Human Services, Child and Family Services

Rule R512-308

Out of Home Services, Guardianship Services and Placements

Notice of Proposed Rule

(Amendment)

DAR File No.: 34163
Filed: 10/20/2010 10:32:24 AM

RULE ANALYSIS

Purpose of the rule or reason for the change:

This rule is being changed to add rulemaking authority, update citation information, and make minor formatting and grammatical changes.

Summary of the rule or change:

The proposed changes to this rule add the rulemaking authority for Child and Family Services, update the referenced citations, and make minor formatting and grammatical changes for consistency.

State statutory or constitutional authorization for this rule:

• Section 62A-4a-102
• Section 78A-6-105
• Section 62A-4a-105

Anticipated cost or savings to:

the state budget:

There will be no increase in cost or savings to the state budget because these proposed changes update citation information and add rulemaking authority for Child and Family Services, but do not increase workload that would require additional staff or other costs.

local governments:

There will be no increase in costs or savings to local government because it was determined that this rule does not apply to local government, but only applies to Child and Family Services.

small businesses:

There will be no increase in costs or savings to small businesses because it was determined that this rule does not apply to small businesses, but only applies to Child and Family Services.

persons other than small businesses, businesses, or local governmental entities:

There will be no increase in costs or savings to persons other than small businesses, businesses, or local government entities because it was determined that this rule does not apply to persons other than small businesses, businesses, or local government entities, but only applies to Child and Family Services.

Compliance costs for affected persons:

There are no compliance costs for affected persons associated with implementing the changes to this rule because the rule only applies to Child and Family Services.

Comments by the department head on the fiscal impact the rule may have on businesses:

There will be no costs or savings on businesses.

Palmer DePaulis, Executive Director

The full text of this rule may be inspected, during regular business hours, at the Division of Administrative Rules, or at:

Human Services
Child and Family Services
195 N 1950 W
SALT LAKE CITY, UT 84116

Direct questions regarding this rule to:

• Carol Miller at the above address, by phone at 801-557-1772, by FAX at 801-538-3993, or by Internet E-mail at [email protected]
• Julene Jones at the above address, by phone at 801-538-4521, by FAX at 801-538-3942, or by Internet E-mail at [email protected]

Interested persons may present their views on this rule by submitting written comments to the address above no later than 5:00 p.m. on:

12/15/2010

This rule may become effective on:

12/22/2010

Authorized by:

Brent Platt, Director

R512. Human Services, Child and Family Services.

R512-308. Out-of-Home Services, Guardianship Services and Placements.

R512-308-1. Purpose and Authority.

[A.](1) The purpose of this rule is to define guardianship services and placements. Guardianship services and placements provide a permanent, safe living arrangement for a child in the court-ordered custody of Child and Family Services[the Division] or Department of Human Services when it is not appropriate for the child to return home or be adopted, and continuing agency custody is not in the child's best interest.

[B.](2) Guardianship services are authorized by Section[s] 62A-4a-105[(6) and 78A-6-105].

(3) This rule is authorized by Section 62A-4a-102.

 

R512-308-2. Definitions.

(1) "Child and Family Services" means the Division of Child and Family Services.

[A.](2) "Child and Family Team" has the same meaning as defined in Rule R512-301.[means a group that meets together as often as needed and works to support the family and assist them in meeting their needs. This may include the referent or other concerned individuals identified by the family as support persons.]

[B.](3) "Guardianship" has the same meaning as defined in Section 78A-6-105.[

C. "Division" means the Division of Child and Family Services.]

 

R512-308-3. General Guardianship Qualifying Factors.

[A.](1) General qualifying factors apply for both relative and non-relative guardianship, and all factors must be met.

[1.](a) The child cannot safely return home. This requirement is met if the court determines that reunification with the child's parents is not possible or appropriate and the Child and Family Team and regional screening committee agree that adoption is not an appropriate plan for the child.

[2.](b) The parent and child have a significant bond but the parent is unable to provide ongoing care for the child, such as an emotional, mental, or physical disability, and the child's current caregiver has committed to raising the child to the age of majority and to facilitate visitation with the parent.

[3.](c) The prospective guardian must:

[a.](i) Be able to maintain a stable relationship with the child;

[b.](ii) Have a strong commitment to providing a safe and stable home for the child on a long-term basis;

[c.](iii) Have a means of financial support and connections to community resources; and

[d.](iv) Be able to care for the child without Child and Family Services[Division] supervision.

[4.](d) The child has no ongoing care or financial needs beyond basic maintenance and does not require the services of a case manager.

