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Montana Administrative Register Notice 37-659 No. 23   12/12/2013    
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BEFORE THE DEPARTMENT OF PUBLIC

HEALTH AND HUMAN SERVICES OF THE

STATE OF MONTANA

 

In the matter of the adoption of New Rule I and the amendment of ARM 37.5.304, 37.50.1101, 37.50.1102, and 37.50.1103 pertaining to the adoption of federal statutes for guardianship

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NOTICE OF PUBLIC HEARING ON PROPOSED ADOPTION AND AMENDMENT

 

 

TO: All Concerned Persons

 

            1. On January 2, 2014, at 1:30 p.m., the Department of Public Health and Human Services will hold a public hearing in Room 207 of the Department of Public Health and Human Services Building, 111 North Sanders, at Helena, Montana, to consider the proposed adoption and amendment of the above-stated rules.

 

2. The Department of Public Health and Human Services will make reasonable accommodations for persons with disabilities who wish to participate in this rulemaking process or need an alternative accessible format of this notice. If you require an accommodation, contact Department of Public Health and Human Services no later than 5:00 p.m. on December 26, 2013, to advise us of the nature of the accommodation that you need. Please contact Kenneth Mordan, Department of Public Health and Human Services, Office of Legal Affairs, P.O. Box 4210, Helena, Montana, 59604-4210; telephone (406) 444-4094; fax (406) 444-9744; or e-mail dphhslegal@mt.gov.

 

3. The rule as proposed to be adopted provides as follows:

 

NEW RULE I GUARDIANSHIP SUBSIDY: FAIR HEARING PROCEDURES      (1) Any person aggrieved by a department determination denying, reducing, terminating, or failing to act upon a guardianship subsidy request within one year of the request may request a hearing as provided in ARM 37.5.304, 37.5.307, 37.5.313, 37.5.322, 37.5.325, 37.5.328, 37.5.331, 37.5.334, and 37.5.337.

 

AUTH: 2-4-201, 41-3-444, 52-2-603, MCA

IMP:     41-3-444, 52-2-603, MCA

 

4. The rules as proposed to be amended provide as follows, new matter underlined, deleted matter interlined:

 

            37.5.304 DEFINITIONS For purposes of this subchapter, unless the context requires otherwise, the following definitions apply:

            (1) "Adverse action" means:

            (a) through (n) remain the same.

            (o) a determination by the department regarding a pharmaceutical

manufacturer's rebate due under ARM Title 37, chapter 86, subchapter 11; or

            (p) a department determination denying, reducing, terminating, or failing to act upon a guardianship subsidy request within one year of the request as provided in ARM Title 37, chapter 5, subchapter 11; or

            (p) remains the same, but is renumbered (q).

            (i) through (13) remain the same.

 

AUTH: 2-4-201, 41-3-208, 41-3-444, 50-53-103, 52-2-111, 52-2-603, 52-2-622, 52-2-704, 53-2-201, 53-2-606, 53-4-212, 53-6-111, 53-6-113, 53-7-102, 53-20-305, MCA

IMP:     41-3-202, 41-3-208, 41-3-444, 50-53-101, 50-53-102, 50-53-103, 50-53-104, 50-53-106, 50-53-107, 52-2-603, 52-2-704, 52-2-726, 53-2-201, 53-2-606, 53-6-101, 53-6-107, 53-6-111, 53-6-113, 53-20-305, MCA

 

            37.50.1101 GUARDIANSHIP AND HOME APPROVAL (1) In order to be approved as a guardian pursuant to 41-3-444, MCA, Tthe prospective guardian and the home of the prospective guardian must meet the requirements set forth for youth foster homes requirements contained in ARM 37.97.1001, 37.97.1002, 37.97.1006, 37.97.1011, 37.97.1013, 37.97.1014, 37.97.1016, 37.97.1018, and 37.97.1019 37.51.210, 37.51.216, 37.51.301, 37.51.305, 37.51.306, 37.51.307, 37.51.310, 37.51.311, 37.51.601, 37.51.602, 37.51.608, 37.51.609, 37.51.801, 37.51.802, 37.51.805, 37.51.806, 37.51.810, 37.51.815, 37.51.820, 37.51.825, 37.51.826, 37.51.901, 37.51.902, 37.51.1001, 37.51.1401, 37.51.1404, and 37.51.1405.

            (2) remains the same.

