child, both individuals must sign the agreement. The adoption must occur within six months of the Adoption Assistance Agreement being signed by all parties. If the adoption does not occur within the six month time frame, the Adoption Assistance Agreement is no longer valid and a new application must be submitted by the Adoptive Parent(s).

005.02 ADOPTION ASSISTANCE APPLICATION. An application for an Adoption Assistance Agreement must be submitted by the Adoptive Parent(s) prior to finalization of the adoption. Eligibility will be determined based on the factors set forth in this section.

005.03 ELIGIBILITY FOR ADOPTION ASSISTANCE AGREEMENT. To be eligible for an Adoption Assistance Agreement, the following criteria must be met:

(1) The child must:

(a) Be a ward of a licensed child placing agency;

(b) Be age 18 or younger;

(c) Be a citizen of the United States or a qualified alien as defined in the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA) and the Department must have documentation to confirm the child’s United States citizenship or qualified alien status;

(d) Be unable to return to the home of the parents;

(e) Meet the special needs criteria set forth in this section; and

(f) Meet the Title IV-E eligibility requirements as set forth in 42 USC 673, Section 473 of the Social Security Act;

(2) The Adoptive Parents meet the criteria set forth in the criminal records check section of this chapter;

(3) The Department must be provided documentation verifying that efforts were made to place the child without adoption assistance; and

(4) The family's circumstances necessitate adoption assistance as set forth in this chapter.

005.03(A) SPECIAL NEEDS. To be eligible for an Adoption Assistance Agreement, the child that is the subject of the Adoption Assistance Agreement must meet at least one of the following special needs criteria:

(i) The child is age eight (8) or older;

(ii) The child is a member in a sibling group of three or more and the adoptee and at least two of the siblings are placed in the same adoptive home; or

(iii) A Medical Professional has diagnosed the child with a behavioral, emotional, physical or mental disability.

005.03(B) FAMILY CIRCUMSTANCES. For a child to be eligible for an Adoption Assistance Agreement, the Adoptive Parent(s) must verify that the adoption cannot occur without an Adoption Assistance Agreement because the child’s present needs have been determined to exceed the family’s ability to meet those needs. Any adoption assistance payment that is agreed upon is not intended to cover all the costs of care of the child, but is for the purpose of assisting with the costs of care.

005.03(C) PARENT ELIGIBILITY. No parent is eligible for an Adoption Assistance Agreement on behalf of his or her child, even if parental rights have been terminated or relinquished. No stepparent is eligible for an Adoption Assistance Agreement on behalf of his or her stepchild.

005.04 CHILD PLACED ACROSS STATE LINES. If a child is placed across state lines and is in the custody of a private child placing agency, the Adoptive Parent must apply for adoption assistance in his or her state of residence. That state is responsible for determining whether the child qualifies for an Adoption Assistance Agreement under that state’s applicable laws.

005.05 ADOPTION ASSISTANCE AGREEMENT PROVISIONS. An Adoption Assistance Agreement may include one or more of the following:

(3) Non-recurring adoption expenses, including but not limited to:

(a) Legal fees directly related to the adoption of the child; and

(b) Funeral assistance if the child being adopted is diagnosed by a medical professional as being terminally ill and the life expectancy of the child is less than 20 years old.

005.05(A) DEDUCTIONS FROM PAYMENTS. Any other maintenance payments received for the child, such as Social Security Disability Insurance benefits or survivor benefits, Supplemental Security Income, Veteran’s Administration benefits or Aid to Dependent Children benefits, will be deducted from the agreed to adoption assistance payment.

005.05(B) USE OF ASSISTANCE. An Adoptive Parent who receives an adoption assistance payment shall use the adoption assistance payment for the benefit of the child. The Department will consider use of the adoption assistance payment on the following supports and services as using the payment for the benefit of the child:

(i) Child support payments;

(ii) Clothing purchases;

(iii) Incidental items;

(iv) Insurance;

(v) Food;

(vi) Housing, other than maintenance of the adoptive parent’s home;

(vii) Education;

(viii) Medical expenses;

(ix) Transportation; or

(x) Other services and supports the Department determines will help the young adult transition into adulthood.