[5.](e) There are compelling reasons why the child cannot be adopted, such as when the child's tribe has exclusive jurisdiction or the tribe has chosen to intervene in the adoption proceedings. Under the Indian Child Welfare Act (ICWA)[ of 1978], 25 USC Section 1911[Public Law No. 95-608, 92 Stat. 3069 codified at 25 U.S.C. 1901-63], a tribe has the right to determine the child's permanency. For this reason, the tribe has the authority to approve guardianship with the current caregiver.

 

R512-308-4. Non-Relative Qualifying Factors.

[A.](1) In addition to general qualifying factors in R512-308-3, all of the following factors apply to non-relative guardianship and must be met.

[1.](a) The child is in the [Division's] legal custody of Child and Family Services and has been in custody for at least 12 consecutive months. If this is a sibling group, at least one child must have been in custody for 12 consecutive months.

[2.](b) The prospective guardian is a licensed [foster parent]out-of-home care provider.

[3.](c) The child has lived for at least six months in the home of the prospective guardian. The region[al] director or designee may waive the six-month placement requirement for sibling groups if at least one sibling has been in the home for six months and meets all other eligibility criteria.

[4.](d) A Child and Family Team has formally assessed the placement and found that continuation with the caregiver is in the child's best interest and supports the safety, permanency, and well-being of the child.

[5.](e) Child and Family Services[The Division] has no concerns with the care the child has received in the home.

[6.](f) The child has a stable and positive relationship with the prospective guardian.

[7.](g) The child has reached the age of 12 years. The region[al] director or designee may waive the age requirement for members of a sibling group placed with a non-relative if at least one sibling is 12 years of age or older and meets all other guardianship criteria and adoption is not the best permanency option for the younger children.

 

R512-308-5. Relative Qualifying Factors.

[A.](1) In addition to general qualifying factors found in R512-308-3, all of the following factors apply for relative guardianship and must be met.

[1.](a) The child's prospective guardian is a relative to the child who meets the relationship requirements of the Department of Workforce Services Specified Relative Program, which currently includes:

[a.](i) Grandfather or grandmother;

[b.](ii) Brother or sister;

[c.](iii) Uncle or aunt;

[d.](iv) First cousin;

[e.](v) First cousin once removed (a first cousin's child);

[f.](vi) Nephew or niece;

[g.](vii) Persons of preceding generations as designated by prefixes of grand, great, great great, or great great great;

[h.](viii) Spouses of any relative mentioned above even if the marriage has been terminated;

[i.](ix) Persons that meet any of the above-mentioned relationships by means of a step relationship; or

[j.](x) Relatives that meet one of these relationships by legal adoption.

[2.](b) If not licensed as a n [foster parent]out-of-home care provider, the relative has completed kinship screening, including a home study and background checks, in accordance with [k]Kinship [p]Practice [g]Guidelines.

[3.](c) The child's needs may be met without continued Child and Family Services[Division] funding. In order to be considered for a guardianship subsidy, the prospective relative guardian must be a licensed [foster parent]out-of-home care provider and demonstrate that they cannot qualify for a Specified Relative Grant through the Department of Workforce Services as outlined in R512-308-6.

 

R512-308-6. Guardianship Subsidy Availability, Scope, Duration.

[A.](1) Guardianship subsidies are available to meet the care and maintenance needs for children in [foster]out-of-home care:

[1.](a) For whom guardianship has been determined as the most appropriate primary goal.

[2.](b) Who do not otherwise have adequate resources available for their care and maintenance.

[3.](c) Who meet the qualifying factors described in R512-308-4 Non-Relative Qualifying Factors and who cannot qualify to receive a Specified Relative Grant from the Department of Workforce Services.

[a.](i) The caseworker must be provided with a copy of a denial letter from the Department of Workforce Services or written proof that the relationship requirements do not apply, such as through relevant birth certificates.

[b.](ii) Approval from the regional guardianship screening committee and regional administration is required in making this determination.

[B.](2) If a prospective guardian is found to be receiving both a Specified Relative Grant and guardianship subsidy for the same child, the caseworker will notify the Department of Workforce Services and appropriate actions may be taken for repayment.

[C.](3) Guardianship subsidies are available through the month in which the child reaches age 18 years.

[D.](4) Each region may establish a limit to the number of eligible children who may receive guardianship subsidies.

[E.](5) Guardianship subsidies are subject to the availability of state funds designated for this purpose.