            (3) A written assessment of the prospective guardian and home of the prospective guardian shall must be completed. The assessment must include a determination that the prospective guardian and home of the prospective guardian meet the requirements of this rule. The assessment must demonstrate the appropriateness of the proposed guardian to become the legal custodian for a specific child. Factors to be considered in determining the appropriateness of the proposed guardian include the proposed guardian's acceptance of the child's cultural, racial and religious heritage; knowledge of the child's history, including placement and loss history history of trauma and the potential effect on the child's development and future functioning; understanding and acceptance of the continued role of the child's birth family; understanding and acceptance of the powers and duties of a guardian; and the desire of the prospective guardian to become the child's guardian.

            (4)  If the child for whom guardianship is being considered is 12 years of age or older, the child must be consulted regarding the plan for guardianship.

            (5) The entry of a decree of guardianship terminates the custody of the department and the involvement of the department except to the extent necessary to administer any financial subsidy.

 

AUTH: 41-3-1103, 52-2-603, MCA

IMP:     41-3-421, 41-3-444, 52-2-603, MCA

 

            37.50.1102 STATE-SUBSIDIZED GUARDIANSHIP (1) remains the same.

            (2) Subsidized guardianship payments may be made to the guardian of an eligible child when:

            (a) the child meets the guardianship criteria found in 41-3-421 41-3-444, MCA;

            (b) through (e) remain the same.

            (3) Monthly payments and medical coverage as provided under Montana Medicaid programs may be provided under a subsidized guardianship agreement. A child in a subsidized guardianship arrangement is not eligible for the foster care support services as provided for in ARM 37.50.501, 37.50.502, 37.50.505, 37.50.506, 37.50.510 through , 37.50.511, 37.50.512, 37.50.520, 37.50.521, and 37.50.525.

            (4) through (6) remain the same.

            (7) The subsidized guardianship agreement shall will be terminated:

            (a) if the guardian resigns the guardianship;

            (b) if the guardianship is revoked by the court; or

            (c) if the department determines that the subsidy is not being used to support the child.; or

            (d) when the child reaches age 18.

            (8) The subsidy may continue until the child reaches the age of 19 if the child is a full-time student in a secondary school and is reasonably expected to obtain a secondary-school diploma or its equivalent on or before the month of the child's 19th birthday.

 

AUTH: 41-3-1103, 41-3-444, 52-2-603, MCA

IMP:     41-3-421, 41-3-444, 52-2-603, MCA

 

            37.50.1103 FEDERALLY SUBSIDIZED GUARDIANSHIP (1) Under a child welfare demonstration project awarded the Title IV-E State Plan, Guardianship Assistance Program, approved by the federal United States dDepartment of hHealth and hHuman sServices (HHS), the department is authorized to utilize federal funds to pay guardianship subsidy on behalf of children who meet the requirements established under the terms and conditions of the demonstration project Title IV-E State Plan, Guardianship Assistance Program, July 16, 2013. The terms and conditions contract between approved by the federal Department of Health and Human Services HHS and the department is hereby are adopted and incorporated by reference. Copies of the contract Title IV-E State Plan, Guardianship Assistance Program may be obtained on the department's web site at http://www.dphhs.mt.gov www.dphhs.mt.gov/cfsd/ or from the Department of Public Health and Human Services, Child and Family Services Division, 1400 Broadway, P.O. Box 8005, Helena, MT 59620-8005.

            (2) Federally subsidized guardianship payments may be made to the guardian of an eligible child when:

            (a) the prospective guardian meets the definition of a "kinship guardian" as established in the Title IV-E State Plan, Guardianship Assistance Program terms and conditions;

            (b) the requirements of ARM 37.51.1101 are met; and

            (a)(c) the requirements established under the demonstration project Title IV-E State Plan, Guardianship Assistance Program terms and conditions and the requirements of ARM 37.50.1102(2)(b)(1) through (7)(6) are met.

            (3) Children who meet the eligibility requirements established under the demonstration project will be randomly assigned to a service group or a control group. Title IV-E nonrecurring costs that are directly related to obtaining legal guardianship may not exceed $2000.

            (4) Only children assigned to the service group will be eligible to receive federally subsidized guardianship payments. The subsidized guardianship agreement will be terminated:

            (a) if the guardian resigns the guardianship;

            (b) if the guardianship is revoked by the court;

            (c) if the department determines that the subsidy is not being used to support the child; or

            (d) when the child reaches age 18.

            (5) The department must make an annual visit to the home of each child receiving a federally subsidized guardianship.

