STATEMENT OF EMERGENCY

922 KAR 1:140E

 

††††† In accordance with KRS 13A.190(1)(a)3, this emergency administrative regulation is necessary to have in force and effect policies and procedures coinciding with the effective date of the 2017 Ky. Acts ch. 10. The new law allows for the placement of children removed from their homes of origin by the cabinet with fictive kin. In addition, this emergency administrative regulation is necessary in accordance with KRS 13A.190(1)(a)1 to ensure adequate measures are in place to support the health, safety, and welfare of children receiving permanency services. An ordinary administrative regulation would not allow the agency sufficient time to have policies and procedures in place by the enactment date of the legislation. This emergency administrative regulation shall be replaced by an ordinary administrative regulation. The ordinary administrative regulation is identical to this emergency administrative regulation.

 

MATTHEW G. BEVIN, Governor

VICKIE YATES BROWN GLISSON, Secretary

†††††

CABINET FOR HEALTH AND FAMILY SERVICES

Department for Community Based Services

Division of Protection and Permanency

(Emergency Amendment)

 

††††† 922 KAR 1:140E. Foster care and adoption permanency services.

 

††††† RELATES TO: KRS 2.015, 199.011(3)[(2)], (4), (9), 199.462, 199.555, 199.557, 199.801, 387.025, 527.100, 527.110, 600.020(7)[(6)], (8), 610.110, 610.125, 610.127, 620.020(1), (11), 620.060, 620.090, 620.140, 620.180, 625.040, 625.090, 45 C.F.R. 1355 -1357, 25 U.S.C. 1901-1963, 42 U.S.C. 621-629m, 670-679c, 1996, 1996b

††††† STATUTORY AUTHORITY: KRS 194A.050(1), 199.467, 620.180

††††† EFFECTIVE: June 29, 2017

††††† NECESSITY, FUNCTION, AND CONFORMITY: KRS 194A.050(1) requires the Secretary of the Cabinet for Health and Family Services to promulgate, administer, and enforce those administrative regulations necessary to implement programs mandated by federal law or to qualify for the receipt of federal funds and necessary to cooperate with other state and federal agencies for the proper administration of the cabinet and its programs. KRS 199.467 requires the Secretary of the Cabinet for Health and Family Services to promulgate administrative regulations establishing specific goals for the cabinet, for each fiscal year, regarding the maximum number of children who will remain in foster care longer than twenty four (24) months, and describing the steps to be taken to achieve the goals. KRS 620.180(2) requires the cabinet to promulgate administrative regulations for status review, ongoing case work, and supportive services to children in placement. This administrative regulation establishes the maximum number of children remaining in foster care longer than twenty four (24) months, and establishes permanency services available to children in placement.

††††† Section 1. Definitions. (1) "Absent parent search" means cabinet initiated efforts to locate a biological or legal parent, or a relative.

††††† (2) "Cabinet" is defined by KRS 199.011(3)[(2)] and 600.020(7)[(6)].

††††† (3) "Case permanency plan" is defined by KRS 620.020(1).

††††† (4) "Child" means:

††††† (a) A child defined by KRS 199.011(4) and 600.020(9)[(8)];

††††† (b) A person age eighteen (18) or older whose commitment to the cabinet has been extended or reinstated by a court in accordance with KRS 610.110(6)(d); or

††††† (c) A person under age twenty-one (21) who meets the exceptions to the age of majority in accordance with KRS 2.015.

††††† (5) "Concurrent planning" means the cabinet simultaneously plans for:

††††† (a) The return of a child in the custody of the cabinet to the child's parent; and

††††† (b) Another permanency goal for the child if return to parent is not achieved within fifteen (15) of the last twenty two (22) months, in accordance with 42 U.S.C. 675(5)(E).

††††† (6) "Fictive kin" is defined by KRS 199.011(9).

††††† (7) "Parent" is defined by 42 U.S.C. 675(2).

††††† (8)[(7)] "Reasonable efforts" is defined by KRS 620.020(11).

††††† (9)[(8)] "Relative" means an individual related to a child by blood, marriage, or adoption[to a child].