005.06 DESIGNATION OF GUARDIAN. An Adoptive Parent who enters into an Adoption Assistance Agreement with the Department must designate a guardian for the child in case of the death of the Adoptive Parent(s). Adoption assistance payments will cease upon the death of the Adoptive Parent(s) unless the Adoption Assistance Agreement provides for assignment to a guardian or conservator. In the event an individual who was previously a legal parent for the child is appointed as guardian for the child, even if parental rights have been terminated or relinquished, payment of the adoption assistance must cease.

005.06(A) EXCEPTION. Adoption assistance payments can continue for up to six months following the death of the Adoptive Parent(s) pending the court appointment of a guardian or conservator, if the child is placed in the temporary custody of a family member or other individual. In the event this child is placed in the custody of an individual who was previously a legal parent for the child, even if parental rights have been terminated or relinquished, payment of the adoption assistance will cease.

005.07 REVIEW. The Adoption Assistance Agreement will be reviewed every twelve months to determine:

(1) That the child continues to be a legal dependent of the Adoptive Parent(s);

(2) The Adoptive Parents continue to use the adoption assistance for the benefit of the child; and

(3) That the child continues to need the provisions of the Adoption Assistance Agreement.

005.07(A) TIME FRAMES. At the time of review, the Adoptive Parent(s) will receive a written notice of the Adoption Assistance Agreement review and a review form from the Department. The Adoptive Parent(s) must return the review form to the Department within 30 days of the date of the notice or the Department may suspend the adoption assistance payments.

005.07(B) SUSPENSION AFTER REVIEW. If the Department is unable to verify whether the Adoptive Parent is legally responsible for the child or using the adoption assistance payment for the benefit of the child, the Department may suspend issuance of the adoptive assistance payment until verification is received.

005.07(C) OVERPAYMENTS. The Department may take all reasonable steps necessary to correct overpayments. Overpayments may be recouped from any future payments to the individual that received the overpayment, even if the future payments are for a different child or Young Adult.

005.08 CHANGE IN ADOPTION ASSISTANCE AGREEMENT PROVISIONS. Adoptive Parents may request a change in the Adoption Assistance Agreement provisions by submitting a written request on the Department approved form. Adoption Assistance Agreement provisions may be modified if the Department determines an amended agreement is necessary based on a change in family circumstances, a change in the child’s special needs or a change in law or regulation.

005.08(A) INCREASE IN ADOPTION ASSISTANCE PAYMENT. The Adoptive Parent(s) may request an increase in the adoption assistance payment. The Adoptive Parent(s) must provide documentation to support the need for an increase in the payment. The amount of the adoption assistance payment must not exceed the amount the child would have received in foster care at the time of the request.

005.08(B) CHANGE IN SPECIAL SERVICES. Special services may be added to an Adoption Assistance Agreement when the Department determines there is a change in family circumstances or a change in the child’s special needs.

005.08(C) EXTENSION TO AGE 19. Adoption Assistance Agreements entered into under this section terminate at age 18, unless the Adoptive Parents request to extend the Adoption Assistance Agreement to age 19 and the child continues to meet the Title IV-E eligibility requirements as set forth in 42 USC 673, Section 473 of the Social Security Act.

005.09 SUSPENSION OF ADOPTION ASSISTANCE PAYMENT. The Department may suspend the adoption assistance payment when:

(1) The Department determines the Adoptive Parents are not using the adoption assistance payment for the benefit of the child; or

(2) The Department is unable to determine whether the Adoptive Parents are using the adoption assistance payment for the benefit of the child.

