479 Neb. Admin. Code, ch. 7, § 004

Current through May 7, 2024

Section 479-7-004 - GUARDIANSHIP ASSISTANCE AGREEMENTS

All guardianship assistance agreements are subject to the provisions in this chapter.

004.01APPROVAL BEFORE GUARDIANSHIP IS FINALIZED. The guardianship assistance agreement must be signed by the guardian or guardians and DHHS prior to the date of the court order establishing the guardianship. When more than one individual is being appointed as guardian of a child, each individual seeking appointment as guardian must sign the agreement. The guardianship must be established by the court within six months of the Guardianship Assistance Agreement being signed by all parties. When the guardianship is not finalized within the six month time frame, the guardianship assistance agreement is no longer valid and a new application must be submitted by the potential guardians.

004.02APPLICATION. An application for a Guardianship Assistance Agreement must be submitted by the prospective guardian prior to finalization of the guardianship. Eligibility will be determined based on the factors set forth in this chapter.

004.03ELIGIBILITY FOR TITLE IV-E GUARDIANSHIP ASSISTANCE AGREEMENT. When the Department determines the child qualifies for guardianship assistance pursuant to Title IV-E of the Social Security Act, the child will be eligible for a Title IV-E Guardianship Assistance Agreement when all other eligibility requirements set forth in this chapter and Title IV-E of the Social Security Act are met. When all eligibility requirements of this chapter are met, but all eligibility requirements of Title IV-E of the Social Security Act are not met, the child will be eligible for a Nebraska Guardianship Assistance Agreement.

004.03(A)SUCCESSOR GUARDIAN. Notwithstanding any other provision, the eligibility of a child for a Title IV-E Kinship Guardianship Assistance Agreement under Title IV-E of the Social Security Act shall not be affected by reason of the replacement of a relative guardian with a successor guardian named in the Title IV-E Kinship Guardianship Assistance Agreement, including any amendment thereto.

004.04ELIGIBILITY FOR GUARDIANSHIP ASSISTANCE AGREEMENT. To be eligible for a guardianship assistance agreement all eligibility criteria must be met.

004.04(A)ELIGIBILITY CRITERIA.

(i) The child that is the subject of the Guardianship Assistance Agreement must be in the custody of the Department immediately prior to the guardianship being finalized;

(ii) The child that is the subject of the guardianship assistance agreement must be a citizen of the United States or a qualified alien as defined in the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA). The Department must have documentation to confirm the child's United States Citizenship or qualified alien status;

(iii) The child that is the subject of the Guardianship Assistance Agreement must be under 19 years of age;

(iv) The child that is the subject of the Guardianship Assistance Agreement has resided in the home of the prospective guardian for at least six months;

(v) The child that is the subject of the Guardianship Assistance Agreement cannot return to the home of the parents;

(vi) The child that is the subject of the Guardianship Assistance Agreement demonstrates a strong attachment to the prospective guardian and the prospective guardian has a strong commitment to caring permanently for the child;

(vii) Adoption would not be in the best interest of the child that is the subject of the Guardianship Assistance Agreement;

(viii) Unless it is not in the best interests of the child, efforts were made to place the child without a Guardianship Assistance Agreement; and

(ix) The prospective guardians verify that the guardianship cannot occur without a Guardianship Assistance Agreement because the child's present and anticipated future needs have been determined to exceed the family's ability to meet those needs without assistance.

004.04(B)PARENT ELIGIBILITY. No parent is eligible for a Guardianship Assistance Agreement on behalf of their child, even if parental rights have been relinquished or terminated. No stepparent is eligible for a Guardianship Assistance Agreement on behalf of their stepchild.

004.04(C)CRIMINAL RECORDS CHECK REQUIRMENTS. All Prospective Guardians and any individual 18 years of age or older residing in the Prospective Guardians' household must submit to the records checks set forth in this chapter and meet the approval requirements of this section in order for the Department to enter into a Guardianship Assistance Agreement with the Prospective Guardians.

004.04(C)(i)RECORDS TO BE SEARCHED. All Prospective Guardians and any individual 18 years of age or older residing in the Prospective Guardians' household must consent to the Department receiving all background checks identified in this section. For each Prospective Guardian and any individual 18 years of age or older residing in the Prospective Guardians' household, the following checks will be reviewed by the Department:

(1) State Central Register or Registry of child protection maintained by any state in which the individual has lived within the past 5 years;

(2) Nebraska Adult Protective Services Central Registry;

(3) Appropriate local law enforcement agency;

(4) National Sex Offender Registry;

(5) State-level criminal history; and

(6) Fingerprint-based National Criminal History Check.

004.04(C)(ii)CRIMINAL RECORDS APPROVAL REQUIREMENTS. If the Prospective Guardians or any individual 18 years of age or older residing in the household has a criminal history or history of child abuse or neglect, the Department will determine whether to enter into a Guardianship Assistance Agreement based on the provisions in this chapter.

