HB-6661, As Passed House, December 5, 2006

SUBSTITUTE FOR

HOUSE BILL NO. 6661

     A bill to amend 1939 PA 280, entitled

"The social welfare act,"

by amending sections 115f, 115g, 115h, 115i, 115j, 115k, 115l, and

115m (MCL 400.115f, 400.115g, 400.115h, 400.115i, 400.115j,

400.115k, 400.115l, and 400.115m), sections 115f and 115g as amended

by 2004 PA 193, sections 115h and 115k as added by 1994 PA 238, and

sections 115i, 115j, 115l, and 115m as amended by 2002 PA 648, and

by adding sections 115t and 115u.

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

     Sec. 115f. As used in this section and sections 115g to  115s

115u:

     (a) "Adoptee" means the child who is to be adopted or who is

adopted.

     (b) "Adoption assistance" means  a support subsidy or medical

assistance, or both  payment for support of a child with special

needs who has been placed for adoption.

     (c) "Adoption assistance agreement" means an agreement between

the department and an adoptive parent regarding adoption

assistance.

     (d) "Adoption code" means the Michigan adoption code, chapter

X of the probate code of 1939, 1939 PA 288, MCL 710.21 to 710.70.

     (e) "Adoptive parent" means the parent or parents who adopt a

child under the adoption code.

     (f) "Certification" means a determination of eligibility by

the department that an adoptee is eligible for a support subsidy or

a medical  subsidy  assistance or both.

     (g) "Child placing agency" means that term as defined in

section 1 of 1973 PA 116, MCL 722.111.

     (h) "Child with special needs" means an individual under the

age of 18 years for whom the state has determined all of the

following:

     (i) There is a specific judicial finding that the child cannot

or should not be returned to the home of the child's parents.

     (ii) A specific factor or condition, or a combination of

factors and conditions, exists with respect to the child so that it

is reasonable to conclude that the child cannot be placed with an

adoptive parent without providing adoption assistance, or medical

assistance, or both under this act. The factors or conditions to be

considered  may include ethnic or family background, age,

membership in a minority or sibling group, medical condition,

physical, mental, or emotional disability, or length of time the

child has been waiting for an adoptive home.

     (iii) A  shall include, but are not limited to, all of the

following:

     (A) Ethnic or family background.

     (B) Age.

     (C) Membership in a minority or sibling group.

     (D) Diagnosed medical, physical, or emotional condition, or

other clinically diagnosed disability that is documented by a

licensed physician or a licensed mental health professional.

     (E) Length of time the child has been waiting for an adoptive

home.

     (F) The child is at high risk based on history of abuse or

neglect.

     (iii) Unless there are significant emotional ties with

prospective adoptive parents while the child is in the care of

those prospective adoptive parents as a foster child, a reasonable

but unsuccessful effort was made to place the adoptee with an

appropriate adoptive parent without providing adoption assistance

under this act or a prospective placement is the only placement in

the best interest of the child.

     (i) "Compact" means the interstate compact on adoption and

medical assistance as enacted in sections 115r and 115s.

     (j) "Court" means the family division of circuit court.

     (k) "Deferred adoption assistance or medical assistance

agreement" means an agreement signed by adoptive parents and the

department at the time the child is placed for adoption to preserve

future eligibility for adoption assistance or medical assistance

eligibility.

(l)  (k) "Department" means the  family independence agency

department of human services.

(m)  (l) "Foster care" means placement of a child outside the

child's parental home by and under the supervision of a child

placing agency, the court, the department, or the department of

community health.

(n)  (m) "Medical assistance"  "Medicaid" means the federally

aided medical assistance program under title XIX.  of the social

security act, chapter 531, 49 Stat. 620, 42 U.S.C. 1396 to 1396r-6

and 1396r-8 to 1396v.

(o)  (n) "Medical  subsidy"  assistance" means payment for

medical, surgical, hospital, and related expenses necessitated by a

specified physical, mental, or emotional condition of a child with

special needs who has been placed for adoption.

(p)  (o) "Medical  subsidy  assistance agreement" means an

agreement between the department and an adoptive parent regarding

a medical  subsidy  assistance.

(q)  (p) "Nonrecurring adoption  expenses"  assistance" means

reasonable and necessary adoption fees, court costs, attorney fees,

home study fees, costs for replacement of birth certificates,

expenses for travel for visits to the adoptee, adoption costs

incurred by or on behalf of the adoptive parent and for which the

adoptive parent carries the ultimate liability for payment,

including the adoption study, health and psychological

examinations, supervision of the placement before adoption, and

transportation and reasonable costs of lodging and food for the

child or adoptive parent if necessary to complete the adoption or

placement process and other expenses that are directly related to

the legal adoption of a child with special needs. Nonrecurring

adoption expenses do not include costs or expenses incurred in

violation of state or federal law or that have been reimbursed from

other sources or funds.

