1. (a) The child or youth must meet all of the following criteria to be eligible for Title IV-E or state-paid foster care assistance.

   1. (1) Responsibility for placement and care. The Texas Department of Family and Protective Services (DFPS) must have the responsibility for the child's placement and care. This requirement is met if:

      1. (A) The child is placed in DFPS's managing conservatorship by written court order issued under Title 5, Texas Family Code;
      2. (B) DFPS takes possession of a child under Texas Family Code §262.204;
      3. (C) The child lives with his minor parent, and the minor parent is in DFPS's managing conservatorship. The child and the minor parent must reside together in the same foster family home or residential child-care operation;

      4. (D) The youth is in conservatorship immediately preceding his 18th birthday, and:

         1. (i) has capacity and has signed a voluntary Extended Foster Care Agreement; or
         2. (ii) lacks capacity and the Texas Department of Aging and Disability Services (DADS) has applied for and is granted guardianship; or
      5. (E) The youth qualifies as a return to care youth under §700.346 of this title (relating to Return to Foster Care).

   2. (2) Age, educational, and vocational requirements.

      1. (A) The child must be less than 18 years old;
      2. (B) The youth qualifies as a return to care youth under §700.346 of this title; or

      3. (C) If a youth in foster care turns 18 years old, and is receiving foster care assistance, the youth's eligibility for foster care assistance ends on the last day of the month of his 18th birthday, unless one of the following conditions is satisfied:

         1. (i) The youth is enrolled in and attending full time a high school or a program leading toward a high school diploma. In this case the youth's eligibility is extended until the end of the month the youth completes or withdraws from high school, or the end of the month in which the youth turns 22 years old, whichever comes first;
         2. (ii) The youth has been accepted for admission to a college or vocational program that does not begin immediately. In this case the youth's eligibility is extended for a period not to exceed three and one-half months following the end of the month in which the youth graduates from high school or obtains a General Equivalence Diploma ("GED");
         3. (iii) The youth is enrolled in and attending GED classes full time and is expected to complete the classes by his 19th birthday. In this case the youth's eligibility is extended until the end of the month the youth completes or withdraws from the classes, or the end of the month in which the youth turns 19 years old, whichever comes first;
         4. (iv) The youth is enrolled in and attending full time a vocational or technical training program and is expected to complete the program before his 21st birthday. In this case the youth's eligibility is extended until the end of the month the youth completes or withdraws from the program, or the end of the month in which the youth turns 21 years old, whichever comes first; or
         5. (v) The youth receives a GED, enrolls in a vocational or technical training program before his 18th birthday, and is expected to complete the program before or during the month of his 19th birthday. In this case the youth's eligibility for Title IV-E foster care eligibility is extended until the end of the month in which he completes or withdraws from the program, or the end of the month in which the youth turns 19 years old, whichever comes first.

   3. (3) Placement. The child must be receiving care in Texas in a licensed or verified foster home or a licensed or certified residential child-care operation approved for DFPS foster-care assistance, except in the following circumstances:

      1. (A) The child is in permanent foster family care and the foster family moves out of state. The foster family must secure foster care licensing in the new state of residence within 90 days, or the child's eligibility for foster care assistance will be terminated until appropriate licensing is secured. The DFPS program director may grant one extension of no more than 60 days, but only if it is clear that the foster family will be licensed in the additional time;
      2. (B) The child is removed from an out-of-state adoptive or foster care placement; and DFPS determines that another out-of-state placement will better meet the child's needs than a return to Texas; or
      3. (C) Under the service plan, the child is to be reunited with his biological family and must move out-of-state in order to live near the family.

   4. (4) Resources. The child must not have equity in real or personal property in excess of:

      1. (A) $10,000 if the child does not receive Supplemental Security Income (SSI); or
      2. (B) $2,000 if the child receives SSI.

   5. (5) Income. The child's monthly income must be less than the daily rate paid to the residential child-care operation for the child's maintenance. Countable income includes SSI; Retirement, Survivors, and Disability Insurance (RSDI); Veterans Administration (VA) benefits; any other dependent or survivor's income; funds resulting from the child's Indian heritage; or other income from private sources. The following types of income are not counted in determining eligibility:

      1. (A) Earnings of a child who is a:

