Ill. Admin. Code tit. 89 § 302.410

Current through Register Vol. 48, No. 44, November 1, 2024

Section 302.410 - Subsidized Guardianship (KinGAP)

a) General Provisions

1) The subsidized guardianship program (KinGAP) implements provisions of 42 USC 673 that allow the State to enter into guardianship agreements to provide assistance payments to grandparents and other relatives who have assumed the legal guardianship of children for whom they have cared as a licensed foster parent and for whom they have committed to care on a permanent basis. The program offers a subsidized private guardianship arrangement for children for whom the permanency goals of return home and adoption have been ruled out. Guardianship is governed by the Illinois Probate Act [755 ILCS 5] and the Illinois Juvenile Court Act [705 ILCS 405]. A licensed relative foster parent caring for a child determined to be eligible for the subsidized guardianship program shall be made aware of the availability of subsidized guardianship and the types of assistance available. The subsidized guardianship agreement must be signed prior to the transfer of guardianship.

2) The State funded option of subsidized guardianship provides subsidized guardianship for children for whom the Department has placement and care responsibility and who meet the special needs criteria as defined in Section 302.310(b)(2), but are not eligible for Title IV-E KinGAP, as well as for children who age out of eligibility for Title IV-E KinGAP and continue in school up to the earliest of their 19^th birthday or graduation from high school, or age 21 when the child meets specific requirements outlined in subsections (f)(2), (i)(7) and (i)(8).

b) The Subsidized Guardianship Agreement

1) General Provisions

The type, amount and duration of subsidized guardianship shall be agreed to in writing by the Department and the subsidized guardian prior to the transfer of guardianship and shall be set forth in the subsidized guardianship agreement, which shall be binding on the parties to the agreement. It shall be stipulated that the agreement shall remain in effect regardless of the state where the subsidized guardian resides currently or in the future and shall contain provisions for the protection of the interests of the child in cases in which the subsidized guardian and child move to another state while the agreement is in effect. The amounts of ongoing subsidized guardianship payments are subject to change based on changes in State or federal law regarding adoption assistance payments. Subsidized guardians may refuse any or all payments offered by the Department. The child for whom guardianship is transferred and for whom the guardian is receiving a subsidy shall receive only those services and/or payments specified in the subsidized guardianship agreement. The child may require services in the future that are not currently being provided for pre-existing physical, emotional or mental health needs or risk factors. Any pre-existing conditions must be described in the subsidized guardianship agreement to be eligible for assistance through the Subsidized Guardianship Program at a future date. Assistance cannot be granted for pre-existing conditions if the conditions are not listed in the subsidized guardianship agreement in accordance with subsection (e)(4) or cannot be documented, as a pre-existing condition that was unknown at the time of the agreement, by a medical provider. The subsidized guardianship agreement must be signed, and a copy of the signed agreement must be provided to the prospective guardian, prior to the transfer of guardianship.

2) Successor of Guardianship

The subsidized guardianship agreement may not be transferred by the guardians to any other party. However, in the event of the death or incapacity of the guardians, the child remains eligible for assistance if the guardians have designated a successor guardians in the agreement (or any amendment to the agreement). Upon assuming care of the child, the successor guardians shall contact the Department to inform the Department of changes in the child's living situation, to request a home study and background checks, and to initiate the application process for a subsidy.

c) Eligibility Criteria

1) Eligibility for Subsidized Guardianship under KinGAP

A) For a child to qualify for subsidized guardianship under KinGAP, the following criteria must be met:

i) the child must have been removed from his or her home pursuant to a voluntary placement agreement or as a result of a judicial determination to the effect that continuation in the home would be contrary to the welfare and the best interest of the child; and

ii) the child must be eligible for foster care maintenance payments while residing for at least 6 consecutive months in the home of a licensed prospective relative guardian immediately prior to the establishment of the guardianship; and

iii) the prospective relative guardian must have been a licensed foster parent for at least the consecutive 6 month period that the child has been in his/her home immediately prior to the establishment of the guardianship; and

iv) return home or adoption are not appropriate permanency options for the child; and

v) the child demonstrates a strong attachment to the prospective relative guardian and the relative guardian has a strong commitment to caring permanently for the child; and

vi) a child who has attained 14 years of age has been consulted and the child has agreed to the guardianship arrangement.

