August 11, 1994
Mary K. Deyampert Director Division of Social Services
N.C. Department of Human Resources 325 N. Salisbury Street Raleigh, NC 27603-5905
RE: Advisory Opinion: Adoption Assistance Vendor Payments; Are adoption assistance vendor payments considered to be a part of the North Carolina public assistance program?
Dear Ms. Deyampert:
Mr. and Mrs. X of the City of Asheville adopted a child with special needs. They now request:
(1) a cash adoption subsidy retroactive to June, 1983; (2) vendor payments for psychological and medical services retroactive to June, 1993; and (3) Medicaid for their adopted child. You have asked for our opinion as to whether vendor payments are considered part of the North Carolina public assistance program.
G.S. § 108A-25 specifically created adoption assistance payments as a program of public assistance. The statute states the following:
§ 108A-25. Creation of programs.
(a) The following programs of public assistance are hereby established, and shall be administered by the county department of social services or the Department of Human Resources under federal regulations or under rules and regulations adopted by the Social Services Commission and under the supervision of the Department of Human Resources:
. . . (4) Foster care and adoption assistance payments;
. . .
Although there is nothing in the General Statutes that specifically refers to "adoption assistance vendor payments" as part of the public assistance program, the North Carolina Administrative Code, Title 10, Chapter 41H reads:
SECTION 0.400 – ADOPTION ASSISTANCE: GENERAL … .0405 CATEGORIES OF ASSISTANCE AND EXTENT OF BENEFITS
- (a)
- There are three categories of adoption assistance:
- (1)
- monthly cash payments;
- (2)
- vendor payments to providers of medical services;
- (3)
- vendor payments to providers of psychological, therapeutic, and remedial services. (Emphasis added)
The Administrative Code provision, which was promulgated by the Social Services Commission, specifically describes vendor payments as a category of adoption assistance. Moreover, it follows that the intent of the Legislature and the Social Services Commission is to provide assistance to persons willing to adopt children with special needs, and of far less importance is whether the assistance is paid directly to the adopting parents (as provided for in the statute) or to the provider (as provided for in the N.C.A.C.).
In addition, the beginning of Chapter VI of the Family Services Manual states:
Adoption Assistance is available to reduce financial barriers that may impede the adoption of children with special needs who live in foster care. If a child is found eligible for it, Adoption Assistance is available in the form of monthly cash payments paid directly to the child’s adoptive parents and/or in the form of vendor payment benefits, which are paid directly to the provider of treatment or services for which the child has been found eligible. (Emphasis added)
Subparagraph A (1). Once again adoption assistance and adoption assistance vendor payments are thought of and addressed in virtually the same way. Both are a form of public assistance, the purpose of which is to encourage adopting parents to take on the financial burdens of adopting children with special needs. The fact that vendor payments are not a federal program for which federal funds are available is irrelevant. Vendor payments could be referred to as something else, e.g., an adoption stipend, adoption award, or adoption consideration; however, the fact remains that vendor payments are nothing more or less than a form of public assistance.
Finally, there is the issue of retroactive payments. Nothing is suggested in the law or regulations that will require unlimited retroactive payments. The latest revision to Chapter VI of the Family Services Manual provides as follows:
2. Retroactive Payments
Retroactive monthly payments will be made to the adoptive parents, when applicable, for new cases only and are to be requested by the child’s agency in accordance with procedures outlines in the Services Information System (SIS) User’s Manual.
A retroactive payment would be in order if the child’s agency is unaware that the adoption has been finalized for a period of time exceeding one month. Payment in full shall be made for each month that has passed from finalization of the adoption.
(For children who are not approved for vendor payment benefits until after entry of the Final Order, payments are to be made only for those services provided on or after the effective date of the Adoption Assistance Agreement.)
Section I, Paragraph G, subparagraph 2 dated 1-1-93. Apparently the Division of Social Services has already taken a position on this question. In any event, the Division of Social Services may formulate whatever policy it wishes regarding retroactivity.
MICHAEL F. EASLEY Attorney General
Ann Reed
Senior Deputy Attorney General Robert J. Blum Special Deputy Attorney General