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
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).
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
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
Senior Assistant Regional Counsel