B) A sibling of an eligible child who is placed with the same relative as the eligible child under a kinship guardianship agreement, when DCFS and the relative guardian agree that the placement is appropriate, also qualifies for subsidized guardianship under KinGAP.

2) Eligibility for the State Funded Option of Subsidized Guardianship

A) For a child to qualify for the State Funded Option of Subsidized Guardianship, the following criteria must be met:

i) the child does not qualify for subsidized guardianship under KinGap;

ii) the child is 12 years of age or older; and

iii) the child has lived with an unlicensed relative caregiver or licensed non-relative for at least the 6 consecutive month period prior to the establishment of the guardianship and meets the following:

* the child was removed from his or her home pursuant to a voluntary placement agreement or as a result of a judicial determination to the effect that continuation in the home would be contrary to the welfare and best interest of the child; and

* the child was eligible for foster care maintenance payments while residing for at least 6 consecutive months in the unlicensed home of relative or licensed non-relative home immediately prior to establishing guardianship; and

* the prospective non-relative guardian has been a licensed foster parent for at least the consecutive 6 month period immediately prior to the establishment of the guardianship; and

* return home or adoption are not appropriate permanency options for the child; and

* the child demonstrates a strong attachment to the prospective guardian and the prospective guardian has a strong commitment to caring permanently for the child; and

* the child has been consulted and has agreed to the guardianship arrangement.

B) A younger sibling of a child eligible for the State funded option of subsidized guardianship who is placed with the same unlicensed relative or licensed non-relative as the eligible child, when DCFS and the unlicensed relative or licensed non-relative guardian agree that the placement is appropriate, also qualifies for the State funded option of subsidized guardianship.

d) Determination Whether Subsidized Guardianship under KinGap is in the Best Interests of the Child

1) Prior to approving a subsidized guardianship arrangement for a child, the Department shall determine whether subsidized guardianship is in the best interests of the child. In making this determination, the Department shall consider all relevant factors, including but not limited to:

A) the wishes of the child's prospective subsidized guardian and the guardian's demonstrated ability to provide care that meets the special needs of the child, if any;

B) the wishes of the child under the age of 14 or the consent of the child, if over age 14;

C) the interaction and interrelationship between the child and the prospective subsidized guardian;

D) the child's adjustment to the present home, school and community;

E) the child's need for stability and continuity of relationship with the prospective subsidized guardian; and

F) the mental and physical health of all individuals involved.

2) The Department shall ensure that the subsidized guardianship arrangement is safe and suitable placement by means of a safety checks, which shall include a CANTS/SACWIS and LEADS check in accordance with 89 Ill. Adm. Code 385 (Background Checks).

e) Types of Assistance

A child meeting the eligibility criteria for subsidized guardianship is entitled to the following types of assistance:

1) Non-recurring Expenses

Payment for non-recurring expenses associated with obtaining legal guardianship for the child subject to the maximum of up to $2000 per child.

2) Ongoing Monthly Payments

A) An ongoing monthly payment to be determined through the discussion and negotiation process between the prospective guardian and the Department based on the needs of the child and the circumstances of the family. This payment should combine with the guardian's resources to cover the ordinary and special needs of the child. This payment shall not exceed the amount the child receives in his or her current foster family home upon transfer of guardianship. The ongoing monthly payment shall only be issued to one custodial caregiver identified as payee in the assistance agreement, and this person shall be the designated authority for the purpose of service provision. In the event that there is a change in the custodial status of the child, the Department shall be notified. If a change in payee is necessary, notification shall be sent to the Department in writing with the supporting legal documentation attached. The ongoing monthly payment may be adjusted for any benefits the child will continue to receive, such as Social Security, Veteran's benefits, railroad retirement or black lung benefits. Supplemental Security Income (SSI) benefits shall not be considered in determining the ongoing monthly payment amount. When the child is SSI-eligible following the transfer of guardianship, the guardian shall tell the Social Security Administration the amount of the ongoing monthly payment that they are receiving. The Social Security Administration may reduce the SSI payment dollar for dollar as the receipt of SSI is based on income.

