Title of Regulation: 22VAC40-221. Additional Daily Supervision Rate Structure (adding 22VAC40-221-10 through 22VAC40-221-70).

Statutory Authority: § 63.2-217 of the Code of Virginia; 42 USC § 673.

Effective Date: January 1, 2014.

Agency Contact: Phyl Parrish, Program Manager, Policy and Legislation, Division of Family Services, Department of Social Services, 801 East Main Street, Richmond, VA 23219-2901, telephone (804) 726-7926, FAX (804) 726-7985, TTY (800) 828-1120, or email phyl.parrish@dss.virginia.gov.

Summary:

This regulatory action establishes a structure for an enhanced maintenance payment for children who require increased supervision or support (additional daily supervision) because of identified needs, as required by the federal Administration for Children and Families (ACF) to draw down Title IV-E funds to reimburse Virginia for these payments.

The regulation (i) requires the use of an assessment instrument developed by the Department of Social Services (DSS), (ii) establishes how and when the instrument will be used, and (iii) sets forth the responsibilities of local departments of social services (LDSS) making the payments and of parents receiving payments. The regulation also establishes an enhanced maintenance payment process for emergency placements and rules for reviewing the results of the assessment process.

This regulatory action addresses only maintenance payments for the additional daily supervision needs of the child. It does not address the provision of services funded through the Comprehensive Services Act.

Changes to the regulation since the proposed stage include (i) expanding the time frame to conduct an assessment after an initial emergency placement; (ii) use of the assessment process for post-finalized adoptions; (iii) consideration of certain services in reducing the amount of the enhanced maintenance payment for foster parents; (iv) limiting when the assessment must be used in initial adoption assistance negotiations; (v) changing the date on which a new enhanced maintenance rate goes into effect; (vi) requiring the LDSS to give a copy of the assessment tool to the foster or adoptive parent; and (vii) eliminating the requirement to conduct a new assessment when the child moves from one home to another in a different child-placing agency.

Summary of Public Comments and Agency's Response: A summary of comments made by the public and the agency's response may be obtained from the promulgating agency or viewed at the office of the Registrar of Regulations.

CHAPTER 221
ADDITIONAL DAILY SUPERVISION RATE STRUCTURE

22VAC40-221-10. Definitions.

The following words and terms when used in this chapter shall have the following meanings unless the context clearly indicates otherwise:

"Additional daily supervision" or "ADS" means a child's need for increased supervision and support. ADS is the basis for determining if an enhanced maintenance payment to a foster parent or an adoptive parent entering into an adoption assistance agreement is needed. The need for ADS is also the basis for increased expectations for the child-placing agency and the foster parent [ or the adoptive parent prior to the finalization of the adoption ] in meeting the needs of the child.

"Adoption assistance" means a money payment or services provided to adoptive parents on behalf of a child with special needs.

"Adoption assistance agreement" is a written agreement between the local department of social services (LDSS) and the adoptive parent that is binding on both parties and includes maintenance and, when applicable, additional daily supervision, Medicaid, services and nonrecurring fees.

"Adoptive placement" means the placement of a child for the purposes of adoption in a home with a signed adoptive placement agreement.

"ADS emergency placement" means the sudden, unplanned, or unexpected placement of a child who needs immediate care in a foster home and the placement occurs prior to the agency obtaining adequate information regarding the child's needs. ADS emergency placements require the foster parent to provide increased supervision and support to ensure the child's safety.

"Child-placing agency" means any person who places children in foster homes, adoptive homes, or independent living arrangements pursuant to § 63.2-1819 of the Code of Virginia or a local board that places children in foster homes or adoptive homes pursuant to § 63.2-900, 63.2-903, or 63.2-1221 of the Code of Virginia. [ Officers, employees, or agents of the Commonwealth, or any locality, acting within the scope of their authority as such, who serve as or maintain a child-placing agency, shall not be required to be licensed. ]

"CRAFFT" means Community Resource, Adoptive, and Foster Family Training. CRAFFT specialists are available to local departments of social services to provide assistance regarding training for foster families.

"Department" means the [ State Virginia ] Department of Social Services.