     (q) "Other expenses that are directly related to the legal

adoption of a child with special needs" means adoption costs

incurred by or on behalf of the adoptive parent and for which the

adoptive parent carries the ultimate liability for payment,

including the adoption study, health and psychological

examinations, supervision of the placement before adoption, and

transportation and reasonable costs of lodging and food for the

child or adoptive parent if necessary to complete the adoption or

placement process.

     (r) "Party state" means a state that becomes a party to the

interstate compact on adoption and medical assistance.

     (s) "Placement" means a placement or commitment, including the

necessity of removing the child from his or her parental home, as

approved by the court under an order of disposition issued under

section 18(1)(c) or (d) of chapter XIIA of the probate code of

1939, 1939 PA 288, MCL 712A.18.

     (t) "Residence state" means the state in which the child is a

resident by virtue of the adoptive parent's residency.

     (u) "State" means a state of the United States, the District

of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands,

Guam, the Commonwealth of the Northern Mariana Islands, or a

territory or possession of the United States.

     (v) "Support subsidy" means payment for support of a child who

has been placed for adoption.

     Sec. 115g. (1) The department  may  shall pay  a support

subsidy  adoption assistance, medical assistance, or both to an

adoptive parent of an adoptee who is placed in the home of the

adoptive parent under the adoption code or under the adoption laws

of another state or a tribal government unless otherwise directed

by the adoptive parents through a signed written agreement, if all

of the following requirements are met:

     (a)  The department has certified that the  The adoptee is a

child with special needs.

     (b)  Certification is made  The adoptee meets the definition

of a child with special needs before the adoptee's eighteenth

birthday.

     (c)  Certification is made  The adoptee meets the definition

of a child with special needs before the  petition for adoption is

filed  adoption is finalized.

     (d) The adoptive parent requests  the support subsidy

adoption assistance, medical assistance, or both not later than the

date  of confirmation of the adoption is finalized.

     (2) The department shall determine eligibility for  the

support subsidy  adoption assistance, medical assistance, or both

without regard to the income of the adoptive parent or parents. The

amount shall be equal to the family foster care rate, including the

difficulty of care rate, that was paid for the adoptee while the

adoptee was in family foster care, except that the amount shall be

increased to reflect increases made in the standard age appropriate

foster care rate paid by the department.

     (3) The department shall  complete the certification process

determine eligibility for adoption assistance, medical assistance,

or both within 30 days after it receives a request.  for a support

subsidy.

     Sec. 115h. (1) The department  may  shall pay  a medical

subsidy  assistance to the adoptive parent or parents of an adoptee

who is placed for adoption in the home of the adoptive parent or

parents  pursuant to  under the adoption code or the laws of any

other state or a tribal government, if  all of the following

requirements are met:

     (a) The  the expenses to be covered by the medical  subsidy

assistance are necessitated by a physical, mental, or emotional

condition of the adoptee that existed or the cause of which existed

before the adoption petition was filed or  certification was

established, whichever occurred first  eligibility was determined.

     (b) The adoptee was in foster care at the time the petition

for adoption was filed. This subdivision does not apply to

adoptions confirmed pursuant to the adoption code before June 28,

1992.

     (c) Certification was made before the adoptee's eighteenth

birthday.

     (2) The department shall determine the amount of the medical

subsidy without respect to the income of the adoptive parent or

parents.

     (2) The department shall  not pay a medical subsidy until

first seek all other available public money and third party payment

is used  when paying medical assistance. For purposes of this

subsection, third party payment is available if an adoptive parent

has an option, at or after the time of certification, to obtain

from the parent's employer health coverage for the child, with or

without cost to the adoptive parent. The department may waive this

subsection in cases of undue hardship.

     (3) The adoptive parent or parents may request  a medical

subsidy  assistance before or after the confirmation of the

adoption.  A medical subsidy  Medical assistance requested after

the adoptee is placed in adoption is effective the date the request

is received by the department if the necessary documentation for

certification is received within 90 days after the request is made.

In allocating available funding for medical  subsidies  assistance,

the department shall not give preferential treatment to requests

that are made before the confirmation of an adoption, but shall

allocate funds based on a child's need for the  subsidy

assistance.

     (4) Payment of  a medical  subsidy  assistance for treatment

of a mental or emotional condition is limited to outpatient

treatment unless 1 or more of the following apply:

     (a) Certification for the medical  subsidy  assistance was

made before the adoption confirmation date.

     (b) The adoptee was placed in foster care by the court

pursuant to  under section 18(1)(d) or (e) of chapter XIIA of  Act

No. 288 of the Public Acts of 1939, being section 712A.18 of the

Michigan Compiled Laws  the probate code of 1939, 1939 PA 288, MCL

712A.18, before the petition for adoption was filed.