 

AUTH: 41-3-1103, 52-2-603, MCA

IMP:     41-3-421, 41-3-444, 52-2-603, MCA

 

            5. STATEMENT OF REASONABLE NECESSITY

 

The Department of Public Health and Human Services (department) is proposing to adopt New Rule I and amend ARM 37.5.304, 37.50.1101, 37.50.1102, and 37.50.1103, pertaining to the adoption of federal statutes for guardianship in order to comply with the Federal Guardianship Assistance Program. These rule changes are necessary to comply with the provisions of the federal Fostering Connections to Success and Increasing Adoptions Act of 2008, Public Law 110-351 (the Fostering Connections Act) found in 42 USC 671 and 673. Since the department was approved to administer the Federal Guardianship Assistance Program in May 23, 2010, the rules need to incorporate provisions of the Fostering Connections Act.

 

New Rule I

 

New Rule I provides fair hearing opportunities and incorporates federal requirements. In order to receive grants for federally subsidized guardianships, states are required to provide fair hearing rights under 42 USC 671(a)(12) and 45 CFR 205.10 for the denial of a guardianship subsidy or when a state agency has not acted upon a subsidy "with reasonable promptness."

 

The department chose one year as the time period that would exceed "reasonable promptness." Normally, there are no delays in allocating guardianship subsidies, but there have been instances when more time is needed to negotiate the correct subsidy amount based on the child's needs.

 

ARM 37.5.304

 

The department is proposing to add a definition to this rule for adverse action to include department decisions on guardianship subsidies. This change is necessary in order to clarify that a fair hearing is available.

 

ARM 37.50.1101

 

The department is proposing to update (1) to reflect the most current administrative rules for Youth Foster Homes.  ARM 37.97.1001 through 37.97.1019 were repealed in 2006 and renumbered as ARM 37.51.301 through 37.51.1405. The department added ARM 37.51.210 and 37.51.216 because they provide disqualification criteria based on child protective service and criminal background checks. The background standards apply to guardians receiving federal subsidies pursuant to 42 USC 671(a)(20).

 

The department proposes to remove from (3) the phrase "acceptance of the child's cultural, racial and religious heritage" as it conflicts with the Multiethnic Placement Act of 1994 (MEPA/IEAP), Public Law 103-382, found in 42 USC 671(a)(18) and 45 CFR 1355.38.  The federal law does not allow the department to consider a child's race, ethnicity, religion, and national origin when assessing a family's ability to provide a child with a permanent home. Exceptions exist for children subject to the federal Indian Child Welfare Act of 1978, 25 USC 1901 et seq. Also in (3), the term "loss history" has been changed to "history of trauma" to reflect current language.

 

New Section (4) incorporates the federal requirement found in 42 USC 673(a)(4)(d)(3)(A)(i)(iv) where a child, 14 years of age and older, must be consulted regarding the guardianship plan. A child's involvement in planning his or her permanent home is considered paramount to the success and stability of the placement.  Instead of age 14, however, the department believes that the age of consultation should be 12 years of age, which is consistent with the age of consent for a child in adoption found in 42-2-301(6) and 42-4-303(2), MCA.

 

ARM 37.50.1102

 

The department is proposing to update (2) to reflect the most current guardianship statute. Section 41-3-421, MCA, currently referenced in (2), was renumbered as 41-3-444, MCA, in 2001.

 

Subsection (7) reflects the fact that the department serves children up to the age of 18. The definition of a "child" in 41-3-102(7), MCA, is "any person under 18 years of age." The department is currently able to continue foster care payments for children who turn 18 while in care but are still enrolled in secondary education. Limiting the age creates a barrier to guardianship for some families and as a result, permanency for these children.  Research indicates that due to the delays caused by the trauma these children experience early on, very few of our children are able to accomplish completion of their secondary education by their 18th birthday. The department recommends that the child's age be extended to age 19 for state-subsidized guardianships for purposes of retaining financial eligibility while completing their secondary education.

 

ARM 37.50.1103

 

The department proposes to eliminate current (1) through (5) because they pertain to the Federal Guardianship Demonstration Project which expired in December, 2009. The new language included in the Title IV-E State Plan provides the current requirements under the Fostering Connections Act to qualify for federally subsidized guardianships. These guardianships are restricted to relatives or other persons that may be considered the child's kin.

 

Section (1) establishes the federal guidelines summarized in the Title IV-E State Plan Guardianship Assistance Program that was approved by United States Department of Health and Human Services in May 2010.

 

In (2)(a), federal law does not define a kinship guardian; however, the law instructed individual states to devise their own definitions and obtain federal approval. The department's definition mirrors 52-2-602, MCA, which provides a broad definition of kinship to include not only extended family, but also godparents, member of the child's tribe, and those persons to whom a child or his family have had a significant emotional tie that existed previous to the department's involvement.