††††† (10)[(9)] "Sufficient progress" means compliance with case permanency plan objectives that support the safe return of the child to the child's parent.

 

††††† Section 2. Children in Care. Unless the secretary of the cabinet or designee approves an exception based on overall trends in the foster care population, the maximum number of children who receive foster care in excess of twenty four (24) months shall be 3,000 during a state fiscal year.

 

††††† Section 3. Permanency Planning. (1) In a court permanency hearing held pursuant to KRS 610.125, the cabinet shall demonstrate that reasonable efforts to return the child to the child's parent:

††††† (a) Have been unsuccessful; or

††††† (b) Are not required under the provisions of KRS 610.127.

††††† (2) A child shall be removed from the child's home if:

††††† (a) An emergency custody order has been obtained pursuant to KRS 620.060;

††††† (b) A temporary custody order has been obtained pursuant to KRS 620.090; or

††††† (c) A court orders the removal pursuant to KRS 620.140(1)(c).

††††† (3) Upon removal of a child from the child's home, placement shall be:

††††† (a) Selected according to the least restrictive appropriate placement available, as required by KRS 620.090(2); and

††††† (b) Closest in proximity to the childís home, in accordance with KRS 199.801.

††††† (4) In the provision of permanency services, the cabinet shall meet the requirements of the:

††††† (a) Indian Child Welfare Act in accordance with 25 U.S.C. 1901-1963, 42 U.S.C. 671(a)(32), and 42 U.S.C. 1996; or

††††† (b) Multiethnic Placement Act as amended by the Interethnic Adoption Provisions of 1996 in accordance with 42 U.S.C. 622(b)(7), 671(a)(18), and 1996b.

††††† (5) An absent parent search shall:

††††† (a) Be conducted within thirty (30) days of a child entering the custody of the cabinet;

††††† (b) Be conducted to gather as much information as possible related to the person and the personís location, which may include:

††††† 1. Date of birth;

††††† 2. Social Security number;

††††† 3. Present or previous employers; and

††††† 4. Present or most recent address; and

††††† (c) Include a written record of all search attempts, written correspondence, and telephone contacts with any person to assist in locating a parent or relative.

††††† (6) If a relative or fictive kin placement is in the best interest of the child, the cabinet shall:

††††† (a) Use an absent parent search to locate a relative;

††††† (b) Discuss with the relative or fictive kin the option to pursue approval as a foster parent in accordance with 922 KAR 1:350 and document the relativeís decision or fictive kinís decision in the case file using the Relative and Fictive Kin Caregiver Agreement.

††††† 1. A relativeís decision or fictive kinís decision to pursue approval as a foster parent shall not guarantee the cabinetís approval.

††††† 2. If a relative or fictive kin declines to pursue approval as a foster parent prior to accepting custody of a child, the relative or fictive kin shall not have another opportunity to pursue being a foster parent at a later time in the childís placement due to ineligibility under 42 U.S.C. 672;

††††† (c) Document in the case file that the fictive kin has completed training on the prevention and recognition of pediatric abuse head trauma in accordance with KRS 199.462;

††††† (d) Provide information to the relative and fictive kin on how to recognize and report child abuse and neglect;

††††† (e) Conduct background checks on the relative or fictive kin[consistent with a caretaker relative] pursuant to 922 KAR 1:490; and

††††† (f)[(c)] Complete a home evaluation with consideration given to the relativeís or fictive kinís:

††††† 1. Willingness and ability to:

††††† a. Protect the child from abuse or neglect;

††††† b. Participate in the childís case permanency plan;

††††† c. Access:

††††† (i) Transportation;

††††† (ii) Telephone;

††††† (iii) Medical services;

††††† (iv) First aid supplies; and

††††† (v) School;

††††† d. Provide full-time care;

††††† e. Provide for the childís sleeping and eating;

††††† f. Maintain adequate heat and ventilation in the home;

††††† g. Use active smoke detectors in the home; and

††††† h. Assure the childís inaccessibility to:

††††† (i) Medication unless an exception consistent with 922 KAR 1:350, Section 3(12) applies;

††††† (ii) Alcoholic beverages;

††††† (iii) Poisonous or cleaning materials;

††††† (iv) Firearms or ammunition in accordance with KRS 527.100 and 527.110; and

††††† (v) Unsupervised contact with the birth parent; and

††††† 2. Understanding of the impact that familial abuse, neglect, or substance abuse may have on a child and the childís extended family.