004.04(C)(ii)(1)GUARDIANSHIP ASSISTANCE AGREEMENT NOT AUTHORIZED. The Prospective Guardians cannot enter into a Guardianship Assistance Agreement with the Department when:

(a) Any of the Prospective Guardians or any individual 18 years of age or older living in the household has been convicted of a felony involving abuse or neglect of a child, spousal abuse, a crime against a child or children, or a crime of violence including rape, sexual assault, or homicide, but not including other physical assault or battery;

(b) Any of the Prospective Guardians or any individual 18 years of age or older living in the household is identified as a perpetrator on a child abuse and neglect central registry or an adult abuse and neglect central registry; or

(c) Any of the Prospective Guardian or any individual 18 years of age or older living in the household has a conviction date within the past five years for a felony involving a drug-related offense, physical assault or battery.

004.04(C)(iii)TIME FRAME FOR CRIMINAL RECORDS CHECK. To meet the requirements of this chapter, the results of the criminal records checks for each individual are valid for two years from the date the results were issued. If the Guardianship Assistance Agreement is not signed by all parties during the time frame when the results are valid, new criminal records checks will be required.

004.05GUARDIANSHIP ASSISTANCE AGREEMENT PROVISIONS. A guardianship assistance agreement may include one or more of the following:

(1) A Guardianship Assistance payment negotiated between the Department and the guardians in accordance with the Department's established rate determination tool. In no case may the amount of the guardianship assistance payment exceed the foster care maintenance payment which would have been paid by the Department if the child with respect to whom the Guardianship Assistance payment is made had been in a foster family home;

(2) Special Services payments made for a specific service or item related to the child's needs for a specified period of time. No special services payments will be included if other resources or programs are available to assist with the services; or

(3) Non-recurring expenses or one or both of the following:

(a) Legal fees directly related to the finalization of the guardianship for the child; or

(b) Funeral assistance if the child with respect to whom the Guardianship Assistance Agreement is made is diagnosed by a medical professional as being terminally ill and the life expectancy of the child is less than 20 years old. The prospective guardians will not receive any funeral assistance under the Guardianship Assistance Agreement prior to the child's death. Any funds expended by the guardians in anticipation of the child's death will only be reimbursed by the Department if the child's death occurs during the duration of the Guardianship Assistance Agreement for the child.

004.05(A)GUARDIANSHIP ASSISTANCE PAYMENTS. The following provisions apply to all Guardianship Assistance Payments.

004.05(A)(i)DEDUCTIONS FROM PAYMENTS. Any other maintenance payments received for the child, such as Social Security Disability Insurance benefits or survivor benefits, Supplemental Security Income, Veteran's Administration benefits or Aid to Dependent Children benefits, will be deducted from the guardianship assistance payment.

004.05(A)(ii)CHILD SUPPORT. Any child support amount paid to the guardians for support of the child that is the subject of the Guardianship Assistance Agreement will be deducted from the guardianship assistance payment.

004.05(A)(iii)USE OF ASSISTANCE. A guardian who receives payment of guardianship assistance shall use the guardianship assistance funds for the benefit of the child. The Department will consider use of the guardianship assistance funds on the following supports and services as using the funds for the benefit of the child:

(1) Clothing purchases;

(2) Incidental items;

(3) Insurance;

(4) Food;

(5) Housing, other than maintenance of the guardian's home;

(6) Education;

(7) Medical expenses; or

(8) Transportation.

004.06DESIGNATION OF SUCCESSOR GUARDIAN. A prospective guardian who enters into a Guardianship Assistance Agreement with the Department must designate a successor guardian for the child in case of the death of the guardian. Payment of the guardianship assistance will cease upon the death of the guardian unless the Guardianship Assistance Agreement provides for assignment to a successor guardian. In the event an individual who was previously a parent for the child is appointed as guardian for the child, even if parental rights have been terminated or relinquished, payment of the guardianship assistance must cease.

004.06(A)EXCEPTION. Guardianship assistance payments can continue for up to six months following the death of the guardian or guardians pending the appointment of a guardian or conservator if the child is placed in the temporary custody of a family member or other individual. In the event this child is placed in the custody of an individual who was previously a legal parent for the child, even if parental rights have been terminated or relinquished, the guardianship assistance payment will cease.

004.07REVIEW. The Guardianship Assistance Agreement will be reviewed every twelve months to determine:

(1) That the child continues to be a legal dependent of the guardian;

(2) The guardian continues to use the guardianship assistance payments for the benefit of the child; and

(3) That the child continues to need the provisions of the Guardianship Assistance Agreement.

004.07(A)REVIEW TIME FRAMES. At the time of review, the guardian will receive a written notice of the Guardianship Assistance Agreement review and a review form from the Department. The guardian must return the review form to the Department within 30 days of the date of the notice or the Department may suspend the guardianship assistance payments.

004.07(B)SUSPENSION AFTER REVIEW. If the Department is unable to verify whether the guardian is legally responsible for the child or using the guardianship assistance payment for the benefit of the child, the Department may suspend issuance of the guardianship assistance payment until verification is received.

479 Neb. Admin. Code, ch. 7, § 004

Amended effective 6/13/2022