005.09(A) ADOPTION ASSISTANCE PAYMENT WHEN CHILD IS OUT OF HOME. When the child is no longer residing in the home of the Adoptive Parent(s), the adoption assistance payment may be reduced or terminated. To continue to receive an adoption assistance payment, the Adoptive Parent(s) must provide documentation to the Department proving the amount of financial support used to benefit the child for each month. The Department will determine the amount of the adoption assistance payment based on the documentation provided by the Adoptive Parent(s).

005.09(A)(i) EXCEPTION. When the Adoption Assistance Agreement is IV-E funded, the adoption assistance payment will be reduced only when agreed to in writing by the Adoptive Parent(s).

005.10 REINSTATEMENT OF ADOPTION ASSISTANCE PAYMENT. When an adoption assistance payment has been suspended or reduced, the full adoption assistance payment may be reinstated when the Department determines the basis for suspension or reduction in payment has been resolved. An adoption assistance payment cannot be reinstated if the Adoptive Parents who entered into the current adoption assistance agreement are no longer the legal parents of the child.

005.11 TRANSFER OF ADOPTION ASSISTANCE AGREEMENT. An Adoption Assistance Agreement may not be transferred to new Adoptive Parents.

006. ADOPTION ASSISTANCE AGREEMENTS WHEN MOVING FROM GUARDIANSHIP TO ADOPTION .

006.01 APPROVAL BEFORE ADOPTION DECREE. The Adoption Assistance Agreement must be signed by the Adoptive Parent(s) and DHHS prior to the date of adoption. If two individuals are adopting a child, both individuals must sign the agreement. The adoption must occur within six months of the Adoption Assistance Agreement being signed by all parties. If the adoption does not occur within the six month time frame, the Adoption Assistance Agreement is no longer valid and a new application must be submitted by the Adoptive Parent(s).

006.02 ADOPTION ASSISTANCE APPLICATION. An application for an Adoption Assistance Agreement must be submitted by the Adoptive Parent(s) prior to finalization of the adoption. Eligibility will be determined based on the factors set forth in this section.

006.03 ELIGIBILITY. To be eligible for an Adoption Assistance Agreement under this section:

(A) The child that is the subject of the Adoption Assistance Agreement must be the subject of a subsidized guardianship agreement or guardianship assistance agreement with the Department at the time the adoption is finalized;

(B) The child that is the subject of the Adoption Assistance Agreement will be adopted by an individual who signed the subsidized guardianship agreement or guardianship assistance agreement; and

006.04 PARENT ELIGIBILITY. A parent is not eligible for an Adoption Assistance Agreement on behalf of his or her child, even if parental rights have been terminated or relinquished. A stepparent is not eligible for an adoption assistance agreement on behalf of his or her stepchild.

006.05 ADOPTION ASSISTANCE AGREEMENT PROVISIONS. The provisions of the Adoption Assistance Agreement will be the same provisions included in the guardianship assistance agreement or guardianship subsidy, except any provision related to Medicaid. A child’s eligibility for Medicaid will be determined based on Nebraska Medicaid laws and regulations. An Adoption Assistance Agreement may include one or more of the following:

(1) An adoption assistance payment as set forth in the guardianship assistance agreement or guardianship subsidy. In no case may the amount of the adoption assistance payment exceed the foster care maintenance payment which would have been paid by the Department if the child with respect to whom the adoption assistance payment is made had been in a foster family home;

(2) Special services payments made for a specific service or item if it is a provision included in the active guardianship agreement; or

(3) Non-recurring adoption expenses, including but not limited to:

(a) Legal fees directly related to the adoption of the child; or

(b) Funeral assistance if it is a provision included in the active guardianship agreement.

006.05(A) DEDUCTIONS FROM PAYMENTS. Any other maintenance payments received for the child, such as Social Security Disability Insurance benefits or survivor benefits, Supplemental Security Income, Veteran’s Administration benefits or Aid to Dependent Children benefits, will be deducted from the agreed to adoption assistance payment.