††††† (7) The cabinet shall not be obligated to search for or seek fictive kin as a placement for a child.

††††† (8) A relative or fictive kin who accepts custody of a child removed from the childís home of origin by a court shall not be entitled to reimbursement in accordance with 922 KAR 1:350, Section 10.

††††† (9) If the case conference held in compliance with KRS 620.180(2)(a)1 results in the child being placed in the custody of the cabinet, the cabinet shall develop and document a case permanency plan, using the DPP-1281, Family Case Plan.

††††† (10)[(8)] The case permanency plan shall identify the permanency goal described in Section 4(2) of this administrative regulation.

††††† (11)[(9)] Concurrent planning shall be considered:

††††† (a) During development of the case permanency plan; and

††††† (b) At the six (6) month case review.

 

††††† Section 4. Permanency Goals. (1) A permanency goal for a child who has been removed from the childís home of origin by a court[in the custody of the cabinet] shall be established according to the particular needs and best interest of the child.

††††† (2) A permanency goal shall include one (1) of the following:

††††† (a) Return to parent;

††††† (b) Adoption;

††††† (c) Permanent relative placement;

††††† (d) Legal guardianship; or

††††† (e) Another planned permanent living arrangement[; or

††††† (f) Emancipation].

 

††††† Section 5. Return to Parent. (1) The cabinet shall recommend to the court that a child who has been removed from the childís home of origin by the court[in the custody of the cabinet] is returned to the parent if the cabinet determines:

††††† (a) A family has made sufficient progress toward completing the case permanency plan; and

††††† (b) Return to the parent is in the best interest of the child.

††††† (2) If the cabinet determines that a family has not made sufficient progress towards achieving the objectives specified in the case permanency plan, the cabinet shall seek a court order for:

††††† (a) A change in the permanency goal;[or]

††††† (b) Termination of parental rights; or

††††† (c) A civil action in support of the childís permanency goal.

††††† (3) If the court determines that a circumstance occurs that negates the requirement to make reasonable efforts to reunify the child and family, as described in KRS 610.127, the cabinet shall select a permanency goal other than return to parent.

 

††††† Section 6. Adoption. (1) The permanency goal for a child in the custody of the cabinet shall be adoption if:

††††† (a) The parent pursues voluntary termination of parental rights pursuant to KRS 625.040; or

††††† (b) The cabinet pursues involuntary termination of parental rights:

††††† 1. Pursuant to KRS 625.090; or

††††† 2. If the child has been in foster care for fifteen (15) of the most recent twenty-two (22) months pursuant to 42 U.S.C. 675(5)(E).

††††† (2) The cabinet shall request an exception for proceeding with involuntary termination of parental rights pursuant to subsection ††††† (1)(b) of this section, if:

††††† (a) A relative or fictive kin placement has been secured;

††††† (b) Termination is not in the best interest of the child, for a compelling reason:

††††† 1. Documented in the case permanency plan; and

††††† 2. Monitored on a continual basis; or

††††† (c) A service necessary for return to parent has not been provided within the time period specified in the case permanency plan.

††††† (3) Cabinet staff shall consider involuntary termination of parental rights at each permanency hearing held pursuant to KRS 610.125(1).

 

††††† Section 7. Permanent Relative Placement. The permanency goal for a child who has been removed from the childís home of origin by a court[in the custody of the cabinet] shall be permanent custody[relative placement] if:

††††† (1) Return to the parent is not in the childís best interest; and

††††† (2) The cabinet determines that a relative who does not pursue adoption or legal guardianship is able to provide a permanent home for the child.

