1. (a)

   1. (1) The Division of Children and Family Services provides an adoption subsidy as a service to assist in making adoption possible for a child, who, with special needs, might not otherwise be adopted and for whom a family is not readily available.
   2. (2) A subsidy is allocated for the purpose of meeting the needs of the child.
   3. (3) In addition, payments for one-time expenses, known as a nonrecurring adoption subsidy, may be obtained in order to reimburse the family for out-of-pocket preadoptive or finalization expenditures.

2. (b)

   1. (1) A child must be legally free for adoption with parental rights terminated for an adoption subsidy to be put in place.

   2. (2) No payment may be made to parents with respect to any applicable child that:

      1. (A) Is not a citizen or resident of the United States;
      2. (B) Was adopted outside of the United States; or
      3. (C) Was brought into the United States for the purpose of being adopted.

   3. (3) A child that is not a citizen or resident of the United States, was adopted outside the United States, or brought into the United States for the purpose of being adopted, may become eligible for adoption assistance payments if:

      1. (A) The initial adoption of the child by the parents is a failure; and
      2. (B) The child is subsequently placed into foster care.
3. (c) A child in foster care placed in an adoptive home continues status as a child in foster care until finalization of the adoption and the adoption subsidy is initiated.
4. (d) Any individual who is adopting or who is considering adopting a child who is in foster care will be notified of their potential eligibility for a Federal Adoption Tax Credit.
5. (e) The adoptive parents are required to inform the Division of Children and Family Services of circumstances that would make them ineligible for adoption assistance payments or eligible for adoption assistance payments in a different amount.
6. (f) Adoption subsidies can be funded through federal Title IV-E adoption assistance or state funds depending on the child’s eligibility.
7. (g) Federal Title IV-E subsidy. To be eligible for federal Title IV-E adoption assistance, the child must meet the special needs determination and IV-E eligibility rules.

8. (h) Special needs determination. To be considered a child with special needs, a child must meet the criteria below:

   1. (1) The state has determined the child cannot or should not be returned to the home of his or her parents;

   2. (2)

      1. (A) The state has determined that a specific factor or condition, or combination of factors and conditions, make the child more difficult to place for adoption without providing Title IV-E adoption assistance or Title XIX medical assistance.
      2. (B) In Arkansas these factors are:

9. (i) A Caucasian child nine (9) years of age or older;

   1. (ii) A child of color who is two (2) years of age or older;

      1. (iii) A member of any sibling group being placed together, who share at least one (1) biological parent and who have either lived together or otherwise developed a bond prior to adoptive placement; or

         1. (iv)
10. (a) (a) A child with a severe medical or psychological need that requires ongoing rehabilitation or treatment.

11. (b) (b) Children at high risk for the development of a serious physical, mental, developmental, or emotional condition may also be considered special needs if documentation of the risk is provided by a medical professional specializing in the area of the condition for which the child is considered at risk, including children exposed to or affected by maternal misuse of substances at birth (Garrett’s Law).

    1. (c) (c) But no subsidy payment will be made without documentation that the child has developed the actual condition (see 9 CAR § 40-931); and

    2. (3)

       1. (A) The state must determine that in each case a reasonable, but unsuccessful, effort to place the child with appropriate parents without providing adoption assistance has been made such as the use of adoption exchanges, referral to appropriate specialized adoption agencies.
       2. (B) The exception to this requirement is when it would not be in the best interests of the child because of factors such as the existence of significant emotional ties with prospective adoptive parents while in the care of those parents as a foster child or adoption by a relative.

       3. (C)

          1. (i) In an effort to find an appropriate adoptive home for a child, and meet the requirement that a reasonable, but unsuccessful, effort be made to place the child without adoption assistance, the Division of Children and Family Services will not unnecessarily lengthen the child’s time in foster care in doing so.
          2. (ii) Once it is determined that placement with a certain family is in the child's best interest, the Division of Children and Family Services will continue to work toward adoption finalization.

       4. (D)

          1. (i) If it is determined that the child cannot or should not return home and the child meets the special needs definition, then the Adoption Specialist can pose the question of whether the prospective adoptive parents are willing to adopt without assistance.
          2. (ii) If they say they cannot adopt the child without adoption assistance, the requirement for a reasonable, but unsuccessful, effort to place the child without providing adoption assistance will be met.

       5. (E) It must be documented in each child's case record the specific factor or factors that make the child difficult to place and describe the efforts to place the child for adoption without providing assistance.

          1. (i) Title IV-E eligibility rules.
    3. (1) Once the above special needs criteria are met, there are six (6) ways by which a child can be eligible for Title IV-E adoption assistance.