B) Eligibility for a subsidy under the subsidized guardianship program shall be determined regardless of the financial circumstances of the prospective subsidized guardian, the types and amounts of assistance under each subsidized guardianship agreement shall be determined by the Department in the same manner as described for adoption assistance in Section 302.310(c).

3) A Medicaid card.

4) Needs Not Payable through Other Sources

A child meeting the eligibility criteria for subsidized guardianship entitled to the types of assistance outlined in subsections (e)(1), (2) and (3) may also apply for the following types of assistance:

A) Physical, emotional and mental health needs not payable through insurance or public resources (e.g., other State or community funded programs) that are associated with, or result from, a condition whose onset has been established as occurring prior to the transfer of guardianship. Payment shall not be made until the Department has been notified in writing that the services will begin and has approved the requested services, and a contract (when applicable) has been executed. The Department's reimbursement shall be limited to what is usual, customary and reasonable based on Medicaid-eligible service rates in the community as determined by the Department.

B) The Department will not pay for physical, emotional, medical, mental health or psychological services or treatment for a pre-existing condition or risk factors unless the pre-existing condition, service or risk factor is included in the subsidized guardianship agreement or can be documented by a medical provider as a pre-existing condition that was unknown at the time of the agreement.

5) Therapeutic Day Care

Therapeutic day care is available only for children who are determined to have a disability that requires special education services through an Individualized Education Plan (IEP), an Individual Family Service Plan (IFSP), or a 504 Educational Special Needs Plan and is not fundable through another source. Specific therapeutic interventions must be provided as an integral part of the day care programming. Payment for therapeutic day care shall not be made until the Department has been notified in writing that requested services have been approved, when services will begin, and that a contract has been executed (when applicable).

6) Employment Related Day Care

Payment for day care for children under the age of 3 years may be made if the guardian is employed or in a training program that will lead to employment. Payment for day care services shall end on the child's third birthday. This day care payment cannot be used in addition to therapeutic day care.

7) College Scholarships and the Education and Training Voucher Program

Children who are receiving subsidized guardianship assistance may apply for a 4-year college scholarship awarded by the Department on a competitive basis. A limited number of scholarships are awarded by the Department each year to high school or high school equivalent graduates. Youth who enter into subsidized guardianship from foster care after attaining age 16 are eligible to enter the Education and Training Voucher (ETV) Program.

f) Responsibilities of the Subsidized Guardian

Subsidized guardians are responsible for the following:

1) ensuring that parents have the opportunity to visit their children in accordance with the provisions/orders of the court; and

2) notifying the Department no later than 30 days after any one of the following occurrences:

A) the child is no longer the legal responsibility of the guardian;

B) the guardian no longer financially supports the child;

C) the child graduates from high school or equivalent;

D) there is a change of residential address or mailing address of the guardian or the child;

E) the child dies;

F) the child becomes an emancipated minor;

G) the child marries;

H) the child enlists in the military;

I) the mental or physical incapacity of the guardian prevents the guardian from discharging the responsibilities necessary to protect and care for the child;

J) the custodial status of the child changes;

K) the guardianship is vacated;

L) the child has completed his or her secondary education or a program leading to an equivalent credential, if the guardianship was awarded before July 1, 2017 or the child was younger than 16 years of age when guardianship was awarded on or after July 1, 2017;

M) on or after July 1, 2017, if the child was 16 years of age or older when guardianship was awarded, and the child reaches the age of 18, the child:

i) is completing secondary education or a program leading to an equivalent credential;

ii) is enrolled in an institution that provides post-secondary education or a vocational program;

iii) is participating in a training program or activity designed to promote, or remove barriers to, employment;

iv) is employed at least 80 hours per month; or

v) is incapable of doing any of the above due to a medical condition.

g) Department Responsibilities

1) The Department shall ensure that members of sibling groups are placed together, unless there is an explicit determination that they should not be placed together for the reasons described in 89 Ill. Adm. Code 301 (Placement and Visitation Services).