     (c) The adoptee was certified for  a support subsidy  adoption

assistance.

     Sec. 115i. (1) The department shall notify prospective

adoptive parents regarding the availability of adoption assistance,

medical assistance, and nonrecurring adoption assistance.

Notification shall be given in writing at the time of placement or

at least 14 days before finalization of adoption.

     (2)  (1) If adoption assistance is to be paid, the department

and the adoptive parent or parents shall enter into an adoption

assistance agreement covering all of the following:

     (a) The duration of the adoption assistance to be paid.

     (b) The amount to be paid and, if appropriate, eligibility for

medical assistance  medicaid.

     (c) Conditions for continued payment of the adoption

assistance as established by statute.

(3)  (2) If medical  subsidy  assistance eligibility is

certified, the department and the adoptive parent shall enter into

a medical  subsidy  assistance agreement covering all of the

following:

     (a) Identification of the physical, mental, or emotional

condition covered by the medical  subsidy  assistance.

     (b) The duration of the medical subsidy agreement.

     (c) Conditions for continued eligibility for the medical

subsidy as established by statute.

     (b) The amount to be paid.

     (c) The nature and all types of services and assistance.

     (d) Any preapproval or reimbursement procedures to be followed

by the parties.

(4)  (3) The department shall give a copy of the adoption

assistance agreement or medical  subsidy  assistance agreement, or

both, to the adoptive parent or parents at least 14 days before

signing the adoption assistance agreement or medical assistance

agreement with recommendation that the adoptive parent or parents

seek legal counsel before signing the adoption assistance agreement

or medical assistance agreement.

(5)  (4)  Unless the medical condition of the adoptee no

longer exists, or an event described in section 115j has occurred,

as indicated in a report filed under subsection  (6) or as

otherwise determined by the department  (7), the department shall

not modify or discontinue  a medical  subsidy  assistance unless

the adoptive parent or parents submit a signed written request to

the department to modify or discontinue the medical assistance.

(6)  (5) An adoption assistance agreement or medical  subsidy

assistance agreement does not affect the legal status of the

adoptee or the legal rights and responsibilities of the adoptive

parent or parents.

(7)  (6) The adoptive parent or parents shall file a verified

report with the department at least once  each year as  every 2

years to the location of the adoptee and other matters relating to

the continuing eligibility of the adoptee for adoption assistance

or a medical  subsidy  assistance, or both.

     Sec. 115j. (1) Adoption assistance or  a medical  subsidy

assistance, or both, shall continue until 1 of the following

occurs:

     (a) The adoptee dies.

(b)  (a) The adoptee becomes 18 years of age.

     (b) The adoptee is emancipated.

     (c) The adoptee dies.

     (d) The adoption is terminated.

     (e) A determination of ineligibility is made by the

department.

     (c) The adoptee marries.

     (d) The adoptee enters military service.

     (e) The department determines that the adoptive parents are no

longer legally responsible for support of the adoptee.

     (f) The department determines that the adoptive parents are no

longer providing any support to the adoptee.

     (2)  If sufficient money is appropriated, the  The department

may  shall continue adoption assistance or  a medical  subsidy

assistance, or both, for an adoptee under 21 years of age if the

department determines that the adoptee is a student regularly

attending a high school, college, university, or vocational school

in pursuance of a course of study leading to a high school diploma,

college degree, or gainful employment.

     (3) Adoption assistance,  and a medical  subsidy  assistance,

or both shall continue even if the adoptive parent leaves the

state.

     (4)  An adoption support subsidy  Adoption assistance, medical

assistance, or both shall continue during a period in which the

adoptee is removed for delinquency from his or her home as a

temporary court ward based on proceedings under section 2(a) of

chapter XIIA of the probate code of 1939, 1939 PA 288, MCL 712A.2.

     (5) Upon the death of the adoptive parent, the department

shall continue making  support subsidy payments or continue medical

subsidy eligibility, or both,  adoption assistance payments,

medical assistance payments, or both to the guardian of the adoptee

if a guardian is appointed as provided in section 5202 or 5204 of

the estates and protected individuals code, 1998 PA 386, MCL

700.5202 and 700.5204.

     Sec. 115k. (1)  An adoptee, the adoptee's guardian, or the

adoptive parent or parents may appeal a determination of the

department made under this act. The appeal shall be conducted

pursuant to the administrative procedures act of 1969, Act No. 306

of the Public Acts of 1969, being sections 24.201 to 24.328 of the

Michigan Compiled Laws. An appeal brought pursuant to chapter 6 of

Act No. 306 of the Public Acts of 1969, being sections 24.301 to

24.306 of the Michigan Compiled Laws, shall be heard as follows:

An adoptee, the adoptee's guardian, or the adoptive parent or

parents may appeal a determination of the department made under

this act in 1 of the following ways:

     (a) An appeal may be filed in the appropriate state court.

