BASIC (09-09)

PS 01420.033 New Jersey

A. PS 09-157 New York and New Jersey Adoption Subsidies

DATE: August 17, 2009

1. SYLLABUS

The opinion in this case examines whether or not adoption subsidies paid entirely with state and/or local funds are excluded from the definition of income for SSI purposes. Income is anything received by an individual, in cash or in kind, that can be used for food and shelter. Specifically excluded from the definition of income is a social service. 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. Any cash paid from a government social service program is not income for SSI purposes. The adoption subsidies are state payments made to adoptive parents on behalf of hard to place special needs children and 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. Since the adoption subsidies are paid under a government social service program and can be used for purposes other than food or shelter, they are not considered income for SSI purposes.

2. OPINION

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


To Link to this section - Use this URL:
http://policy.ssa.gov/poms.nsf/lnx/1601420033
PS 01420.033 - New Jersey - 09/03/2009
Batch run: 09/03/2009
Rev:09/03/2009