2) The Department shall explain in the child's service plan the following:

A) the steps that the agency has taken to determine that it is not appropriate for the child to be returned home or adopted;

B) the reasons for the separation of any and all siblings during placement;

C) the reasons why a permanent placement with a fit and willing relative through a subsidized guardianship assistance arrangement is in the child's best interests;

D) the ways in which the child meets the eligibility requirements for a subsidized guardianship assistance payment;

E) the efforts the agency has made to discuss adoption with the child's relative foster parent as a more permanent alternative to legal guardianship and, in the case of a relative foster parent who has chosen not to pursue adoption, documentation of the reasons not to pursue; and

F) the efforts made by the Department to discuss with the child's parent or parents the subsidized guardianship assistance arrangement, or the reasons why the efforts were not made.

3) The Department shall offer short-term support services for foster care and relative home providers prior to and during subsidized guardianship. Services will include preliminary screening, assessment, assistance in applying for subsidized guardianship, and payment of one time only court costs and legal fees, if required.

4) The Department shall ensure that an orientation is provided to the caregiver's family to ensure that all family members understand the benefits and responsibilities of all the participants in the subsidized guardianship arrangement.

5) The Department shall ensure that each guardian has access to post-guardianship staff who shall respond to requests for information and assistance.

6) The Department shall ensure that all guardians are aware of their right to appeal service decisions with which they may disagree under 89 Ill. Adm. Code 337 (Service Appeal Process) as summarized in subsection (j).

7) The Department shall accept custody of the child in accordance with the Abused and Neglected Child Reporting Act [325 ILCS 5] if the guardian does not care for the child to the extent the child's health or well-being is endangered.

h) Periodic Reviews

The Department shall mail an Annual Notification letter to the guardian, which will facilitate the guardian's communication with the Department.

i) Termination of Payments

Payments for subsidized guardianship assistance shall terminate when the Department has determined that any one of the following has occurred:

1) when the terms of the subsidized guardianship agreement are fulfilled;

2) the guardian has requested that the payment permanently stop;

3) the guardian is no longer financially supporting the child;

4) the child becomes an emancipated minor;

5) the child marries;

6) the child enlists in the military;

7) if the guardianship was finalized before July 1, 2017, or the child was under the age of 16 when the guardianship was finalized on or after July 1, 2017:

A) the child reaches age 18;

B) a child 18 years of age graduates from high school or equivalent or reaches age 19, whichever occurs first; or

C) a child who has a physical, mental or emotional disability associated with a condition or risk factor that existed prior to the finalization of the guardianship and that was documented prior to the youth's 18^th birthday reaches age 21;

8) for children who were 16 years of age or older when the guardianship was transferred on or after July 1, 2017, the child reaches age 21. Between the ages of 18 and 21, the subsidy payments may stop and start based on the child's compliance with, and the guardian's confirmation of, the requirements listed in this subsection (i)(8) (failure of the guardian to provide annual written confirmation will cause the subsidy payment to stop).

A) The child is completing secondary education or a program leading to an equivalent credential;

B) The child is enrolled in an institution that provides post-secondary education or a vocational program;

C) The child is participating in a training program or activity designed to promote, or remove barriers to, employment;

D) The child is employed at least 80 hours per month; or

E) The child is incapable of doing any of the above due to a medical condition;

9) the guardian dies;

10) the guardianship is vacated; or

11) the child dies.

j) Appeal of Department Decisions

Guardians may appeal the following Department decisions in accordance with 89 Ill. Adm. Code 337 (Service Appeal Process):

1) The Department failed to advise the potential guardian about the availability of a subsidy to children under the care of the Department;

2) The potential guardians disagree with the Department's determination that a child is ineligible for subsidized guardianship;

3) The Department's denial of Title IV-E subsidized guardianship eligibility to a child for whom it does not have placement and care responsibility;

4) Inaction on the part of the Department on a Title IV-E subsidized guardianship eligibility determination request;

5) Subsidized guardianship or a specific component of the subsidized guardianship was denied;

6) Relevant facts regarding the child were known by the Department and were not presented to the guardian prior to the transfer of guardianship;

7) The Department denies the guardian's request to modify the subsidized guardianship agreement; or

8) A subsidized guardianship agreement has been amended, suspended or terminated without the concurrence of the guardian.

Ill. Admin. Code tit. 89, § 302.410

Amended at 35 Ill. Reg. 8204, effective May 15, 2011

Amended at 42 Ill. Reg. 2027, effective 1/11/2018

Amended at 42 Ill. Reg. 15899, effective 8/2/2018