    4. (2) The child only needs to qualify in one (1) of the following ways:

       1. (A)

          1. (i) The child is AFDC-eligible.
          2. (ii) Adoption assistance eligibility that is based on a child’s AFDC eligibility is predicated on a child meeting the criteria both at the time of removal and in the month the adoption petition is initiated.
          3. (iii) At the time adoption proceedings were initiated, the child must have been removed from the home of a specified relative as a result of a judicial determination to the effect that continuation therein would be contrary to the welfare of the child.
          4. (iv) For the purpose of adoption assistance, a child must meet the AFDC criteria in the specified relative’s home from which he or she is removed.
          5. (v) In addition, the special needs determination must be made prior to finalization of the adoption;

       2. (B)

          1. (i) The child is eligible for Supplemental Security Income (SSI) benefits.
          2. (ii) A child is eligible for adoption assistance if, at the time the adoption petition is filed, the child meets the requirements for Title XVI Supplemental Security Income benefits, and prior to the finalization of the adoption is determined by the state to be a child with special needs.
          3. (iii) There are no additional criteria that a child must meet to be eligible for Title IV-E adoption assistance when eligibility is based on a child with special needs meeting Supplemental Security Income requirements.
          4. (iv) Specifically, how a child is removed from his or her home or whether the state has responsibility for the child’s placement and care is irrelevant in this situation.
          5. (v) The child’s eligibility for Supplemental Security Income benefits must be established no later than at the time the adoption petition is filed;

       3. (C)

          1. (i) The child is eligible as a child of a minor parent.
          2. (ii) A child is eligible for Title IV-E adoption assistance in this circumstance if:
12. (a) (a) The child’s parent is in foster care and receiving Title IV-E foster care maintenance payments that cover both the minor parent and the child at the time the adoption petition is initiated; and

13. (b) (b) Prior to the finalization of the adoption, the child of the minor parent is determined by the state to meet the definition of a child with special needs.

    1. (iii) There is no requirement that a child must have been removed from the home as a result of a judicial determination.

       1. (iv) However, if the child and minor parent have been separated in foster care prior to the time of the adoption petition, the child’s eligibility for Title IV-E adoption assistance must be determined based on the child’s current and individual circumstances;

       2. (D)

          1. (i) Age at adoption.
          2. (ii) Beginning January 1, 2018 through June 30, 2024, all children age two (2) or older by the end of that fiscal year are eligible based on age.
          3. (iii) Starting July 1, 2024 all children will be eligible based on age.
          4. (iv) Younger children adopted with their age-eligible siblings are also IV-E eligible;

       3. (E)

          1. (i) Length of time in foster care.
          2. (ii) As of October 1, 2009, children with special needs who have been in care for at least sixty (60) consecutive months became eligible for IV-E adoption assistance.
          3. (iii) Siblings of these children will also be eligible (regardless of their length of time in care) if they are adopted with the eligible sibling; and

       4. (F)

          1. (i) The child is eligible due to prior Title IV-E adoption assistance eligibility.
          2. (ii) In the situation where a child is adopted and receives Title IV-E adoption assistance, but the adoption later dissolves or the adoptive parents die, a child may continue to be eligible for Title IV-E adoption assistance in a subsequent adoption.
          3. (iii) The only determination that must be made by the state prior to the finalization of the subsequent adoption is whether the child is a child with special needs.
          4. (iv) Need and eligibility factors must not be redetermined when such a child is subsequently adopted because the child is to be treated as though his or her circumstances are the same as those prior to his or her previous adoption.
          5. (v) Since Title IV-E adoption assistance eligibility need not be reestablished in such subsequent adoptions, the manner of a child’s removal from the adoptive home, including whether the child is voluntarily relinquished to an individual or private agency, is irrelevant.

14. (j) State subsidy.

    1. (1) A state funded adoption subsidy may be available to a child who is not IV-E eligible provided that the child is in Department of Human Services custody and meets the special needs definition.

    2. (2)

       1. (A) A state legal subsidy may be defined as the Office of Chief Counsel legal services provided for children in department custody.
       2. (B) A legal subsidy does not include the use of a private attorney.
       3. (C) The children are eligible for a legal subsidy whether or not they meet the criteria for special needs and without regard to eligibility for IV-E, state maintenance subsidy, or nonrecurring subsidy.

       4. (D) Adoption assistance payments may be terminated if it is determined that:

          1. (i) The child has attained eighteen (18) years of age;
          2. (ii) The parents are no longer legally responsible for the support of the child; or
          3. (iii) The child is no longer receiving support from the adoptive parents.

15. (k) Subsidy amount.

