HAR §17-1617-11. Eligibility requirements for foster care maintenance payments

(a) To be eligible for 1617-13 2946 foster care maintenance payments, the department shall have determined that the child is in need of out-of-home care as the family home is unsafe, even with the assistance of a service plan. In addition: (b) To establish eligibility for federally funded foster care maintenance payments, the following eligibility requirements shall also be met: (1) Age. The child is under eighteen years of age. (2) Removal from the home. The child shall have been removed from the home of a parent or specified relative as a result of: (A) A judicial order for a physical or constructive removal of the child based on a judicial determination that: (i) Continuation in the home would be contrary to the welfare of the child. This determination must be made at the first court hearing that sanctions, even temporarily, the removal of a child from the home; and (ii) Reasonable efforts were made to prevent removal of the child from his or her home or a judicial determination that reasonable efforts were not required to prevent removal. This determination must be made within sixty days of the child's involuntary removal. If the determination concerning reasonable efforts to prevent the removal is not made as specified above, the child shall not be eligible for federally funded foster care maintenance payments for the duration of that stay in foster care; or (B) A valid voluntary foster custody agreement signed by the child's legal custodian and the department which 1617-14 8946 leads to a physical or constructive removal of the child. (i) If a child is expected to remain in out-of-home placement longer than one hundred and eighty (180) days, a petition must be filed and judicial determination specified in subparagraph (A)(i)obtained prior to the one hundred and eightieth (180th) day. (ii) If parents or guardians request that the child be returned to their home or to the home of a relative, the voluntary custody agreement shall be deemed to be revoked unless the department opposes such request and obtains a judicial determination that the return of the child to such home would be contrary to the child's best interests. (C) If the reasonable efforts and contrary to the welfare judicial determinations specified in sub- paragraphs (A) and (B) are not included as required in the court orders, a transcript of the court proceedings shall be the only other documentation accepted to verify that these required determinations have been made. Neither affidavits nor nunc pro tunc orders shall be accepted to verify that the required determinations have been made. (D) A removal has not occurred in situations where legal custody is removed from the parents or relative and the child remains with the same relative in that home under supervision by the department. 1617-15 2946 (3) Responsibility for placement and care. The child's placement and care shall be the responsibility of the department pursuant to chapter 587A, HRS. (4) Eligibility for AFDC as defined in 45 C.F.R., Part 233 and in effect on July 16, 1996. (Effective December 14, 1999, the value of resources allowable for IV-E eligibility increased to $10,000.) The child would have received AFDC as in effect on July 16, 1996 except for the child's removal from the home of a parent or specified relative (specified in section 406(a)), if application had been made for such benefits in or for the month in which the voluntary foster custody agreement was entered into or court proceedings leading to removal from the home were initiated; (i) For removals between October 1, 2003-June 8, 2006, the child would have received AFDC in the home from which the child was removed or the home of any specified relative with whom the child was living within six months prior to removal (Eligibility based on this criteria was no longer used beginning with the child's IV-E eligibility re-determination that occurred subsequent to June 8, 2006.); (ii) For children removed from the home on or after June 9, 2006, the child is AFDC eligible at the time of removal from the home of a parent or specified relative, as defined in chapter 17-656.1-7(b); or (B) The child was living with or had been living with a parent or specified relative within six months prior to the 1617-16 2946 month in which either a voluntary foster custody agreement was entered into or court proceedings were initiated and the child would have been AFDC eligible in that month if he or she had been living in that home; (5) The child is a U.S. citizen or is a qualified alien under section 431 of the Personal Responsibility and Work Opportunity Act of 1996 (PRWORA). If a qualified alien, (A) The child must have lived in the United States (U.S.) for five years if the child entered the U.S. on or after August 22, 1996 if placed with an unqualified alien; or (B) The child is exempt from the five-year residency requirement because the child is placed with a U.S. citizen or qualified alien or the child is a member of one of the exception groups pursuant to USC title 8, Chapter 14, Section 1612(b): refugees, asylees, aliens whose deportation is withheld, veterans and those on active duty (as well as the spouse and unmarried dependent children of that person), Cuban or Haitian entrants, and Amerasians from Vietnam; (6) Licensed foster home. The child shall reside in a fully licensed foster home or child-caring institution. (c) To establish eligibility for state funded foster care maintenance payments, the following eligibility requirements shall be met: (1) In addition to the requirements of subsection (a), the child shall be: (A) Under the placement responsibility of the department, or under the department's placement responsibility 1617-17 6946 when legal guardianship or permanent custody was awarded to another child-placing organization; (B) Ineligible for federally funded foster care maintenance payments as specified in subsection (b); and (C) Residing in a licensed foster family boarding home, child-caring institution, or facility that provides contracted emergency shelter or group home services for the department, office of youth services, or family court; or (2) For independent placements, the criteria of subsection (a) shall not apply and the department shall have determined that the following conditions are met: (A) The child has needs or a condition that have been professionally diagnosed, including but not limited to a physical, mental, or developmental disability, which are beyond the legal custodian's capacity to cope; (B) The child does not fall under the provisions of chapter 587A, HRS, and the legal custodian retains custody and case management responsibility for the child; (C) Services to maintain the child in the home have been exhausted and there is no other public or private placement resource for the family; (D) A licensed foster family boarding home is available and appropriate for the child, or the family can identify a home that can be licensed for the child; and (E) Supportive services and treatment shall be provided by a public or private agency other than the department to the child and family while the child is in out-of-home care; or 1617-18 6946 (3) For a child under the supervision of the family court or other state agencies the criteria of subsection (a) shall not apply, and the department shall have determined that the following conditions are met: (A) There are no resources within that agency or the community to meet the placement needs of the child; and (B) The child is in need of out-of-home care as the child is beyond the control of the legal custodian and cannot remain in the family home; or (C) The child is receiving appropriate services and treatment from the agency who placed the child while the child is in out-of-home care; and (D) The child is in a licensed child-caring institution or in a licensed facility that provides contracted emergency shelter or group home services. (d) For subsection (c)(2) and (3), the legal custodian, family court, or other state agency shall provide documentation to the department of the initial need, and at least every six months thereafter, of the continuing need for foster care services for the child in accordance with departmental procedures. [Eff DEC 0 9 2010 ] (Auth: HRS §§346-14, 346-17) (Imp: HRS §346-17; 45 C.F.R. §§233.10, 233.20, 233.40, 233.50, 233.90, 1355.20, 1356.21, 1356.22; Pub. L. No. 109-71); 42 U.S.C. 673, 45 C.F.R. §§1356.21(c), 1356.22, 1356.40, 1356.41; Pub. L. No. 104-193; Pub. L. No. 105-33; ACYF-CB-PA-01-01, Pub. L. No. 109-171.