N.Y. Comp. Codes R. & Regs. tit. 18 § 436.5

Current through Register Vol. 46, No. 45, November 2, 2024

Section 436.5 - Payment of kinship guardianship assistance

(a)

(1) Once the prospective relative guardian with whom a social services official has entered into an agreement under section 436.4 of this Part has been issued letters of guardianship for the child by the court and the child has been finally discharged from foster care to such relative, a social services official must make monthly kinship guardianship assistance payments for the care and maintenance of the child.

(2) In the event of death or incapacity of a relative guardian, a social services official must make monthly kinship guardianship assistance payments for the care and maintenance of a child to a successor guardian that has been approved pursuant to this Part.

(3) Following the death or incapacity of the relative guardian, a social services official must approve a prospective successor guardian who is named in the agreement between the relative guardian and a social services official for payments under this Part and who has been awarded guardianship or permanent guardianship of the child by the court unless, based on the results of the clearances required by section 436.3 of this Part, the social services official has determined that approval of the prospective successor guardian is not authorized or appropriate. Provided however, that no approval can be issued pursuant to this paragraph unless the prospective successor guardian has been awarded guardianship or permanent guardianship of the child by the court and the clearances required by section 436. 3 of this Part have been conducted.

(4) Notwithstanding any other provision of law to the contrary, if a prospective successor guardian assumes care of the child prior to being approved pursuant to paragraph (3) of this subdivision, payments under this Part must be made once a prospective guardian is approved pursuant to such paragraph retroactively from:

(i) in the event of death of the relative guardian, the date the successor guardian assumed care of the child or the date of death of the relative guardian, whichever is later; or

(ii) in the event of incapacity of the relative guardian, the date the successor guardian assumed care of the child or the date of incapacity of the relative guardian, whichever is later.

(5) In the event that a successor guardian assumed care and was awarded guardianship or permanent guardianship of a child due to the incapacity of a relative guardian and the relative guardian is subsequently awarded or resumes guardianship or permanent guardianship of such child and assumes care of such child after the incapacity ends, a social services official must make monthly kinship guardianship assistance payments for the care and maintenance of the child to the relative guardian, in accordance with the terms of the fully executed written agreement.

(b) The amount of the monthly kinship guardianship assistance payment made pursuant to this section must not be less than 75 percent of the applicable board rate nor more than 100 percent of such rate as determined by the social services district in accordance with this section, provided, however, that the rate chosen by the social services district must be equal to the rate used by the social services district for adoption subsidy payments under section 453 of the Social Services Law. The social services official may consider the financial status of the prospective relative guardian or relative guardian only for the purpose of determining the amount of the payments to be made.

(c) Computation of annual income is subject to the following provisions:

(1) Only income earned as wages or salary from employment and/or net income from nonfarm self-employment or net income from farm self-employment as defined in section 404.5(b)(5) of this Title may be considered in computing annual income. The income of persons other than the prospective relative guardian may not be considered.

(2) As evidence of income, a social services official may request wage stubs, or a recent W-2, or an employer's statement of wages, or, in the case of income other than wages or salary, a copy of the prospective relative guardian's latest Federal income tax return.

(3) When the person assuming guardianship is 62 years of age or older, or will be subject to mandatory retirement from present employment within five years of the date of assuming guardianship, such person's income shall be disregarded in computing annual income.

(d)

(1) If the annual income of the prospective relative guardian, as determined by the applicable provisions of subdivision (c) of this section is equal to or less than the applicable State income standard, the monthly payment for care and maintenance of the child must be 100 percent of the applicable board rate, unless the prospective relative guardian, in writing requests and agrees to a lower rate.

(2) If the annual income of the prospective relative guardian, as determined by the applicable provisions of this section, is greater that the applicable State income standard, a social services district has two options in determining the amount to be paid for care and maintenance of the child. Unless the prospective relative guardian voluntarily and, in writing, requests and agrees to a lower amount, such amount must be either:

(i) 100 percent of the applicable board rate, regardless of the annual income of the prospective relative guardian; or

(ii) an amount less that 100 percent, but not less than 75 percent, of the applicable board rate, as determined in accordance with the following formula. The social services district must:

(a) calculate the annual income of the prospective relative guardian pursuant to the provisions of subdivision (c) of this section;

(b) determine what percentage of such annual income is of the applicable State income standard; and

(c) use the following schedule to determine the amount to be paid based on the percentage calculated in clause (b) this subparagraph:

KINSHIP GUARDIANSHIP ASSISTANCE PAYMENTS SCHEDULE

Annual income of relative guardian(s) percentage of applicable State income standard	Amount of kinship guardianship assistance payment
Over 100% but not more that 110%	95% of Applicable Board Rate
Over 110% but not more than 120%	90% of Applicable Board Rate
Over 120% but not more than 130%	85% of Applicable Board Rate
Over 130% but not more that 140%	80% of Applicable Board Rate
Over 140%	75% of Applicable Board Rate

(d) The social services district must use the same option for all kinship guardianship assistance cases. If a social services district wishes to change from one option to other option, the district must inform the office in writing of the intended change at least 30 days prior to the effective date of the change. In addition, such change in option must also apply to the district's adoption subsidy payments. The district must use the newly selected option for all new kinship guardianship assistance agreements entered into on or after the effective date of the change. Kinship guardianship assistance agreements finalized prior to the effective date of the change will not be affected by the change.

