QUESTION PRESENTED
               Whether adoption subsidies paid entirely with state and/or local funds by the States
                  of New York and New Jersey meet the criteria in the regulations and Program Operations
                  Manual (POMS) to be excluded from the definition of income for purposes of Supplemental
                  Security Income (SSI) because it is cash provided by a governmental social service
                  program.
               
               OPINION   Based on our review of the relevant statutes, regulations and POMS, our office recommends
                  that these payments be considered cash from a governmental social service program,
                  and excluded from income for SSI purposes.
               
                BACKGROUND  The States of New York and New Jersey allow for payment of adoption subsidies to
                  adoptive parents who adopt handicapped or hard to place children out of foster care.
                  See N.Y. Soc. Serv. Law § 453 (M~ 2008); N.J. Stat. Ann. § 30:4C-46 (West 2009). The
                  New York statute states that monthly payments shall be made 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. N.Y. Soc. Serv.
                  Law § 453(1)(a) (M~ 2008). Similarly, the New Jersey statute provides for payments
                  to adoptive parents on behalf of a hard to place child and further states that “[p]ayments
                  in subsidization of adoption shall include but are not limited to the maintenance
                  costs, medical and surgical expenses, and other costs incidental to the care, training
                  and education of the child.” N.J. Stat. Ann. §§ 30:4C-46, 30:4C-47 (West 2009).
               
               ANALYSIS 
               The critical inquiry in this matter is whether the adoption subsidies paid by the
                  States of New York and New Jersey should be considered income or whether they should
                  be considered to be cash provided by a governmental social service program, and, therefore
                  excluded from income for SSI purposes.
               
               Income is anything received by an individual, in cash or in kind, that can be used
                  to meet her needs for food, clothing and shelter. 20 C.F.R. § 416.1102. Specifically
                  excluded from the definition of income is “social services.” 20 C.F.R. § 416.1103(b).
                  Social services include assistance provided in cash or in kind under any State or
                  local government whose purpose is to provide social services. Id. The POMS elaborates by stating that a “social service is any service (other than
                  medical) which is intended to assist a handicapped or socially disadvantaged individual
                  to function in society on a level comparable to that of an individual who does not
                  have such handicap or disadvantage.” POMS SI 00815.050C. Any cash provided by a governmental social services program is not income. POMS SI 00815.050D.
               The stated legislative intent of the New York adoption subsidies statute is “to promote
                  permanency of family status through adoption for children who might not otherwise
                  derive the benefits of that status,” and to “eliminate, or at the very least substantially
                  reduce, unnecessary and inappropriate long-term foster care situations which have
                  proven financially burdensome to the state and, more importantly, inimical to the
                  best interests of many children who have not been placed for adoption because of emotional
                  or physical handicaps, age, or other factors.” N.Y. Soc. Serv. Law § 450 (M~ 2008).
                  The stated intent of the New Jersey statute is “to benefit hard-to-place children
                  in resource family care at State expense by providing the stability and security of
                  permanent homes.” N.J. Stat. Ann. § 30:4C-45 (West 2009).
               
               Given the stated intent of the New York and New Jersey statutes, and the definition
                  of social service contained in the POMS, we believe that the New York and New Jersey
                  adoption subsidies constitute a social service, and should, therefore, be excluded
                  from income for SSI purposes.
               
               What’s more, although the New York and New Jersey statutes speak of the adoption subsidy
                  payments as “maintenance payments,” these adoption subsidy payments do not seem to
                  fit the definition of maintenance payments under our regulations. According to the
                  Commissioner’s regulations, “support and maintenance assistance” is cash provided
                  for the purpose of meeting food or shelter needs, or in kind support and maintenance
                  as defined in § 416.1121(h). 20 C.F.R. § 416.1157. Contrastingly, the New York and
                  New Jersey adoption subsidy payments can be used for purposes other than for meeting
                  food or shelter needs. The New York statutes and regulations simply state that the
                  payments are to be used for the “care and maintenance” of the child and do not restrict
                  payments to use for food or shelter. N.Y. Soc. Serv. Law § 453(1)(a); 18 N.Y.C.R.R.
                  § 421.24; see New York State Adoption Service (NYSAS) website (defining subsidy/maintenance subsidy
                  as the payment made for the “care of the child as authorized in the approved adoption
                  subsidy agreement”). http://www.ocfs.state.ny.us/adopt/glossary.asp#maint. Thus, the purpose of the payments is not limited to meeting food or shelter needs.
                  Likewise, New Jersey’s statute explicitly states that the payments are for “costs
                  incidental to the care, training and education of the child,” and are not limited
                  to just food or shelter needs. N.J. Stat. Ann. § 30:4C-47. Further, the adoption subsidy
                  payments involved here are cash payments, and not an in-kind payment such as those
                  in 20 C.F.R. § 416.1121(h). Thus, we do not believe that the New York and New Jersey
                  adoption subsidy payments meet the definition of support and maintenance under the
                  Commissioner’s regulations, and should therefore, not be considered income for SSI
                  purposes.
               
               CONCLUSION
               For the reasons stated above we believe that New York and New Jersey adoption subsidies
                  should not be treated as income for SSI purposes. Please do not hesitate to contact
                  the undersigned if you have any questions or wish to discuss this matter further.
               
               Stephen P. C~
 Acting Regional Chief Counsel 
 By: ____________ 
 Som R~ 
Senior Assistant Regional Counsel