"Enhanced maintenance payment" means the payment made to a foster parent over and above the basic foster care maintenance payment or to an adoptive parent when the [ initial ] adoption assistance agreement is negotiated. It is based on the needs of the child for additional daily supervision as identified by the uniform rate assessment tool.

"Foster care maintenance payment" means payments to cover the cost of food, clothing, shelter, daily supervision, school supplies, a child's personal incidentals, liability insurance with respect to a child, reasonable travel to the child's home for visitation, and reasonable travel for the child to remain in the school in which the child was enrolled at the time of placement.

"LDSS" means the local department of social services.

"Licensed" means licensed child-placing agencies; entities licensed by the Department of Behavioral Health and Developmental Services; licensed behavioral health professionals or behavioral health professionals working under the direct supervision of a licensed behavioral health professional.

"Treatment foster care" or "TFC" means a community-based program where services are designed to address the special needs of children and families. Services to children and youth are delivered primarily by treatment foster parents who are trained, supervised, and supported by agency staff. Treatment is primarily foster family based.

22VAC40-221-20. Administration of the uniform rate assessment tool.

A. A department approved uniform rate assessment tool shall be used to determine the additional daily supervision component of the foster care maintenance payment or the adoption assistance payment. Use of the rate assessment tool shall be applied consistently regardless of the child's maintenance funding source.

1. The LDSS having care and responsibility for the child is responsible to ensure the tool is completed with input from a child-specific team of individuals who are knowledgeable about the child's characteristics.

2. The team shall include the caseworker, foster or adoptive parents, and an individual trained to administer the rate assessment tool. Other individuals with knowledge of the child shall be invited to participate in the meeting or provide input about the child's needs. This shall include family members and the child as appropriate, other significant individuals in the child's social support network, the private child-placing agency staff involved in the care of the child, and other providers.

3. LDSS staff or other public child-serving agency individuals may be trained in accordance with [ departmental guidance the department's Child and Family Services Manual, Chapter E Foster Care, Section 14, July 2011 ] to administer the tool.

4. The child's assigned caseworker, foster or adoptive parents, or private agency staff shall not administer the tool.

5. The rate assessment tool shall be administered according to the following criteria and in accordance with [ department guidance the department's Child and Family Services Manual, Chapter E Foster Care, Section 14, July 2011 ]:

a. If the child is to be placed in a TFC home;

b. If the LDSS chooses to make enhanced maintenance payments for children in non-TFC homes;

c. At the time an adoption assistance agreement is negotiated [ whether or not an ADS assessment has been previously administered for this child when the child's needs prior to negotiating and signing the agreement indicate a need for ADS ]. A re-administration of the tool is not required if the adoption assistance agreement is signed within three months of a prior ADS assessment.

6. The rate assessment tool shall be re-administered:

[ a. If a child moves to a TFC home in a different TFC agency;

b. a. ] When requested and there is evidence of significant behavioral, emotional, or medical changes and [ two four ] or more weeks of additional support have become necessary to maintain the child in the home [ ;. ]

(1) Once requested, the rate assessment tool must be administered within 14 calendar days.

(2) If the rate assessment tool indicates a need for an increase [ or decrease ] in ADS, the increase [ is retroactive to the date of the foster parent's request or decrease takes effect on the first day of the subsequent month ].

[ c. b. ] No more often than quarterly for any child unless the previously stated criteria apply [ ; and. ]

[ d. c. ] A minimum of once per year.

B. The individual administering the rate assessment tool shall:

1. Consider all input from all sources regarding the characteristics of the child and will rate each item on the tool;

2. Make the final decision as to how to rate a child's characteristics based on the evidence as presented;

3. Issue a final score on the tool within five business days of the meeting; and

4. Share a copy of the scored tool with the foster [ or adoptive ] parents and [ , if requested, ] review the tool with them [ if requested ].

[ 22VAC40-221-25. Determining the enhanced maintenance rate.

The child-specific team shall consider the services provided to the child that reduce or eliminate any direct additional supervision or support provided to the child by the foster parent and reduce the enhanced maintenance payment based on these services. ]

22VAC40-221-30. Child-placing agency requirements.

A. The child-placing agency that approved the home shall have face-to-face contacts with the foster parents at least monthly. Child-placing agencies may contract with licensed providers to conduct the in-home contacts with the foster parent.