 

††††† Section 8. Legal Guardianship. (1) The permanency goal for a child who has been removed from the childís home of origin by a court[in the custody of the cabinet] shall be legal guardianship if the cabinet determines that:

††††† (a) Return to the parent or adoption is not in the childís best interest;

††††† (b) There is an identified adult, including fictive kin, willing to seek legal guardianship of the child; and

††††† (c) Legal guardianship by the adult identified in paragraph (b) of this subsection[(1)(b) of this section] is in the child's best interest.

††††† (2) Legal guardianship shall be requested pursuant to KRS 387.025.

 

††††† Section 9. Another Planned Permanent Living Arrangement. (1) The permanency goal for a child in the custody of the cabinet who is sixteen (16) years of age or older shall be another planned permanent living arrangement if:

††††† (a) An unsuccessful effort has been made to place the child for adoption or with a relative or fictive kin, and the child has been placed on a national adoption register;

††††† (b) Other permanency goal options have been exhausted and are no longer appropriate due to the specific circumstances of the child;

††††† (c) The cabinet has reviewed documentation that a goal of another planned permanent living arrangement is in the best interest of the child;

††††† (d) The court has determined that another planned permanent living arrangement is in the best interest of the child to be placed; and

††††† (e) The child has formed psychological ties with those with whom the child lives, and adoption and guardianship have been discussed with the care provider and are not viable alternatives.

††††† (2) Approval shall be obtained from the commissioner or designee prior to the establishment of another planned permanent living arrangement as a permanency goal for a child placed with a private child-caring agency.

 

††††† Section 10.[Emancipation. (1) The permanency goal for a child in the custody of the cabinet shall be emancipation when:

††††† (a) An unsuccessful effort has been made to place the child for adoption or with a relative, and the child has been placed on a national adoption register;

††††† (b) The child is age sixteen (16) or older; and

††††† (c) Other permanency options have been considered and are not appropriate due to the specific circumstances of the child.

††††† (2) If emancipation is established as a permanency goal, the child shall be referred to an independent living program administered by the cabinet.

 

††††† Section 11.] Permanency Services. (1) The cabinet shall provide services for a child who has been removed from the childís home of origin by a court[in the custody of the cabinet] so that permanency is achieved.

††††† (2) Permanency services may include:

††††† (a) Ongoing case work and monitoring of the family to:

††††† 1. Maintain the child safely in the child's home; and

††††† 2. Ensure safe return of the child if the goal is return to the parent;

††††† (b) Adoption assistance pursuant to 922 KAR 1:050 or 922 KAR 1:060;

††††† (c) Post-finalization adoption assistance if adoption assistance has not been previously approved pursuant to KRS 199.555 and 199.557;

††††† (d) Post-adoption placement stabilization services as described in 922 KAR 1:530; or

††††† (e) Referral to other cabinet and community resources necessary for the achievement or maintenance of the childís permanency goal. Other cabinet resources for a prospective or existing permanent relative or fictive kin placement may include:

††††† 1. The Kentucky Transitional Assistance Program (K-TAP) for a child if an application is made in accordance with 921 KAR 2:006 and 921 KAR 2:016;

††††† 2. Health benefits for a child if an application is made in accordance with 907 KAR 20:015, 907 KAR 4:020, or 907 KAR 4:030;

††††† 3. Supplemental Nutrition Assistance Program (SNAP) benefits for a household if an application is made in accordance with 921 KAR 3:030;[or]

††††† 4. Relative placement support benefit in accordance with 922 KAR 1:400, to the extent funds are available; or

††††† 5. The Child Care Assistance Program in accordance with 922 KAR 2:160.

 

††††† Section 11[12]. Incorporation by Reference. (1) The following material is incorporated by reference:

††††† (a) "DPP-1281, Family Case Plan", 11/16; and

††††† (b) "Relative and Fictive Kin Caregiver Agreement", 7/17[, is incorporated by reference].

††††† (2) This material may be inspected, copied, or obtained, subject to applicable copyright law, at the Department for Community Based Services, 275 East Main Street, Frankfort, Kentucky 40621, Monday through Friday, 8 a.m. to 4:30 p.m.