006.05(B) USE OF ASSISTANCE. An Adoptive Parent who receives an adoption assistance payment shall use the adoption assistance payment for the benefit of the child. The Department will consider use of the adoption assistance payment on the following supports and services as using the payment for the benefit of the child:

(i) Child support payments;

(ii) Clothing purchases;

(iii) Incidental items;

(iv) Insurance;

(v) Food;

(vi) Housing, other than maintenance of the guardian’s home;

(vii) Education;

(viii) Medical expenses;

(ix) Transportation; or

(x) Other services and supports the Department determines will help the child transition into adulthood.

006.06 GOVERENED BY PRIOR SECTION. When a child is eligible for an Adoption Assistance Agreement under this section, once the Adoption Assistance Agreement and adoption are finalized, the agreement will become subject to all regulations in this chapter governing Adoption Assistance Agreements for children in the custody of the Department, unless otherwise set forth in this section.

007. RETROACTIVE ADOPTION ASSISTANCE AGREEMENTS . All retroactive Adoption Assistance Agreements will be Nebraska Adoption Assistance Agreements. To be eligible for a retroactive Adoption Assistance Agreement all provisions of this section must be met.

007.01 ELIGIBILITY OF CHILD. A child who has already been adopted may be eligible for a retroactive Adoption Assistance Agreement if the following conditions are met:

(1) The child was in the custody of the Department at the time the adoption was finalized;

(2) The child is a citizen of the United States or a qualified alien as defined in the Personal Responsibility and Work Opportunity Act of 1996 and the Department has documentation to confirm the child’s citizenship or qualified alien status;

(3) The Adoptive Parent(s) contacted the Department and made a written request for an Adoption Assistance Agreement within three (3) years from the date the adoption was finalized;

(4) The child has been diagnosed with a physical or mental illness or condition that predates the adoption and the Department did not inform the adopting parents of such condition prior to the adoption, including when the Department did not have knowledge of the child’s illness or condition prior to the adoption; and

(5) The Department has been provided documentation from a Medical or Mental Health Professional that the child’s illness or condition predated the adoption, is of such nature as to require medical, psychological, or psychiatric treatment and is more extensive than ordinary childhood illness.

007.01(A) REQUIRED DOCUMENTATION. The following documentation from a Medical or Mental Health Professional is required in order to meet the eligibility requirements of this section:

(i) The child’s diagnosis;

(ii) The prognosis and treatment recommendations for the diagnosed illness or condition;

(iii) The length of anticipated treatment; and

(iv) Written confirmation that the illness or condition predated the adoption and is more extensive than ordinary childhood illness.

007.02 RETROACTIVE ADOPTION ASSISTANCE AGREEMENT PROVISIONS. A retroactive Adoption Assistance Agreement may include one or more of the following:

(3) Non-recurring adoption expenses, including but not limited to:

(a) Legal fees directly related to the adoption of the child; and

(b) Funeral assistance if the child being adopted is diagnosed by a medical professional as being terminally ill and the life expectancy of the child is less than 20 years old; or

(4) Reimbursement for or payment of medically necessary medical, psychological, or psychiatric treatment costs for the care of the eligible child which are the result of the child’s diagnosed illness or condition that predated the adoption.

007.02(A) PAYMENT OF TREATMENT COSTS. When treatment costs are included as a provision in the retroactive Adoption Assistance Agreement the provisions of this section apply.

007.02(A)(i) HEALTH INSURANCE. The family’s health insurance will be billed before the Department will pay treatment costs. If the child is Medicaid eligible, Medicaid benefits must be exhausted before payment of treatment costs will be paid under the Adoption Assistance Agreement.

007.02(A)(ii) EFFECTIVE DATE. A child whose retroactive Adoption Assistance Agreement includes payment of treatment costs, will be eligible for payment of treatment costs that are incurred beginning on the date the written request for adoption assistance is received by the Department.