(e) Kinship guardianship assistance payments must be made to the relative guardian or guardians or to the successor guardian or guardians until the child's 18th birthday or until the child attains 21 years of age provided the child consented upon attaining the age of 18 to the continuation of guardianship and is:

(1) completing secondary education or a program leading to an equivalent credential;

(2) enrolled in an institution which provides post-secondary or vocational education;

(3) employed for at least 80 hours per month;

(4) participating in a program or activity designed to promote, or remove barriers to, employment; or

(5) incapable of any such activities due to a medical condition, which incapacity is supported by regularly updated information in the child's case record.

(f)

(1) Notwithstanding paragraph (a)(1) and subdivision (e) of this section, and except as provided for in paragraphs (a)(2)-(4) of this section, no kinship guardianship assistance payments may be made pursuant to title 10 of article 6 of the Social Services Law or this Part if the social services official determines that the child is no longer receiving any support from the relative guardian or that the relative guardian is no longer legally responsible for the support of the child, including:

(i) if the status of the legal guardian is revoked, terminated, suspended or surrendered; or

(ii) when the child is removed from the home of the relative guardian or the successor guardian, placed into foster care and the Family Court has approved a permanency planning goal for the child of other than return to the home of the relative guardian or the successor guardian.

(2) Notwithstanding paragraph (a)(1) and subdivision (e) of this section, and except as provided for in paragraph (a)(5) of this section, no kinship guardianship assistance payments may be made pursuant to a successor guardian if the social services official determines that the successor guardian is no longer legally responsible for the support of the child, including if the status of the successor guardian is terminated or the child is no longer receiving any support from such guardian. A successor guardian who has been receiving kinship guardianship assistance payments on behalf of a child under this Part must keep the social services official informed, on an annual basis, of any circumstances that would make the successor guardian ineligible for such payments or eligible for payments in a different amount.

(3)

(i) When there is a failure to respond to the annual notification, pursuant to section 436.6 of this Part, or otherwise when a social services district has reasonable cause to suspect that the relative guardian or successor guardian is either no longer legally responsible for the support of the child or is no longer providing any support for the child, such district may require the relative guardian or successor guardian to submit documentation, as specified by the district, that addresses and verifies the continuing responsibility of the relative guardian or successor guardian to support the child and/or the provision of support of the child by the relative guardian or successor guardian. The relative guardian or successor guardian is required to provide the required documentation in the time period established by the district and to cooperate with the district. In addition, the district may require the relative guardian or successor guardian to meet with district staff in person, by telephone or by other means of communication, as specified by the district, to review the status of the case. The district must take into consideration where the relative guardian or successor guardian resides, the relative guardian's or successors guardian's employment situation and the care needs of the child when determining the time and location of, and the means of communication for, such meeting. If the relative guardian or successor guardian is unable to make the scheduled meeting for reasons beyond the relative guardian's or successor guardian's control, the district must provide the relative guardian or successor guardian with one additional opportunity to meet in accordance with the standards set forth in this paragraph. Failure to provide the requested documentation within the period requested or to meet with district staff as directed may be a ground for termination of the kinship guardianship assistance agreement.

(ii) When determining whether the relative guardian or successor guardian is providing the child with any support for the purposes of this paragraph, the term, any support from the relative guardian or successor guardian, means actual documented use at least 50 percent of such monthly kinship guardianship assistance payments by the relative guardian or successor guardian for the food, clothing, medical, education and/or shelter needs of the child.

(g) The relative guardian or successor guardian who has been receiving kinship guardianship assistance payments on behalf of a child under title 10 of article 6 of the Social Services Law and this Part must keep the social services official informed of any circumstances that would make the relative guardian or successor guardian ineligible for such payments or eligible for payments in a different amount. The relative guardian or successor guardian must notify the social services official in writing within 30 days of any circumstance or event that would impact the continued eligibility of the child for kinship guardianship assistance.

(h) The placement of the child with the relative guardian or successor guardian and any kinship guardianship assistance payments made on behalf of the child under this section must be considered never to have been made when determining eligibility for adoption subsidy payments under title 9 of article 6 of the Social Services Law and section 421.24 of this Title of a child in such legal guardianship arrangement.

N.Y. Comp. Codes R. & Regs. Tit. 18 § 436.5

Amended New York State Register June 17, 2015/Volume XXXVII, Issue 24, eff.6/17/2015

Amended New York State Register May 11, 2016/Volume XXXVIII, Issue 19, eff.5/11/2016

Amended New York State Register June 20, 2018/Volume XL, Issue 25, eff. 6/20/2018