Title of Regulation: 22VAC40-221. Additional Daily Supervision Rate Structure (adding 22VAC40-221-10 through 22VAC40-221-60).

Statutory Authority: § 63.2-217 of the Code of Virginia.

Public Hearing Information:

February 15, 2011 - 6 p.m. - Department of Social Services, Central Regional Office, 1604 Santa Rosa Road, Henrico Room, Richmond, VA

Public Comment Deadline: April 1, 2011.

Agency Contact: Phyl Parrish, Program Manager, Policy and Legislation, Department of Social Services, Division of Family Services, 801 East Main Street, Richmond, VA 23219-2901, telephone (804) 726-7926, FAX (804) 726-7985, TTY (800) 828-1849, or email phyl.parrish@dss.virginia.gov.

Basis: Section 63.2-217 of the Code of Virginia requires the State Board of Social Services to adopt regulations necessary or desirable to operate assistance programs in Virginia.

According to Administration for Children and Families, 42 USC § 673 and policy announcement ACYF-CB-PA-01-01 require a statewide rate system for a state to draw down Title IV-E funds for foster care maintenance and adoption assistance. Failure to have a statewide rate system may result in the denial of federal funds.

Purpose: This regulatory action will require use of an approved Department of Social Services process to assess a child to determine the additional daily supervision component of the foster care maintenance payment. It will also establish comprehensive standards for local departments of social services (LDSS) to use when providing an additional daily supervision payment.

This regulation is necessary to ensure that Virginia meets federal requirements for seeking federal reimbursement by implementing a statewide rate structure for LDSS to use to determine the additional daily supervision component of the foster care maintenance payment. It will ensure that LDSS are consistent in determining the payment for additional daily supervision based on the assessed needs of the child.

Substance: Section 22VAC40-221-20 mandates that an assessment instrument developed by the Department of Social Services be used to determine the need for additional daily supervision and the appropriate enhanced maintenance payment amount for any child placed in public or private treatment foster homes (TFC). LDSS shall use the assessment instrument for a child in a non-TFC agency approved provider home when the LDSS wants to provide an enhanced maintenance payment for additional daily supervision. The regulation requires the assessment instrument be used for all children in an adoptive placement when the initial adoptive placement agreement is being negotiated. The rate derived from the completed assessment instrument provides information concerning what the child would have received in foster care and is used in negotiating the adoption assistance agreement.

22VAC40-221-30 establishes the requirements for child placing agencies that provide an enhanced maintenance payment to a foster parent. These requirements include (i) providing child specific training if needed, (ii) monthly visits with the foster parents, and (iii) 24-hour on-call support.

22VAC40-221-40 defines the requirements for foster parents receiving an enhanced maintenance payment, including (i) participating in determining training needs, (ii) participating in the development of the child's service plan, and (iii) maintaining documentation of the child's progress.

22VAC40-221-50 provides for a pro-rated enhanced maintenance payment based on a $1600 rate (i) when a child is placed on an emergency basis in a TFC placement, or (ii) in a non-TFC placement where the LDSS intends to make an enhanced maintenance payment and there has not been enough time to administer the assessment instrument. This section requires that the rate assessment tool be administered within 30 days of the placement.

22VAC40-221-60 addresses the review of the results of the rate assessment tool. The regulation allows a representative of the child five days to request a review The LDSS director has 15 days to conduct an administrative review of the request and may concur with the original assessment or request a new administration of the tool.

Issues: Currently there is no correlation between payments made to foster care parents for additional daily care. This regulation benefits both children in foster care and the Commonwealth by ensuring that children's needs are consistently assessed, foster parents are appropriately reimbursed, and the state is eligible to draw down federal Title IV-E funds for these payments.

This regulatory action may result in a reduction in the rate paid to some foster care parents and an increase for others, as the payment for additional daily supervision will be tied to the assessed needs of the child.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. Federal law (ACF, 42 USC § 673 and policy announcement ACYF-CB-PA-01-01) requires that there be a uniform statewide rate system in order for a state to draw down Title IVE funds for foster care maintenance and adoption assistance. Failure to have a statewide rate system may result in the denial of federal funds. Therefore the State Board of Social Services proposes to require through these proposed regulations such a uniform statewide rate system. 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.

Result of Analysis. The benefits likely exceed the costs for all proposed changes.

