Missouri Code of State Regulations › Title 13 - DEPARTMENT OF SOCIAL SERVICES › Division 35 - Children's Division › Chapter 38 - Adoption and Guardianship Subsidy › Section 13 CSR 35-38.010 - Adoption and Guardianship Subsidy

Current through Register Vol. 49, No. 14, July 15, 2024
PURPOSE: This emergency amendment is to amend
				  sections (1), (10) and (12) to bring the rule into compliance with changes to
				  the law and methods of administration governing the subsidized childcare
				  program and changes on how residential treatment services are approved and
				  administered.
EMERGENCY STATEMENT: Promulgation of this regulation
				  is necessary to address a danger to public health, safety, and welfare of
				  children and families who participate in Missouri's subsidy programs and
				  because there is a compelling governmental interest in promulgating the
				  regulation that requires an early effective date. The amendment is necessary to
				  ensure that the criteria and procedures that Children's Division (CD) uses for
				  deciding when subsidy children are eligible to receive treatment in residential
				  treatment facilities are consistent with the requirements of federal and state
				  Medicaid law and to ensure that decisions are made based on a consistent set of
				  criteria. The regulations are designed to ensure that those children who
				  require subsidized treatment in residential facilities will receive the
				  residential treatment when it is necessary, while it also ensures that Missouri
				  has legally enforceable rules to ensure that children who do not require
				  expensive, subsidized treatment in residential facilities receive treatment in
				  more appropriate settings.
The provisions of the regulation that amend the
				  procedures for approving subsidized childcare are also necessary to address a
				  compelling governmental interest. The Department of Social Services (DSS) no
				  longer has statutory authority to promulgate regulations governing subsidized
				  childcare, so the current regulations are ultra vires. Repeal of these
				  provisions is necessary to eliminate confusion and any conflict in the law
				  governing the subsidized childcare program. The Department of Elementary and
				  Secondary Education (DESE) has promulgated regulations governing eligibility
				  for the program that became effective on April 30, 2023, so there will not be
				  any detrimental impact on participants in the program. There is also a
				  compelling government interest in ensuring that children who receive the
				  benefits of the subsidy program who require or who may require treatment in
				  residential care facilities receive the appropriate case for the reasons
				  discussed above.
The Department of Social Services has followed
				  procedures best calculated to assure fairness to all interested persons and
				  parties under the circumstances. This amendment was promulgated with input from
				  impacted stakeholders. The Department of Social Services posted a public
				  announcement of the proposed rule, solicited comments, questions, and
				  suggestions from stakeholders and held a virtual public meeting on July 15,
				  2023, from 10 a.m. to 12 p.m. The Department of Social Services began
				  implementing the use of the Show-Me Healthy Kids (SMHK) program and the MO
				  HealthNet Division's (MHD's) contractor to make medical necessity
				  determinations in January of 2023. The department has not received any
				  objections to these new procedures since they have been implemented. Finally,
				  the transition of administration of the subsidized childcare program has been
				  implemented and DSS and DESE have been coordinating their work to make a smooth
				  transition.
The Children's Division is promulgating the
				  regulation in compliance with the protections extended by the Missouri and
				  United States Constitutions. The Department of Social Services is promulgating
				  this regulation following the procedures established in section
				  536.025 RSMo and is not aware of
				  grounds for a constitutional challenge.
The scope of this emergency amendment is limited to
				  the circumstances creating the emergency and complies with the protections
				  extended by the Missouri and United States Constitutions. The Children's
				  Division believes that this emergency amendment is fair to all interested
				  persons and parties under the circumstances. A proposed amendment covering this
				  same material is published in this issue of the Missouri Register. This
				  emergency amendment was filed June 10, 2024, becomes effective June 25, 2024,
				  and expires on February 27, 2025.
(1) Definitions. For purposes of this
				section, the following terms shall mean:
(A)
				Division. The Missouri Department of Social Services, Children's
				Division;
(B) Child or Youth. A
				person within the state who is under the age of eighteen (18), or in the
				custody of the Children's Division, who is in need of medical, dental,
				educational, mental, or other related health services and treatment, or who
				belongs to a racial or ethnic minority, who is five (5) years of age or older,
				or who is a member of a sibling group, and for whom an adoptive home is not
				readily available. A child or youth is also a person covered by an 18+ adoption
				subsidy agreement as set forth in section (13) of this regulation;
(C) Subsidy Agreement. The agreement between
				the adoptive parent(s) or the legal guardian(s) and the Children's Division to
				delineate services which the Children's Division will provide to the child at
				the time of adoption or guardianship until such time as the subsidy agreement
				ends;
(D) Maintenance payments. The
				amount that the division will contribute to cover the cost of food, clothing,
				shelter, daily supervision, school supplies, a child's personal incidentals,
				and liability insurance with respect to a child;
(E) Nonrecurring expenses. One (1)-time
				expenses directly related to the adoption or legal guardianship of a special
				needs child. Nonrecurring expenses include, but are not limited to, the
				following: legal fees, private agency fees, and nonrecurring placement-related
				expenses including, but not limited to, pre-placement transportation, lodging
				and meal expenses, expenses for adoption studies, health and psychological
				examinations, and supervision of the adoptive placement prior to the
				finalization of the adoption up to a maximum amount provided in this
				regulation;
(F) Youth with Elevated
				Needs. A child meeting the criteria set forth in
				13 CSR
				35-60.070;
(G) Medical Foster Care. A licensed foster
				home utilized to meet the needs of a child with extraordinary medical needs.
				Medical foster parents must have a foster parent license and must receive
				specific training from qualified medical care providers specific to the unique
				medical needs of the child and meet the requirements set out in
				13 CSR
				35-60.070;
(H) Respite. The provision of periodic and/or
				intermittent, temporary substitute care of children who are in the care and
				custody of the Children's Division and placed in a licensed foster, relative,
				or kinship resource home. Respite services may be approved as part of an
				adoption or guardianship agreement;
(I) Intensive In-Home Services (IIS). A
				short-term, intensive, home-based, crisis intervention program that combines
				skill-based interventions with maximum flexibility so that services will be
				available to families according to their individual needs. The goal of IIS is
				to offer families in crisis the alternative of remaining together safely,
				averting out-of-home placement of children whenever possible. IIS are, however,
				offered solely to families that have a child or children at imminent risk of
				removal from the home due to neglect, abuse, family violence, mental illness,
				delinquency, or other circumstances when approved by the Children's Division.
				Services provided assist with crisis management and restoration of the family
				to an acceptable level of functioning;
(J) Residential Care. A facility providing
				twenty-four (24) hour care in a group setting to children who are unrelated to
				the person operating the facility and who are unattended by a parent or
				guardian;
(K) Relative. A person
				related to another by blood, adoption, or affinity within the third degree
				(grandparent, brother, sister, half-brother, half-sister, stepparent,
				stepbrother, stepsister, uncle, aunt, or first cousin);
(L) Kinship. A person who is non-related by
				blood, marriage, or adoption who has a close relationship with the child or
				child's family (godparents, neighbors, teachers, close family friends, and
				fellow church members) or a person who has a close relationship with the child
				or child's family and is related to the child by blood or affinity beyond the
				third degree; and
(M) Licensed
				Foster Family. A private residence of one (1) or more family members providing
				twenty-four- (24-) hour care to one (1) or more but less than seven (7)
				children who are unattended by a parent or guardian and unrelated to either
				foster parent by blood, marriage, or adoption and licensed through the
				Children's Division.