 

R512-308-7. Regional Guardianship Subsidy Screening Committee.

[A.](1) Each region shall establish at least one regional guardianship subsidy screening committee. This committee may be combined with another appropriate committee, such as the adoption subsidy committee or placement committee.

[B.](2) The regional guardianship subsidy screening committee shall be comprised of at least five members. A minimum of three members must be present for making decisions regarding a guardianship subsidy. Decisions shall be made by consensus.

[C.](3) The regional guardianship subsidy screening committee is responsible to:

[1.](a) Verify that a child qualifies for a guardianship subsidy.

[2.](b) Approve the level of need and amount of monthly subsidy for initial requests, changes, and renewals.

[3.](c) Document the committee's decisions.

[4.](d) Coordinate supportive services to prevent disruptions and preserve permanency.

 

R512-308-8. Determining Guardianship Subsidy Amounts.

[A.](1) The regional guardianship subsidy screening committee will determine the subsidy amount by considering the special needs of the child and the circumstances of the guardian family. The caseworker presents to the committee information regarding the special needs of the child, the guardian family 's income and expenses, and/or the guardian family's special circumstances.

[B.](2) All of the following factors must be considered when determining the amount of the monthly subsidy to be granted:

[1.](a) All sources of financial support for the child including Supplemental Security Income, Social Security benefits, and other benefits. The regional guardianship subsidy committee may require verification of financial support.

[a.](i) If a child is receiving benefit income and the income can continue after guardianship is granted, this amount will be deducted from the guardianship subsidy amount.

[b.](ii) The guardianship subsidy should not replace other available income, such as Supplemental Security Income.

[C.](3) A guardianship subsidy will not exceed the levels indicated in Level I and Level II below, and may be less based upon the ongoing needs of the child and the needs of the guardian family.

[1.](a) Guardianship Level I (Basic): Guardianship Level I is for a child who may have mild to moderate medical needs, psychological, emotional, or behavioral problems, and who requires parental supervision and care. The amount of guardianship subsidy for a child whose needs are within Level I may be any amount up to the lowest basic [foster]out-of-home care rate.

[2.](b) Guardianship Level II (Specialized): Guardianship Level II is for a child who may be physically disabled, developmentally delayed, medically needy or medically fragile, or have a serious emotional disorder. The amount of the guardianship subsidy may range from the lowest basic [foster]out-of-home care rate to the lowest specialized [foster]out-of-home care rate.

[D.](4) Children who are receiving the structured [foster]out-of-home care rate in [foster]out-of-home care or who are in a group or residential setting are considered for the Guardianship Level II rate.

[E.](5) Guardianship subsidies may not exceed the Guardianship Level II rate.

[F.](6) Guardianship subsidies are funded with state general funds within regional [foster]out-of-home care budgets. A region has the discretion to limit the number of guardianship subsidies or reduce guardianship subsidy rates based on the availability of funds.

[G.](7) Changing the amount of the guardianship subsidy.

[1.](a) The amount of a guardianship subsidy does not automatically increase when there is a n [foster]out-of-home care rate change or as the child ages.

[2.](b) A guardian may request a guardianship subsidy review when seeking an increase in the guardianship subsidy amount, not to exceed the maximum amount allowable for the child's level of need. The guardian must complete the Request for Subsidy Increase Form to provide documentation to justify the request.

[3.](c) The request must be reviewed and approved by the regional guardianship subsidy screening committee. If approved, a new Guardian Subsidy Agreement will be completed.

[4.](d) Child and Family Services[The Division] must provide written notice of agency action by certified mail at least 30 days in advance if a guardianship subsidy rate is going to be reduced.

 

R512-308-9. Guardianship Subsidy Agreement.

[A.](1) A Guardianship Subsidy Agreement specifies the terms for financial support for the child's basic needs.

[B.](2) A guardianship subsidy worker will complete the Guardianship Subsidy Agreement.

[C.](3) The effective date of the initial agreement is the date of the court order granting guardianship.

[D.](4) A Guardianship Subsidy Agreement must:

[1.](a) Be signed by the guardian and Child and Family Services[the Division] prior to any payments being made.

[2.](b) Identify the reason a subsidy is needed.

[3.](c) List the amount of the monthly payment.

[4.](d) Identify dates the agreement is in effect.

[5.](e) Identify responsibilities of the guardian.

[6.](f) Identify under what circumstances the agreement may be amended or terminated and the time period for agreement reviews.