B. Child-placing agencies shall have an appointed case worker on call and available to make face-to-face contact if necessary to provide services to the child and the foster family 24 hours per day, seven days per week.

1. Child-placing agencies may contract with licensed providers to perform this service.

2. Supervisory consultation to the on-call worker shall be available 24 hours per day, seven days per week and may be a service obtained through a contract with a licensed provider.

C. The child-placing agency shall monitor and document the contractor's performance if they choose to contract out the activities in subsections A and B of this section in accordance with [ guidance developed by the department the department's Child and Family Services Manual, Chapter E Foster Care, Section 14, July 2011 ].

D. Additional training shall be provided to the foster parents receiving an enhanced maintenance payment based on the needs of the foster parent and the children in care. Foster parents [ and adoptive parents prior to finalization of the adoption ] receiving enhanced maintenance payments shall be consulted on their training needs.

E. The foster care service plans developed for a child for whom enhanced maintenance is paid shall include but not be limited to:

1. Measurable goals, objectives, and strategies for the foster [ or adoptive ] parent and the child-placing agency in addressing the identified needs of the child;

2. Provisions for providing training for the foster [ or adoptive ] parents consistent with the identified needs of the child;

3. Provisions for services to prevent placement disruption and maintain a stable placement; and

4. The method developed jointly by the child-placing agency and the foster [ or adoptive ] parent to document the child's progress.

F. This section is not applicable in cases where a final order of adoption has been issued.

22VAC40-221-40. Foster [ and adoptive ] home requirements.

A. The requirements for foster [ parent or ] parents [ or adoptive parents, prior to a finalized adoption, ] receiving an ADS payment shall include but not be limited to:

1. Working with the child-placing agency to identify and participate in targeted training necessary to meet the support and supervision needs of the child;

2. Actively [ participate participating ] in the development and implementation of the foster care service plan;

3. [ Agree Agreeing ] to accept and participate in services to prevent placement disruption; and

4. [ Monitor and document Monitoring and documenting ] the child's progress based on a schedule and in a format developed in consultation with the child-placing agency.

B. This section is not applicable in cases once a final order of adoption has been issued.

22VAC40-221-50. ADS emergency placement.

Enhanced maintenance payments for the initial emergency placement of a child shall be based on a per diem not to exceed $1,600 per month.

1. The department may change the maximum per diem for initial emergency placements upon approval from the State Board of Social Services.

2. The enhanced maintenance payment per diem for the initial emergency placement includes the day the uniform rate assessment tool is administered to determine the on-going enhanced maintenance rate.

3. The rate assessment tool shall be administered within [ 30 60 ] calendar days of the initial emergency placement of a child.

22VAC40-221-60. Reviews.

A representative of the child, including the foster parent or guardian ad litem, may request a review of the results of the rate assessment tool by the director of the LDSS that holds custody, if he feels the tool did not correctly identify the needs of the child. The director may not adjust the rate but may request a new assessment.

1. The representative shall have five business days to request a review.

2. The LDSS director or designee has 15 business days to conduct an administrative review of the request and may concur with the original decision or may order a new administration of the tool. The re-administration may occur by phone or videoconferencing.

3. The [ LDSS individual administering the rate assessment tool ] has 10 business days to re-administer the tool if requested by the director.

4. If the re-administration of the tool indicates a higher [ or lower ] payment rate, that rate shall [ be retroactive to the date of the foster parent's request take effect on the first day of the subsequent month ].

[ 22VAC40-221-70. Post-finalized adoptions.

Enhanced maintenance payments shall be made available to adoptive parents after the adoption has been finalized pursuant to the department's Child and Family Services Manual, Chapter E Foster Care, Section 17, April 2013.

1. The adoptive parent shall be required to submit an application for renegotiation of their adoption assistance agreement.

2. The documented needs of the child shall be the basis for a decision to provide an enhanced maintenance payment or a services payment.

3. Enhanced maintenance payments shall be documented in an adoption assistance agreement addendum.

[ DOCUMENTS INCORPORATED BY REFERENCE (22VAC40-221)

Child and Family Services Manual, Chapter E Foster Care, Section 14, July 2011

Child and Family Services Manual, Chapter E Foster Care, Section 17, April 2013 ]