007.02(A)(iii) MEDICALLY NECESSARY. For the treatment to be considered medically necessary, the treatment services must be recommended in writing by a Medical or Mental Health Professional no more than 90 days prior to the start of the treatment services. Treatment services must be provided in a manner consistent with the Medicaid laws of the state in which the treatment is provided.

007.02(A)(iii)(1) RESIDENTIAL TREATMENT FACILITIES. For treatment costs in a residential treatment center or a psychiatric residential treatment facility to be considered medically necessary, the following provisions must be met:

(a) The residential treatment center or psychiatric residential treatment facility must be licensed or approved for therapeutic or psychiatric care by the Division of Public Health of the Nebraska Department of Health and Human Services or the equivalent state agency or department in the state where the treatment facility is located;

(b) The residential treatment service is anticipated to result in progress which will enable the child to return to the family or community;

(c) Less restrictive care or treatment alternatives are not appropriate or available or have declined to provide treatment for the child; and

(d) The family must continue to support the child during treatment, including planning for the child’s reintegration into the family home.

007.02(A)(iv) PARTICIPATION IN SERVICES. When the Department is paying for treatment services, the child’s family must participate in the child’s treatment services when it is recommended in the child’s treatment plan.

007.02(A)(v) PAYMENTS ISSUED TO PROVIDER. Payment for the child’s treatment services will be made directly to the service provider. In the event a provider will not accept payment from the Department, the Department may reimburse the family directly when proof of payment to the service provider is received by the Department.

008. CRIMINAL RECORDS CHECK REQUIRMENTS . The Adoptive Parents and any individual 18 years of age or older residing in the Adoptive Parents’ household must submit to the records checks set forth in this chapter and meet the approval requirements of this section in order for the Department to enter into an Adoption Assistance Agreement with the Adoptive Parents.

008.01 RECORDS TO BE SEARCHED. The Adoptive Parents and any individual 18 years of age or older residing in the Adoptive Parents’ household must consent to the Department receiving all background checks identified in this section. For each Adoptive Parent and any individual 18 years of age or older residing in the Adoptive Parents’ household the following checks will be reviewed by the Department:

(A) State Central Register or Registry of child protection maintained by any state in which the individual has lived within the past 5 years;

(B) Nebraska Adult Protective Services Central Registry;

(D) National Sex Offender Registry;

(E) State-level criminal history; and

(F) Fingerprint-based National Criminal History Check.

008.02 CRIMINAL RECORDS APPROVAL REQUIREMENTS. If the Adoptive Parents or any individual 18 years of age or older residing in the Adoptive Parents’ household have a criminal history or history of child abuse or neglect, the Department will determine whether to enter into an Adoption Assistance Agreement based on the provisions in this section.

008.02(A) ADOPTION ASSISTANCE AGREEMENT NOT AUTHORIZED. The Adoptive Parent(s) cannot enter into an Adoption Assistance Agreement with the Department when:

(i) Any Adoptive Parent has been convicted of a felony involving abuse or neglect of a child or a vulnerable adult, spousal abuse, a crime against a child or children, or a crime of violence including rape, sexual assault, or homicide, but not including other physical assault or battery;

(ii) Any Adoptive Parent is identified as a perpetrator on a child abuse and neglect central registry or an adult abuse and neglect central registry; or

(iii) Any Adoptive Parent has a conviction date within the past five years for a felony involving a drug-related offense, physical assault or battery.

008.03 TIME FRAME FOR CRIMINAL RECORDS CHECK. To meet the requirements of this chapter, the results of the criminal records checks for each individual are valid for two years from the date the results were issued. If the Adoption Assistance Agreement is not signed by all parties during the time frame when the results are valid, new criminal records checks will be required.

009. CHANGE IN PARENT INFORMATION . An Adoption Assistance Agreement may be modified to add parents subject to the provisions in this section.

