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Virginia Administrative Code
Title 22. Social Services
Agency 40. Department of Social Services
Chapter 201. Permanency Services - Prevention, Foster Care, Adoption and Independent Living
5/22/2024

22VAC40-201-165. Kinship Guardianship Assistance Program.

A. The purpose of the Kinship Guardianship Assistance Program is to facilitate placements with relatives and ensure permanency for children for whom adoption or reunification are not appropriate permanency options.

B. A child is eligible for the Kinship Guardianship Assistance Program if:

1. The child has been removed from the child's home pursuant to a voluntary placement agreement or as a result of a judicial determination that continuation in the home would be contrary to the welfare of the child;

2. The child was eligible for foster care maintenance payments under 42 USC § 672 or under state law while residing for at least six consecutive months in the home of the prospective kinship guardian;

3. Reunification or adoption are not appropriate permanency options for the child;

4. The child demonstrates a strong attachment to the prospective kinship guardian, and the prospective kinship guardian has a strong commitment to caring permanently for the child; and

5. The child has been consulted regarding the kinship guardianship if the child is 14 years of age or older.

C. If a child does not meet the eligibility criteria set forth in subsection B of this section but has a sibling who meets such criteria, the child may be placed in the same kinship guardianship with the child's eligible sibling in accordance with 42 USC § 671(a)(31) if the local department and kinship guardian agree that such placement is appropriate. In such cases, kinship guardianship may be paid on behalf of each sibling so placed.

D. Kinship Guardianship Assistance payments may not exceed the foster care maintenance payment, either IV-E or state funded, which would have been paid on behalf of the child if the child had remained in a foster home. Once the Kinship Guardianship Assistance Agreement becomes effective in accordance with subsection H of this section, foster care payments will cease and kinship guardianship assistance payments will begin. Kinship Guardianship Assistance payments include the following, where appropriate:

1. Title IV-E maintenance payments if the child meets federal eligibility requirements.

2. State-funded maintenance payments when the local department determines that the child does not meet the requirements in § 473 of Title IV-E of the Social Security Act (42 USC § 673).

3. Nonrecurring expense payments associated with the costs of obtaining legal custody of the child when a Kinship Guardianship Assistance Agreement is completed prior to legal custody transfer to the kinship guardian. Claims for nonrecurring expense payments must be filed within two years of the date that legal custody transferred to the kinship guardian.

E. The local department shall inform the prospective kinship guardian whether the child is eligible for Medicaid in relation to the Kinship Guardianship Assistance Agreement. For the child who meets the requirements in § 473 of Title IV-E of the Social Security Act (42 USC § 673), Medicaid shall be included in the Kinship Guardianship Assistance Agreement.

F. Additional criteria for the payments and services specified in subsection D of this section are as follows:

1. A maintenance payment, whether under Title IV-E or state funded, shall be approved for a child who is eligible for Kinship Guardianship Assistance payment unless the kinship guardian indicates, or it is determined through negotiation, that the payment is not needed.

a. The amount of all payments shall be negotiated by a representative of the department with the kinship guardian, taking into consideration the needs of the child and circumstances of the kinship guardian.

b. The amount of maintenance payments made shall not exceed the foster care maintenance payment that would have been paid during the period if the child had remained in a foster family home.

c. The maintenance payments shall not be reduced below the amount specified in the Kinship Guardianship Assistance Agreement without the concurrence of the kinship guardian or a statewide reduction in maintenance rates.

d. The maintenance payment specified in the Kinship Guardianship Assistance Agreement may only be increased if the child is already receiving the maximum amount allowed and (i) the child reaches an age at which the foster care maintenance rate would increase or (ii) statewide increases are approved for foster care maintenance rates.

e. The kinship guardian shall be required under the Kinship Guardianship Assistance Agreement to keep the local department informed of the circumstances that would make them ineligible for a maintenance payment or eligible for a different amount of maintenance payment than that specified in the Kinship Guardianship Assistance Agreement.

2. Children who are living with a kinship guardian participating in the Kinship Guardianship Assistance Program are eligible for foster care services under § 63.2-905 of the Code of Virginia, including a full range of casework, treatment, and community services. The kinship guardian may request services through the family assessment and planning team (FAPT) in accordance with state and local policies and procedures.

3. The kinship guardian shall be reimbursed, upon request, for the nonrecurring expenses of obtaining legal custody of the child. The total amount of reimbursement shall be based on actual costs and shall not exceed the amount established by federal law. Claims for nonrecurring expense payments must be filed within two years of the date that legal custody transferred to the kinship guardian.

4. When the kinship guardian declines a specific payment or agrees to a reduced payment amount and the kinship guardian's family circumstances or the child's needs change, the kinship guardian may request a change to the agreement, and an addendum to the Kinship Guardianship Assistance Agreement may be negotiated. The requirements for addendums to an existing Kinship Guardianship Assistance Agreement are in subsection K of this section.

G. All Kinship Guardianship Assistance payments and agreements shall be negotiated with the kinship guardian by a representative of the department, taking into consideration the needs of the child, the circumstances of the family, and the limitations specified in subsections B, C, D, and E of this section. Documentation supporting the requests for payments shall be provided by the kinship guardian and shall be considered in the negotiation of the Kinship Guardianship Assistance Agreement. Income shall not be the sole factor in considering the family's circumstances during the negotiations. Available family and community resources shall be explored as an alternative or supplement to the Kinship Guardianship Assistance payment.