[7.](g) Include a provision for a reduction or termination in the amount of the guardianship subsidy in the event a legislative or executive branch action affects Child and Family Services'[the Division's] budget or expenditure authority, making it necessary for Child and Family Services[the Division] to reduce or terminate guardianship subsidies or if a regional office determines that reduction is necessary due to regional budget constraints.

[8.](h) Include a provision for assignment of benefits to the Office of Recovery Services in accordance with the Office of Recovery Services requirements.

[9.](i) Include a provision for re-payment of any financial entitlement made by the Department of Human Services or Child and Family Services[Division] to the guardian that was incorrectly paid.

 

R512-308-10. Notification Regarding Changes.

[A.](1) The guardian must notify Child and Family Services[the Division] if:

[1.](a) There is no longer a need for a guardianship subsidy.

[2.](b) The guardian is no longer legally responsible for the support of the child.

[3.](c) The guardian is no longer providing any financial support to the child or is providing reduced financial support for the child.

[4.](d) The child no longer resides with the guardian.

[5.](e) The guardian has a change in address.

[6.](f) The child has run away.

[7.](g) The guardian is planning to move out-of-state.

 

R512-308-11. Reviews, Renewals, and Recertifications.

[A.](1) Reviews:

[1.](a) A guardianship subsidy worker will review each Guardianship Subsidy Agreement annually. The family situation, child's needs, and amount of the guardianship subsidy payment may be considered.

[2.](b) Prior to review, the guardian must complete the Guardianship Subsidy Recertification form provided by Child and Family Services[the Division] to verify that the guardian continues to support the child. If the Guardianship Subsidy Recertification form is not received after adequate notice, the guardianship subsidy may be delayed or face possible termination.

[B.](2) Renewals:

[1.](a) In order for guardianship assistance payments to continue, this agreement shall be renewed at intervals of up to three years until the child's 18th birthday.

[2.](b) The Department of Human Services or Child and Family Services[Division] shall provide written notification to the guardians before the next renewal date and shall supply the guardian with the appropriate forms.

[3.](c) The Department of Human Services[,] or Child and Family Services[the Division,] and the guardian may negotiate the terms of a new agreement at any time. In order to be effective, all new agreements shall be in writing, on a form approved by the Department of Human Services or Child and Family Services[the Division], and signed by the parties. Oral modifications or agreements shall bind the Department of Human Services[,] or Child and Family Services[the Division,] and the guardian.

[C.](3) Recertification:

[1.](a) In order for guardianship assistance payments to continue, the guardian must recertify annually by completing and submitting the Annual Guardianship Assistance Recertification form to the Department of Human Services or Child and Family Services[the Division].

 

R512-308-12. Appeals/Fair Hearings.

[A.](1) When a decision is made to deny, reduce, or terminate a guardianship subsidy, Child and Family Services[the Division] shall send by certified mail a written Notice of Agency Action. The notice shall also include information about how to request a fair hearing.

 

R512-308-13. Termination.

[A.](1) A Guardianship Subsidy Agreement will be terminated if any of the following circumstances occur:

[1.](a) The terms of the agreement are concluded.

[2.](b) The guardian requests termination.

[3.](c) The child reaches age 18 years.

[4.](d) The child dies.

[5.](e) The guardian parent dies or, in a two parent family, if both guardian parents die.

[6.](f) The guardian parents' legal responsibility for the child ceases.

[7.](g) The Department of Human Services or Child and Family Services[Division] determines that the child is no longer receiving financial support from the guardian parent.

[8.](h) The child marries.

[9.](i) The child enters the military.

[10.](j) The child is adopted.

[11.](k) The child is placed in [foster]out-of-home care.

[12.](l) The Department of Human Services or Child and Family Services[Division] determines that funding restrictions prevent continuation of subsidies for all guardians.

[B.](2) A guardianship subsidy payment may be terminated or suspended, as appropriate, if any of the following occur. The decision to terminate or suspend must be made by the regional guardianship subsidy screening committee.

[1.](a) The child is incarcerated for more than 30 days.

[2.](b) The child is out of the home for more than a 30-day period or is no longer living in the home.

[3.](c) The guardian fails to return the annual Guardianship Subsidy Recertification form or to complete the renewed Guardianship Subsidy Agreement within five working days of the renewal date.

[4.](d) There is a supported finding of child abuse or neglect against the guardian.

 

KEY: [foster]out-of-home care, guardianship

Date of Enactment or Last Substantive Amendment: [August 2, 2006]2010

Authorizing, and Implemented or Interpreted Law: 62A-4a-102; 62A-4a-105; 78A-6-105