 

ADRIA JOHNSON, Commissioner

VICKIE YATES BROWN GLISSON, Secretary

††††† APPROVED BY AGENCY: June 7, 2017

††††† FILED WITH LRC: June 29, 2017 at 1 p.m.

††††† CONTACT PERSON: Tricia Orme, Administrative Specialist, Office of Legal Services, 275 East Main Street 5 W-B, Frankfort, Kentucky 40621, phone 502-564-7905, fax 502-564-7573, email Tricia.Orme@ky.gov.

 

REGULATORY IMPACT ANALYSIS AND TIERING STATEMENT

 

Contact Person: Elizabeth Caywood, (502) 564-3703, Elizabeth.Caywood@ky.gov.; and Tricia Orme

††††† (1) Provide a brief summary of:

††††† (a) What this administrative regulation does: This administrative regulation establishes the maximum number of children remaining in foster care for longer than twenty-four (24) months and permanency services available to children in placement.

††††† (b) The necessity of this administrative regulation: This administrative regulation is necessary to establish the policies and procedures for foster care and adoption permanency services that are mandated by federal and state laws.

††††† (c) How this administrative regulation conforms to the content of the authorizing statutes: This administrative regulation conforms to the content of the authorizing statutes through the establishment of the maximum number of children remaining in foster care for longer than twenty-four (24) months and permanency services available to children in placement.

††††† (d) How this administrative regulation currently assists or will assist in the effective administration of the statutes: This administrative regulation assists in the effective administration of the statutes through its establishment of the maximum number of children remaining in foster care for longer than twenty-four (24) months and permanency services available to children in placement.

††††† (2) If this is an amendment to an existing administrative regulation, provide a brief summary of:

††††† (a) How the amendment will change this existing administrative regulation: The amendment to this administrative regulation implements 2017 Ky. Acts ch. 10, which authorizes the placement of children removed from their homes with origin by the cabinet with fictive kin, and clarifies reimbursements for the childís care. Additionally, the amendment removes emancipation as a permanency goal for a child placed outside of the home of origin. According to the Court of Justice, emancipation is not a legally available permanency option for children due to a lack of statutory authority. Lastly, the amendment makes technical corrections in accordance with KRS Chapter 13A.

††††† (b) The necessity of the amendment to this administrative regulation: This amendment is necessary to implement the 2017 Ky. Acts ch. 10, clarify reimbursement policies for children, and make corrections to the permanency services per inputs from the Court of Justice.

††††† (c) How the amendment conforms to the content of the authorizing statutes: This amendment conforms to the content of the authorizing statutes by adding fictive kin as a permanency option for children removed from their homes of origin by the cabinet, clarifying reimbursement policies for children, and making corrections per inputs from the Court of Justice.

††††† (d) How the amendment will assist in the effective administration of the statutes: The amendment will assist in effective administration of the statutes through its conformity and alignment with state laws applicable to permanency services offered through the cabinet.

††††† (3) List the type and number of individuals, businesses, organizations, or state and local governments affected by this administrative regulation: As of May 7, 2017, there were 8,375 children in foster care who are served by a variety of foster care providers.

††††† (4) Provide an analysis of how the entities identified in question (3) will be impacted by either the implementation of this administrative regulation, if new, or by the change, if it is an amendment, including:

††††† (a) List the actions that each of the regulated entities identified in question (3) will have to take to comply with this administrative regulation or amendment: The amendment will allow fictive kin as a placement option for children who are removed from their homes of origin. The processes for fictive kin will be similar, though not identical, to the processes for relatives.

††††† (b) In complying with this administrative regulation or amendment, how much will it cost each of the entities identified in question (3): Fictive kin will have the option of accepting a child for placement and pursuing approval as a foster/adoptive parent. There is no new or additional cost being forced upon regulated entities.

††††† (c) As a result of compliance, what benefits will accrue to the entities identified in question (3): The amendment to this administrative regulation will allow the cabinet to place children removed from their homes of origin with fictive kin, a caregiver with whom the child has a significant emotional bond. The ability to place with fictive kin will prevent some children from being placed in the custody of the cabinet and/or with a provider who is otherwise a stranger to the child. The use of fictive kin may also allow some children to remain in the childrenís communities and schools of origin. Fictive kin has been found as more stable and less traumatizing placement type for children removed from their homes of origin in other states.