009.01 STEPPARENT. A Stepparent may be added to the Adoption Assistance Agreement when:

(A) The Stepparent has adopted the child;

(B) The Adoptive Parent who entered into the current Adoption Assistance Agreement requests to have the stepparent added;

(D) The Department is provided a copy of the adoption decree; and

(E) An amended Adoption Assistance Agreement is signed by both the parent and the stepparent.

009.02 EFFECT OF DIVORCE ON AGREEMENT. If the Adoptive Parents that entered into the current Adoption Assistance Agreement divorce, the Adoptive Parent who is awarded legal custody of the child in the court order will be the Adoptive Parent to whom the adoption assistance payment is made. In the event the Adoptive Parents are awarded joint legal custody, payment will continue to be made in the same manner as before the divorce, unless both Adoptive Parents agree in writing that a change in payee should occur.

010. TERMINATION OF ADOPTION ASSISTANCE AGREEMENT . This section applies to all Adoption Assistance Agreements. An Adoption Assistance Agreement terminates when:

(A) All Adoptive Parents who have entered into the Adoption Assistance Agreement request termination of the agreement;

(B) The Adoption Assistance Agreement does not include a designation of guardian or conservator as allowed by state law and the Adoptive Parents are deceased;

(D) The child dies;

(E) The child becomes an emancipated minor;

(F) The child marries or enlists in the military; or

(G) The Department determines the Adoptive Parents are not legally responsible for the support of the child as a result of a termination of parental rights or a relinquishment of parental rights.

010.01 AGE EXCEPTION. When a child reaches age 19, the Adoption Assistance Agreement will not terminate if the child is eligible for and enrolls in the extended adoption assistance program. The Adoption Assistance Agreement will terminate when the child is no longer enrolled in or eligible for the extended adoption assistance program.

011. RIGHT TO APPEAL . An adoptive family has the right to request a fair hearing as allowed by law, including, but not limited to, when:

(1) The Adoptive Parent disagrees with the determination by the Department that a child is ineligible for adoption assistance;

(2) The Adoptive Parent disagrees with the adoption assistance payment determined by the Department;

(3) The Adoptive Parent disagrees with the determination by the Department that a child is not IV-E eligible;

(4) The Adoptive Parent was denied adoption assistance based on a means test of the Adoptive Parents' income;

(5) The Department reduces or terminates the Adoption Assistance Agreement;

(6) Facts about the child's special needs were not presented to the Adoptive Parents prior to finalization of the adoption;

(7) The Adoptive Parents were not informed they could apply for an Adoption Assistance Agreement when the child was in the Department's custody;

(8) The Department denied the Adoptive Parents' request for an increase in adoption assistance payment due to a change in the Adoptive Parents' circumstances; or

(9) The Department has denied payment for treatment services under the provisions of a retroactive adoption assistance agreement.

011.01 APPEAL TIME FRAME. The appeal must be filed in writing within 90 days of when the action or inaction of the Department is known or should’ve been known by the Adoptive Parent(s). No change in coverage will occur while the appeal is pending.

History

Effective 2021-09-04

Neb. Admin. Code tit. 479 — Child Welfare Payments

Chapter 1 Maintenance Payments and Guardianship Accounts

Neb. Admin. Code tit. 479, ch. 1 Maintenance Payments and Guardianship Accounts {#sec-479-nac-1 omnilex-key=us-ne-regs-official--title-479--479 NAC 1}

Chapter 7 Guardianship Assistance Program

Neb. Admin. Code tit. 479, ch. 7 Guardianship Assistance Program {#sec-479-nac-7 omnilex-key=us-ne-regs-official--title-479--479 NAC 7}

Chapter 8 Adoption Assistance Program

Neb. Admin. Code tit. 479, ch. 8 Adoption Assistance Program {#sec-479-nac-8 omnilex-key=us-ne-regs-official--title-479--479 NAC 8}

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