Advisory Opinion 2016-004

Financial Eligibility and Income Attributable to Foster Children in Group Homes and Nursing Homes (45 C.F.R. Part 1611)

QUESTION PRESENTED

Are financial support payments from governmental programs to group homes for foster children and nursing home facilities for medically fragile foster children considered “income” attributable to individual foster children for purposes of determining financial eligibility of a foster child for LSC-funded legal assistance?

BRIEF ANSWER

No. Financial support from governmental programs to group homes for foster children is not considered income attributable to an individual child for purposes of financial eligibility for LSC-funded legal assistance. Nor are financial support payments from governmental programs paid to nursing homes for the support of medically fragile foster children considered income attributable to the foster child for purposes of determining financial eligibility for LSC-funded legal assistance. These payments may be considered income attributable to the child only when the funds actually are available to the child, such as when a portion of the payment is designated as an allowance for the child’s use.

BACKGROUND

A recipient of LSC funding has inquired whether financial support payments received by group foster homes and nursing homes from local governmental entities is considered “income” attributable to individual foster children residing in those group homes and nursing homes. The local group home in question receives approximately $140 per day per foster child from a local government program, which is paid directly to the group home. The amount of financial support is negotiated between the local agency and the group home. With the exception of a small allowance (approximately $20-$40 per month), these funds are not available to the child. Similarly, with respect to medically fragile foster children living in nursing homes, the financial support from the government program is paid directly to the nursing homes, and these funds are not available to individual children. Depending on a foster child’s disability, the nursing home may receive several thousand dollars a month to care for a child.

If the total amount of financial support received by the group homes or nursing homes for the care of the individual foster child is considered “income” attributable to individual foster children, then a foster child residing in the group home or nursing home typically would not be eligible for LSC-funded legal assistance.

AUTHORITY

Section 1007(a) of the Legal Services Corporation Act (LSC Act) requires LSC to establish guidelines for recipients to determine the financial eligibility of applicants for legal assistance. 42 U.S.C. § 2996f(a). LSC implemented this statutory mandate at 45 C.F.R. Part 1611, which “sets forth requirements relating to the financial eligibility of individual applicants for legal assistance supported by LSC funds and recipients’ responsibilities in making financial eligibility determinations.” 45 C.F.R. § 1611.1.

“In making financial eligibility determinations regarding individual applicants, a recipient shall make reasonable inquiry regarding sources of the applicant’s income, income prospects and assets.” Id. at § 1611.7(a). Section 1611.2(i) defines “income” as “actual current annualtotal cash receipts before taxes of all persons who are resident members and contribute to the support of an applicant’s household.” 45 C.F.R. § 1611.2(i) (emphasis added). “Total cash receipts include, but are not limited to . . . regular payments from governmental programs for low income persons or persons with disabilities . . . or other regular or recurring sources of financial support that are currently and actually available to the applicant.” Id. “Total cash receipts do not include . . . non-cash benefits[.]” Id.

ANALYSIS

Whether support payments made by state or local government entities to foster parents, group homes for foster care, or nursing homes for the care of foster children constitute “income” under section 1611.2(i) attributable to the foster child depends on two factors: (1) the recipient’s definition of household, and (2) the extent to which money from the support payments is available to the foster child.

Part 1611 does not define the term “household.” Instead, it expressly authorizes recipients to define the term. See 45 C.F.R. § 1611.2(i) (“Income means actual current annual total cash receipts before taxes of all persons who . . . contribute to the support of an applicant’s household, as that term is defined by the recipient”) (internal quotations omitted). In developing a definition for the term “household,” “recipients may consider living arrangements, familial relationships, legal responsibility, financial responsibility, or family unit definitions used by government benefits agencies,” along with other relevant factors, in establishing their definitions of “household.” 70 Fed. Reg. 45545, 45548 (Aug. 8, 2005) (quoting OLA External Opinion EX-2000-1012).

“For LSC eligibility purposes, a foster child, regardless of age, may be considered as a family unit separate from the family unit of his or her foster parents.” EX-1999-18 (addressing the income to be attributed to a foster child living with foster parents). Thus, recipients may consider a foster child as a household of one. If, under the recipient’s definition of “household,” the recipient considers a foster child as a household of one, then payments made by governmental entities to foster parents, foster care group homes, or nursing homes are not considered “income” attributable to the foster child unless money from those payments is received by or made available to the foster child directly. To the extent that EX-1999-18 suggests that these payments from governmental entities to foster parents, group homes, or nursing homes are attributable to foster children that the recipient considers a household of one, that opinion is withdrawn.

Regardless of whether the recipient considers a foster child to be a household of one, monies received by a foster child directly that are currently and actually available to the foster child when applying for LSC-funded legal services constitute income attributable to the foster child. This principle applies if the foster child is living in the care of foster parents or living in a group home or nursing home. See 45 C.F.R. § 1611.2(i); EX-1999-18. Therefore, monthly allowance payments (here, $20-$40 per month) to a foster child living in a group home or nursing home, to the extent they are currently and actually available to the foster child, are considered “income” under section 1611.2(i) attributable to that foster child for purposes of financial eligibility.

CONCLUSION

Payments from state or local governmental entities to foster parents, group homes, and nursing homes for the support of foster children do not constitute “income” attributable to an individual foster child under section 1611.2(i) for purposes of financial eligibility, unless such monies are currently and actually available to the foster child. To the extent that monies from state and local governmental entities are made available to the foster child, such as through the provision of a monthly allowance, the amount of those payments should be considered income attributable to the child under section 1611.2(i) for purposes of determining financial eligibility.

RONALD S. FLAGG
General Counsel
Office of Legal Affairs