    1. (1) If eligible, the Division of Children and Family Services will make adoption assistance payments to adoptive parents in amounts so determined through an adoption assistance agreement.

    2. (2) The amount of such payment:

       1. (A) Will take into account the circumstances of the adopting parents and the needs of the child being adopted;
       2. (B) May be adjusted periodically with the concurrence of the adoptive parents to reflect changing circumstances; and
       3. (C) May not exceed the child’s foster care maintenance payment that is in effect at the time a subsidy is approved (if the child with respect to whom the adoption assistance payment is made had been in a resource home).

    3. (3)

       1. (A) The standard foster care maintenance board rate scale is found below.
       2. (B) New rates will not be paid until the child reaches the next age range.

          Age of Child	Amount of Monthly Maintenance
          Birth through five (5) years	$451.00
          Six (6) through eleven (11) years	$484.00
          Twelve (12) through fourteen (14) years	$517.00
          Fifteen (15) through seventeen (17) years	$550.00

    4. (4)

       1. (A) A request for a larger monthly adoption maintenance subsidy may be made for a child who has received a higher than standard monthly foster care board payment.
       2. (B) A monthly subsidy payment cannot exceed the child’s foster care board rate which is in effect at the time a subsidy is approved.

    5. (5)

       1. (A) Special board rate formulas and procedures will be used strictly as guides in determining an appropriate nonstandard rate to discuss with the family and to use in negotiating a lower subsidy rate (when appropriate).
       2. (B) No subsidy will exceed four hundred sixty dollars ($460) above the standard board rate for the child’s age group.
       3. (C) However, if the child is Supplemental Security Insurance eligible, the rate can go up four hundred and sixty dollars ($460) above the Supplemental Security Insurance rate.

    6. (6)

       1. (A) Special subsidies are state funded, and the Adoption Subsidy Coordinator, Adoption Services Unit, will consider the child’s eligibility on a case-by-case basis.
       2. (B) The consideration will be based on the information developed during the Adoption Specialist’s determination of the child’s special needs in relation to adoption planning.
       3. (C) The adoptive parent’s gross income will be considered, as well as other financial resources and health insurance, in determining eligibility for a special subsidy.

       4. (D) For more information, see 9 CAR § 40-931, initial application for adoption subsidy.

          1. (l) Subsidy denial.
    7. (1) If any application for an adoption subsidy for a child under eighteen (18) years of age is initially denied, in accordance with federal regulations, the adoptive family may appeal the decision.

    8. (2) The types of situations that would constitute grounds for an appeal include:

       1. (A) Relevant facts regarding the child, the biological family or the child’s background were known, but not presented to the adoptive parents prior to the adoption’s finalization;
       2. (B) Any subsidy decision which the adoptive parents deem adverse to the child;
       3. (C) Erroneous determination by the Division of Children and Family Services that a child is ineligible for adoption assistance; and
       4. (D) Failure by the Division of Children and Family Services to advise adoptive parents of the availability of adoption assistance.

    9. (3)

       1. (A) If an appeal is upheld, the child may be eligible for a federal (Title IV-E) or state subsidized adoption.

       2. (B) The effective date of a federal (Title IV-E) retroactive subsidy payment will be the date of final order issued by the administrative law judge.

          1. (m) Subsidy extension.

    10. (1)

        1. (A) Adoption assistance payments may be extended to twenty-one (21) years of age if the child has a mental or physical disability which warrants continuation and a federally-funded subsidy or state maintenance is received.
        2. (B) If the state determines the youth has a mental or physical handicap that warrants the continuation of the adoption subsidy assistance up to twenty-one (21) years of age, that youth is not subject to the education and employment requirements listed below for youth eighteen (18) through twenty-one (21) years of age.

    11. (2)

        1. (A) Requests for extension of adoption subsidy agreements up to twenty-one (21) years of age, due to a mental or physical handicap, must be submitted by the adoptive parent or parents to the Adoption Manager or designee at least three (3) months prior to the termination of the current adoption subsidy agreement.
        2. (B) Such extension requests received after this timeframe, to include after the youth has turned eighteen (18) years of age but not yet reached twenty-one (21) years of age, may still be considered.
        3. (C) However, any subsidy agreement that is extended past the age of eighteen (18) due to a mental or physical handicap will take effect on the date of the new subsidy agreement (reflecting that the extension is signed).
        4. (D) Any monthly subsidy payments that were not made between the end date of the initial subsidy agreement and the date of the new subsidy agreement, reflecting a subsidy extension past eighteen (18) years of age, will not be made retroactively.

