N.Y. Social Services Law § 453: Maintenance subsidy; handicapped or hard to place child

§ 453. Maintenance subsidy; handicapped or hard to place child. 1. (a)

A social services official shall make monthly payments for the care and

maintenance of a handicapped or hard to place child whom a social

services official has placed for adoption or who has been adopted and

for the care and maintenance of a handicapped or hard to place child

placed for adoption by a voluntary authorized agency who is residing in

such social services district. Where a handicapped or hard to place

child is placed in an adoptive placement outside the state, monthly

payments for the care and maintenance of the child shall be made by the

social services official placing the child or in whose district the

voluntary authorized agency maintains its principal office. Such

payments shall be made until the child's twenty-first birthday to

persons with whom the child has been placed, or to persons who have

adopted the child and who applied for such payments prior to the

adoption, pursuant to a written agreement therefor between such official

or agency and such persons; provided, however, that an application may

be made subsequent to the adoption if the adoptive parents first become

aware of the child's physical or emotional condition or disability

subsequent to the adoption and a physician certifies that the condition

or disability existed prior to the child's adoption. The social services

official shall consider the financial status of such persons only for

the purpose of determining the amount of the payments to be made,

pursuant to subdivision three of this section. Upon the death of persons

who have adopted the child prior to the twenty-first birthday of the

child, such payments shall continue to the legal guardian or custodian

of the child under the age of eighteen upon issuance of letters of

guardianship or order of custody and shall continue until the child

shall attain the age of twenty-one. If the guardian or custodian was the

caretaker of the child under the age of eighteen prior to the issuance

of letters of guardianship or order of custody, such payments shall be

made retroactively from the death of the adoptive parent or parents.

(a-1) Payments pursuant to this section may be made by direct deposit

or debit card, as elected by the recipient, and administered

electronically, and in accordance with such guidelines as may be set

forth by regulation of the office of children and family services. The

office of children and family services may enter into contracts on

behalf of local social services districts for such direct deposit or

debit card services in accordance with section twenty-one-a of this

chapter.

(b) Any child with respect to whom federally reimbursable maintenance

subsidy payments are made under this subdivision shall be deemed to be a

recipient of aid to families with dependent children for purposes of

determining eligibility for medical assistance.

(c) No payments may be made pursuant to this subdivision if the social

services official determines that the adoptive parents are no longer

legally responsible for the support of the child or the child is no

longer receiving any support from such parents. For purposes of this

section:

(i) "any support" shall be limited to support that is directly for the

benefit of the adopted child that meets the food, clothing, education,

medical and shelter needs of the adopted child and that has an

identifiable value;

(ii) "no longer legally responsible for the support of the child"

means (A) the child has become legally emancipated, married or joined

the military; (B) a court has ruled that the adoptive parent is no

longer legally responsible for the support of the child; or (C) the

adoption is no longer legally valid by operation of law.

(c-1) The social services official on an annual basis shall:

(i) require adoptive parents to certify that they are fulfilling their

obligations pursuant to any adoption subsidy agreement entered into in

accordance with this section, including their obligation to provide

support for the child;

(ii) remind the adoptive parents of the following obligations, which

shall also be included in any agreement entered into with an adoptive

parent concerning payments made for the care and maintenance of the

child pursuant to this section:

(A) to support the child;

(B) to notify the social services official if the adoptive parents are

no longer providing any support of the child or are no longer legally

responsible for the support of the child; and

(C) to notify the social services official if: (I) another person has

been granted physical custody of the child; (II) another person has been

appointed guardian for the child; or (III) the child no longer resides

with the adoptive parents.

(c-2) (i) If the adoptive parents fail to respond to an annual

certification notice within thirty days of the receipt of the

certification notice from the social services official or the social

services official receives from any person information that provides

reasonable cause to suspect that the adoptive parents are no longer

providing any support to the child, the social services official shall

review whether the adoptive parents are legally responsible for the

support of the child and whether the child is receiving any support from

the adoptive parents. Circumstances in which the social services

official shall conduct this review include the following:

(A) the child has been placed in foster care;

(B) a person alleges to the social services official that:

(I) a person other than the adoptive parent has been granted legal

custody of the child;

(II) another person has been appointed guardian for the child; or

(III) the child is reported to no longer reside with the adoptive

parent.