††††† (5) Provide an estimate of how much it will cost the administrative body to implement this administrative regulation:

††††† (a) Initially: Initial implementation costs to the administrating agency will be within existing appropriations.

††††† (b) On a continuing basis: Ongoing implementation of the administrative regulation by the agency will be within appropriations.

††††† (6) What is the source of the funding to be used for the implementation and enforcement of this administrative regulation: Federal Titles IV-B and IV-E (of the Social Security Act) funds, the federal Temporary Assistance for Needy Families Block Grant (TANF), the federal Social Services Block Grant (SSBG), restricted funds derived from Medicaid, and State General Funds are the funding sources for this administrative regulation.

††††† (7) Provide an assessment of whether an increase in fees or funding will be necessary to implement this administrative regulation, if new, or by the change if it is an amendment: An increase in fees or funding will not be necessary to implement this amendment.

††††† (8) State whether or not this administrative regulation established any fees or directly or indirectly increased any fees: This administrative regulation does not establish any fees or directly or indirectly increase any fees.

††††† (9) TIERING: Is tiering applied? Tiering is not applied, because this administrative regulation is applied in a like manner statewide.

 

FEDERAL MANDATE ANALYSIS COMPARISON

 

††††† 1. Federal statute or regulation constituting the federal mandate.

45 C.F.R. 1355 -1357, 25 U.S.C. 1901-1963, 42 U.S.C. 621-629m, 670-679c, 1996, 1996b

††††† 2. State compliance standards. KRS 194A.050(1), 199.467, 620.180

††††† 3. Minimum or uniform standards contained in the federal mandate. 45 C.F.R. 1355 -1357, 25 U.S.C. 1901-1963, 42 U.S.C. 621-629m, 670-679c, 1996, 1996b

††††† 4. Will this administrative regulation impose stricter requirements, or additional or different responsibilities or requirements, than those required by the federal mandate? This administrative regulation does not impose stricter requirements, or additional or different responsibilities or requirements, than those required by the federal mandate.

††††† 5. Justification for the imposition of the stricter standard, or additional or different responsibilities or requirements. This administrative regulation does not impose a stricter standard or additional or different responsibilities or requirements.

 

FISCAL NOTE ON STATE OR LOCAL GOVERNMENT

 

††††† (1) What units, parts, or divisions of state or local government (including cities, counties, fire departments, or school districts) will be impacted by this administrative regulation? The Cabinet for Health and Family Services is impacted by this administrative regulation.

††††† (2) Identify each state or federal statute or federal regulation that requires or authorizes the action taken by the administrative regulation. KRS 194A.050(1), 199.467, 620.180, 45 C.F.R. 1355 -1357, 25 U.S.C. 1901-1963, 42 U.S.C. 621-629m, 670-679c, 1996, 1996b

††††† (3)† Estimate the effect of this administrative regulation on the expenditures and revenues of a state or local government agency (including cities, counties, fire departments, or school districts) for the first full year the administrative regulation is to be in effect.

††††† (a) How much revenue will this administrative regulation generate for the state or local government (including cities, counties, fire departments, or school districts) for the first year? This administrative regulation will generate no new revenues for state or local government in its first year.

††††† (b) How much revenue will this administrative regulation generate for the state or local government (including cities, counties, fire departments, or school districts) for subsequent years? This administrative regulation will generate no new revenues for state or local government in subsequent years.

††††† (c) How much will it cost to administer this program for the first year? Initial implementation costs to the administrating agency will be within existing appropriations.

††††† (d) How much will it cost to administer this program for subsequent years? Ongoing implementation of the administrative regulation by the agency will be within appropriations.

††††† Note: If specific dollar estimates cannot be determined, provide a brief narrative to explain the fiscal impact of the administrative regulation.

††††† Revenues (+/-):†††††

††††† Expenditures (+/-):

††††† Other Explanation: