The SSI Path to Title IV-E Adoption Assistance

For Relatives or Others Who Assume Custody of the Child

Eligibility of Title IV-E Adoption Assistance is much less of a policy issue in Ohio than the negotiation of adoption assistance agreements, at least for the overwhelming majority of children in the custody of county children services agencies.  For grandparents, aunts, uncles and others who decide to adopt after assuming custody of a relative child from the local court, it is a different story.  They discover that assuming custody of their prospective adoptive child jeopardizes the child’s eligibility for adoption assistance.   

For these kinship care children, the SSI pathway offers the possibility of an alternative, but more obscure route to adoption assistance.  If a child meets one of the many disability standards for SSI, he or she is virtually assured of being eligible for adoption assistance.  Special needs is the only other eligibility requirement for adoption assistance and any child who meets one of the SSI disability standards is surely a special needs child.  According to Section 8.2B, Question 1 of the federal Child Welfare Policy Manual

A child is eligible for adoption assistance if the child meets the requirements for title XVI SSI benefits and is determined by the State to be a child with special needs prior to the finalization of the adoption.

There are no additional criteria that a child must meet to be eligible for title IV-E adoption assistance when eligibility is based on a special needs child meeting SSI requirements. Specifically, how a child is removed from his or her home or whether the State has responsibility for the child's placement and care is irrelevant in this situation.

References: 42 U.S.C. § 673. Section (a)(2), OAC 5101:2-49-02 and OAC 5101:2-49-02.1

Why not simply apply for SSI instead of using SSI as a pathway to adoption assistance?

a.       SSI is means tested.  The income of the child’s legal parents is counted as income to the child.  After the final decree of adoption, when the adoptive parents become the child’s legal parents, their income will most likely be over the limit, causing the child to lose all or most of her monthly SSI benefits. 

b.      Adoption Assistance is not means tested before or after the final decree of adoption.

c.       Meeting the disability standard for SSI prior to the final decree of adoption as a pathway to adoption assistance is almost always a better alternative for adoptive parents and their children than attempting to obtain SSI benefits for them.

But isn’t the application process for SSI quite lengthy?

Yes, often it is.  But, for children who are over the age of two or will reach the age of two before the end of the current Federal Fiscal Year (September 30), the county agency may conduct an SSI disability determination, if it is for the purpose of qualifying for adoption assistance rather than the SSI program itself.  The federal Children’s Bureau issued a policy, notice dated 02/25/2011, and placed it in Section 8.2B.12 of the Child Welfare Policy Manual, Question 3.

Question: In determining whether an applicable child who is a special needs child is eligible for title IV-E adoption assistance through the Supplemental Security Income (SSI) pathway, may a title IV-E agency make the determination that the child meets the medical or disability requirements for SSI benefits? (See section 473(a)(2)(A)(ii)(I)(bb) of the Social Security Act).

Answer: Yes. For the purposes of determining whether an applicable child who is a special needs child is eligible for title IV-E adoption assistance through the SSI pathway, the title IV-E agency may make the determination that the child meets the medical or disability requirements for SSI benefits. The title IV-E agency is not making an SSI eligibility determination on behalf of the child, as that responsibility lies with the Social Security Administration and that includes a financial eligibility component. Rather, the title IV-E agency is responsible for title IV-E adoption assistance eligibility determinations, and therefore the agency is permitted to make the determination that the child meets the medical or disability requirements for SSI benefits for title IV-E eligibility purposes.

Source/Date: 2/24/2011

Legal and Related References: Social Security Act - Sections 473(a)(1)(B)(ii)), 473(a)(2)(A)(ii)(I)(bb) and 473(c)(2)(B)(ii)

Here is the parallel State of Ohio rule from the Ohio Administrative Code (OAC) 5101:2-49-02 (B)(2). 

The child meets all medical and disability requirements for supplemental security income (SSI). For the purposes of determining whether an applicable child is eligible for AA through the SSI criteria, the Title IV-E agency may make the determination that the child meets the medical or disability requirements for SSI benefits.

Not so fast, O’Hanlon.  The Ohio rule says “may make the determination.” What if the agency decides not to?

Well, here’s the deal.  If a parent applies for Title IV-E Adoption Assistance on the grounds that her child meets one of the disability criteria for SSI, the county agency must make an eligibility determination.  If the county agency refuses, goes through the motions or simply denies the child’s eligibility for adoption assistance, the parent has appeal rights through the state hearing system.  Unless the county agency can provide convincing evidence that the child does not meet any of the SSI disability criteria, the hearing decision will most likely order the agency to make an SSI disability determination.  The matter of eligibility for adoption assistance cannot be resolved until the issue of the child’s disability status is resolved.

What if I don’t know for sure if my child’s special needs meet one of the SSI disability standards?

If you need the adoption assistance and you think there might be a chance that your child meets one of the SSI disability criteria, I urge you to apply.  You can submit an application, then gather information as part of the application and eligibility determination process. It is the agency’s job to determine eligibility, not yours!

NOTE: Be sure and keep up dialogue with the agency about what information and documentation are required to make an SSI eligibility determination in your case.

Where can SSI disability standards for children’s SSI be found?

Go to

https://www.ssa.gov/disability/professionals/bluebook/ChildhoodListings.htm

Are county child welfare agencies likely to be experienced in conducting SSI disability determinations to see if the child is eligible for adoption assistance?

Sadly, no. This is the road less travelled. If you are not confident about interpreting SSI criteria, you can try to consult with the local disability agencies, support groups or others with knowledge of SSI to help you make your case.  

The Ohio Department of Job and Family Services (ODJFS) needs to provide guidance and training on SSI Disability Standards for the purpose of qualifying for adoption assistance.

Are there any special needs conditions that are readily identified as meeting the SSI disability standard?

Yes.  Conditions that warrant “presumptive eligibility can be found at the Code of Federal Regulations at 20 CFR 416.934