Estimated Economic Impact. Failure to comply with the federal requirement to have a uniform statewide rate system in order to draw down Title IV-E funds for foster care maintenance and adoption assistance would potentially eliminate the following amounts of federal dollars for foster care maintenance and adoption assistance: $375,000 in fiscal year 2010, $500,000 in fiscal year 2011, and increasingly larger amounts in subsequent years. Thus the proposal to comply with federal law will be beneficial for foster and adoptive families and the Commonwealth overall.

Since currently payments from placing agencies do not follow a uniform structure, the imposition of a uniform statewide structure would result in some parties receiving lesser payments and others higher payments, as the current structure allows each placement agency to essentially determine their own formula (within limits). This allows foster parents to “forum shop” to secure the highest reimbursement rate. The proposed uniform rate structure would effectively end this practice and assure stability for the children as there would no longer be a benefit for parents to attempt to switch placement agencies.

Businesses and Entities Affected. The proposed amendments affect the state and local departments of social services, the 60 to 70 licensed child placing agencies, and foster and adoptive families.

Localities Particularly Affected. The proposed amendments do not disproportionately affect particular Virginia localities.

Projected Impact on Employment. The proposed amendments are unlikely to significantly affect employment.

Effects on the Use and Value of Private Property. The proposed required uniform statewide rate system will eliminate differences in payments from placing agencies to foster families. Some private placing agencies that otherwise would have paid foster families at higher rates may have fewer foster parents come to them when all placing agencies are required to have the same rate structure.

Small Businesses: Costs and Other Effects. The proposed amendments may moderately increase costs for some placing agencies in that they will be required to use the federally required state structure proposed in these regulations.

Small Businesses: Alternative Method that Minimizes Adverse Impact. There is no clear alternative method that reduces adverse impact while still complying with federal law.

Real Estate Development Costs. The proposed amendments will not affect real estate development costs.

Legal Mandate. The Department of Planning and Budget (DPB) has analyzed the economic impact of this proposed regulation in accordance with Section 2.2-4007.04 of the Administrative Process Act and Executive Order Number 36 (06). Section 2.2-4007.04 requires that such economic impact analyses include, but need not be limited to, the projected number of businesses or other entities to whom the regulation would apply, the identity of any localities and types of businesses or other entities particularly affected, the projected number of persons and employment positions to be affected, the projected costs to affected businesses or entities to implement or comply with the regulation, and the impact on the use and value of private property. Further, if the proposed regulation has adverse effect on small businesses, Section 2.2-4007.04 requires that such economic impact analyses include (i) an identification and estimate of the number of small businesses subject to the regulation; (ii) the projected reporting, recordkeeping, and other administrative costs required for small businesses to comply with the regulation, including the type of professional skills necessary for preparing required reports and other documents; (iii) a statement of the probable effect of the regulation on affected small businesses; and (iv) a description of any less intrusive or less costly alternative methods of achieving the purpose of the regulation. The analysis presented above represents DPB's best estimate of these economic impacts.

Agency's Response to the Department of Planning and Budget's Economic Impact Analysis: The Department of Social Services concurs with the Economic Impact Analysis prepared by the Department of Planning and Budget.

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 is required by the Administration for Children and Families to draw down Title IV-E funds to reimburse Virginia for these payments.

The regulation requires the use of an assessment instrument developed by the Department of Social Services, establishes how and when the instrument will be used, and sets forth the responsibilities of the agency making the payments and parents receiving payments. The regulation also establishes an enhanced maintenance payment process for emergency placements and a process for reviewing the results of the assessment process.

Only maintenance payments for the additional daily supervision needs of the child are addressed in this action. The provision of services funded through the Comprehensive Services Act are not addressed.

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 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.

"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 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 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:

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. 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. When requested and there is evidence of significant behavioral, emotional, or medical changes and two 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 in ADS, the increase is retroactive to the date of the foster parent's request.

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

d. 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 parents and review the tool with them if requested.

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.

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 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 parent and the child placing agency in addressing the identified needs of the child;

2. Provisions for providing training for the foster 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 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 home requirements.

A. The requirements for foster parent or parents 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 in the development and implementation of the foster care service plan;

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

4. Monitor and document 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 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 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 payment rate, that rate shall be retroactive to the date of the foster parent's request.