         1. (i) full-time student; or
         2. (ii) part-time student working less than 30 hours per week;
      2. (B) Money given as a gift on an irregular basis by the parent to the child;
      3. (C) Educational scholarships, loans, or grants provided to the child for purposes other than regular maintenance; and
      4. (D) Child support payments received by or forwarded to the Office of the Attorney General.
   6. (6) Lump-sum Income. Non-recurring lump-sum payments must be handled in accordance with all applicable state and federal laws and regulations. Lump sums placed in a trust inaccessible to the child do not affect a child's foster care eligibility.
   7. (7) Social Security number. If eligible, the child must have, or must have applied for, a Social Security number.
   8. (8) Additional Requirements. The child must meet the additional requirements for Title IV-E or state-paid foster care assistance described in §§700.317, 700.318, and 700.346 of this title (relating to Additional Eligibility Requirements for Title IV-E Foster Care Assistance, Additional Eligibility Requirements for State-Paid Foster Care Assistance, and Return to Foster Care), as applicable.

2. (b) The following conditions determine the type of foster care assistance for which a youth qualifies if remaining in foster care past age 18 years:

   1. (1) If the youth is enrolled in and attending full time a high school, GED classes, or a vocational or technical training program, and is scheduled to graduate or obtain a GED before or during the month of his 19th birthday, and the youth is not a ward of DADS, the youth's extension of foster care can remain Title IV-E until he completes or withdraws from high school, the GED classes, or the vocational or technical program, or the end of the month of the youth's 19th birthday, whichever comes first;
   2. (2) If the youth is enrolled in and attending full time a high school or a program leading toward a high school diploma, but is not scheduled to graduate by his 19th birthday, the youth's foster care can be extended as state-paid until the end of month the youth completes or withdraws from high school, or the end of the month in which the youth turns 22 years old, whichever comes first;
   3. (3) If the youth is enrolled in and attending full time a vocational or technical training program and is not expected to complete the program by his 19th birthday, the youth's foster care may be extended as state-paid and may continue until the end of the month the youth completes or withdraws from the program, or the end of the month the youth turns 21 years old, whichever comes first;
   4. (4) If the youth is eligible for the return to care program as specified under §700.346(a)(2)(A)(iii) of this title, the foster care is state-paid at the Basic Service Level, or the facility's lowest contracted rate;
   5. (5) If the youth is eligible for the return to care program as specified under §700.346(a)(2)(A)(i) and (ii) of this title, the foster care is state-paid at the appropriate service level; or
   6. (6) If the youth is eligible for the extension of foster care assistance as specified in subsection (a)(2)(C)(ii) of this section, the extension of foster care is state-paid at the appropriate service level.

3. (c) In order to qualify for Medical Assistance Only (MAO), a child must meet the following requirements:

   1. (1) DFPS must have responsibility for the child's placement and care, as defined in subsection (a)(1) of this section. The child may be in a licensed or unlicensed placement, as long as he or she remains in DFPS's managing conservatorship and is not receiving Medicaid through another program.
   2. (2) The child must be under the age of 18 years.

4. (d) In addition to the eligibility criteria for continued foster care benefits after age 18 years under subsection (b) of this section, a youth who turns 18 years of age on or after October 1, 2010, while in the conservatorship of DFPS, or who is continuing to receive foster care benefits under subsection (b) of this section on or after October 1, 2010, is eligible for continued foster care benefits through the end of the month in which the youth turns 21 years of age, so long as sufficient documentation is provided on a periodic basis as required by the terms of the youth's Extended Foster Care Agreement to demonstrate that the youth is:

   1. (1) regularly attending high school or enrolled in a program leading toward a high school diploma or high school equivalence certificate;
   2. (2) regularly attending an institution of higher education or a post-secondary vocational or technical program;
   3. (3) actively participating in a program or activity that promotes, or removes barriers to, employment;
   4. (4) employed for at least 80 hours per month; or
   5. (5) incapable of performing any of the activities listed in paragraphs (1) - (4) of this subsection due to a documented medical condition, as further described in subsection (e) of this section.
5. (e) There is a presumption that a youth is capable of the activities listed in subsection (d)(1) - (4) of this section. The presumption can be rebutted only if sufficient documentation is provided to verify the medical condition and that the medical condition renders the youth incapable of those activities. Such documentation of a medical condition might include a determination of disability from SSA, a determination of mental retardation, or a statement from a medical doctor. In addition, documentation must also verify the activities of daily living that the youth is rendered incapable of performing as a result of that medical condition.

Source Note:The provisions of this §700.316 adopted to be effective September 1, 2006, 31 TexReg 6239; amended to be effective September 1, 2007, 32 TexReg 5386; amended to be effective March 1, 2010, 35 TexReg 873.