    12. (3) In addition, if the child was adopted at sixteen (16) years of age or older, the adoption subsidy may be extended until twenty-one (21) years of age under the following circumstances:

        1. (A) The child is completing secondary education or a program leading to an equivalent credential;
        2. (B) The child is enrolled in an institution which provides postsecondary or vocational education;
        3. (C) The child is participating in a program or activity designed to promote, or remove barriers to, employment;
        4. (D) The child is employed for at least eighty (80) hours per month; or
        5. (E) The child is incapable of doing any of the above described activities due to a medical condition.

    13. (4)

        1. (A) The Division of Children and Family Services will ensure that the child meets these employment or education requirements.
        2. (B) If a child is incapable of meeting the above referenced education or employment requirements due to a medical condition, the reason for which the child is incapable of meeting the education or employment requirements must be documented by a medical professional and updated annually until the child reaches twenty-one (21) years of age.

16. (n) Adoption assistance agreement.

    1. (1) An adoption assistance agreement, which is a written binding agreement between the adoptive parents, the Division of Children and Family Services, and other relevant agencies, must be signed and in effect at the time of or prior to the final decree of adoption.

    2. (2) The adoption assistance agreement must:

       1. (A) Be signed by the adoptive parents and the Division of Children and Family Services, and be in effect before adoption assistance payments are made under Title IV-E, but no later than the finalization of the adoption;
       2. (B) Specify the duration of the agreement;
       3. (C) Specify the amount of the adoption assistance payment (if any) and the nature and amount of any other payments, services, and assistance to be provided (including nonrecurring adoption expenses in agreements that became effective on or after January 1, 1987, for expenditures incurred by the parents on or after that date);
       4. (D) Specify the child’s eligibility for Title XIX and Title XX;
       5. (E) Specify, with respect to agreements entered into on or after October 1, 1983, that the agreement remains in effect regardless of the state of residence of the adoptive parents; and
       6. (F) Contain provisions for the protection of the interests of the child in case the adoptive parents and child should move to another state while the agreement is in effect, or for agreements entered on or after October 1, 1983 (if needed).
    3. (3) If the service specified in the agreement is not available in the new state of residence, the state making the original assistance payment remains financially responsible for providing the specified service or services.

    4. (4)

       1. (A) Any subsidy requests that are denied may undergo the appellate process to be upheld or reversed.
       2. (B) For adoption subsidies that are requested and approved after adoption finalization has occurred, the adoption assistance agreement (and, therefore, subsidy payments) will go into effect based on the adoption subsidy application approval date (i.e., not the adoption finalization date).
       3. (C) This includes both IV-E and non-IV-E subsidies.

    5. (5) Any adoption assistance agreement put in place after finalization of an adoption must:

       1. (A) Be signed by the adoptive parents and the Division of Children and Family Services and be in effect before adoption assistance payments are made under Title IV-E;
       2. (B) Specify the duration of the agreement;
       3. (C) Specify the amount of the adoption assistance payment (if any) and the nature and amount of any other payments, services, and assistance to be provided (including nonrecurring adoption expenses in agreements that became effective on or after January 1, 1987, for expenditures incurred by the parents on or after that date);
       4. (D) Specify the child’s eligibility for Title XIX and Title XX;
       5. (E) Specify, with respect to agreements entered into on or after October 1, 1983, that the agreement remains in effect regardless of the state of residence of the adoptive parents; and
       6. (F) Contain provisions for the protection of the interests of the child in case the adoptive parents and child should move to another state while the agreement is in effect and for agreements entered on or after October 1, 1983, if needed.

17. (o) Status of subsidy when a child reenters foster care.

    1. (1) When a child with an approved adoption subsidy enters foster care, adoption subsidy payments will continue to the adoptive parents.
    2. (2) The Division of Children and Family Services will work with Office of Chief Counsel to identify parents receiving adoption subsidy payments to request an order of child support for the subsidy amount.
    3. (3) Child support will continue, as applicable, until the child is reunified in the family home or termination of parental rights occurs.
    4. (4) If termination of parental rights occur, adoption subsidy payments will be terminated.

18. (p) Subsidy redeterminations.

    1. (1) The federal Title IV-E adoption assistance program does not require redeterminations of a child’s eligibility.
    2. (2) Although the Title XIX Medicaid program and the programs that, in part, may qualify a child initially for adoption assistance, such as AFDC and SSI, require redeterminations, they are unnecessary for the purpose of maintaining a child’s eligibility for Title IV-E adoption assistance.

19. (q) Subsidy terminations.