H. A Kinship Guardianship Assistance Agreement shall be entered into by the local board and the kinship guardian for a child who has been determined eligible for Kinship Guardianship Assistance payments. Local departments shall use the Kinship Guardianship Assistance Agreement form provided by the department.

I. The Kinship Guardianship Assistance Agreement shall:

1. Be signed prior to legal custody transfer of the child to the kinship guardian;

2. Specify the payment types and monthly amounts to be provided;

3. Become effective on the date that the judge signs the court order transferring legal custody of the child to the kinship guardian; and

4. Absent modification or revocation of the kinship guardianship, remain in effect and governed by the laws of the Commonwealth of Virginia regardless of the state to which the kinship guardian may relocate.

J. The kinship guardian shall:

1. Annually submit a signed kinship guardianship assistance affidavit to the local department by the date the Kinship Guardianship Assistance Agreement was effective; and

2. Report changes in circumstances to the local department as outlined in the Kinship Guardianship Assistance Agreement.

K. Kinship Guardianship Assistance Agreements may be modified beyond the original provisions of the agreement to the extent provided by law when the local department and the kinship guardian agree in writing to new or renewed provisions in an addendum signed and dated by the local department and the kinship guardian. The local departments shall use the addendum form provided by the department and the changes to the agreement shall be negotiated by a representative of the department.

L. The Kinship Guardianship Assistance Agreement and any amendments may name an appropriate person to act as a successor legal guardian to provide care and guardianship in the event of death or incapacitation of the relative guardian. The successor guardian must be named in the agreement or addendum prior to the kinship guardian's death or incapacitation. The successor guardian does not need to be a relative or licensed as a foster parent to receive the Kinship Guardianship Assistance payment. Before the successor guardian may receive the Kinship Guardianship Assistance payments, the following requirements shall be met:

1. A new amendment to the Kinship Guardianship Assistance Agreement will need to be completed, outlining the terms of the kinship guardianship assistance and responsibilities of the successor guardian. The amendment to the Kinship Guardianship Assistance Agreement must specify that the agency will pay the total cost of nonrecurring expenses associated with obtaining legal guardianship of the child to the extent that the total cost does not exceed the amount authorized by federal law;

2. The successor guardian must complete a fingerprint based criminal background check and a central registry check of the successor guardian and all other adults living in the successor guardian's home; and

3. The successor guardian must obtain legal custody of the child.

M. The local department is responsible for the following:

1. Maintaining payments identified in the Kinship Guardianship Assistance Agreement and any addendum in effect, regardless of where the family resides;

2. Notifying kinship guardians who are receiving Kinship Guardianship Assistance payments that the annual affidavit is due;

3. Assisting the kinship guardian in coordinating services to meet the child's needs upon request;

4. Managing requests for changes in Kinship Guardianship Assistance payments and foster care services from the kinship guardian; and

5. Notifying the kinship guardians of a suspension or termination in payments or foster care services.

N. The Kinship Guardianship Assistance Agreement shall be terminated when the child reaches the age of 18 years, unless:

1. The child has a physical or mental disability that was present at the time of the custody transfer or a physical or mental disability that is related to a hereditary tendency, congenital problem, or birth injury and the local department determines the child requires ongoing treatment and intervention. The Kinship Guardianship Assistance payment may be continued by amending the original Kinship Guardianship Assistance Agreement or completing an addendum. The terms of the agreement or addendum may be for any period after the child's 18th birthday up to the child's 21st birthday; or

2. The child was subject to a Kinship Guardianship Assistance Agreement that became effective after the child reached the age of 16 years. In addition, the child shall meet at least one of the following participation criteria:

a. Completing secondary education or an equivalent credential;

b. Enrolled in an institution that provides post-secondary or vocational education;

c. Participating in a program or activity designed to promote employment or remove barriers to employment;

d. Employed at least 80 hours per month; or

e. Is incapable of doing any of the activities described in subdivisions a through d of this subsection due to a medical condition, which incapability is supported by regularly updated information in the program participant's case record.

O. The Kinship Guardianship Assistance Agreement shall not be terminated before the child's 18th birthday without the consent of the kinship guardian unless:

1. The kinship guardian adopts the child subsequent to the Kinship Guardianship Assistance Agreement and transfer of legal custody. The kinship guardian and a representative of the department shall negotiate adoption assistance payments independently from any negotiated terms of the Kinship Guardianship Assistance Agreement.

2. The kinship guardian requests in writing that the agreement ends.

3. The kinship guardian fails to comply with the annual review process.

4. The kinship guardian is no longer legally responsible for the care of the child.

5. The kinship guardian is not providing any financial support for the child.

6. The kinship guardian dies or becomes incapacitated. If a successor legal guardian is named in the Kinship Guardianship Assistance Agreement or amendments prior to the kinship guardian's death or incapacitation, then Kinship Guardianship Assistance payments may continue to the successor legal guardian under the requirements outlined in subsection L of this section.

7. The kinship guardian and the local department agree in writing to terminate the agreement.

P. Local boards of social services are responsible for informing kinship guardians in writing of their right to appeal decisions relating to the child's eligibility for the Kinship Guardianship Assistance Program and decisions relating to payments within 30 days of receiving written notice of such decisions. In accordance with § 63.2-915 of the Code of Virginia, applicants for and recipients of the Kinship Guardianship Assistance Program shall have the right to appeal these decisions by a local board or licensed child-placing agency in granting, denying, changing, or discontinuing Kinship Guardianship Assistance payments.

Statutory Authority

§§ 63.2-217 and 63.2-319 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 38, Issue 13, eff. March 17, 2022.

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