     (b) An appeal may be conducted under the administrative

procedures act of 1969, 1969 PA 306, MCL 24.201 to 24.328. An

appeal brought under the administrative procedures act of 1969,

1969 PA 306, MCL 24.201 to 24.328, shall be heard as follows:

(i)  (a) In the case of an adoptee residing in this state, by

the probate court for the county in which the petition for adoption

was filed or the county in which the adoptee is found.

(ii)  (b) In the case of an adoptee not residing in this

state, by the probate court for the county in which the petition

for adoption was filed.

     (2) The department shall notify the adoptee and the adoptive

parent or parents of their rights of appeal under this section.

     Sec. 115l. (1) The department shall enter into an agreement

with the adoptive parent or parents of a child with special needs

under this section for the payment of nonrecurring adoption

expenses  assistance incurred by or on behalf of the adoptive

parent or parents. The agreement  may  shall be a separate document

or part of an  from the adoption assistance agreement under section

115i. The agreement under this section shall indicate the nature

and amount of nonrecurring adoption  expenses  assistance to be

paid by the department, which shall not exceed $2,000.00 for each

adoptive placement.  meeting the requirements of this section. The

department shall make payment as provided in the agreement.

     (2) An agreement under this section shall be signed at or

before entry of an order of adoption under the adoption code. The

department shall provide the adoptive parent or parents with a form

that has clear instructions on how to submit a claim for

nonrecurring adoption assistance. Claims for payment shall be filed

with the department within 2 years after entry of the order of

adoption.

     (3) The department shall take all actions necessary and

appropriate to notify potential claimants under this section,

including compliance with federal regulations.

     Sec. 115m. (1) The department shall prepare and distribute to

adoption facilitators and other interested persons a pamphlet

describing the adoption process and the adoption assistance and

medical  subsidy  assistance programs established under sections

115f to 115s. The state department shall provide a copy of the

pamphlet to each prospective adoptive parent before placing a child

with that parent.

     (2) The description of the adoption process required under

subsection (1) shall include at least all of the following:

     (a) The steps that must be taken under the adoption code to

complete an adoption, and a description of all of the options

available during the process.

     (b) A description of the services that are typically available

from each type of adoption facilitator.

     (c) Recommended questions for a biological parent or

prospective adoptive parent to ask an adoption facilitator before

engaging that adoption facilitator's services.

     (d) A list of the rights and responsibilities of biological

parents and prospective adoptive parents.

     (e) A description of the information services available to

biological and prospective adoptive parents including, but not

limited to, all of the following:

     (i) The registry of adoptive homes established and maintained

by the department under section 8 of the foster care and adoption

services act, 1994 PA 203, MCL 722.958.

     (ii) The directory of children produced under section 8 of the

foster care and adoption services act, 1994 PA 203, MCL 722.958.

     (iii) The public information forms maintained by the department

pursuant to  under section 14d of 1973 PA 116, MCL 722.124d.

     (f) A statement about the existence of the children's

ombudsman and its authority as an investigative body.

     (g) A statement about the importance and availability of

counseling for all parties to an adoption and that a prospective

adoptive parent must pay for counseling for a birth parent or

guardian unless the birth parent or guardian waives the counseling.

     (h) A statement about the importance of seeking legal counsel

before signing an agreement dealing with adoption assistance or

medical assistance.

     (i) A statement that coercive behavior from department staff

or an employee of a child placing agency is not protected by

governmental immunity and should be reported to law enforcement

officials.

     Sec. 115t. If the adoptive parent or parents choose not to

receive adoption assistance or medical assistance at the time of

placement in the adoptive parent's home, they shall be encouraged

to sign a deferred adoption assistance or medical assistance

agreement with a payment amount of $0.00 listed in that agreement.

Establishing a deferred adoption assistance or medical assistance

agreement preserves future recurring adoption assistance

eligibility, medical assistance eligibility, or both for the

adoptee in the event that the adoptive parent or parents need

assistance in meeting the adoptee's needs.

     Sec. 115u. An adoption assistance agreement shall be

negotiated and signed before the child's adoption finalization. In

some cases, a child may be eligible to receive adoption assistance

after the child's adoption is legally finalized. An adoptive parent

may request an application for adoption assistance be made on the

child's behalf and shall receive an administrative hearing to

determine the child's eligibility for state or federally funded

assistance. If the child is found eligible for the program, an

adoption assistance agreement shall be negotiated on behalf of the

child and shall be effective beginning on the date that the child's

special needs became apparent, as documented by a licensed

physician.