(ii) The adoptive parents shall be given an opportunity to respond to

the notice. Upon receiving confirmation that the parents continue to

meet their legal obligations to provide support to the child, the

department will take no further action to terminate the subsidy. If the

parents fail to confirm that they continue to meet their legal

obligations to provide support to the child, the social services

official shall review all available information in order to confirm the

parents' continued eligibility to receive the subsidy.

(iii) If the child is not in foster care and, based on a review of the

available information, the social services official determines that the

adoptive parents are no longer legally responsible for the support of

the child or that the child is no longer receiving any support from the

adoptive parents, the social services official shall terminate the

subsidy provided to the adoptive parents pursuant to this section. The

adoptive parents may appeal the termination of subsidy to the department

in accordance with section twenty-two of this chapter.

(iv) If the child is in foster care and the social services official

determines that the child is no longer receiving any support from the

adoptive parents, the social services official may reduce, suspend, or

terminate the assistance provided to the adoptive parents pursuant to

this section. The adoptive parents may appeal the termination of

assistance to the department in accordance with section twenty-two of

this chapter. If assistance is reduced, suspended or terminated pursuant

to this paragraph and the child is returned from foster care to the care

of the adoptive parents, the social services official shall resume

assistance effective from the date when the child was returned to the

adoptive parent's care.

(d) Applications for such subsidies shall be accepted prior to the

commitment of the guardianship and custody of the child to an authorized

agency pursuant to the provisions of this chapter, and approval thereof

may be granted contingent upon such commitment.

(e) Upon the death of the sole or surviving adoptive parent or both

adoptive parents after the eighteenth birthday and before the

twenty-first birthday of the adopted child, where such adoptive parent

or parents were receiving adoption subsidy payments at the time of

death, such subsidy payments shall continue but shall be made to the

guardian of the child on behalf of such child, where the child consents

to the appointment of a guardian. Such subsidy payments shall be made

retroactively from the death of the adoptive parent or parents to the

appointment of a guardian, and shall continue until the twenty-first

birthday of the child. If, however, there is no willing or suitable

person to be appointed as guardian, or the child does not consent to the

appointment of a guardian, such subsidy payments shall be made

retroactively from the death of the adoptive parent or parents and shall

continue to be made until the twenty-first birthday of the child: (i)

through direct payments to the child, if the social services official

determines that the child demonstrates the ability to manage such direct

payments; or (ii) to a representative payee certified by the social

services official.

(f) Upon receipt of notification of the death of the sole or surviving

adoptive parent or both adoptive parents after the eighteenth birthday

and before the twenty-first birthday of the adopted child, where such

adoptive parent or parents were receiving adoption subsidy payments at

the time of death, the social services official shall notify the child

of: (i) the processes available to continue subsidy payments until the

twenty-first birthday of the child including appointment of a guardian

under the surrogate's court procedure act, application to be approved

for direct subsidy payments, or the appointment of a representative

payee; and (ii) the right of the child to be involved in all such

processes.

(g) Where the social services official has determined that the child

does not demonstrate the ability to manage direct subsidy payments, the

social services official shall certify payment to a representative payee

on behalf of the child. Subsidy payments received by the representative

payee shall be held and used strictly for the use and benefit of the

child. Designation of the appropriate entity or individual and

investigation of an individual for certification as a representative

payee shall be conducted by the social services official responsible for

payment of the adoption subsidy pursuant to this section.