    1. (1) Once a child has been determined eligible and is receiving Title IV-E adoption assistance, the state may terminate the assistance only under the following circumstances:

       1. (A) Upon the adoptive parent’s or parents’ request;
       2. (B) Upon the child’s death;
       3. (C) Upon the death of the adoptive parents or parents of the child (in a two-parent family, this means both parents);
       4. (D) At the cessation of legal responsibility of the adoptive parent or parents for the child;
       5. (E) If the Division of Children and Family Services determines that the child is no longer receiving support from the adoptive parent or parents; or

       6. (F) When the child reaches the age of eighteen (18) unless:

          1. (i) The child’s subsidy was extended (per the adoption subsidy agreement) past eighteen (18) years of age, due to a mental or physical disability which warranted continuation of a federally funded subsidy or state maintenance to be received, in which case the adoption subsidy would be terminated when the child attains twenty-one (21) years of age; or
          2. (ii) The child’s subsidy was extended past eighteen (18) years of age (per the adoption subsidy agreement) because the child was adopted at sixteen (16) years of age or older, in which case the child’s subsidy would be terminated when the child attains twenty-one (21) years of age, provided that the child also met one (1) of the following circumstances from eighteen (18) years of age through twenty-one (21) years of age:
20. (a) (a) The child is completing secondary education or a program leading to an equivalent credential;

21. (b) (b) The child is enrolled in an institution which provides postsecondary or vocational education;

    1. (c) (c) The child is participating in a program or activity designed to promote, or remove barriers to, employment;

       1. (d) (d) The child is employed for at least eighty (80) hours per month; or

22. (e) (e) The child is incapable of doing any of the above described activities due to a medical condition.

    1. (2)

       1. (A) A fourteen-calendar-day written notice will be sent to the adoptive parent or parents informing them of the Division of Children and Family Services’ intent to terminate the subsidy.
       2. (B) The notice will also inform the parent or parents of their right to appeal the decision and how to request an administrative hearing in order to appeal.
       3. (C) The notice will be sent via process server or via certified mail, restricted delivery with a returned receipt requested.

23. (r) Medical coverage.

    1. (1)

       1. (A) The Division of Children and Family Services will ensure health insurance coverage for any child determined to be a child with special needs for whom there is an adoption subsidy agreement in effect.
       2. (B) Federal Title IV-E Medicaid will be utilized to provide medical coverage for a Title IV-E eligible child.
       3. (C) Medical coverage, for a non-Title IV-E eligible child who has a special need for medical or rehabilitative care, may be provided under the Medicaid category Non-Title IV-E Special Needs Adoptive Child, if the child is eligible for state maintenance subsidy and meets specified Medicaid eligibility requirements (see Medical Services Policy 6590.2 Eligibility Requirements).

    2. (2)

       1. (A) IV-E eligible children, who are adopted on January 1, 2019, and thereafter, are eligible for Medicaid coverage regardless of whether or not IV-E adoption subsidy payments are actually made for the child.
       2. (B) Children approved for deferred adoption subsidy payments will qualify, as applicable, for Medicaid coverage to begin when subsidy eligibility begins.
    3. (3) If the child does not qualify for Medicaid under federal Title IV-E or Non-Title IV-E Special Needs Adoptive coverage, the family may make application for Medicaid under a different category.

    4. (4)

       1. (A) Medicaid coverage associated with the adoption subsidy will cease when the subsidy case is closed.
       2. (B) The child may qualify for other categories of Medicaid if certain eligibility criteria are met.

    5. (5)

       1. (A) However, once the adoption subsidy case is closed, it is the responsibility of the child, or the child’s family, to apply for other categories of Medicaid at their local Department of Human Services county office (via the Division of County Operations).
       2. (B) Medicaid coverage through the local department county office is not guaranteed.

    6. (6)

       1. (A) Any eligible child for whom there is an adoption assistance agreement in effect is deemed to be a dependent child and is deemed to be a recipient of AFDC (per AFDC requirements in effect July 16, 1996).
       2. (B) Any child of such eligible child will be eligible for such services.

    7. (7)

       1. (A) The Division of Children and Family Services shall access resources as necessary in Arkansas, the region, and nation to find adoptive families for children with special needs.
       2. (B) When a child with an approved adoption subsidy enters foster care, adoption subsidy payments will continue to the adoptive parents.
       3. (C) The Division of Children and Family Services will work with Office of Chief Counsel to identify parents receiving adoption subsidy payments to request an order of child support for the subsidy amount.
       4. (D) Child support will continue, as applicable, until the child is reunified in the family home or termination of parental rights occurs.
       5. (E) If termination of parental rights occur, adoption subsidy payments will be terminated.

Codification Notes: “AFDC” means Aid to Families with Dependent Children. This section as promulgated prior to codification into the Code of Arkansas Rules provided as follows: "03/2023"