 

In proposed (2)(b) and (c), the prospective kinship guardian must meet the department's rules for youth foster care licensing and determine the prospective guardian's ability and willingness to provide a long-term commitment to the children placed in their home as stated in ARM 37.50.1101 as established in the Title IV-E State Plan and 42 USC 671, and per the requirements in ARM 37.50.1101 and the state subsidy guidelines in ARM 37.50.1102. These are also required in 42 USC 671.

 

Section (3) allows the department to pay for any nonrecurring expenses associated with establishing a Title IV-E guardianship. For instance, a prospective guardian may incur legal expenses that occur only once.  Nonrecurring expenses are limited to $2000 under 42 USC 673(d)(i)(B)(iv). Nonrecurring expenses are limited to Title IV-E guardianships.

 

Finally, (4) includes criteria for terminating a subsidized guardianship agreement.  Federally subsidized guardianships are limited to children under 18 years of age as stated in 42 USC 673(a)(4)(A)(i).

 

Fiscal Impact

 

There will be minimal fiscal impact regarding the rule revisions. The extension of age for the child's eligibility to age 19 as revised in proposed ARM 37.50.1102(7) may increase fiscal costs slightly.  The ability to extend to age 19, however, is allowed only for state-subsidized subsidies which involves a small number of youth.

 

The anticipated costs are as follows:

 

In fiscal year (FY) 2012 (7/1/11 through 6/30/12), 21 youth aged out of their guardian's care.  Of these 21 in care, only one was state-subsidized.  No request for extension was received.

 

In FY 2013 (7/1/12 through 6/30/13), 19 youth aged out of their guardian's care. Of these 19 in care, five were state-subsidized. No request for extension was received

 

In FY 2014 (7/1/13 through 6/30/14), it is anticipated that 14 youth will age out of care. Of these 14, five are state-subsidized. We have had one request to extend the subsidy past the youth's 18th birthday. If the request is granted, the impact is calculated at $19.19 per day for the allowable 365 days totaling $7004.35 for this child while he remains in secondary education. This is compared with the cost of this same aged child remaining under foster care at $21.56 per day for 365 days at $7869.40 for that same fiscal year. If this rule is amended, the department could have five youth this fiscal year with subsidies extended past their 18th birthday. The total amount of cost would be $35,021, compared to foster care payments of $39,347 if these children remained in foster care.

 

            6. Concerned persons may submit their data, views, or arguments either orally or in writing at the hearing. Written data, views, or arguments may also be submitted to: Kenneth Mordan, Department of Public Health and Human Services, Office of Legal Affairs, P.O. Box 4210, Helena, Montana, 59604-4210; fax (406) 444-9744; or e-mail dphhslegal@mt.gov, and must be received no later than 5:00 p.m., January 9, 2014.

 

7. The Office of Legal Affairs, Department of Public Health and Human Services, has been designated to preside over and conduct this hearing.

 

8. The department maintains a list of interested persons who wish to receive notices of rulemaking actions proposed by this agency.  Persons who wish to have their name added to the list shall make a written request that includes the name, e-mail, and mailing address of the person to receive notices and specifies for which program the person wishes to receive notices. Notices will be sent by e-mail unless a mailing preference is noted in the request. Such written request may be mailed or delivered to the contact person in 6 above or may be made by completing a request form at any rules hearing held by the department.

 

9. An electronic copy of this proposal notice is available through the Secretary of State's web site at http://sos.mt.gov/ARM/Register.  The Secretary of State strives to make the electronic copy of the notice conform to the official version of the notice, as printed in the Montana Administrative Register, but advises all concerned persons that in the event of a discrepancy between the official printed text of the notice and the electronic version of the notice, only the official printed text will be considered.  In addition, although the Secretary of State works to keep its web site accessible at all times, concerned persons should be aware that the web site may be unavailable during some periods, due to system maintenance or technical problems.

 

10. The bill sponsor contact requirements of 2-4-302, MCA, do not apply.

 

11. With regard to the requirements of 2-4-111, MCA, the department has determined that the adoption and amendment of the above-referenced rules will not significantly and directly impact small businesses.

 

 

/s/ Mark Prichard                                          /s/ Richard H. Opper                                   

Mark Prichard                                               Richard H. Opper, Director

Rule Reviewer                                               Public Health and Human Services

           

Certified to the Secretary of State December 2, 2013.

 

 

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