(i) The social services official may designate an employee of the

social services district to be the representative payee responsible for

receipt of the adoption subsidy on behalf of the child only where the

official determines that such employee has no conflict of interest in

performing the duties and obligations as representative payee. If the

child resides in a social services district other than the district

responsible for payment of the adoption subsidy, the social services

district in which the child resides may be designated the representative

payee and a social services official of such district shall select an

employee of such social services district to be responsible for receipt

of the adoption subsidy as the representative payee, only where the

official determines that such employee has no conflict of interest in

performing the duties and obligations as a payee. Where a voluntary

authorized agency has a prior relationship with a child, or where the

social services district does not have sufficient or appropriate staff

available to perform the functions of the representative payee, the

social services district may contract with a voluntary authorized agency

as the representative payee on behalf of the child where the social

services district determines it would be in the best interests of the

child to do so.

(ii) The social services official may designate an individual for

certification as a representative payee who shall perform the functions

and duties of a representative payee in accordance with the best

interests of the child. In determining whether an individual is

appropriate to be certified as the representative payee, the social

services official shall first consult with the child and shall give the

child's preferences significant weight. The child's preference shall be

determinative of the representative payee only where such preference

does not conflict with the best interests of the child. Prior to

designation of an individual by the social services official for

certification as a representative payee, the social services official

shall:

(A) collect proof of identity and a verifiable social security number

of the nominated representative payee;

(B) conduct an in-person interview of the individual;

(C) investigate any potential conflicts of interest that may ensue if

such individual is certified; and

(D) determine the capabilities and qualifications of the individual to

manage the subsidy payment for the child.

(iii) (A) If, after completion of the investigation, the social

services official is satisfied that the individual is qualified,

appropriate and will serve the best interests of the child, the social

services official shall certify the selected individual as the

representative payee for the child.

(B) If the twenty-first birthday of the child occurs while awaiting

the certification of a representative payee, the child shall be entitled

to retroactive direct payment of subsidy payments since the death of the

adoptive parent or parents after the eighteenth birthday of the child.

(iv) The representative payee shall submit reports to the social

services official no less than once a year describing the use of the

payments in the preceding year. Such reports shall be submitted by

December thirty-first of each year. The social services official may

also request reports from time to time from the representative payee. If

a representative payee fails to submit a report, the social services

official may require that the representative payee appear in person to

collect payments. The social services official shall keep a centralized

file and update it periodically with information including the addresses

and social security or tax-payer identification numbers of the

representative payee and the child.

(v) The social services official shall revoke the certification of a

representative payee upon:

(A) determining that the representative payee has misused the payments

intended for the benefit of the child;

(B) the failure of the representative payee to submit timely reports

or appear in person as required by the social services official after

such failure; or

(C) the request of the child upon good cause shown.

(vi) The social services official shall notify the child of the

contact information of the representative payee within five days of

making a designation.

(vii) A child may appeal the refusal of the social services official

to certify the individual preferred by the child for certification as

the representative payee or revoke the certification of a representative

payee upon request of the child pursuant to section four hundred

fifty-five of this title.

2. Any agreement provided for in subdivision one of this section shall

be subject to the approval of the department upon the application of the

social services official; provided, however, that in accordance with the

regulations of the department, the department may authorize the social

services official to approve or disapprove the agreement on behalf of

the department. In either situation, if the agreement is not approved or

disapproved by the social services official within thirty days of

submission, the voluntary authorized agency may submit the agreement

directly to the department for approval or disapproval. If the agreement

is not disapproved in writing by the department within thirty days after

its submission to the department, it shall be deemed approved. Any such

disapproval shall be accompanied by a written statement of the reasons

therefor.

3. The amount of the monthly payment made pursuant to this section

shall be determined pursuant to regulations of the department and based

upon the financial need of such persons. The department shall review

such regulations annually. The amount of the monthly payment shall not

be less than seventy-five per centum of the board rate nor more than one

hundred per centum of such rate.

4. Except as may be required by federal law as a condition for federal

reimbursement of public assistance expenditures, payments under this

section shall not be considered for the purpose of determining

eligibility for public assistance or medical assistance for needy

persons.