Adoption Subsidy FAQ

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Frequently Asked Questions Regarding Hearings Purusant to SSL § 450 & 455 Adoption Subsidy Payments

For a description of Adoption subsidy payments, and eligibility for such payments, please refer to the New York Adoption Subsidies page.

Acronyms and Abbreviations

• ALJ - Administrative Law Judge
• BSH - Bureau of Special Hearings
• OCFS - Office of Children and Family Services
• OTDA - Office of Temporary and Disability Assistance

Questions

What is an adoption subsidy payment?

Adoption subsidies social services official shall make monthly payments for the care and maintenance of a handicapped or hard to place child whom a social services official or voluntary authorized agency has placed out for adoption or who has been adopted, and who is residing in such social services district. Such payments shall be made until the child's twenty-first birthday to persons with whom the child has been placed, or to persons who have adopted the child and who applied for such payments prior to the adoption, pursuant to a written agreement therefore between such official and such persons; however, that an application may be made subsequent to the adoption if the adoptive parents first become aware of the child’s physical or emotional condition or disability subsequent to the adoption and a physician certifies that the condition or disability existed prior to the child’s adoption.

Subdivision 3 of this statute provides that the amount of the monthly payments shall be determined pursuant to state Regulations. Section 421.24(c)(14) of 18 NYCRR specifically authorizes an adoptive parent to request a change in the amount paid under the agreement. Such a request is reviewed by the local social services official and, if approved by the local district, is subject to the approval of the State Adoption Service.

What are the types of Adoption subsidy rate payments?

A child will qualify for different rates of adoption subsidies based on the reason for placement and the amount of supervision or special services a child needs based on their disability.

Basic rate: A child qualifies for the basic rate if they are hard to place, or handicapped, without additional needs beyond what a non-handicapped child would need.

Special rate: A child qualifies for the special rate if they are handicapped, and require special needs, either physical or mental, which go beyond what a non-handicapped child would require.

Exceptional rate: A child qualifies for the exceptional rate if they require 24 hour care or have severe behavioral or mental health needs requiring high levels of supervision.

The full definitions can be found in Departmental Regulations at 18 NYCRR 421.24 (a)(2) for hard to place children; 18 NYCRR 427.6(c) for the basic handicapped rate; 18 NYCRR 427.6(d) for the special rate; and 18 NYCRR 427.6(e).

When do I have the right to a hearing concerning an adoption subsidy?

You have the right to a hearing if:

• You applied for an adoption subsidy and it was denied;
• You are missing subsidy payments, either because the date the payments started (the “pick up date”) was incorrect or subsequent payments are missing; or
• You are receiving the adoption subsidy, but you believe the rate is incorrect.

Who has the burden of proof at the hearing?

It depends.

If the issue is the rate of payment, the Appellant has the burden of proving that the rate they are entitled to a higher rate. If the issue is non receipt of payments, the Agency has the burden of proving that the benefits were issued to you for the period in question. If the issue is the date when benefits began (the “pick-up date”), the Appellant must prove when they applied for benefits and then the Agency must prove when the benefits were issued.

See General FAQ for more information.

What issues can I request a hearing on?

You may request a hearing on the following issues:

• The failure to process the application correctly;
• The denial of an application for an adoption subsidy;
• The correct pick-up date (start date) for the adoption subsidy;
• The subsidy rate is inadequate (the child is eligible for a higher rate than being provided);
• Non-receipt of an adoption subsidy for a period;
• The discontinuance of the subsidy;
• Whether certain expenses are reimbursable adoption expenses; or
• Payments for out-of-home children (where the child is incarcerated, or the original adoptive parent is deceased, e.g.).

What are the facts to be established at the hearing?

These are some basic facts which will need to be established at the hearing.

Child’s birth name: If different from adoptive name (may be important just to establish that earlier records referring to child “x” actually refers to child who is subject of the hearing).

Child’s Information: Date of birth; date placed into the Appellant’s home; date the Adoption Placement Agreement is signed; date Adoption Subsidy Agreement is signed; and date of adoption.

Rate Appellant received for child, while child was in foster care: Pursue diligently if child received higher rate in foster care than now receiving as a subsidy. A lower subsidy amount is not uncommon, but it should raise a flag, as it may be indicative of serious agency error. Be sure that any difference is adequately explained on the record.

Names and titles of all personnel: (State, City or County and private agency) who have made decisions on the case.

In cases seeking the special or exceptional rate: Exact diagnoses and dates they were made; names of physicians and their exact specialties (the emotional handicaps have to be certified by psychologists or psychiatrists). If an internist or neurologists writes of some mental/emotional condition, the ALJ may have to persuade the parent to withdraw present case and get more documentation from the appropriate specialist). For subsidies, evaluations by non-physicians will not suffice as proof of a condition but may serve to suggest avenues that the Appellant should explore with a physician. Be careful of agency “medical coordinators” who are often nurses or social workers. “Therapist” may refer to non-Ph.D. or even to speech or occupational therapists. School district IEPs are rarely probative.